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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gill v Birmingham City Council  EWCA Civ 608 (28 June 2016)
Cite as:  EWCA Civ 608
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ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
HER HONOUR JUDGE CARMEL WALL
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
| MR THOMAS GILL
|- and -
|BIRMINGHAM CITY COUNCIL
Clare Cullen (instructed by Birmingham City Council Legal Services ) for the Respondent
Hearing date: Tuesday 24 May 2016
Crown Copyright ©
Lady Justice Gloster :
The background facts to the appeal
"Thomas Gill, whether by himself or by instructing or encouraging any other person shall not
(1) assault, harass, intimidate, pester, threaten or use violence against Miss Sarah Jordan of 6 Pudsey Drive, Sutton Coldfield, Birmingham.
(2) communicate by any means whatsoever verbally or otherwise with Miss Sarah Jordan, including but not limited to by telephone, text message, email, facebook or any other social networking site, except through a solicitor or social worker for the purpose of arranging contact with their son.
(3) … enter the area outlined in red on the map attached, (which shows Miss Jordan's property at the centre of a wider exclusion zone).
(4) enter Bath Row, Edgbaston."
i) On 29 July 2014, HHJ Robert Owen sentenced the appellant to 36 weeks imprisonment (to be served concurrently). On this occasion, the breaches related to the appellant sending over 184 abusive and threatening text messages to Miss Jordan, making telephone calls to her landline and entering the exclusion zone.
ii) On 12 June 2015, DJ Shorthose sentenced the appellant to 8 weeks imprisonment. On this occasion, the breaches concerned the appellant sending eight facebook messages to Miss Jordan on 11 May 2015.
iii) On 13 August 2015, HHJ Mickay QC sentenced the appellant to 9 months imprisonment. On this occasion the breaches concerned the appellant entering the exclusion zone and seeking to communicate with Miss Jordan in a series of incidents on 4 July 2015 at 1am, 2.35am and 3.35 am and entering the exclusion zone and communicating with Miss Jordan on 30 July 2015 (the incident on 30 July 2015 took place whist the appellant was on bail for the breaches on 4 July 2015). The appellant applied to purge his contempt and was discharged from custody.
i. On 4 December 2015, at approximately 9.18pm, the appellant or his brother on the appellant's instructions pestered and/or communicated with and/or harassed and/or intimidated Miss Jordan by sending a facebook message. This was alleged to be in breach of paragraphs 1 and 2 of the ASBI. The appellant denied this alleged breach.
ii. On 7 December 2015, at approximately 10.05pm, the appellant attended Miss Jordan's property and left an Xbox and magic set inside a bag. Inside the bag was a Dictaphone with the appellant's voice saying "fucking bastards, cunts, cunts, cunt." This was alleged to be in breach of paragraphs 1, 2 and 3 of the ASBI. The appellant admitted this allegation in his witness statement filed in advance of the hearing. However he alleged that he attended Miss Jordan's property at her request because she had indicated that their son wanted a magic box and an X-box. He also said that the tape on the Dictaphone was a rap recording of some lyrics which she had requested because she was a youth counsellor. This admission was confirmed in oral evidence.
iii. On 9 December 2015, at approximately 10.40pm, the appellant attended Miss Jordan's property, blew her a kiss and shouted "I love you bab, marry me". This was alleged to be in breach of paragraphs 1, 2 and 3 of the ASBI. At trial, the appellant admitted that he went to Miss Jordan's property but denied that he said all the words alleged.
