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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 >> Manchester City Council v Lee [2003] EWCA Civ 1256 (07 August 2003)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1256.html
Cite as: [2003] EWCA Civ 1256, [2004] WLR 349, [2004] 1 WLR 349

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Neutral Citation Number: [2003] EWCA Civ 1256
B2/2003/0807

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HOLMAN)
AND ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MACKAY)

Royal Courts of Justice
Strand
London, WC2
7th August 2003

B e f o r e :

LORD JUSTICE PILL
LORD JUSTICE MUMMERY
LORD JUSTICE CHADWICK

____________________

MANCHESTER CITY COUNCIL Claimant/Appellant
-v-
LEWIS LEE Defendant/Respondent
AND
WIGAN METROPOLITAN BOROUGH COUNCIL Applicant/Respondent
-v-
(A CHILD BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) Respondent/Appellant

____________________

(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR J MANNING (instructed by CITY SOLICITOR, MANCHESTER CITY COUNCIL) appeared on behalf of the Appellant(MANCHESTER CITY COUNCIL)
THE RESPONDENT LEE DID NOT APPEAR AND WAS NOT REPRESENTED
MR J LUBA QC AND MR A FULLWOOD (instructed by STEPHENSONS) appeared on behalf of the Appellant (G)
MR N HINCHCLIFFE QC AND MR M LEMMY (instructed by LEGAL SERVICES DEPARTMENT, WIGAN METROPOLITAN BOROUGH COUNCIL) appeared on behalf of the Respondent (WIGAN)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Thursday, 7th August 2003

