Case No: B2/2008/1054
Neutral Citation Number: [2008] EWCA Civ 632
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEWSBURY CROWN COURT
(HIS HONOUR JUDGE BARTFIELD)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21st May 2008

Before:

LORD JUSTICE RICHARDS
LORD JUSTICE LAWRENCE COLLINS
and
LORD JUSTICE STANLEY BURNTON
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Between:

	KIRKLEES COUNCIL
	Appellant	
	- and -		
	
DAVIS	
Respondent	

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(DAR Transcript of 
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Ms C Hudson (instructed by Messrs Redfearns) appeared on behalf of the Appellant.

Ms H Greatorex (instructed by Kirklees Council) appeared on behalf of the Respondent.
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Judgment

Lord Justice Stanley Burnton:

1.	This is an appeal from an order of HHJ Bartfield at Dewsbury County Court made on 24 April 2008, when he sentenced the appellant, Jonathan Davis, to three months’ imprisonment for contempt of court, the contempt consisting of his established but, until proved, denied breach of an order made by the court under sections 153A and 153C of the Housing Act 1996, on 11 March 2008.   That order was subject to a power of arrest.
2.	The order had been made on the basis of allegations of conduct against two neighbours of the appellant: Claire Banks who lives at 52 Foldings Parade and Heather Bate at 56, both of them being single mothers.  The appellant lived at that time at 62 Foldings Parade with his partner or fiancée Helen Williamson, who was a tolerated trespasser of the local authority as a result of her arrears of rent.  She and the appellant’s sister are also defendants to the proceedings and at the time all were living at 62 Foldings Parade.
3.	The conduct in question consisted, if the allegations are true, of a long and very serious campaign consisting of insults, many of which were racial in nature, abuse, threats, the use of a dog or dogs and worse; and there is no doubt that if those allegations are true, the order that was made on 11 March was aptly justified.  Both Claire Banks and Heather Bate deserved and required the protection of the court from the kind of harassment and threats of which, according to their evidence, the appellant had been guilty.
4.	The injunction was served on the same day, 11 March 2008, by a process server.  He swore in an affidavit as to the conduct of the appellant on service, which indicated, insofar as what he said in extreme terms, that it was not an order with which he would comply.  He immediately acted in breach of the injunction.  The breaches are set out in a helpful schedule, and were effectively repetitions of the kind of conduct that it was alleged had preceded the grant of the injunction.  The breaches, as set out int eh schedule, involved: throwing something at Heather Bate’s house; shouting, “You fucking bitch, I will kill you”; standing within the exclusion zone which was established by the injunction; calling Heather Bate a “slag”; saying, “You won’t have a house to wake up to in the morning” to Claire Banks; saying, “You’re going to pay for getting this injunction” to her; and throwing a brick at Heather Bate’s house.  
5.	All those were extremely serious matters.  All that could be said on his behalf in mitigation is that they were committed immediately upon and in thoughtless reaction to the service of the injunction. They certainly showed a deliberate willingness to breach the injunction, an unwillingness to accept its constraints and, as I have said, conduct which was a repetition of that which it was alleged had preceded the grant of the injunction.
6.	As a result of those matters he was arrested on 12 March.  There was a hearing on 13 March and directions were given and he was ordered to be remanded in custody.  There was a further remand on 19 March.  On 27 March he came before HHJ Finnerty.  There were negotiations between the parties.  It was said on behalf of the appellant that he could live at an address outside the estate where the mother of Miss Williamson lived, on the basis that he could live at that address and therefore would have no need to come into the estate; and, no doubt on the basis of some indication that he would comply with the injunction, the injunction was varied by HHJ Finnerty.  The exclusion zone which had been part of the original order, which had not encompassed the address where he was living, was enlarged so that it did include that address, and he was released on conditional bail; bail being conditional effectively on his complying with the terms of the modified injunction.
7.	That of course was all based on the allegations which had been made and were not at that date proved, and the appellant swore an affidavit on 27 March denying that he had been in breach of the injunction at all.  On 1 April his partner and fiancée, Helen Williamson, also swore an affidavit disputing that he had acted in breach of the injunction.  On 8 April the proposed committal hearing was adjourned and bail was continued.  
8.	On 17 April there was an incident which formed the basis of a further allegation of contempt of court and that is his return to the exclusion zone to sleep.  He clearly was aware that the address to which he went that night was one from which he had been excluded by an order of the court.  The judge found, despite his denial, that he had entered the exclusion zone on that date and the judge regarded that as a flagrant breach of the injunction, as well he might.  Clearly the appellant was aware of the area covered by the exclusion zone.  He had already been committed in custody and was well aware of the consequences of a breach of the injunction, but nonetheless returned to the zone.  
9.	The only mitigation that can be said to apply to that occasion is that he appears to have become homeless as a result of some dispute -- of the nature of which this court is unaware -- between himself and the mother of Miss Williamson. That dispute, to use the most neutral expression, has led to a criminal charge or charges against the appellant, which are the subject of an appearance in either the Crown Court or the Magistrates’ Court on this Friday and he has been remanded in custody as a result of that.
10.	There were further alleged incidents on 22 April, but as a result of the apparent need for evidence to be obtained to put before the court in relation to those incidents, if they were to be adjudicated upon fairly, it was decided by the local authority not to proceed with those allegations.  There were therefore two sets of allegations before the judge at the committal hearing which took place on 24 March 2008.  Those were the incidents immediately upon service of the order to which I have referred, plus his return to the exclusion zone on 17 April.   All of those allegations were denied by the appellant but the judge found them to be proved and there is no appeal against that finding.  On the basis of that finding, on both occasions he was in flagrant and deliberate and serious breach of the order.
11.	The judge considered that there were aggravating circumstances within this case.  He referred to the appellant having lied about the breaches.  In my judgment that was not an aggravating feature, but of course it did indicate a complete unwillingness, as the judge said, to face up to the fact that the court had made an order to protect his neighbours, or former neighbours -- an order which he was willing flagrantly to disobey.
12.	In my judgment both of the sentences imposed by the judge were, given the background to this case and given the nature of the breaches, amply justified.  My only concern is that the judge did not expressly take into account the period spent on remand of some 16 days.  He referred to it, and indeed referred to it as a second aggravating factor; namely that after that custodial period and release there had been a further contempt of court and disobedience to the order, but he did not make an order that those 16 days on remand in custody should be taken into account in the calculation of the sentence.  Ordinarily a period of custody on remand before a sentence is imposed ought, as a matter of justice, to count as against that sentence.  It may be spent on remand but it is an actual deprivation of liberty.
13.	In those circumstances I would allow this appeal but solely to the extent of ordering the 16 days spent on remand to count as against the total sentence.  It will be clear, I hope, from my judgment that any repetition of the conduct of the appellant in breach of the order of the court is likely to be met with a sentence as serious as or even more serious than those imposed on this occasion.
Lord Justice Richards:
14.	I entirely agree.  Mr Davis must understand that he has to obey the orders of the court.
Lord Justice Lawrence Collins:
15.	I also agree and would only add the court’s thanks for the clear, concise and helpful submissions by Ms Hudson for the appellant and Ms Greatorex for the respondent.

Order: Appeal allowed