iv. On 7 January 2016, at approximately 1.45am, the appellant attended Miss Jordan's property, verbally abused her by shouting "slag, slut" and began kicking her doors really hard and threatening violence by shouting "I'm gonna get a gun and blow your fucking head off" whilst making a gun gesture with his hand. As the appellant was walking away, he shouted "And watch when I see your brother I'll fucking shoot him too". This was alleged to be a breach of paragraphs 1, 2 and 3 of the ASBI. The appellant admitted this allegation in his oral evidence but denied that the threats were directed at Miss Jordan. By 12 February 2016, the appellant had pleaded guilty to a criminal offence in respect of this incident in the Magistrates' Court but was awaiting sentencing. The memorandum of conviction records a conviction for harassment contrary to section 2(1) and (2), Protection from Harassment Act 1997. The respondent has, however, been notified by the CPS that the harassment charge was not pursued and instead the appellant pleaded guilty and was convicted of a public order offence of using threatening/abusive/insulting words/behaviour to cause harassment/alarm/distress.
v. On 7 January 2016, at approximately 6.00 am, the appellant entered the rear of Miss Jordan's property, smashed the rear double-glazed window and was seen running out of the back garden towards open fields. This was an alleged breach of paragraphs 1 and 3 of the ASBI. The appellant admitted this allegation. By 12 February 2016, the appellant had pleaded guilty to criminal damage contrary to sections 1(1) and 4 of Criminal Damage Act 1971 in respect of this incident in the Magistrates Court but was awaiting sentencing.
vi. On 19 January 2016, at approximately 7.40pm, the appellant attended Ms Jordan's property. This was an alleged breach of paragraphs 1, 2 and 3 of the ASBI. The appellant denied this allegation.
vii. On 21 January 2016, the appellant attended Miss Jordon's property and was later found hiding in a bush in a nearby garden. This was an alleged breach of paragraphs 1, 2 and 3 of the ASBI. The appellant admitted this allegation.
"5. This case requires me to compare and consider the evidence from Sarah Jordan and from the respondent [i.e. the appellant] about specific allegations made and I remind myself when I do that that it is the applicant [i.e. the respondent] who must prove its case in relation to each allegation and that the claimant must prove the case to the criminal standard. That standard is so that I am sure or that it is proved beyond reasonable doubt, to use another expression, that the respondent has committed the breaches that are alleged against him.
6. In considering the evidence, I say at the outset that I found Miss Jordan to be a straightforward and honest witness in giving her account. I found her evidence to be clear. I am not persuaded that her withdrawal of an allegation in 2013 undermined her evidence in any way. Quite the contrary, it seemed to me to show that she was willing to accept when she had made a mistake and she was very clear that, in relation to matters to which I will turn in a moment, she had not made a mistake in these proceedings.
7. When I consider the arguments that are raised by the respondent [i.e. the appellant] as to why I should reject her evidence, I do not find them convincing. He firstly invites me to find that Miss Jordan is not a truthful witness because she has given inconsistent evidence about the length of their relationship and the age of their son. It seems to me that the type of relationship that the respondent and Miss Jordan have had, means that any differences in description of its duration do not amount to a significant inconsistency in evidence. Any previous error in the age of her son is, clearly, a straightforward mistake and does not indicate that she is an inconsistent or unreliable witness.
8. I have already addressed the second point that the respondent has made to me about the previous allegation that was made in 2013, an allegation which she withdrew, having accepted that she had made a mistake on that occasion."
"9. The account that the respondent gives, that Miss Jordan who is trying to pull him back into a relationship by deception, is simply not credible when one takes into account of the fact that it is the respondent who keeps going back to her property. That makes no sense at all when he says that he does not wish to have any relationship with her and is not obsessed with her. In my judgment, it supports the contrary assertion, that he does want or did want to resume a relationship and that was why he persisted in breaching this injunction and attending at her property, often in breach of bail conditions imposed firstly by this court and also by the criminal courts.
10. The respondent in this case has claimed to be truthful throughout but it is right to say that he has only today made partial admissions in relation to many of the allegations in the notice of committal. In relation to a specific part of the case that is made against him, which is the allegation that he threatened violence on 7th January, at the outset, he did not accept that he had done it at all. Then, in cross-examination, he did accept that he had threatened violence but qualified his admission by saying it was directed at another person and not Miss Jordan. It seems to me that these changes are a strong indication that he has not been straightforward or truthful in his evidence.