  1. LORD JUSTICE PILL: These are appeals against County Court judgments involving the application of Section 152 of the Housing Act 1996 ("the 1996 Act"). G, by his litigation friend the Official Solicitor, appeals against a judgment of His Honour Judge Mackay in which at the Liverpool County Court on 25th June 2003, on the application of Wigan Metropolitan Borough Council ("Wigan"), the judge upheld an earlier anti-social behaviour injunction, with a power of arrest, under Section 152. Manchester City Council appeal against the decision of His Honour Judge Holman at the Manchester County Court on 26th March 2003 by which the judge refused to reinstate an injunction under the section discharged by District Judge Needham on 24th March 2003.
  2. In the Wigan case, G, aged 17 years, was living with his mother, Mrs G, at a housing estate near Leigh in Lancashire. Mrs G had been a problem in the neighbourhood, the judge found, and Wigan obtained a possession order against her on 21st March 2003. G left with her and now resides with her outside the relevant estate.
  3. The judge found that there had been numerous incidents causing worry, anxiety and fear on the estate. A group of young people had been involved. The judge found:
  4. "I am satisfied that the respondent has behaved in a threatening, intimidatory matter, both before and after the eviction proceedings. I am satisfied that he has behaved in a way which is likely to cause a nuisance and annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in the estate or in the locality of the premises, which are the subject matter of these proceedings."
  5. The judge heard and accepted evidence from Mr McDonough and Mr and Mrs Brew. On the basis of their evidence the judge found that, "the warfare" which G had with his friends indulged in, "... has not been against one person or two people, but against the occupants of the estate." Any person who gives evidence against G, or any person like G, will be a target. The judge also found that staring at the Brew house after the eviction order was intimidating and an attempt to frighten.
  6. The Manchester case arose out of a complaint to the council on 15th March 2003 by Mr and Mrs Andrew, residents of a house in Yew Tree Lane, Northern Moor, Manchester. Lee approached them while they were walking outside their house, abused Mr Andrew, spat at him, threatened to stab him, damage his car and house and burn down the house. He also made threats against their young son and repeatedly kicked their front fence and gate.
  7. Lee's grandparents are the Andrews' next door neighbours in Yew Tree Lane and are secure tenants of the council. His parents live next door to the grandparents and are also secure tenants. Lee frequently stays at both those houses. There had been a dispute between Mr and Mrs Andrew and the grandparents about car parking in the Lane. This had led to Mr and Mrs Andrew complaining to Wigan by letter of 11th March 2003, an act which Lee referred to when making his threats.
  8. In both cases the behaviour of the young person concerned was such that, provided the other requirements in the section were satisfied, and subject to consideration of G's age, the making of orders was justified.
  9. A problem arose because in each case the complainant, Mr McDonough in the Wigan case, and Mr Andrew in the Manchester case, are owners of the premises where they live. Those premises therefore fall outside the definition of residential premises in Section 152 of the 1996 Act. Section 152 provides:
  10. "(1) The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from -
    (a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises.
    (b) using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or
    (c) entering residential premises to which this section applies or being found in the locality of any such premises.
    (2) This section applies to residential premises of the following descriptions -
    (a) dwelling-houses held under secure or introductory tenancies from the local authority;
    (b) accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985 (homelessness).
    (3) The court shall not grant an injunction under this section unless it is of the opinion that -
    (a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and
    (b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted.
    (4) An injunction under this section may -
    (a) in the case of an injunction under subsection (1)(a) or
    (b), relate to particular acts or to conduct, or types of conduct, in general or to both, and
    (b) in the case of an injunction under subsection (1)(c), relate to particular premises or a particular locality;
    And may be made for a specified period or until varied or discharged.
    (5) An injunction under this section may be varied or discharged by the court...
    (6) The court may attach a power of arrest to one or more of the provisions of an injunction which it intends to grant under this section..."
  11. Section 155 provides the procedure to be followed if a power of arrest is attached to the provisions of an injunction. A constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision. A person arrested must be brought before a judge within 24 hours beginning at the time of arrest.
  12. I do not propose to set out the terms of the injunction granted and the injunction discharged in the respective cases. Mummery LJ proposes, in his judgment, to refer to the form of the injunctions and it is appropriate that their wording be set out in his judgment rather than in mine.
  13. Sections 152 and 155 are in that part of the 1996 Act Part V entitled 'Conduct of Tenants' which creates powers for local authorities in a housing context. Chapter 1 of Part V provides for a new regime of introductory tenancies. Chapter 2 increases the powers of local authorities to obtain possession of their premises and chapter 3 (which includes sections 152 and 155) deals with injunctions for anti-social behaviour.
  14. For the person sought to be made subject to an injunction it is submitted, in each case, that there must be a nexus between the activities of the person needing protection and the residential premises defined in the section, that is, for present purposes, a dwelling house held under a secure tenancy from the local authority, and that nexus is not present, it is submitted. Living in privately owned accommodation near such residential premises does not provide the nexus. Moreover, in the Wigan case, the judge misdirected himself, it is submitted, when he found at paragraph 8 of his judgment:
  15. "It is true that Mr McDonough owns his own house but his evidence was not only directed at that house, but was directed at the respondent's conduct in the estate, and it is the estate and the locality (to use the word of the statute) to which I must have attention."
  16. Section 152 refers to "residential premises" and "locality" but not to the amorphous expression "estate".
  17. Reliance is placed on the decisions of this court in Enfield LBC v B [2000] 1 WLR 2259 and Nottingham City County v Thames [2003] HLR 14. Leave to appeal has, we are told, been refused by the House of Lords in Thames. Both cases involve men who attended local authority housing offices and behaved in such a way as to trigger the operation of Section 152. Indeed the behaviour in each case was very frightening. In each case there were residential premises, within the meaning of the section, nearby.
  18. Injunctions were refused in this court in both cases. In the Enfield case, Waller LJ stated, at page 2263 G, that the subsection did not apply, "... so as to protect persons simply residing in the locality of the residential premises." Waller LJ added:
  19. "... the section clearly has in mind, as the judge decided, that there should be a nexus between the residential premises and the person who is sought to be protected by the subsection. So it has in mind peculiarly persons such as the milkman, the gasman, the water board officials as obvious examples. As it seems to me the judge was clearly right that persons who are working in an office which it so happens is only a few yards from residential premises were not persons whom this section was designed to protect. So on the issue that the judge was asked to rule on, I would dismiss the appeal."
  20. Buxton LJ stated at page 2265 E:
  21. "... it is extremely doubtful that Parliament intended that construction to extend, as is argued before us that it did extend, to the protection of persons living in private accommodation which happened to be, as a matter of language, in the locality of premises of a type to which section 152(1)(a) extends. There is no reason for such provision. It would turn entirely on the accidental or erratic location of the location of the claimant's home premises and would be a provision not appropriately found in what is a local authority Housing Act."
  22. Buxton LJ added at page 2265 H:
  23. "That is, of course, the case that is put here, that the persons who were so deplorably terrified when working in the social services office of the local authority were so working in the locality of residential premises, even though of course they were not in the locality of any residential premises occupied by or in any way connected with the defendants. Like Waller LJ, I cannot think that the [1996] Act extends in that way. The emphasis is on activities that occur, protection that is needed in, as I have said, the locality (and I emphasise) 'of residential premises'...
    It cannot be that Parliament intended these very strict provisions to apply to someone who is simply found in the locality of residential premises, unless his presence there had a connection with those premises. Similarly, persons engaged in lawful activity must, in my judgment, be engaged in lawful activity relevant to and connected with the residential premises that the 1996 Act exists to protect. Obvious cases to which that would apply would be, as was suggested in argument, the milkman delivering the milk, the local authority rent collector collecting the rent, and no doubt a housing officer of the local authority who is attending at the premises in order to perform his or her lawful duties. They do not apply to persons who are engaging in a lawful activity in a place that is unconnected with the residential premises: as is undoubtedly the case, I have to say, with the social services unit in which these... events took place...
    In my judgment, therefore, the judge was quite right in holding that there must be a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises that give this section its force and meaning."
  24. (It is common ground that the earlier part of that passage must be read on the basis that it is people and not premises that Section 152 aims to protect).
  25. In Nottingham, Ward LJ, with whom Sir Martin Nourse agreed, found that he was bound by Enfield. Ward LJ stated at paragraph 16:
  26. "The second strand of these judgments is that there has to be 'a nexus between the residential premises and the person who is sought to be protected'(per Waller LJ) and 'a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises' (per Buxton LJ). There is no difference of substance between these views which may be expressed in terms of showing a connection, link or nexus between some identifiable residential premises (as opposed to any residential premises in general) and the protected person. The court is not looking for a connection between the respondent and the residential premises."
  27. Ward LJ added (para 17) that, were he deciding the matter de novo he would have asked simply, "Was the threatened/assaulted person engaging in some lawful activity in the locality of council housing?"
  28. At paragraph 18 Ward LJ stated:
  29. "I must respect the ratio of Enfield LBC and find a connection between the person and the activity in which he is engaging and particular premises connected to him."

