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||Neutral Citation Number:  EWCA Civ 468
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Medawar QC)
|| Royal Courts of Justice
Tuesday, 6th March 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE SEDLEY
LADY JUSTICE HALE
||MAYOR AND BURGESSES OF THE LONDON
||BOROUGH OF LAMBETH
||- v -
||JOHN ANDRE HOWARD
(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. D. WATKINSON and MISS B. HARRIS (instructed by Messrs Christian Fisher, London, WC1) appeared on behalf of the Appellant.
MR. A. ARDEN Q.C. and MR. D. KILCOYNE (instructed by the Borough Solicitor, London Borough of Lambeth) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
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- LORD JUSTICE SEDLEY: This case arises from an outright possession order made by His Honour Judge Medawar QC at the Central London County Court on 22nd September 2000 following a three day hearing. The grounds were the persistent and obsessive harassment by the appellant, Mr. Howard, of his neighbour, Miss Tracey Gabriel, and her young daughter. Robert Walker LJ, on Mr. Howard's oral application for permission to appeal, took the view that there was enough in his application, without in any way being sanguine of its success, to merit its renewal on notice before the full court, with the appeal to follow should permission be granted. One element in the application was the extension of time. Having read all the papers, we enlarged time and granted permission to appeal at the outset of today's hearing.
- Mr. Howard's case has today been put lucidly and concisely and, above all, with realism on his behalf by Mr. David Watkinson.
- The appellant has a secure tenancy of 7, Arden House in the London Borough of Lambeth. By section 84 of, and Part I of Schedule 2 to, the Housing Act 1985 he may nevertheless, if it is reasonable to do so, be made subject to an outright or suspended possession order on grounds of breach of covenant or of nuisance or annoyance to neighbours or on commission of an arrestable offence at the premises. These are grounds 1 and 2 respectively of the Schedule.
- On Judge Medawar's thorough and careful fact findings such grounds were made out. They were made out, in the judge's view, to the extent that they justified not merely a possession order but an outright order; that is to say, one that was not suspended, even on the most stringent terms.
- The issue before us, in consequence, which is of great importance to everybody involved, is whether the judge's refusal to suspend his possession order on appropriate terms was wrong.
- Mr. Howard became the tenant of 7, Arden House as long ago as 1976. Ten years later Miss Gabriel moved into the adjoining flat, No 8. The flats adjoin in such a way that Miss Gabriel has to pass Mr. Howard's windows in order to enter and leave her flat, and so therefore do her child and any visitors. The reverse is not the case. During 1994, at a time when both were living on their own, the appellant began to pester Miss Gabriel, on the one hand seeking her attention and friendship and on the other hand making complaints about her to the local authority's housing officers when his approaches were rebuffed. This kind of conduct continued intermittently into 1996, when he began following Miss Gabriel into shops and elsewhere and tried to enter her flat against her will. By the summer of that year, however, he was being remorseful and seeking to build a friendship with her. When that did not work, in the autumn he began to make allegations against Miss Gabriel, which the judge found were outrageous and unfounded, to the effect that she was involved in drugs and prostitution. He made allegations about the welfare of her daughter to the head teacher and to Social Services, with the predictable result that these complaints were taken seriously if only for fear of the possible consequences if they were not. The effect upon Miss Gabriel and her daughter can be imagined. Then, by Christmas of 1996 Mr Howard was again seeking friendship and sending a Christmas card.
- This on-off conduct continued through 1997. There was a further allegation to the head teacher. Social Services had to become involved. The appellant claimed to be an investigative journalist writing a story for the News of the World. He banged on Miss Gabriel's door and verbally abused her and then left apologetic cards with assurances that he would not be any more trouble.