20. Finally, in considering the respondent's case as a whole, there is no persuasive evidence to show that this case is one of Miss Jordan harassing the respondent, as the respondent claims. It is rather the respondent who has consistently gone back to her property to undertake what amounts to a campaign of pestering and harassment."
Conclusions in relation to the alleged breaches of the ASBI
"21. It follows then that in relation to the first allegation, I find that there is a breach of terms 1 and 2 of the order, in relation to the fifth allegation a breach of terms 1 and 3 of the order and in relation to each of the other four allegations, I find that there are breaches of terms 1, 2 and 3 of the order."
"29. As I say, based on your partial admissions and the evidence of Sarah Jordan, I have found those matters proved to the criminal standard.
30. I now have to sentence you in relation to the totality of those breaches. I take account of the fact that the purpose of sentence in committal proceedings is to punish you for breaches of the court order, to secure future compliance with the order and also have regard to your rehabilitation and that I must weigh the aggravating and mitigating factors of these breaches.
31. I turn, firstly, to the aggravating factors. I am satisfied that these were deliberate and intentional breaches. This injunction was designed to protect Sarah Jordan by keeping you away from her and her home. That was the purpose of the exclusion zone and the purpose of paragraphs 1 and 2. Each breach has involved you either communicating with her or, in respect of six of the seven breaches, deliberately attending at her address at times when she was bound to be at home.
32. Next, I take the view that they are serious breaches. In particular, the breaches on 7th January are serious. The breach at 1.45 in the morning involved threats of serious violence. The breach at six o'clock in the morning when you went back to the property involved actual damage to the property when you smashed the window.
33. Thirdly, I take account of the timing and location of the breaches. I have already referred to the fact they occurred at Miss Jordan's home. The breaches, by and large, occurred at night or in the early hours of the morning. I have heard evidence from Miss Jordan about the effect of the breaches on her. She described herself, and I accept her evidence, as being scared of her own shadow, having to put plastic over the windows, fit extra security and padlock her back gates and it is clear that your conduct is causing significant distress to her. I am satisfied that she is a vulnerable person because she is the sole carer of a young child who is now aged 8 who lives at the property and who has, in fact, been present on most of the occasions when this order has been breached.
34. I attach weight to the fact that your conduct shows a total disregard of court orders. These breaches occurred on seven separate occasions over a one and a half month period shortly after you were released from custody in October 2015 when you purged your contempt in relation to the last committal sentence that was passed upon you. In these proceedings, you were granted bail. Having been granted bail on 23rd December, 2015 you went on to breach the injunction on a further four occasions. On the last two of those occasions, on 19th and 21st January, you had been granted conditional bail in criminal proceedings. Those criminal proceedings arose out of the events on 7th January. Not only did you breach the order again while on bail granted in these committal proceedings, but you breached the conditions attaching to the bail granted in the criminal proceedings, which were conditions of no contact with Miss Jordan, a curfew and to keep away from Miss Jordan's address. There is no indication from your past conduct that you have respect for any form of court order or that you are likely to comply with court orders in the future.
35. I attach weight also to the history of breaches that have been dealt with by earlier separate committal proceedings on three other occasions. On 29th July, 2014 His Honour Judge Robert Owen QC passed a sentence of 36 weeks. District Judge Shorthose on 12th June of last year passed a sentence of eight weeks and His Honour Judge Mithani QC passed another sentence of nine months on 18th August 2015. Yet, within a matter of months after coming out of custody, you were breaching the order again.
36. I must also consider the history generally of this matter, that there has been a history of injunctions being taken out for domestic violence and that this injunction, in its present form amended in 2014, in fact dates back to 2012.