    At paragraph 20 Ward LJ accepted the submission that it, "would have to form part of some activity 'relevant to and connected with' particular premises..."

  30. There is, at present, a bill before Parliament which if enacted in the form currently proposed would have the effect of giving additional protection, at any rate to persons in the position of Mr Andrew and Mr McDonough. Other problems of construction may remain on the wording proposed. It would not be appropriate to anticipate enactment or to make detailed comment upon the provisions of the bill. It is expected to become law during the current session.
  31. The court is conscious of the social problems which exist on many housing estates and that Parliament has intended in the 1996 Act and elsewhere to increase the power of local authorities to deal with them. We are also conscious of the difficulties faced by a witness who in the words of Judge Mackay, "puts their head above the parapet and gives evidence against the [trouble maker]."
  32. I would approach the section and decided cases on the basis that too restrictive an interpretation is, if possible, to be avoided. However, while I see the force of an approach by means of the simple question posed by Ward LJ at paragraph 17, had he felt free to pose it, it would encompass so wide a range of behaviour, for example, threats made on a bus being driven past a council house, that some restriction upon the application of the test is, in my view, required in the context of a section dealing essentially with residential premises. That much appeared to be acknowledged by counsel for the authorities in these cases.
  33. It was in that context, and I am sure aware of the difficulties involved, that the court in Enfield approached the question of the interpretation of Section 152. Both members of the court in Enfield saw the need to establish a link between the events, to put it neutrally, and the residential premises. Buxton LJ in Enfield explained the need for such a qualification upon general words.
  34. I will refer to the submissions on behalf of the local authorities collectively, though the emphasis and precise points taken did differ from one to the other. They are:
  35. (1) It is sufficient to rely on the discretion of the court to protect persons against an over-extended application of Section 152(1)(a).

