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||Neutral Citation Number:  EWCA Civ 1847
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(DISTRICT JUDGE BIRD)
||Royal Courts of Justice
||20th December 2004
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE MANCE
LORD JUSTICE CARNWATH
||SOLON SOUTH WEST HOUSING ASSOCIATION LIMITED
||(1) LISA JAMES
||(2) ERAN JAMES
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MR STEPHEN COTTLE (instructed by Messrs South West Law Ltd, Bristol BS2 0BH) appeared on behalf of the Appellants
MR JOHN SHARPLES (instructed by Messrs Bevan Brittan, Bristol BS1 4TT) appeared on behalf of the Respondent
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- LORD JUSTICE PETER GIBSON: I will ask Lord Justice Mance to give the first judgment.
- LORD JUSTICE MANCE: This is an appeal against a judgment of District Judge Bird given in the Bristol County Court on 4th June 2004, leading to an order dated 12th July 2004, whereby he made and refused to suspend a possession order in favour of the respondent housing association, Solon South West Housing Association Ltd, in respect of the house of which the appellant defendants, Eran and Lisa James, were the tenants. The housing association had sought possession of the house by a notice dated 15th September 2003, on the grounds that there had been non-payment of rent and breach of other obligations of the tenancy and under the heading "ground 14", a reference to Schedule 2 of the Housing Act 1985 (as amended) on the ground that:
"The tenant or a person residing in or visiting the dwelling house
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, ..."
- The particulars of claim exhibits a schedule of nuisance, in which a number of allegedly significant dates going back to 5th August 2002 and extending until 31st January 2004 appear.
- The non-payment of rent and at least one incident of nuisance or annoyance involving, it appears, interference by the appellants' children with a vehicle's tyres were admitted, so that there was no issue that some form of possession order was appropriate. The issue tried was whether any possession order made should be suspended. That included substantial issues as to the extent, if any, of any further breaches or conduct involving nuisance or annoyance.
- Counsel for the appellants submitted, and the judge accepted, that the limited admitted breaches to have I which referred would not by themselves justify an outright order. Whether an outright order should be made therefore turned on whether there were any, and if so what, further breaches or conduct of the nature described. The judge concluded that there had been. He heard, during a trial which extended over at least three days (that is 11th May, and 28th and 29th May), both oral or (as he described it) live evidence and hearsay evidence. He summarised in his judgment the live evidence as follows:
"13. Having considered the hearsay evidence, I now turn to the 'live' evidence. Some of the police officers who recorded the complaints of others gave oral evidence about their dealings with the defendants. PC Taylor records an incident on 17 June 2003  when he said good morning to Lisa James and she replied 'what the fuck are you looking at, don't fucking look in my direction, you fucking wanker'. On 15 September 2003 he was present when Lisa James declined to sign the ABC contract on behalf of her children 'as they never did any fucking thing wrong'.
PC Roach verified his evidence about his visit to the defendants house and how shocked he was by their behaviour.
14. Richard Mallett, a community worker, said  that on 2 September 2003 he clearly say Marley James stabbing car tyres with a knife. When approached Marley shouted 'community links, come and get some'.
Anthony Wrafter said  on 3 September 2003 he was involved in an incident after the windscreen of his parked car was smashed. A bystander had told him that the perpetrator was a child from 30 Brighton Street. At about 11.30 pm he called at the property and saw persons identifiable as the defendants. Lisa James was aggressive and abusive and one of the children poked him in the stomach. Another male child put alighted cigarette in his face and a female child punched his girlfriend in the face breaking her glasses. While this was going on, Lisa James was at screaming pitch shouting 'fuck off my doorstep'. In cross-examination he denied that he was the worse for drink and stood by his evidence.
15. Finally, Pauline Clarke, the defendants' next door neighbour gave evidence. She said  that she had experienced countless problems with the defendants and gave a selection of incidents. In august 2003 her daughter was threatened with a knife by Kane, one of the James children. The defendants stood by and did nothing. On many other occasions Kane threatened her. She witnessed their 'blatant intimidation' of other residents including a Somalian family. She testified that many other resident are afraid to give evidence against the defendants. Cross-examined, and then re-examined, she repeated that she had had to stand between Eran James and a Somalian family when he was abusing and threatening them and saying 'go back to Africa'.