37. Finally, I have regard as an aggravating feature to your character generally. Your antecedent history which I have been shown shows a number of previous convictions which include in 2006 and 2009 carrying a bladed article; threats to kill in November 2006; and, more recently, assault occasioning actual bodily harm on 2nd November 2012 when you were sentenced to 20 months imprisonment. The fact of those convictions means that the harassment and your threats of violence carry more weight with your victim than they might do if made by somebody without that history of offending.
38. In mitigation, you are still only 28 years old. You did make partial admissions in these proceedings. The credit I can give you for that is limited because it did not avoid the trial taking place and, more importantly, it did not avoid the need for Miss Jordan to give evidence. It is notable that your justification for the hearing today when the breaches were proved was that, as you said, you wanted your day in court.
39. I accept that you have made some effort to rebuild your life, that you have done a bricklaying course in custody and got your CSCS card. You say that you want to work and lead an honest life in the community but it is difficult to attach much weight to that because almost as soon as you come out of custody, you are committing further breaches of this order.
40. I understand there is an emotional context that I take into account. It is clear that you have very great feelings for your son and it also seems that this continual campaign of harassment comes out of a relationship that you have found very difficult to give up. Those are factors that I consider but they do not excuse your conduct and, indeed, the presence of your child when many of the breaches have occurred aggravates rather than mitigates what you have done.
41. The Sentencing Guideline Council suggest a starting point of six months for breaches of an Anti-social Behaviour injunction but that is for a first time offender for these types of offences and you are certainly not a first time offender. In my judgment, there is no alternative to an immediate custodial sentence. If I were to suspend a sentence, I could have no confidence that you would comply with its terms. There is no indication in the way that you have behaved, particularly offending on bail, that if you kept your liberty, the order would be complied with in the future.
42. I pass a sentence which takes account of all the breaches rather than imposing consecutive terms and so I have regard to totality in passing the sentence that, in my judgment, is proportionate to your conduct as a whole and is the least sentence that reflects the seriousness of what you have done. I also have regard to the time you have already spent on remand, which totals 37 days.
43. But for the limited mitigation and the time you have already served, the sentence that I would pass concurrent on all breaches would be one of 18 months. I reduce that to a term of 16 months to take account of the time you have spent and that limited mitigation. You will serve up to half of that sentence in custody and I reserve any applications to purge your contempt. Thank you."
She subsequently amended that sentence for the reasons given in paragraph 44 of the addendum to her judgment where she said as follows:
"44. In approving this transcript I have noted that the sentence passed does not reflect my intention in sentencing.
1. From a starting point of 18 months (concurrent on all breaches) my intention was to reduce the sentence to reflect limited mitigation and then to give full credit for the 37 days Mr Gill spent on remand prior to the hearing. Those 37 days are the equivalent of a custodial sentence of 74 days (because of the effect of section 258 of the Criminal Justice Act 2003).
2. To achieve my intention the sentence should have been one of 14 months and 23 days (concurrent on all breaches). I have varied the committal order to substitute this sentence."
Magistrates Court proceedings
The Appellant's grounds of appeal
i) First, he contends that the evidence against him, mainly consisting of Miss Jordan's evidence, was flimsy throughout and that accordingly the judge could not have concluded to the requisite criminal standard, namely beyond reasonable doubt, that he was in breach of the injunctions. This argument focussed principally on the appellant's contention that the evidence of Miss Jordan should not have been believed or accepted by the judge, not only because she was a liar, as had been proved on previous occasions but also because she was deliberately trying to get him into trouble and to harass him. In particular the appellant complained that the judge had not applied the relevant standard of proof and had based many of her findings on speculation or what the judge "thought".
ii) The appellant's second ground of appeal was that the County Court should not have sentenced him at all in respect to the fourth and fifth breaches of the ASBI because he had already pleaded guilty in the Magistrates Court relating to criminal offences relating to those to breaches and was awaiting sentencing at the time of the committal proceedings. Accordingly the sentence should only have related to other aspects of his conduct in relation to the other breaches.