- In August of that year the police finally became involved. They spoke to Mr. Howard, but it did little good. He tended, when he repeated his conduct and the police were called again, to justify himself by making damaging allegations against Miss Gabriel and her daughter. In October 1997 he pushed open her letterbox, which she had tried to secure against him, and tried to talk to her through it. The following day the police once again came to see him. He again responded with allegations of the most insulting and damaging kind about Miss Gabriel. What is more, in attempting to refute things that the police had put to him, towards Christmas of that year he wrote another letter to the child's head teacher, this time raising fresh and equally spurious grounds for questioning the child's welfare.
- On 17th December 1997 Mr Howard was arrested, interviewed under caution and charged. He was also granted bail pending trial, and in the 11 months which followed, barring one or two incidents which, though unpleasant, were minor by comparison with what had gone before, he left Miss Gabriel and her daughter alone. This was the single period, therefore, in which, as Mr. Watkinson points out, some form of experiment was able to be conducted as to the appellant's capacity to behave himself and leave his neighbours alone, at least when he knew that the chips were down.
- In November 1998 he was convicted under the Protection from Harassment Act 1997, and at the beginning of December was given three months' immediate imprisonment. He had served six weeks by the time, in January 1999, the Crown Court heard his appeal. The Crown Court dismissed the appeal against conviction but allowed his appeal against sentence. He was by then away from the flat and, in view of what happened next and has happened since, has not been allowed to return to live in his flat since that time. For the sentence of imprisonment the Crown Court substituted a three year probation order. It also imposed a restraint order, first of all prohibiting contact with Miss Gabriel and her daughter; secondly, prohibiting any attempt to report anything about them except through his own solicitor and, thirdly, forbidding him to go within 50 yards of Arden House. Because it was not clear what, if anything, was going to be done about the rehousing either of Mr Howard or of Miss Gabriel, the Crown Court allowed the geographical restraint order to be the subject of a future application for variation after an interval of six or nine months. The appellant has been living, we are told, with various friends ever since, but has not had a settled home.
- In March 1999 the local authority, knowing of the outcome of the criminal proceedings to date, issued the present proceedings seeking possession of the appellant's flat. The following day the applicant sought a case stated from the Crown Court. In August he applied for variation of the restraining order. That application was adjourned because the Crown Court considered it better that the possession action, scheduled at that time for November 1999, should be heard first. Its decision, it anticipated, would depend at least in part on the county court's decision.
- The applicant found himself compelled to apply to the Divisional Court for judicial review of the refusal of the Crown Court to state a case. The application came on 12th April 2000 before the court, presided over by the then Lord Chief Justice, Lord Bingham. The application failed, principally on the ground that it was open to Mr. Howard to go back to the sentencing court for a variation of the restraining order which was the real bone of contention. Lord Bingham indicated that if that were done, there would be at least five matters of which careful consideration would be required by the Crown Court:
"First, that the consequences of the restraining order had been far more severe than was ever contemplated; second, that the applicant had been excluded from his home for 15 months which was much longer than the judge ever envisaged; third, that the applicant faced the prospect of losing the secure tenancy where he had been paying rent during all those 15 months and the prospect of being made homeless; fourth, that the applicant faced the prospect of many months before there would be any hope of resolution of this matter; fifth, that the inability of the applicant to return home prevented him from demonstrating that he can live in harmony with his neighbour."
- These of course were not factual conclusions of the Divisional Court. They were a summary of the submissions that might be made in the appellant's favour to the Crown Court in seeking a variation of the restraint order.
- The Crown Court on 28th April 2000 heard the application to vary. Having considered the application and considered what the Divisional Court said, it left the restraint order standing. It did so in the knowledge that the local authority was not going to rehouse the applicant since it was by then seeking an outright possession order against him, but it left open the possibility of a further application for variation should Mr. Howard not be evicted by the county court. In giving the Crown Court's decision, His Honour Judge Laurie said this:
"We are quite sure that all her [that is Miss Gabriel's] peace of mind incidentally would be destroyed, and probably her daughter's as well, the moment the defendant walked through that door."