She said that she had recently seen the children on the roof of their own house and her house. She feared for what might happen as the weather became warmer."
- He also summarised the hearsay evidence as follows:
"8. First, the hearsay evidence. PC Taylor, the Community Beat Manager for St Pauls, said the Somalian families had been subjected to incidents of race hate by the James family but did not want their identities revealed . He said they had a real fear of what might happen to them if they gave evidence. He produced a statement of Jules Cook  identifying one of the defendants' children slashing tyres. He produced statements of police officers not called to give evidence such as PC Jones  who testify to the chaotic nature of the James household and the fact that the children seem to run uncontrolled. He concluded 'their [the children's] behaviour is disgusting and obstructive and I can only imagine the distress their constant antics must cause their neighbours and those living in the immediate area.'
9. PC Taylor produced a statement by PC Dello Gorin  who says he called at the house in connection with a 'domestic incident' in September 2003 who testified as to the unruly behaviour of the children and the lack of control exercised by the defendants. He testified as to the dogs at the property which barked a lot and which were allowed to defecate on the floor. A statement by PC Lloyd was produced  stating that in September 2003 one of the children (probably Clay) asked him of he was gay, and uttered obscene remarks in the street in the presence of Eran James who did nothing to control him.
PC Taylor then produced a log of incidents allegedly involving the defendants [208f and 208k et seq].
10. PC Roach said  that he was aware of the defendants from April 2003 as attracting allegations of public order offences, criminal damages, racial abuse and serious assault. The majority of complainants were unwilling to be identified. He interviewed a Somalian  who wished to remain anonymous who complained that Lisa James was always saying, 'fucking Somalian, go back to your own country' and that his children could not go outside for fear of being attacked by the James children. Another Somalian woman claimed to have experienced daily racial taunts from the defendants. Another witness claimed to have been struck by a pellet fired from the property.
11. PC Meakin said  that a nearby residence told him that he had seen one of the children from 30 Brighton Street smashing a car windows and slashing car tyres with a machete.
Marion Burrell, a worker for SARI (Support against Racial Incidents) said  that since 2003 SARI have been notified by nearby residence that they were being targeted by the James family. Incidents include verbal and racial abuse, fires being lit in front of their houses, and threats of violence. The main perpetrators were the children of 30 Brighton Street with the parents doing nothing to stop them. Witnesses were too afraid to give evidence.
Mr Gordon, the claimant's housing officer, said  that he had received complaints of harassment, intimidation, vandalism, and racially motivated abuse and attacks by the defendants and their family. Complainants were afraid to give evidence or be identified.
12. The documentary evidence shows a petition by neighbours complaining about barking dogs , a letter to the defendants about the dogs , a record of a complaint about the dogs , a nuisance log relating to dogs , a complaint about loud music , complaints of intimidation , records of complaints about violence, verbal abuse, shooting pellets, and 'beating up a Somalian man' , with various further complaints of a similar nature. There are also documents [165 et seq] dealing with the efforts of the claimant to secure an Acceptable Behaviour Contract from the defendants."
- A comparison of the summary which he gave in those passages with the housing authority's original allegations as scheduled to the particulars of claim and with the voluminous documentation put before the court shows that the judge was selective in the material he used. The selection must have been deliberate, since he cannot have forgotten the submissions being made on a number of other allegations. So it seems to me that it does not assist this appeal for Mr Cottle to produce, as he has this morning, a lengthy list of every possible allegation and to complain about the nature of the documentation produced in relation to allegations to which the judge, in my view, cannot have been referring when he said that he accepted the hearsay evidence adduced. When the judge said that, he was, as I see it, referring to the hearsay evidence set out in the paragraphs which I have incorporated in this judgment, and in that sense defining and limiting the material to which he was referring. I will revert subsequently to whether that means that he was necessarily accepting to every point mentioned in those paragraphs, particularly, for example, in the log of incidents produced by PC Taylor and in paragraph 12 the passage which he put in inverted commas.