    (2) This court may have regard to the purpose of the section which is to protect residents on council estates and conclude that in each of the present cases, and ignoring other cases, the making of an injunction was justified and appropriate.

    (3) There is no justification for reading into Section 152 (1) (a) words such as, "and having some connection with the premises" at the end of the paragraph.

    (4) The anomaly of relief depending on whether the complaint is an owner occupier or a council tenant cannot have been intended, though as Mr Luba QC for G points out, anomalies will arise whichever view is taken of the words, "in the locality."

    (5) The views upon nexus expressed in Enfield and Nottingham are so diverse that no principle is established and the court is free to establish its own test. Waller LJ saw the nexus as being between the residential premises and the person to be protected, Buxton LJ between the premises and the activity of that person. In Nottingham Ward LJ, it is submitted, failed to appreciate the difference between the two tests propounded in the earlier case, and the test stated by him based on that misunderstanding should not be applied.

    (6) The activities of the threatened person in both cases are sufficient to establish the required link.

    (a) in the Manchester case the complainant lived near residential premises, a different situation from the employment situation considered in the earlier cases. Mr and Mrs Andrew lived in close proximity to residential premises as defined. They formed a part of a community where there were many such premises and where people were interdependent. The threats had arisen from a dispute about parking on the street in proximity to next door residential premises. Mr and Mrs Andrew came within a category of person, it is submitted, with a sufficient link to relevant residential premises.

    (b) in the Wigan case reliance is placed, in addition to the proximity of the complainant to residential premises as defined, to the fact that Mr McDonough had given evidence in proceedings brought by the council to recover possession of residential premises near his. That established a link between him and the residential premises.

    (7) In response to Mr Luba's submission that Waller LJ, in agreement with Buxton LJ, plainly had in mind the activities of persons and not just persons as persons, Mr Manning, for Manchester, submits that the "person link" he prefers may be established by the presence of the complainant as a resident without reference to activities on a particular occasion.

    (8) If other submissions fail, Mr Hinchcliffe QC for Wigan relies on the evidence of Mr McDonough about threats to other residents who, he submits, do live in residential premises as defined. Mr McDonough stated that for some years these children, which may well have included G, "have carried out intimidation of other tenants and residents and their children. This has included urinating in the streets, swearing at people as they pass, carrying out acts of violence to others and the vandalism of property." The evidence of Mr and Mrs Brew is not now relied on by Mr Hinchcliffe. What Mr McDonough said, the judge found, is that G, "has been behaving in a violent and disruptive manner towards other people as well."

  36. My conclusions are:
  37. (1) The court is not entitled to construe Section 152(1)(a) as if this court had not ruled upon it in Enfield and Nottingham.

    (2) The court in Enfield plainly took the view that in giving effect to the section, in its context under the 1996 Act, it is necessary to place some restriction upon the simple question subsequently posed by Ward LJ at paragraph 17 of his judgment in Nottingham.

    (3) In my view Waller LJ did have in mind an activities test when giving in short form examples of activities more fully described by Buxton LJ. In that part of his judgment he was not proposing a different test.

    (4) Waller LJ expressly rejected the submission that the subsection protected persons, "simply residing in the locality of the residential premises."

    (5) If, contrary to my view, a test stated by Waller LJ in Enfield can be separated and applied to the present cases, it does not enable the authorities to succeed on the present facts.

    (6) Ward LJ in Nottingham considered both judgments in Enfield and, in a reserved judgment, with which Sir Martin Nourse agreed, he expressed his conclusion upon them in paragraphs 16, 18 and 20 of his judgment. This court should apply the principles there stated. It is very far from established that they are based on such an erroneous view of Enfield that they may be ignored.

