Housing Barrister Summary of Lovett v Wigan Borough Council [2022]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Lovett v Wigan Borough Council (Re Breaches of ASBIs) [2022] EWCA Civ 1631.

This judgment dealt with three related appeals concerned with breaches of anti-social behaviour injunctions (“ASBIs”) made under the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). The appeals were based upon ASBIs, with committal applications that followed which resulted in sentences being handed down for breach of the ASBI orders. The Court of Appeal considered general principles of sentencing for breach of ASBIs as well as the Report by the Civil Justice Council (“CJC”) dated July 2020 entitled “Anti-Social Behaviour and the Civil Courts”.

The facts

In short form the facts of each appeal were as follows:

• Following a committal application, Ms Hopkins admitted one breach of the ASBI with her landlord electing not to pursue the remaining allegations. The district judge decided to adjourn sentence for six months although the order recited that if the court had imposed a sentence at that hearing it would have been of 28 days imprisonment suspended on condition of compliance with the injunction. At the return hearing over six months later, the district judge, although excluding a statement containing allegations of recent conduct, decided since there was no evidence that Ms Hopkins had complied with the injunction in the interim, imposed the sentence as originally indicated. Ms Hopkins appealed on grounds that: (i) the sentence was excessive and (ii) in sentencing the judge took into account irrelevant information or failed to take into account relevant information.
• In Mr Smith’s case, following a contested committal application, the trial judge found nine allegations of breach of the ASBI proven against him. He was sentenced to 12 weeks imprisonment suspended for 12 months. Three key grounds of appeal were that: (i) the judgment had not been transcribed and placed on the judiciary website at the proper time, contrary to CPR r81.8(8), (ii) the judge erred in not considering a possession order against the defendant as an alternative to committal, and (iii) the judge was wrong to determine the committal application without determining whether Mr Smith was eligible to apply for legal aid.
• In Mr Lovett’s case, following a contested committal application, he was found to have breached the ASBI prohibiting him from being in his home overnight on 21 occasions. He was sentenced to 30 weeks custody for each breach, to run concurrently, with the sentence to be served concurrently with a previous custodial sentence. The issues in Mr Lovett’s appeal included whether the judge was right to find Mr Lovett in breach of the injunction and whether he could, on the appeal, challenge the injunction itself, and other related issues. Since however the appeal did not relate to the sentence imposed, its consideration is beyond consideration below. He was unsuccessful on all grounds of appeal.

Principles outlined

The following points are derived from the judgment:

• There are no special rules related to proceedings for breach of orders under the 2014 Act and the general provisions governing such proceedings under CPR Part 81 apply, including that deputy district judges can make ASBIs and can hear committal proceedings relating to an order made under the 2014 Act [25-26];
• The importance of legal representation for respondents to committal proceedings who are entitled to non-means-tested legal aid if they want it and the obligation on the court to ensure that this is made available were highlighted [27];
• A key difference between sentencing in crime and sentencing as a penalty for contempt, in the sense of the relative significance of punishment as compared to ensuring future compliance with the order, is that the emphasis in civil contempt is on the objective of ensuring future compliance with the order [33]. Save in special circumstances (such as when the breach itself is a criminal offence), the current Sentencing Council guidelines which relate to breach of a Criminal Behaviour Order can only be relevant in the very broadest and generalised sense and to directly transpose sentence length from the Sentencing Guidelines is likely to be wrong [36];
• The objectives of sentencing for breach of an order under Part I of the 2014 Act are the ones applicable to civil contempt, namely (in this order):
• Ensuring future compliance with the order;
• Punishment; and
• Rehabilitation [39];
• Suspension and adjournment may provide an occasion for amendments (if appropriate) to the injunction itself, as well as an opportunity to impose a variety of conditions, perhaps including a positive requirement [41];
• The concept of a custody threshold has application. Custody should be reserved for the most serious breaches, and for less serious cases where other methods of securing compliance with the order have failed [43];
• It is good practice to consider a penalty for each breach found proved, and the terms of imprisonment may be concurrent or consecutive to each other. Nevertheless, consideration must also be given to the totality of the penalties. Simply adding up what may well be appropriate penalties for each individual breach is likely to lead to an excessive total [43];
• If custody is appropriate, the length of the sentence should be decided without reference to whether or not it is to be suspended [44];
• Suspension is usually the first way of attempting to secure compliance with the underlying order. However, another first option in many cases will be to adjourn the consideration of a sentence. An indication of what sentence would have been imposed if the matter had not been adjourned is likely to be appropriate, together with a clear statement of what the consequences of good or bad conduct in the intervening period will be [45];
• If a sentence is adjourned and there is no evidence of breaches of the order or any other relevant bad conduct in the interim, the ultimate sentence should usually be a lesser sentence than would be imposed if the case had not been adjourned. In the most minor cases, the court may decide that the impact of the proceedings is likely to achieve the desired purpose and that it may be appropriate to make no order, save for the finding of breach. Such means of disposal will mean that any future breach of the order will be treated as substantially more serious [45];
• The approach in crime of giving distinct consideration to the degree of harm and the degree of culpability also has application. The CJC Report (Annex 1) proposes a scheme based on the three levels each of culpability and harm. The CJC’s proposed scheme is a valuable tool for judges to use, always bearing in mind that sentencing is highly fact sensitive and the facts will vary widely [46];
• Examples of factors increasing seriousness include a history of disobedience and the particular vulnerability of any victim of the behaviour concerned. Persistent breaches of the injunction are likely to amount to an important aggravating factor. Examples of mitigating factors include genuine remorse, ill health, and age or lack of maturity when it affects the responsibility of the contemnor. An early admission of contempt (together with an appropriate apology) will usually serve as a significant mitigating factor [47];
• For the highest degree of culpability and harm, category A1, the CJC Report proposes a sentence of six months as the starting point with a category range of eight weeks to 18 months. The Court of Appeal agreed that those are both appropriate as general guidance. The scaling and the arrangement of the remainder of the table were also considered to make sense bearing in mind the range of options available [53].

Application to the appeal cases

In the case of Ms Hopkins, the Court of Appeal considered that the indication of a 28-day suspended sentence at the initial hearing was too severe. B2 was not the correct category classification; rather B3 was in terms of culpability and harm, meaning the starting point would have been to adjourn consideration [61-62]. Moreover, the wrong approach was taken at the adjourned hearing; since there was no evidence of a breach in the interim, then the sentence imposed should be less severe [65]. Her appeal against the sentence accordingly was allowed and replaced with no order.

In the case of Mr Smith, on the first ground it was held that while a failure to transcribe and publish a judgment of this kind was a serious irregularity, it did not justify allowing an appeal against the sentence imposed [69]. On the second ground, it was noted that an order for possession is not another penalty which the court can consider in the context of sentencing for contempt on an application under Part 81. It is a particular remedy available under the Housing Act and specific proceedings are brought under CPR 55. Since no such application had been made, the judge could not be faulted for not taking it into account [70]. The third ground of appeal was also unsuccessful, Mr Smith was legally represented at trial, therefore his eligibility for legal aid was irrelevant [71]. Mr Smith’s sentence of 12 weeks was however reduced to one month as the judge had derived a starting point of 12 weeks by directly applying the Sentencing Council guidelines for breach of CBO and to use it this way was a clear error [74].