Birmingham City Council v Paul & Ors [2017] EWHC 1027 (QB)

Case No C90BM249[2017] EWHC 1027 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Venue Birmingham Civil Justice Centre,, 33 Bull Street, Birmingham B4 6DS.Date 27/4/2017
Before
HIS HONOUR JUDGE McKENNA(Sitting as a High Court Judge)
Between
BIRMINGHAM CITY COUNCILApplicantMR. A. M. PAULFirst RespondentMR. T. S. BHUEESecond RespondentMR. Z. IQBALThird Respondent
Transcribed from the digital recording by Marten Walsh Cherer Ltd.,1 st Floor, Quality House, Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. Fax No: 020 7831 6864
MR. MANNING of counsel appeared for Applicant Local AuthorityMR. KREGHLING-SMITH of counsel appeared for First and Second RespondentsMR. BAXTER of counsel appeared for Third Respondent
JUDGMENTJUDGE McKENNA:
[1]On 3rd of October 2016 His Honour Judge Worster, sitting as a judge of the High Court here in Birmingham, granted an injunction addressed to persons unknown in these terms:
"All persons are forbidden from participating in a street cruise within the Claimant's local government area, known as the City of Birmingham, the boundaries of which are delineated in blue on a map attached to the order. It is also forbidden for anyone to promote, organise or publicise in any manner any street cruise within the defined geographical area as delineated in the map in schedule 1."
[2]The terms "street cruise" and "participating in a street cruise" are then defined. There were provisions set out for service.[3]Birmingham City Council today apply to commit three individuals, Mr. Bhuee, Mr. Paul and Mr. Zafar Iqbal to prison. In each case what is said against those individuals is that on Sunday, 5th of March 2017 at about 9.30 p.m. in the evening each of those individuals, in breach of paragraph 1 of the order of His Honour Judge Worster, were, within the area delineated in blue on the map attached to the order, racing their respective vehicles. The city council rely on witness statements in the form section 9 statements from three police officers who were present at the material time. They are P.C. Neil Roberts, P.C. Steven Hudson and P.C. Mark Hodgson. There is also reliance placed on an affidavit from David Bird, an employee of Birmingham City Council, which sets out in some detail the very considerable efforts made by Birmingham City Council to draw the general public's attention to the terms of the injunction.[4]I should add that the court has also had the benefit, in addition to reading the witness statements of the three officers, seen a DVD showing a recording made in one of the police officer's vehicles of the three Respondents and their vehicles and therefore has been able to identify that at the material time the road conditions were wet, it was dark and the speeds reached by the three Respondents were in excess of 130 miles per hour, initially on a dual carriageway where the national speed limit is seventy miles an hour, but where at one point that speed limit as a result of the existence of road works is reduced from seventy to forty and then from forty to thirty. It is also fair to record that the three Respondents can be seen to be slowing down and coming to a halt as soon as reasonably practicable after the police officer in the chasing vehicle switches on his blue light.[5]Given that each of the three Respondents accepts the substance of the allegations made against them, there is no need for me to go into the evidence of the three officers in support, still less to set out in any detail the attempts made by Birmingham City Council to draw the terms of the injunction to the attention of members of the public. Suffice it to say that each of the three Respondents accepts that they are in breach and accept that they knew of the terms of the injunction.[6]This court therefore is really only concerned with the issue of sentence. Again, each of the three Respondents, through their respective advocates, accepts that the custody threshold is passed and the issues for this court really are(1) the length of any sentence and(2) whether, in the light of the personal and other mitigation put forward on each of the Respondent’s behalves, any sentence should be suspended rather than immediate.[7]On any view the conduct of the three Respondents was highly irresponsible. Their conduct in driving at excessive speed in the way that can be seen on the DVD is a serious breach of the injunction granted by His Honour Judge Worster and each of the Respondents must have known that that was the case when they embarked on the course of conduct that they did.[8]Regardless of the terms of the injunction they must have realised that to drive at speeds of in excess of 130 miles an hour on a seventy mile an hour dual carriageway was, at best, reckless and, frankly, positively dangerous and of course even worse, given the weather conditions at the time.[9]Secondly, as it seems to me, the three individuals were acting together as part of a group and were clearly intent on deliberately flouting the terms of the injunction. That was their common purpose. These are, as it seems to me, aggravating aspects of the Respondents' conduct.[10]That said, there is some mitigation in respect of each of the three Respondents. All three Respondents have accepted the substance of the allegations made against them, effectively at the first available opportunity. In those circumstances I am asked - and I accept - that I should give credit. They have not sought to defend what might be said to be the indefensible. They have not sought to argue that they were unaware of the terms of the injunction and the like. As I say, they are entitled to some credit for that.[11]I am told - and I accept - that in each case it is a first offence. None of the Respondents has a criminal record and I am told - and I accept - that they are remorseful for their actions on that night and I give credit for that.[12]Dealing specifically with Mr. Zafar Iqbal, I am told that he is the owner of a car garage in West Bromwich. He employs four employees. He is supported today by his wife. He has three young children, aged five, nearly three and one and has a bedridden mother for whom he is a if not the principal carer.[13]The other two individuals are both single, as I understand it, and it is said on their respective behalves that they have learnt their lesson. It was, in their words, "a moment of madness" and one not to be repeated.[14]What, then, should I do as to sentence? Given the very serious nature of the breaches, the very high speed at which all three vehicles were being driven by the three Respondents, it seems to me that in respect of the allegation each Respondent should be sentenced to a term of imprisonment of six-months. But for the mitigation which has been put forward, and to which I have referred and in particular the early admission and the lack of any previous breaches, the sentence would, in each case, have been nine-months.[15]As to whether or not this sentence should be immediate or suspended, by a narrow margin, and I say it is by a narrow margin, having regard to the deterrence effect of such a sentence, I have concluded, in the light of the mitigation, that the sentence should be suspended in each case for the balance of the period of the injunction [that is to say until 24th October 2019] and on terms that each of the Respondents comply for the future with the terms of the injunction.[16]Each Respondent should be in no doubt that if there is any further breach of the injunction proved to the requisite standard against them, in addition to any sentence that will be imposed by the court on that occasion, the suspended sentence which I impose today will be activated and therefore a lengthy sentence in prison can be expected.[17]In coming to the conclusions that I have as to sentence, I am aware of the fact that each of the three Respondents is due to attend the magistrates' court on, I think, 5th of June where they face three separate charges, one of dangerous driving, one of driving without insurance and one of racing in a public place. As I understand it, they have pleaded not guilty.[18]The sentence I have imposed is in respect of the breach of the injunction granted by His Honour Judge Worster. It is a matter for the magistrates' court what sentence it imposes should the offences be proved, but, no doubt, the magistrates will be informed of the sentence which I have imposed today.[19]Mr. Manning, is there any application for costs? (Counsel addressed the court on the question of costs.)[20]Costs are in the discretion of the court. The usual order is the unsuccessful party should pay the successful party's costs. In this case Birmingham City Council have been successful, they are entitled to their costs. I order that each of the Respondents should pay £750 in respect of the City Council's costs of pursuing the committal applications against them, payable in fourteen days.