- It seems to me that the judge therefore directed himself with some care in relation to the hearsay evidence. He said specifically that it was "important to compare the hearsay evidence with the 'live' evidence and to adopt a more restrictive view of the hearsay evidence where it seems not to be consistent with the live evidence." He accepted the housing association's live evidence rather than the appellants' live evidence, and he found the hearsay evidence "entirely consistent with [his] findings of fact in the live evidence." He found that it fitted "the pattern established by the live evidence": see paragraph 22 of his judgment. He took into account the drastic nature of any unconditional possession order, but he concluded (in a passage to which I will revert) in paragraph 24 that such was nonetheless appropriate.
- An appeal is now brought with leave of the single judge on 11 grounds:
"(1) The learned judge failed to find whether the list of alleged incidents 208f and 208k et seq were established given the obvious lack of evidence.
(2) The learned judge failed to give reasons why given the contradictory evidence, (on the face of the Claimant's evidence), he found the allegations set out on pages 208f and 208k et seq of the bundle, nevertheless proved.
(3) The Learned Judge held against the Defendants matter which were not part of the claimant's claim nor part of the evidence - e.g. the beating up of a Somalian man.
(4) The learned judge mis-directed himself by not addressing whether there had been any improvement since last Autumn as the officers agreed that there had been. In particular the Learned Judge failed to consider the importance of the alleged incidents at 208f to whether or not there were no further incidents since the service of the S 8 notice, because if there were no further incidents as the Defendants contended, this was material to (a) whether or not the Defendants could control their children (b) whether or not if there had been a cessation of nuisance over 7 months it was right to say the community required protection and (c) whether or not to suspend the possession order; and (d) Article 8 rights (for both the neighbours and the Defendants) which the Learned Judge wrongly failed to address at all.
(5) The learned judge erred by leaving out of account the fact that SARI had checked with the complainants regularly since the Autumn and the records show that there were no further complaints since then; further the SARI evidence was collected with the assistance of an interpreter and the Judge wrongly treated the evidence of PC Roach as additional to the SARI evidence when it was the result of conversations with the same people interviewed by SARI but with no interpreter.
(6) The learned judge was wrong to hold that Mrs Clark saw the First Defendant abusing a Somalian family without commenting that the matter did not appear in Mrs Clark's statement, she could not say when it took place, there was no other mention of it in the evidence and the police accepted that Mr James was a quiet man.
(7) The learned Judge wrongly concluded that the family terrorised the neighbourhood without evidence to justify the conclusion and took into account irrelevant matters in reaching his decision, namely the flawed findings set out above and based his conclusion on hearsay evidence which he should have excluded.
(8) The learned judge erred in failing to recognise that admission of all - or all of that part of the hearsay where no adequate reason for non attendance at trial was advanced - was compatible with Article 6(1) of the ECHR. The Learned Judge applied the wrong test which was simply to rely on the hearsay where it was consistent with the live evidence never addressing what the consequence was for the Defendants of not being able to test the evidence against them.
(9) Further the Learned Judge's approach was wrong in law because he reduced the actual disadvantage of being cross-examined about matters which Mr and Mrs James could themselves not test by cross examination to merely being at risk of being placed at a considerable disadvantage; and his assessment that there was no risk because the hearsay was consistent with the live evidence did not address the unfairness instead it amounted in effect to a finding that there was no disadvantage if the hearsay (consistent with the live evidence) was taken into account.
(10) In approaching that finding the Learned District Judge also failed to apply the criteria in S 4 of the CEA 1995.
(11) Finally the District Judge erred in permitting the introduction of new allegations on unspecified dates by Mrs Clark which the Learned Judge then relied on."
- There is, as the respondents have observed in their skeleton argument, considerable overlap between these grounds. One category of complaint relates to the hearsay evidence, in relation to which it is said that the judge adopted the wrong approach, both generally and in particular respects (see ground 3 and grounds 8-10). That is put at the forefront of Mr Cottle's submissions today.
- Another ground relates to the treatment by the judge of certain evidence, in particular as regards a Miss Clarke. It is said that the judge was wrong in the way that he accepted that she saw Mr James abusing a Somalian family (that is ground 6) and wrong in permitting her to introduce vague new allegations (ground 11). Those points have not featured large before us today.