- It was in that situation, therefore, with the possibility of a variation of the restraint order hanging, at least in part, on the county court's decision, that the matter came before His Honour Judge Medewar. He heard the case over three days in September 2000 and gave judgment on the fourth.
- I have already summarised the history. The judge went over it in very much more detail and made findings along the way, none of them favourable to the appellant. He concluded in this way:
"The substance of the claimant's case is that Tracy Gabriel, having become the unwilling object of Mr Howard's attentions as well as subject to the harassment for which he was convicted, Mr Howard was responsible for such interference with her life by making unfounded and utterly baseless allegations, even accosting her when she went out, as to now justify the making of a possession order against him, the effect of which will be to evict him. In my judgment the claimant [that is the local authority] is entitled to possession of number 7 Arden House provided the court considers it reasonable to make that order. This is an overriding requirement applicable to all discretionary cases. I remind myself that the question is not whether it is reasonable for the landlord to claim possession but whether it is reasonable for the court to make an order. This is to be determined in the light of circumstances as they exist at the date of the hearing, rather than at the commencement of proceedings or at any other date. In the exercise of discretion as to reasonableness the court must take into account all factors which might affect the interests of the landlord or the tenant and the interests of the public may also be relevant (see per Lord Greene, MR, in Cumming v Danson  2 All ER 653 at 655). Much turns on the trauma and impact of everything on Miss Gabriel and her daughter. Her way of life is to some extent in issue. She has tried to have herself transferred elsewhere as a tenant, she has exercised her right to buy lest the defendant be permitted to re-occupy number 7 Arden House, so that in due course she might be able to sell and move elsewhere. Mr Howard has not sought a transfer before now and continues to be in denial. Mark Hardy, his probation officer, found that to be significant and could not really explain why in his stated view Mr Howard presented a low risk of repeating his behaviour and continuing to harass Miss Gabriel. His counsel, Mr Cottle, urges the court to say that it is not reasonable for a possession order to be made. It would in his submission be sufficient protection for Miss Gabriel if she was protected by undertakings from Mr Howard including an undertaking by him to accept rehousing elsewhere. The difficulty with such proposals is that even if a possession order is made and such undertakings are to be put forward as a reason why an order for possession might be suspended, in the light of the whole history of this matter there looms the inevitability of a further hearing to adjudicate upon alleged breaches of any such undertakings of further harassment of Miss Gabriel.
I have considered the defendant's position and circumstances with care; his age, his health, the fact that he has not lived in Arden House since 1998 and that little of consequence occurred during the year pending his trial. He has convinced himself that he has not harassed Miss Gabriel. This further finding on a wider basis, that he has over a prolonged period done so, will be difficult for him to bear. He is unlikely to accept any criticism of his behaviour towards her. He has made his life as the representative of the people and as a person who believes he is well thought of by others and respected. This woman, Tracy Gabriel, is the effective cause of his downfall. He will inevitably deeply resent that. It cannot be otherwise. Is the risk involved so serious that no right-minded person could countenance putting Mr Howard back in accommodation adjoining that of Miss Gabriel again?Mr Cottle so invites consideration to be given of his position. Regretfully, I am driven to conclude that the risk is so serious that it should not be taken. It follows that in my judgment it is reasonable to make an order for possession of number 7 Arden House ... and that such order should not be suspended, whether on the basis of undertakings offered or otherwise. I make that decision in the light of the law as it is."
- It should be said that the plus factors mentioned by the judge in that passage were not only Mr. Howard's 25 years' occupancy of his flat but the work that he had done, as testified to by a number of witnesses, on behalf of others in the local community, all of which it appeared had been done selflessly and in a sense of community spirit.