iii) The third ground of appeal was effectively that the sentence of fourteen months and 23 days imprisonment imposed by the County Court was manifestly excessive. That could be demonstrated by the fact that the sentence of fourteen months was wholly disproportionate when compared with the subsequent sentence of only six weeks imposed by the Magistrates Court. Indeed the appellant submitted that, prior to sentence having been imposed by the County Court, the Magistrates Court had indicated it was not going to impose a custodial sentence on the appellant at all, but only require him to attend anger management courses. In this context the appellant relied upon Slade v Slade  EWCA Civ 748 to support the proposition that in circumstances where there had already been a plea of guilty in the Magistrates Court, the County Court should await the sentencing decision of the criminal court.
The respondent's position on the appeal
i. The county court was the first sentencing court dealing with the incidents on 7 January 2016. HHJ Wall was, therefore, able to sentence for the breaches on 7 January 2016 and to do so without reference to any potential sentence in the Magistrates' Court.
ii. The findings of fact were made applying the criminal standard of proof. HHJ Wall had the benefit of hearing oral evidence and therefore her findings should not be interfered with on appeal.
Discussion and determination
The first ground of appeal – challenge to the judge's findings of fact
"In a case in which the judge has had the benefit of oral evidence from the witnesses, has made findings of fact which are rationally explained, has described in detail his assessment of the respective witnesses as regards their reliability, and where his findings of fact differentiate with care as to what evidence from which witness is accepted in relation to which part of the history, no one witness being accepted as wholly reliable or rejected as wholly unreliable, an appellant who seeks to show that the judge's findings of fact, or some of them, are unsustainable faces a seriously difficult task. The judge's findings as to what was said between the Claimant and the Defendants are primary findings of fact, and his findings as to how the Defendants reacted to what was said to them are at least partly findings of fact, even if there may be elements of inference in that process. It has been said many times, Benmax v Austin Motor Co  AC 370, Biogen Inc v Medeva Inc  RPC 1 and Assicurazioni Generali SA v Arab Insurance Group  1 WLR 577 being only three of the examples of high authority, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue."
See Cook v Thomas  EWCA Civ 227, per Lloyd LJ at .
The second ground – the existence of the Magistrates Courts proceedings
"46. We feel that it would be helpful to offer some guidance on the inter-relationship between the Family Law Act 1996 and the Protection from Harassment Act 1997, as well as on the management of concurrent proceedings in the family, civil and criminal justice systems. The guidance which we give supplements that given by Hale LJ in Hale v Tanner (Practice Note)  1 WLR 2377.
47. However effectively the proceedings are managed, a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act 1997. Of course, the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0–24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless, there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.
48. Clearly, therefore, the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. The defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system. There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed, and that a transcript of its judgment is made available to the second court, as the judge directed in the present case.
49. Experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system. Therefore the application to commit should be issued promptly after the alleged breach and listed without delay. That discipline will ensure that, if proved, the contempt will have been punished before any sentence in parallel criminal proceedings."
Likewise in In Slade v Slade  EWCA Civ 748;  1 WLR 1262, Wilson LJ summarised the case law and principles which apply to sentencing where there are concurrent proceedings at paras -.
The third ground of appeal
"i) the fact that there had been seven breaches of the order;
ii) the fact that six of the breaches related to the appellant visiting Miss Jordan's address late at night or in the early hours of the morning;
iii) the seriousness of the breaches, in particular that committed on 7 January 2016, when there was a threat of violence and damage to property;
iv) the vulnerability of Miss Jordan and the impact that the breaches had on her;
v) that four of the breaches took place whilst the appellant was on bail for breach of the ASBI demonstrating "a total disregard of court orders;
vi) that there had already been three previous committal orders against the appellant."
i) the fact that the appellant had very properly pleaded guilty in the Magistrates Court to the two most serious offences relating to the events of 7 January 2016;
ii) and that on any basis the appellant is a man who is deeply frustrated in his inability to see his son.
Lord Justice Lewison: