BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Barnet v Hurst [2002] EWCA Civ 1009 (17 July 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1009.html
Cite as: 2003] WLR 722, [2003] WLR 722, [2002] CP Rep 74, [2002] 4 All ER 457, [2003] 1 WLR 722, [2002] EWCA Civ 1009, [2003] HLR 244

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2003] 1 WLR 722] [Help]


    Neutral Citation Number: [2002] EWCA Civ 1009
    Case No: B1/2002/1073 PTA, B1/2002/1094 CCRTF

    IN THE SUPREME COURT OF JUDICATURE
    COURT OF APPEAL (CIVIL DIVISION)
    ON APPEAL FROM BARNET COUNTY COURT
    Her Honour Judge Bevington

    Royal Courts of Justice
    Strand,
    London, WC2A 2LL
    17th July 2002

    B e f o r e :

    LORD JUSTICE SIMON BROWN
    LORD JUSTICE BROOKE
    and
    LORD JUSTICE DYSON

    ____________________

    Between:
    LONDON BOROUGH OF BARNET
    Claimant/
    Respondent
    - and -


    ROWLAND HURST
    Defendant/Appellant

    ____________________

    (Transcript of the Handed Down Judgment of
    Smith Bernal Reporting Limited, 190 Fleet Street
    London EC4A 2AG
    Tel No: 020 7421 4040, Fax No: 020 7831 8838
    Official Shorthand Writers to the Court)

    ____________________

    Ranjit Bhose (instructed by the Borough Solicitor, Barnet LBC) for the Respondent
    Steven Woolf (instructed by J D Spicer & Co) for the Appellant

    ____________________

    HTML VERSION OF JUDGMENT
    AS APPROVED BY THE COURT
    ____________________

    Crown Copyright ©

      Lord Justice Brooke :

      1. The appeal and cross-appeal

    1. On 21st May 2002 the appellant Rowland Hurst appealed against an order of Judge Bevington made in the Barnet County Court on 3rd May 2002 whereby he was committed to prison for nine months for his admitted breach of an undertaking given to the same court on 21st September 2001. By that undertaking he promised that he would not for a period of two years commit a number of specified acts of anti-social behaviour. In particular, in the present context, he undertook that he would not assault, threaten, harass or cause nuisance to anyone residing in or visiting the block at 30-34A Hamilton Road, London N2.
    2. There is also before the court an application by the London Borough of Barnet, who are the claimants in these proceedings, for permission to cross-appeal against part of the order made by Judge Bevington on 3rd May. In order to understand the purpose of the cross-appeal it is necessary to say a little more about the proceedings as a whole.
    3. 2. The history of the proceedings

    4. They were commenced by a claim form issued on about 16th July 2001. Amended Particulars of Claim were issued on 16th August, and the claimant’s application for a permanent injunction came before the court on 21st September when Mr Hurst gave a number of undertakings to the court, including the undertaking mentioned in paragraph 1 above. On the basis of these undertakings the applications for injunctive relief were adjourned generally, with permission to restore.
    5. On 23rd April 2002 the claimants made an application for an order that Mr Hurst be committed to prison for breach of the undertaking mentioned in paragraph 1. They also applied for interim relief against him for the purpose of banning him from the locality of 30-34A Hamilton Road, and in due course Judge Bevington made an order on 3rd May which had the effect of forbidding him from engaging in disruptive conduct at those premises and from coming within 1000 metres of them (the prohibited area being shown on a plan attached to the order). The judge also attached a power of arrest to that order.
    6. The grounds on which the claimants were seeking Mr Hurst’s committal to prison were set out in these terms:
    7. “In the early hours of Saturday 6th April 2002 you came to the block at 30-34A Hamilton Road, London N2. You engaged in the following acts:
      a. You were loud and noisy, disturbing neighbours’ sleep;
      b. You kicked your father Anthony Hurst’s Ford Escort car and then further attacked the car with an object, smashing glass;
      c. You threw a refuse disposal ‘wheelie-bin’ through the windows of your father’s flat at 30 Hamilton Road, smashing glass;
      d. You smashed other windows to the rear of 30 Hamilton Road;
      e. You entered 30 Hamilton Road without your father’s consent, and then caused damage there, pulling down and damaging curtain rails, and smashing a television;
      f. You threatened to kill your father;
      g. You generally, by these actions, terrified and upset those residing in the block.”
    8. The application for further injunctive relief was supported by the evidence of Sheila Oliver who is the acting head of housing management of the claimant authority, Mr Wallace, who is a resident at Hamilton Road, and two police officers. In her affidavit Ms Oliver explained that Mr Hurst’s father was a secure tenant of 30 Hamilton Road, and that he had also given an undertaking to the court the previous September as to his behaviour. He had included in his undertaking an undertaking as to the behaviour of his son who either resided with him or frequently visited him.
    9. Ms Oliver had been told by a neighbour (who was too scared for his/her identity to be known) that Mr Hurst had ceased to reside at 30 Hamilton Road since an argument with his father on 3rd March 2002, a matter Mr Hurst had himself apparently confirmed to the police when he said he had not lived there for some weeks prior to the occasion on 6th April when he caused a major disturbance at the block.
    10. She understood that after this most recent incident neighbours were even more frightened than they already were of Mr Hurst and of his unpredictability and violence. The council considered that the only way in which those neighbours would be allowed quiet enjoyment of their homes was if he was simply excluded from the area. Ms Oliver was aware of one elderly neighbour, who was too scared to be identified, whose health had deteriorated markedly since the previous September because she simply could not live life in peace and free from fear.
    11. Mr Wallace gave evidence which directly supported the first three grounds set out in paragraph 5 above. The evidence of the two police officers largely consisted of indirect evidence, although they testified to the state of Mr Hurst’s father’s flat when they were called to the scene. PC Westoby said that Mr Hurst had been charged with burglary, three counts of criminal damage and threats to kill. He had been in custody since the incident took place, and at the time of the hearing before Judge Bevington on 3rd May he was still in custody, but it was anticipated that he would make a second application for bail on 7th May when he was to be committed for trial.
    12. PC Westoby attached to her affidavit the statements of three residents. The name of one of them had been blacked out because she was simply too scared to be identified. She said that the residents feared for their safety. She added that the police had received numerous telephone calls from concerned neighbours on 6th April because of the noise and damage Mr Hurst was causing.
    13. The original return date of the council’s application was 30th April 2002. On that occasion Mr Hurst was produced from prison, but he did not have legal representation, and the judge adjourned the hearing until 2pm on 3rd May, allowing the morning of 3rd May for Mr Hurst to confer with his advisers.
    14. At the start of the hearing on 3rd May the judge raised the question of possible admissions from Mr Hurst. She was of the view that the council’s application could be subsumed within the criminal proceedings. Counsel for the defendant, for his part, applied for an adjournment of the application to commit, on the grounds that his client was in custody and would remain there until the criminal trial, so that there was no risk of a repetition of his conduct. It was also argued that Mr Hurst would suffer prejudice if the application to commit was heard. Counsel told the judge that if the hearing did go ahead, his client would not give evidence. Nor would he give instructions to his legal advisers to enable them to cross-examine witnesses. He said that Mr Hurst would suffer prejudice if he had to cross-examine witnesses who would later give evidence in the criminal trial. He would also suffer prejudice if he had to give evidence himself.
    15. The council for its part opposed the application for an adjournment. It was argued on its behalf that applications to commit should be heard swiftly and decisively. There was no real risk of serious prejudice, and the factors put forward by the defence were not the factors the courts had in mind when speaking of such a risk. Mr Hurst had already given parts of his defence to the police, and he no longer had an absolute right to silence anyway. Moreover the evidence against him was overwhelming, such that it was said that his real reason for wanting an adjournment arose simply from a desire to delay for as long as possible. In any event there was no guarantee that he would remain in custody until the trial.
    16. The judge then again revisited the prospect of there being a middle way forward, by which limited admissions would be made. She adjourned the hearing for a few minutes, and when it resumed Mr Hurst was willing to make a formal admission in relation to the first allegation on the Notice to Show Cause, namely that on 6th April 2002 he was “loud and noisy, disturbing the neighbours’ sleep”.
    17. The council considered this admission to be wholly unsatisfactory, in that it was the least serious of the allegations made against Mr Hurst. It did not accept that the court could either proceed to sentence, or adjourn the balance of the application to commit, on the basis of that single admission.
    18. The judge ruled, however, that she could take this course, and she would adjourn the balance of the council’s application until after the conclusion of the criminal proceedings. In sentencing him to nine months imprisonment the judge said that she took into account the fact that Mr Hurst had admitted at least part of what he told her he had done in breaching his solemn promise to the court. She regarded his admission as very important, because it showed his acceptance of what happened, at least in part. His apology to the court and to those affected was also an important matter. She also took into account that on the day in question his Sony Walkman had been stolen from his person.
    19. She then said:
    20. “I appreciate that he had been drinking, although of course that is a matter, really not of mitigation in particular, but it is something I take into account in any event. Although, in the final analysis his conduct in the neighbourhood, of course, was serious; it would have caused disturbance to the neighbours and would have caused distress to them in hearing loud noises and noise coming from the defendant. A solemn promise to the court is a matter which has to be taken very seriously indeed, as I am sure was explained to Mr Hurst when he gave that solemn promise.”
    21. The judge said that she appreciated that there were parallel proceedings afoot which might in any event result in his detention for a further period of some sort. But it seemed to her that the correct term of imprisonment which she had to impose that day was an immediate term of nine months.
    22. Mr Hurst now appeals against that sentence on the grounds that it was excessive. The council seeks permission to cross-appeal on the ground that the judge ought not to have adjourned the balance of its application to commit until after the criminal trial was over.
    23. 3. The correct routes of appeal in committal proceedings

    24. This appeal and proposed cross-appeal gives this court an opportunity to clarify the appropriate routes of appeal following an order made by a judge in a civil court on an application to commit. In Tanfern Ltd v Cameron Macdonald [2001] 1 WLR 1311, in a judgment with which Lord Woolf MR and Peter Gibson LJ agreed, I gave guidance in general terms on the effect of the new CPR appellate regime which had recently come into force. I did not, however, refer to appeals against committal orders except in the most general terms. Two passages in that judgment are, however, relevant in the present context. At para 14 I said:
    25. “The general rules relating to appeals in CPR Part 52 are expressly made subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal: CPR 52.1(4).”
      And at para 23 I said:
      “Permission to appeal will not be required where the appeal is against a committal order … (CPR 52.3(1)(a)). In these cases, where the liberty of the subject is in issue, appeal lies of right.”
    26. Questions relating to the route of appeal from committal orders have, however, been considered by this court on two occasions in the last five years: in King v Read and Slack [1999] 1 FLR 425 and in Hampshire County Council v Gillingham (CAT 22 June 2000). Neither judgment has been reported in the Weekly Law Reports or in the All England Reports, and there is no mention of the latter case, which post-dated the coming into force of the Civil Procedure Rules, in the current editions of the White Book or the Civil Court Practice. The former case, an important decision of Lord Woolf MR sitting in a three-judge court in November 1996, is similarly unnoticed by the editors of the White Book. It is noted under notes CPR 52.3(5) and RSC 52[11] on pages 897 and 1265 of Volume 1 of the Civil Court Practice 2002 (although only the latter reference is mentioned in the Table of Cases). I hope that the present judgment can be given wider and more effective publicity for the benefit of practitioners and judges alike.
    27. In King v Read and Slack this court was concerned with an appeal from an order of a district judge committing Mr King to prison for two consecutive terms of three months each for assaulting an officer of a court while in the execution of his duty. The relevant offence, and the jurisdiction of a district judge to deal with the matter, are set out in section 14(1) and (3) of the County Courts Act 1984. Lord Woolf MR commented at p 426G that the section clearly had a close relationship to the power of a court to punish for contempt. Counsel for Mr King relied on this relationship in arguing that the Court of Appeal had jurisdiction to hear an appeal against a committal order made by a district judge pursuant to section 13 of the Administration of Justice Act 1960, which is in these terms, so far as is material:
    28. “13(1). Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt): and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
      (2) An appeal under this section shall lie in any case at the instance of the defendants, and in the case of an application for committal at the instance of the applicant, and the appeal shall lie –
      (b) from an order or decision of a county court … to the civil division of the Court of Appeal.”
    29. Lord Woolf held that the words “from an order or decision of a county court” were not necessarily apt to exclude an appeal within a county court from a decision of a district judge to a circuit judge under CCR Order 37 rule 6. In this context he referred to the earlier judgment of Lord Donaldson MR in Director General of Fair Trading v Stuart [1990] 1 WLR 1500, which I cited in paragraphs 10-12 of my judgment in Tanfern. He commented (at p 428E-G):
    30. “Lord Donaldson did not make it clear as to whether the effect of the right of appeal within the county court excludes the jurisdiction of this court. However, I am satisfied that the jurisdiction is not excluded. The position as to jurisdiction is that there are two alternative routes for appealing which someone in the position of Mr King can adopt: either he can go to the judge of the County Court or he can come to this court. But that being so, I have no doubt whatsoever that the appropriate course, in the ordinary way, for somebody in Mr King’s position to adopt is to go to the local court and the local judge, rather than come to this court.
      In many instances that will be a more expeditious route of appeal for the appellant than coming to this court in the first instance. It is a course which will almost invariably be in his interest to adopt because if he gets a decision by the judge in his favour, he has that advantage. If he can challenge the decision of the judge as being wrong in law, he still has the opportunity to appeal from the judge’s decision under Section 13 of this Act. In my view, the language of Section 13(1) would be equally apposite to cover an appeal from the decision of the county court judge.
      In addition, under Section 14(2) of the County Court Act, the person who is punished under that section has the ability to apply to the District Judge to revoke an order committing him to prison and to obtain his discharge in that way. There are thus three alternatives that are open to an appellant. However, so far as the appeals are concerned, this court normally will not be prepared to hear an appeal if the person concerned has not first exercised his internal right of appeal to which I have made reference.”
    31. That judgment predated the coming into force of the CPR appellate regime. In Hampshire County Council v Gillingham (CAT) 22 June 2000 Latham LJ explained the effect of the 1960 Act now that that regime was in force. He was concerned with an appeal to this court from a committal order made by a circuit judge in the county court. He drew attention to the terms of CPR 52.1(4)(b) (for which see para 20 above) and concluded that the express provision of the right of appeal to this court under section 13 of the 1960 Act remained in effect.
    32. In Government of Sierra Leone v Davenport [2002] EWCA Civ 230 the claimants appealed against an order of a High Court judge on a committal application whereby he made no order apart from directing the relevant defendant to pay the claimants’ costs of the application. The claimants argued that they did not require permission to appeal on two alternative grounds. This court held (at [8]) that such an order was not a committal order within the meaning of CPR 52.3(1)(a), since a “committal order” was an order which committed a party to prison. It also held that there was no basis for saying that section 13 of the 1960 Act somehow limited the effect of section 54 of the Access to Justice Act 1999 or the operation of CPR 52.3. It followed that permission to appeal was required.
    33. It is therefore clear that for the purposes of the CPR appellate regime a distinction has to be drawn between an order by which a party is committed to prison (for which permission to appeal is not required) and any other order or decision made by a court in the exercise of jurisdiction to punish for contempt. Such orders come within the ambit of section 13 of the 1960 Act, whether they consist of “no order save as to costs”, as in the Davenport case, or an order for the adjournment of the whole or part of the application, as in the present case. It is also necessary to make a distinction between first appeals and second appeals.
    34. So far as first appeals are concerned, an appeal from a committal order made by a circuit judge in the county court lies to this court as of right under section 13(2) of the 1960 Act (see Hampshire County Council v Gillingham). An appeal against any other order or decision of a circuit judge in the county court in the exercise of jurisdiction to punish for contempt similarly lies to this court, but permission to appeal is required.
    35. A first appeal from a committal order made by a district judge in the county court still has two alternative routes. Even if the case is in the multi-track it is not a “final decision” as defined in Article 1(2)(c) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 (“DO”) so that it will ordinarily lie to a circuit judge in the county court. The application of King v Read and Slack and DO Article 3(2) produce the same result, and DO Article 4(a) does not apply. Alternatively, and exceptionally, it may lie to the Court of Appeal, either by the application of King v Read and Slack or through the transfer operation contained in CPR 52.4 (or section 57 of the Access to Justice Act 1999). Now that the CPR appellate regime is in force, it is the latter mechanism that should now be used, since the former is no longer needed. A first appeal from any order of a district judge in the county court in the exercise of jurisdiction to publish for contempt may follow the same alternative routes, except that permission to appeal will be required.
    36. I turn now to second appeals, properly so called, from which expression I exclude appeals against committal orders made by a circuit judge on appeal, when no committal order was made by the district judge, or orders such as an order for an adjournment or an order as to costs made by a circuit judge on appeal, in relation to which it is now well established that an appeal to this court is a first appeal.
    37. Second appeals lie to the Court of Appeal (DO Article 5) under the rules governing second appeals (CPR 52.13). Permission to appeal is always required. The situation is governed by CPR 52.13, and even if this is a second appeal in relation to a committal order originally made by a district judge the order appealed from is not itself a committal order within the meaning of CPR 52.3(1)(a).
    38. These are the general rules as to the routes of appeal in committal proceedings. The type of order made in any given case must be properly scrutinised in case there is something exceptional about it which takes it out of the general run of orders of this kind. In a judgment of this type it is not possible to legislate in advance of every type of situation, but I hope the general principles will now be clear.
    39. It follows that in the present case this court has jurisdiction to hear both the appeal and the cross-appeal. Permission to appeal was required for the cross-appeal, and we granted it during the course of the hearing.
    40. 4. Concurrent jurisdiction in civil contempt proceedings and in criminal proceedings

    41. I will consider the issues on the cross-appeal first. Before the Human Rights Act 1998 came into force the position emerged clearly from a series of decisions in this court: Szczepanski v Szczepanski [1985] FLR 468; H v C [1993] 1 FLR 787; and Keeber v Keeber [1995] 2 FLR 748. From these authorities the following principles can be derived:
    42. (1) The jurisdiction of the court when exercising its jurisdiction in contempt proceedings is quite separate from any criminal proceedings which may be brought in the criminal courts, notwithstanding that it may arise out of the same set of factual circumstances.
      (2) It is founded on an inherent power which derives from the jurisdiction of the court to enforce its orders.
      (3) It is important that contempt proceedings should be dealt with swiftly and decisively.
      (4) On the other hand a court has a discretion to adjourn contempt proceedings pending the outcome of other proceedings, but only where it is satisfied that there would otherwise be a real risk of prejudice which might lead to injustice.
    43. In R v Brian Gwyn Green [1993] Crim LR 46, CACD transcript 30th June 1992, a case decided by the criminal division of the court, the court accepted the submission of the Crown that:
    44. “It cannot be said that the finding of the county court judge of contempt, which admittedly involved a finding of an assault on the day alleged in the Crown Court proceedings, could amount to circumstances providing an effective plea of autrefois convict for the appellant in the present case. In the County Court proceedings, the appellant was punished for contempt: in the Crown Court he was punished for the assault.”
    45. In that case the appellant had assaulted the complainant in breach of a non-molestation order. In the county court he was given a three month suspended sentence for contempt. In the Crown Court the judge rejected a plea of autrefois convict, and on his conviction for assault occasioning actual bodily harm he gave him a four month sentence suspended for two years, and also ordered him to pay compensation and costs. The appeal was dismissed.
    46. In M v M (Contempt: Committal) [1997] 1 FLR 762 this court upheld the decision of a recorder to grant a stay of committal proceedings for contempt pending the trial of the respondent on serious criminal charges. Lord Bingham CJ held on the facts of that case that the recorder had been entitled to form the view that there would be a risk of serious prejudice leading to injustice if the contempt proceedings went ahead, and he was not willing to rule that the recorder was plainly wrong. On the other hand he reiterated at p 765E-F that:
    47. “In approaching this matter we must remind ourselves of the overriding principle that orders of the court should be obeyed. That is an essential feature of the rule of law and it would be a recipe for anarchy if orders of the court could be flouted with impunity. We also, in this field, regard it as particularly important that where orders are made for the protection of a party, that party should be assured of effective protection. The principle that breaches of orders should ordinarily be dealt with ‘swiftly and effectively’ is undoubtedly correct and has not in any way been challenged.”
    48. In DPP v Tweddell [2002] 1 FCR 438 the Divisional Court reconsidered the position after the Human Rights Act 1998 had come into force. A deputy district judge had stayed proceedings in a magistrates’ court on abuse of process grounds on hearing that the defendant had already received a three-month sentence on contempt proceedings in the county court in relation to the same violent incident which had led to him being charged with an offence contrary to section 47 of the Offences Against the Person Act 1861. Latham LJ, with whom Astill J agreed, held that the purpose of the different proceedings was different, and he allowed the prosecutor’s appeal.
    49. He did not consider that Article 6 of the European Convention on Human Rights (“ECHR”) affected the position. That Article was concerned only to provide the appropriate procedural safeguards in relation to a charge which warranted the protection afforded to those facing criminal charges. It did not affect the question whether the prosecution was committing a breach of process in pursuing criminal proceedings based on the same facts as had been the subject-matter of contempt proceedings.
    50. In S v Germany (1983) 39 DR 43 the European Commission on Human Rights dismissed as manifestly ill-founded a complaint by a German citizen that he had been convicted and imprisoned in Germany for a drug offence arising out of the same facts as those for which he had already been convicted and imprisoned in the Netherlands. He received a much longer sentence in Germany, and his period of detention in the Netherlands was credited against that sentence. The Commission, referring to a number of its earlier decisions, began its exposition of the relevant law by saying (at p 47):