- Two significant things, however, emerge from this history. First, the criminal courts, which can restrain or punish conduct but have no power to terminate a tenancy, have proceeded on the footing that the appellant has a continuing right of abode in 7 Arden House, and that Miss Gabriel needs to be protected from the consequences of his occupancy of it. The appellant has consequently been continuously prevented from living there since December 1998. The Crown Court, however, on 28th April 2000 made it clear that its decision not to vary the order depended in part on what the London Borough of Lambeth now did, since it expressly left open the possibility of a further application to vary, no doubt to permit the appellant's return to the flat if Lambeth did not evict him - in other words, if the judge in due course made either no possession order or a suspended one. The county court, on the other hand, worked on the basis, as was the fact, that the appellant had not been living in the flat since 1998. There was thus a risk of the appellant becoming trapped between the assumptions made by two different courts.
- Secondly, the history recounted by the judge shows that between the appellant's arrest in December 1997, indeed arguably since October of that year, and his sentencing in December 1998, during the whole of which time he was still living next door to Miss Gabriel, no or no significant further acts of harassment occurred. This has been the only period in which it has been possible to gauge how the appellant would respond to the knowledge that he had, if I may put it this way, used up his nine lives. It provides at least an indicator that, obsessively self-justificatory though he was and still is, he is capable of behaving himself if the impending consequences of his conduct are sufficiently serious and immediate.
- The latter element in the case, which I accept is potentially important, features in the judgment by default, in the sense that the history of the harassment stops more or less, though not entirely, with his arrest and with the grant of bail. It features affirmatively, however, in the judge's summary, in the passage which I have quoted, of his reasons for making an order. Mr. Watkinson submits, nevertheless, that its potential weight in the appellant's favour, for it is without doubt his best point, is nowhere considered with the attention that it deserves. Nor, it can be said, does the judge run through the list of issues which the Lord Chief Justice had flagged up for the Crown Court on any future application to vary. It is true that the matter had meanwhile gone back to the Crown Court which had reached its own intelligible decision in the situation then confronting it, but the dependency of its decision on the outcome of the possession proceedings made it appropriate, I would accept, that the judge in his turn should look at these same issues.
- That said, the first four of them can be readily discerned in the matters traversed by the judgment. It is the fifth which posed what Mr Watkinson submits, with force, is the critical question in this case and, indeed, in many cases like it: is it right, after all that has happened, to subject Miss Gabriel to the risk of letting the perpetrator return in order to see, if now, on pain of eviction, he will behave himself? This question was plainly at the forefront of the judge's mind. It was not, however, the only question.
- There comes a point, it seems to me, of which the county court judge is ordinarily by far the best arbiter, at which a sane adult has to face the consequences of his actions and at which his victims are entitled not only to protection from future harassment but to protection from the worry of having him back as a neighbour, whether on probationary terms or at all. In such circumstances an outright order may well be entirely reasonable and beyond challenge in this court.
- Nevertheless, let it be assumed for the present in Mr Watkinson's favour that it was a material omission on the judge's part to do no more than mention the trouble- free year when he was assembling his conclusions. If the appellant in the county court had a point in support of the suspension of the possession order, this was it, and Mr Watkinson has wisely concentrated upon it before us. At the hearing, however, the point had almost certainly been overlaid by Mr. Howard's total denial that he had done anything wrong, a denial which the judge was entitled to take into account against him in the light of what had in truth happened, when the judge came to look to the future. Even in the skeleton argument, drafted when Mr Howard was acting in person in this court, the self-justification persists. It does not inspire any greater belief in his capacity to turn over a new leaf than the judge below evinced.
- Making the assumption in Mr Watkinson's favour, however, ought this court to substitute a different order in the exercise of its own judgment? I would prefer the word judgment to the word discretion to describe what a court has to do when deciding upon reasonableness.
- Before one answers the question, it is relevant to turn to a new but happily uncontroversial element in this case and other cases like it, namely the impact of the Human Rights Act 1998 and the European Convention on Human Rights. One of the appellant's grounds for saying that the basis for an outright possession order was insufficient is now put by him in terms of Article 8 of the Convention. His further complaint, made when acting in person, that he was not given a fair trial contrary to Article 6, is, as Mr Watkinson accepts, misconceived. He had an eminently fair hearing.