    (7) Applying these principles the activities of the person threatened relied on by the authorities in these cases do not have the necessary connection with residential premises as defined in the section. They are activities of a person living in the locality and they may be activities arising out of a dispute between neighbours, but that is not sufficient to link or connect them with the residential premises as the test requires, or to bring the section into operation. In Manchester, the threats complained of were, in any event, removed by time and identity of parties from the parking dispute.

    (8) The reference by Ward LJ to particular premises is not a novelty. The judgments in the early cases contemplated particular premises. The expression is not confined, however, to a single dwelling house, but may cover a group of residential premises.

    (9) If I am wrong in conclusions 3 and 5, and the court in Nottingham was not bound, as it perceived itself to be, this court is bound by the Nottingham decision which is fatal to the authorities' cases.

    (10) I would also reject Mr Hinchcliffe's submission that the injunction in Wigan can be justified on the basis of the evidence of Mr McDonough in relation to other tenants. Mummery LJ and Chadwick LJ propose in their judgments to refer to the form of the injunction. The evidential basis is in any event missing. The evidence is insufficiently specific and does not establish that the unidentified persons claimed to be affected came within the appropriate category. Moreover, the judge's self-direction in paragraph 8 of his judgment, already cited, did not, with respect, sufficiently set out the evidential requirements for an order under Section 152. The injunction in the Wigan case cannot be justified on that basis.

  38. Mr Luba has raised a further point in relation to the fact that G is under 18 years of age. Having regard to the conclusion reached on other points, and having regard to the comments upon the form of the injunction, which I understand my Lords propose to make, it is not, in my view, necessary to deal with the point on minority. Counsel have agreed that it is not necessary to do so. Accordingly, I leave it without reaching any conclusion or making any comment upon it.
  39. For the reasons I have given I would allow the appeal in the Wigan case and dismiss the appeal in the Manchester case.
  40. LORD JUSTICE MUMMERY: I am in agreement with the judgment of Pill LJ. I would make three general points:
  41. (1) Construction of Section 152 of the Housing Act 1996

  42. According to the construction placed on Section 152 by the Court of Appeal in the cases of Enfield and Nottingham, the court had no power to grant an injunction on the facts of either of the two cases under appeal. In each case the identified victims of the nuisance or annoyance fell outside Section 152, even though the incidents occurred near to where they lived and near to residential premises let by the local authority. None of the identified victims of the nuisance or annoyance resided in residential premises of the type described in Section 152(2). They resided in premises which they owned, not in residential premises owned and let by the local authority. They were not visiting residential premises let by the local authority, nor were they engaged in any activities in such premises. Although they reside in the locality of residential premises let by the local authority, and although the nuisance occurred in that locality, there was no nexus between those victims or their activities and such residential premises. According to the authorities binding on this court, such a nexus is required in order to bring the cases within Section 152.
  43. (2) Form of injunction