    51. “The Commission recalls that the Convention guarantees neither expressly nor by way of implication the principle of ‘ne bis in idem’ as relied upon by the applicant.”
    52. Following this decision, Protocol 7 to the ECHR, which was opened for signature in 1984, contained in Article 4 an express rule forbidding double jeopardy. Article 4(1) of that protocol, which is subject to the provisos contained in Article 4(2), provides that:
    53. “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
    54. Although this protocol has now been ratified by more than half the member states of the Council of Europe, it has not been ratified by this country and accordingly the rights conferred by it do not feature among the Convention rights scheduled to the Human Rights Act 1998. In these circumstances it is unnecessary for us to dwell for very long on it, and we were not referred to the Strasbourg caselaw on it, such as Gradinger v Austria (1995) A/328 and Oliveira v Switzerland (1998) 28 EHRR 289. It is sufficient to mention that in the latter case the court at Strasbourg held that no violation of the Convention had occurred when the applicant had been convicted on separate occasions of two offences arising out of the same road traffic accident: the summary offence of failing to control his vehicle, and the more serious offence of negligently causing physical injury. Because the amount of his first fine was deducted from his second, and because he was convicted of two different offences, he was not being punished any more harshly than if the two offences had been heard together.
    55. In these circumstances I do not consider that the implementation of the Human Rights Act 1998 alters the position at all. The earlier authorities cited in paragraphs 33-36 above remain good law, and the decision of the Divisional Court in Tweddell (see para 37 above) was correct.
    56. In the event it is no longer necessary for us to make a decision on the respondents’ cross-appeal. Mr Hurst’s father became reconciled with his son shortly before the Crown Court trial was due to take place. In the circumstances the prosecution elected to call no evidence, and Mr Hurst was accordingly discharged. There is therefore nothing to prevent the respondents from restoring the balance of their committal application for hearing.
    57. On another occasion it may be necessary for this court to consider the possible effect of ECHR Article 6 when a defendant in criminal proceedings complains that there would be a real risk of prejudice which might lead to injustice if he was required to defend himself in prior contempt proceedings. On such an occasion the court would have to consider the effect of such decisions as Jefferson Ltd v Bhetcha [1979] 1WLR 898; V v C (CAT 16th October 2001); and Secretary of State for Trade and Industry v Crane & Burton (No 2) (unreported, 11th February 2001, Ferris J). It is, however, clear from the decision of this court in M v M that the principles stressed by Lord Bingham CJ in that case (see para 36 above for the relevant quotation) should weigh heavily in the exercise of the court’s discretion. Since all decisions of this kind are fact-sensitive, and since it is now unnecessary for us to express an opinion in the present case, I will say no more about this matter.
    58. 5. The appeal against the length of the sentence

    59. So far as Mr Hurst’s appeal is concerned, we announced at the end of the hearing that we allowed it to the extent that we substituted a term of three months imprisonment for the nine months ordered by the judge. Even when allowance is made for the fact that this was a serious breach of a court order, the original sentence was manifestly too long for the activities encompassed by the limited admissions he was willing to make (see para 14 above).
    60. For these reasons we allowed the appeal to this limited extent. I would make no order on the council’s cross-appeal now that it is of academic interest only.
    61. Lord Justice Dyson:

    62. I agree.
    63. Lord Justice Simon Brown:

    64. I also agree.
    65. ORDER: The appellant's appeal against sentence is allowed, a sentence of three months’ imprisonment being substituted for the nine months ordered by the judge. On the appellant's appeal no order for costs, save for detailed assessment of his public funding costs.

      On the respondent authority's cross-appeal, permission to appeal is granted but there is no order on that cross-appeal save as to costs. The defendant Rowland Hurst do pay the London Borough of Barnet's costs of the cross-appeal, to be subject to a detailed assessment, his contribution to be assessed as nil. There be a detailed assessment of his public funding costs.
      (Order not part of approved judgment)


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1009.html