- The Human Rights Act 1998 was not yet in force when Judge Medawar gave his decision. Nevertheless, because it was shortly to come into force, he sensibly went on to consider his conclusion in the light of the Convention. This is what he said:
"I am asked to consider that decision in the light of the law as it will be under the Human Rights Act 1998 and after 2nd October 2000..."
- He went on to cite Article 8:
"1. Everyone has the right to respect for his private and family life, his name, his home and correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
- The judge went on:
"At first sight Article 8 has no application to the present circumstances. By these proceedings the London Borough of Lambeth is not interfering with the exercise of Mr Howard's right to respect for his private and family life. Insofar as an extended meaning be given to the word 'interference', is such 'interference in accordance with the law'?Here it plainly is. Any interference by a public authority with family life must have a basis in domestic law and that is so here. The rule of law which confers a discretion is not in itself inconsistent with these requirements provided the scope of the discretion and the manner in which it is to be exercised are clear (see Anderson v Sweden  14 EHRR 615 at para 75). The scope and manner of exercise are clear and any discretion is to be exercised judicially. The grounds for 'interference' must pursue a legitimate aim, that is to say one of those listed in Article 8.2 and be necessary and proportionate. Mr Cottle submits that it is not proportionate to order immediate possession where a suitable alternative to that is available. However in a sense that begs the question. A possession order is in my judgment necessary and anything less than that, any qualified possession order, would not achieve the purpose intended, and having regard to all the circumstances in this case it is proportionate so to order. One bears in mind the need to find a fair balance between the protection of individual rights and the interests of the community at large. In this case it is necessary to bear in mind the protection of the individual rights, both of Mr Howard and of Miss Gabriel, as well as those of other members of the public. The principle of proportionality means no more than defining that 'fair balance'. If and insofar as the outcome of these proceedings constitute a potential interference with individual rights it is strictly proportionate to the legitimate aim pursued, be that aim 'the prevention of disorder' or 'the protection of the rights and freedoms of others.'"
- Since 2nd October 2000 the Convention, by means of the Human Rights Act, has become binding. It is common ground, therefore, that this court should apply it.
- There is no arguable incompatibility, and none has been suggested, between Article 8 and the provision that an outright possession order can be made against a secure tenant if it is reasonable to do so. Respect for a person's home is neither an absolute concept, nor, given Article 8(2), an unqualified right. I do find myself puzzled by the learned judge's remark that Article 8 "at first sight . . . has no application to the present circumstances." It seems to me that any attempt to evict a person, whether directly or by process of law, from his or her home would on the face of it be a derogation from the respect, that is the integrity, to which the home is prima facie entitled.
- The real question is the one the judge goes on to address: is the interference justified? This question arises by virtue of the Human Rights Act, section 6(1), where the lessor is itself a public authority. It also arises, and more generally, by virtue of section 3 of the Act as a matter of statutory construction, whoever the lessor may be; that is to say, the meaning given to the word "reasonable" in a statute such as the Housing Act 1985 must now, so far as possible, be Convention- compliant. As this court has said more than once, there is nothing in Article 8, or in the associated jurisprudence of the European Court of Human Rights, which should carry county courts to materially different outcomes from those that they have been arriving at for many years when deciding whether it is reasonable to make an outright or a suspended or no possession order. Nevertheless, as the judge in the present case has demonstrated in the final passage of his judgment, it can do no harm, and may often do a great deal of good, if the exercise is approached for what it is, an application of the principle of proportionality.