  44. Even if the court had power to grant an injunction under Section 152 I doubt whether the injunctions granted by His Honour Judge Mackay in the Wigan case, and initially by District Judge Needham in the Manchester case (and sought by the Manchester City Council on its appeal to this court) were in the appropriate form. I refer first to the order made by His Honour Judge Mackay on 25th June 2003. It was in these terms:
  45. "The Court ordered that [G] is forbidden (whether by himself or instructing or encouraging any other person) from
    1. Engaging or threatening to engage in conduct causing or likely to cause a nuisance, annoyance or disturbance to any person residing in, visiting or otherwise engaging in a lawful activity in the locality of Hulme Road, Westleigh, Leigh.
    2. Harassing any such person.
    3. Using abusive or insulting or threatening behaviour against any such person.
    4. Using or threatening violence against any such person.
    5. Entering the area edged in red on the plan."
  46. I should mention that council premises let by it were situated at 11 Hulme Road. Mr McDonough owned and lived at 15 Grosvenor Road, Leigh, which is nearby.
  47. Turning now to the Manchester case. The order which was initially granted by the District Judge, but discharged by him later when he was informed that Mr Andrew was the owner of his own premises, was in these terms, which were referred to by the District Judge 'as the usual terms'. The injunction forbade Mr Lee:
  48. "... whether by himself or by instructing, permitting or encouraging any other person, from: (1) engaging or threatening to engage in conduct causing, or likely to cause, a nuisance, annoyance or disturbance to any person residing in, visiting, or otherwise engaging in a lawful activity in the locality of 161 Yew Tree Lane, Northern Moor, Manchester; (2) harassing any such person; (3) using abusive or insulting or threatening behaviour against any such person; (4) using or threatening violence against any such person; (5) entering, or attempting to enter, 161 Yew Tree Lane, Northern Moor, Manchester and/or the front and/or the rear gardens thereof."
  49. I should mention that 161 Yew Tree Lane was the premises owned by Mr Andrew.
  50. The court certainly has a very wide discretion Section 152(4). The injunction may relate to particular acts or to conduct or types of conduct in general or to both. It may relate to entering particular residential premises or a particular locality of any such premises. It may be made for a specified period or until varied or discharged.
  51. The section provides, however, that before granting an injunction the court must be of the opinion that:
  52. "(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection(1)(a), and
    (b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted." (See Section 152(3) (a) and (b)).
  53. Careful consideration needs to be given by the court in each case to the scope of the injunction which is justified by the evidence. In the exercise of its discretion the court must ensure that the injunction granted is framed in terms appropriate and proportionate to the facts of the case. Thus, if the judge finds that there is a risk of significant harm to a particular person or persons it would usually be appropriate for the injunction to identify that person or those persons, so that the respondent knows the circumstances in which he might be in breach of the injunction, and liable for contempt of court if he caused a nuisance or annoyance to them in the future.
  54. In order to justify granting a wider injunction against the respondent, restraining him from causing a nuisance or annoyance to, "a person of a similar description," it would normally be necessary for the judge to make a finding that there had been use or threats of violence to persons of a similar description, and that there was a risk of significant harm to persons of a similar description if an injunction was not granted in respect of them.
  55. (3) The future outlook

  56. I can well understand the concern of local authorities and the predicament of owner-occupiers in premises near to residential premises let by the local authority, when they are victims of nuisance. In my judgment, the existing legal situation concerning the jurisdiction of the courts to grant injunctions on the application of the local authority cannot be altered by the Court of Appeal. It can be altered by primary legislation containing the kind of provision at present under consideration in clause 13 of the Anti-social Behaviour Bill, which proposes to insert a new Section 153A into the Housing Act 1996.
  57. LORD JUSTICE CHADWICK: I agree with the orders proposed by Pill LJ.
  58. Section 152(1) Housing Act 1996 empowers a court, on an application by a local authority, to grant an injunction prohibiting a person from inter alia:
  59. "(a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises."

    Subsection (2) describes the residential premises to which the section applies. Subsection (3) provides that:

    "The court shall not grant an injunction under this section unless it is of the opinion that -
    (a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and
    (b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted."

    It is therefore an essential precondition to the exercise of the powers conferred by Section 152 that the court should be able to identify a person within the description in paragraph (a) of subsection (1) to whom the respondent has used or threatened violence. That person may, for convenience, be described as "the victim".