- A legal threat to a secure home will, in the ordinary way, engage Article 8.1. In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8.2 is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it. Here, the question is whether eviction of the appellant, without suspension, is not only in accordance with the law (plainly it is), but is necessary in a democratic society to prevent disorder or crime or to protect the rights and freedoms of others. On Judge Medawar's clear and compelling findings, not only has the appellant been guilty of the crime of harassment, but Miss Gabriel and her daughter have been denied by him one of the most important freedoms and one of the most important rights in modern urban society, albeit that neither is spelt out in the Convention, freedom from fear and the right to live in peace.
- Was it then necessary to make an outright order in order to uphold the law and protect the appellant's neighbours? The judge, again correctly, approached these words neither literally nor abstractly but, as the European Court of Human Rights does, by asking whether an outright order was necessary to achieve the lawful aim, in the sense that it was both an appropriate means to that end and one which was not disproportionate in its effect. The judge may have been right in saying that the principle of proportionality means no more than defining the fair balance, but using the methodical approach now becoming familiar from the jurisprudence of the European Court of Human Rights is not a bad way of ensuring Convention compliance and reaching a clear and self-explanatory result.
- The way in which, in the run-up to October 2000, the judge went out of his way to test his own conclusion illustrates how helpful this process of reasoning is. It can be found spelt out in model form in the judgment of Longmore J (as he then was) in Johns and McLellan v Bracknell Forest District Council (unreported, 21st December 2000) in the Administrative Court. He was dealing with introductory tenancies (which it is sufficient to describe as a probationary first year through which a tenant can be made to pass before acquiring a secure tenancy of the same public authority housing). He said:
"There can be no doubt that the scheme of introductory tenancies does interfere with the exercise of this right [the Article 8(1) right] but it is of course in accordance with the law as laid down in the Housing Act 1996. The question, therefore, is whether the interference is necessary in a democratic society for the protection of the rights and freedoms of others. Necessary in a democratic society does not mean indispensable; nor does it mean desirable. Convention jurisprudence has decided that it means:
(a) that the reasons given to justify the interference must be relevant and sufficient;
(b) that the interference must correspond to a pressing social need; and
(c) that the interference must be proportionate to the aim pursued..."
- Returning to the present case, it seems to me that Mr. Watkinson is right to submit that in this scheme of reasoning necessity is, in a sense, a threshold test. But, as Mr. Andrew Arden QC for the local authority submits, it is a relative and not an absolute concept, bringing with it the considerations tabulated, for example, in the Bracknell case.
- Applying those concepts here, it is appropriate to return to one passage of the judgment which I have not yet quoted. The judge said of Miss Gabriel:
"Having heard and seen Miss Gabriel in the witness box for some considerable time, she convinced me that the matters of which she spoke did happen and did have the adverse effect upon her of which she spoke. Her recollection of each incident may not be entirely accurate in every detail but some confusion may arise in her recollection of each event now, but I accept the substance of what she has said in evidence."
- What Miss Gabriel had said in evidence included her evidence-in-chief, contained in a witness statement which is before this court. In a series of paragraphs she describes (and it is manifest from what I have quoted that the judge accepted in broad terms what she said) the way in which the mere presence of Mr. Howard terrified her daughter; indeed, how the mention of him would do so. She says of her daughter that "her school work has suffered and friendships have suffered because other parents don't like their child visiting a flat where I am powerless to protect them, if need be." She went on to say that the child finds difficulty in discussing the problem, although her fear is visible, and that she and the child are both continuously anxious about what could happen if Mr. Howard were to return as a neighbour. She describes earlier in the witness statement the previous events as "a living nightmare that both myself and my daughter went through".
- The picture (there is far more of it than I have summarised) is one of real significance to what the judge had to decide and is at least a counterweight (in my judgment more than a counterweight) to the matter relied on by Mr. Watkinson of the relatively good conduct in the year in which the appellant was on bail. It illustrates the hard fact that the harassment of neighbours, especially although not only those with children, may reach a point where what has been done cannot be undone. So here it may be that the appellant in 1997 to 1998 had demonstrated a capacity to behave himself more or less properly when the stakes were high enough for him. It may even be that he would probably continue to do so if allowed to return to his flat. But although, as the judgment points out, the harassment in past years had been intermittent and not continuous, what the appellant cannot do – and it is entirely his own fault that he cannot – is dispel the fear and the tension which his return, on the judge's findings, will bring to Miss Gabriel. She holds down a job and is often out at work, and her daughter, now 13 years old, needs all the concentration that she can get on her schooling and all the protection that she can get from fear and stress.
- If from these facts one turns to the Convention questions, just as if one asks whether an outright possession order is reasonable rather than a suspended one, there is only one answer. It is the one that the judge reached: an outright possession order against the appellant was necessary to protect Miss Gabriel and her daughter from the continuing consequences of the appellant's obsessive harassment of them in the past. It would be necessary even if he were to return next door and commit no acts of harassment in the future. The shadow of the past is too heavy upon the present. Such an order is within the law. It meets a pressing social need. It is proportionate to that need in the straightforward sense that nothing less will do and that it is an acceptable means of achieving a legitimate aim. The judge so held below, and I agree with him.
- I would dismiss the appeal.
- LADY JUSTICE HALE: In my view, the judge's findings and reasoning in reaching his conclusions cannot be faulted. He is to be congratulated for the way in which he tested those conclusions under Article 8 of the European Convention on Human Rights even before the Act had come into force.
- Mr. Watkinson's best point is that, during the year between the appellant's arrest in 1997 and his criminal trial in 1998, little of significance happened, thus demonstrating the appellant's capacity to behave properly, at least when ordered to do so. However, in my view, Mr. Watkinson did not make a good point when he argued that only conduct directed towards Miss Gabriel and her daughter was in question. Equally relevant were the allegations made to the authorities against her, which were likely to result in inquiries and intervention by those authorities, which, in turn, would subject her to grave anxiety and disruption. The judge characterised his behaviour as a course of conduct calculated to denigrate her with a view to keeping her in fear of him and what he might do if she were not more friendly towards him.
- The question for the judge was whether immediate eviction from the appellant's home was, in terms of domestic law, reasonable, or, in terms of the Convention, a necessary and proportionate response in order to protect the rights and freedoms of Miss Gabriel and her daughter. In answering that question, the appellant's continued denial of any previous wrongdoing is highly relevant. That denial, coupled with continuing allegations against Miss Gabriel, has persisted throughout these proceedings, despite the fact that there have been trials before the stipendiary magistrate, an appeal against conviction and sentence to the Crown Court, an application to vary the restraint order to the Crown Court and these proceedings themselves, all of which have found the essence of the case made out. That denial persisted in the course of the probation order, with the result that work on trying to deal with that offending behaviour could not take place.
- The passage in the judgment where the judge begins by considering the defendant's position and circumstances and mentions that little of consequence had occurred during the year pending his trial is clearly setting that history against the judge's appreciation of the risks as they now stand. The judge pointed to the denials, to how difficult his own further finding would be for the appellant to bear, how difficult the appellant found it to accept criticism of his behaviour, how he would resent that and how that would be likely to impact upon the risks in the future. The judge reached a finding that the risk was so serious that it should not be taken. In my view, that was a finding that he was justified in making. Once that finding had been made, it is difficult to see how he could have reached any other conclusion as to whether or not immediate eviction was reasonable, necessary or proportionate. Thus, for those reasons, as well as those given by Sedley LJ, I would dismiss the appeal.
- LORD JUSTICE THORPE: I agree that the appeal should be dismissed for the reasons given. I would reject Mr. Watkinson's criticism of the judgment below. I am of the opinion that the material paragraphs of Judge Medawar's judgment, when read as a whole, demonstrate that the judge sufficiently reflected, in his balancing exercise, the factor that there had been only one incident of little consequence during the year that Mr. Howard had been in occupation after arrest and pending trial.
Order: Appeal dismissed; order nisi against the Legal Services Commission with nil contribution.
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