  60. What, then, are the characteristics which must be present before a person can be said to be a victim? It is clear enough that where the person to whom the respondent has used or threatened violence was residing in residential premises - within the limited meaning given to that phrase by subsection(2) - was visiting such premises or was otherwise engaging in a lawful activity in such premises, that person can properly be identified as victim for the purposes of Section 152. The more difficult question is to determine the extent to which the class of potential victims is enlarged by the additional words at the end of subsection (1)(a), "or in the locality of such premises." Do those words enlarge the scope of each of the three characteristics previously mentioned - that is to say, residing in, visiting, or otherwise engaging in a lawful activity in residential premises? Or do they enlarge only the third of those characteristics; so that the first two characteristics remain unenlarged, but the third becomes, "otherwise engaging in a lawful activity in residential premises... or in the locality of such premises."?
  61. Had I to decide that question, I would not find it easy. It seems to me that it is impossible to reach a conclusion which does not do some violence to the language which Parliament has used. But it is not necessary, in this court, to decide that question. That answer is provided, in this court, by the analysis in the judgment of Ward LJ, with which Sir Martin Nourse agreed, in Nottingham City Council v Thames [2002] EWCA Civ 145, [2003] HLR 14, of the earlier judgments of Waller LJ and Buxton LJ in Enfield LBC v B [2000] 1 WLR 2259. The additional words, "in the locality of such premises," enlarge only the third characteristic (see paragraph 15 of Ward LJ's judgment in the Nottingham case).
  62. Further, it is clear from the two decisions of this court to which I have just referred that it is not enough simply to ask: was the person to whom the respondent has used or threatened violence engaging in a lawful activity in the locality of residential premises? There must be some nexus between the activity in which the person is engaged and some identifiable residential premises within the locality of which the activity was taking place (see paragraph 18 of Ward LJ's judgment in the Nottingham case). It follows from that judgment that the words must be construed as if they read, "... otherwise engaging in a lawful activity in the locality of, and having connection with, such premises." The words which I have introduced into the statutory language, "and having connection with" are no more than a way of expressing the need to find some nexus between the activity and the identifiable residential premises. In all those references, of course, residential premises must be given the limited meaning for which Section 152(2) provides.
  63. The primary question, therefore, in each of these appeals, is whether there was a sufficient connection between the person or persons identified by the courts below as victim or victims and some identifiable residential premises.
  64. Pill LJ has explained why that question must be answered in the negative. I agree with his analysis, and need say no more on that point.
  65. The point on which I think it appropriate to add some further observation is that to which Mummery LJ has referred; that is to say, the form of the injunction granted by His Honour Judge Mackay in the Wigan Borough Council case, and by the District Judge in the Manchester City Council case. Such an injunction has been said to be "in the usual form." If so, the practice needs reconsideration.
  66. Paragraph 1 of the injunction in the Wigan Borough Council case restrained the respondent from:
  67. "Engaging or threatening to engage in conduct causing or likely to cause a nuisance, annoyance or disturbance to any person residing in, visiting or otherwise engaging in a lawful activity in the locality of Hulme Road, Westleigh, Leigh."
  68. I have sympathy for the judges below because, on a casual reading of Section 152(1)(a), that appears to be the form of injunction which Parliament has empowered the court to grant. But, on a closer reading of the section and in the light of the decisions of this court in Enfield and Nottingham, I am led to the conclusion that that cannot be so.
  69. First, the effect of those decisions is that the persons within paragraph (a) of Section 152(1) do not include persons residing in or visiting premises not themselves residential premises within the meaning of subsection (2) of the section. It is not enough that such premises are in the locality of residential premises. So an injunction in the form granted goes beyond the power conferred by subsection (1)(a).
  70. Second, persons within paragraph (a) of a subsection do not include all persons engaging in a lawful activity in the locality of residential premises. It is necessary that there should be some sufficient connection between the activity and some identifiable premises. The injunction, as granted, does not make that clear.
  71. If the observations of Mummery LJ are not heeded, the grant of the injunctions in the broad terms adopted in the Wigan case will lay the ground for a further argument on any attempt to enforce the injunction by committal - or following the exercise of the power of arrest if attached to the injunction - it will be for argument whether the conduct said to have been in breach of the injunction was conduct in relation to a person whose activity in the locality of the residential premises brought him within the classes defined by the injunction; and, if so, whether, on a proper understanding of the statutory provisions, such person is a person whom the power conferred by Section 152(1)(a) of the Act was intended to protect.
  72. It cannot be sensible or a proper exercise of the statutory power to grant an injunction in terms which are not readily understandable by those whose conduct they are intended to restrain. Further, an injunction which leaves doubt as to what can and cannot be done is not a proper basis for committal proceedings.
  73. Order: Appeal allowed in the case of G and appeal dismissed in the case of Lee; no order for costs in the case of Lee; respondent to pay the appellant's costs to be assessed if not agreed in the case of G; applications to appeal to the House of Lords refused.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1256.html