- It is further said that the judge was wrong in his approach to or acceptance of police evidence of alleged incidents after September 2004 (that is grounds 1 and 2) and wrong not to accept and take into account that any significant complaints and incidents had ceased after the issue of the notice seeking possession in September 2003 (that is grounds 4 and 5). Those points have again been at the forefront of Mr Cottle's submissions today and he has tied them into more general complaints, including reference to the European Convention on Human Rights.
- Ground 7 is really a wrap-up ground, to the effect that the judge was wrong to conclude that the family terrorised the neighbourhood, without evidence to justify that conclusion and making the errors complained of in the other grounds. Again, it is right to say that Mr Cottle has sought to view that in conjunction with the points made on hearsay evidence and to suggest, in particular, that points arise on the European Convention on Human Rights.
- I start with the points on hearsay evidence. The primary evidence relied upon by the respondents was live oral evidence, but hearsay evidence was also relied on contained in statements served with the claim form. One of Mr Cottle's complaints today has been that the judge should have identified whether the live evidence by itself was sufficient to establish the appellants' contentions. But I do not see that he was under any obligation to do that. It was entirely open to him to decide what aspect of the hearsay evidence he felt could be relied upon safely as an annex to, or support for, the live evidence, and then to view the overall evidential position when arriving at his judgment whether or not the possession order should be suspended.
- As regards the hearsay evidence, there was no application for this to be formally excluded and there appears at no stage to have been, either prior to or at the trial, any application for information as to the identity of makers of statements who were not identified in the statements or identifiable from other circumstances. The evidence, both live and hearsay, was in major respects challenged by the appellants in their statements and oral evidence, and it was certainly submitted that the judge should not find it reliable or at any rate rely on it to the point of making an outright possession order. It is right that in cross-examination some questions were put with regard to the origin of some of the hearsay complaints, particularly those in 208f and g, although ultimately there does not appear to have been much (if any) issue taken with the proposition that there were continuing internal problems within the appellants' household. But it is also right to say that counsel for the appellants cross-examined in a way which in fact led to further hearsay evidence being adduced.
- The first part of ground 8 is a complaint that the judge erred in admitting hearsay evidence when no adequate reason was given for non-attendance of the relevant witness at trial. In the second part of ground 8 and in ground 9 it is said that the judge erred in admitting the hearsay evidence, since it could not be the subject of cross-examination. In each case the judge is said to have acted contrary to Article 6 of the European Convention on Human Rights.
- In ground 10 it is further said that he erred in failing to apply the criteria of section 4 of the Civil Evidence Act 1995 when deciding what weight to place on the hearsay evidence. It is right to say (and I think Mr Cottle accepts) that, looking at, for example, his final submissions below, these points have achieved before us an emphasis which they were never given below. As I have said, the evidence was challenged, but the broad submissions as to the approach which a court should take, under the Human Rights Act in particular, to such hearsay evidence were not canvassed below.
- The domestic context is, as ground 10 recognises, section 4 of the Civil Evidence Act 1995. On the face of section 4, the availability of the maker of an original statement to be called is a matter going to weight not admissibility, but there is certainly power under the Civil Procedure Rules to exclude hearsay evidence. We were referred in that connection to the case of Grobbelaar v News Group Newspapers Ltd, 12th August 1999 in this court, although we were only shown this in The Times Law Reports for that date.
- To my mind, there is very little, if any, relevant difference between asking a judge to exclude evidence (which in this case does not appear to have happened) and asking him not to rely on it, since under section 4 a judge could determine that evidence was not worthy of any particular weight even after it had been admitted. So in one sense it does not matter that there was no application to exclude the evidence. The question is whether the judge put weight on particular evidence and whether he was justified in doing so.
- The skeleton argument for the appellants observes that in paragraph 5 the judge referred to the respondents' claim that:
"... it is unable to call many of its witnesses because they are afraid of the defendants and are unwilling even to be named."
- In so far as the skeleton argument suggests that that meant that the judge was proposing to look at hearsay evidence where witnesses were both identifiable and willing to be called, I do not think that that follows. It seems to me that he made clear in his judgment which hearsay evidence he was relying on. Some of it includes hearsay evidence, as I say not objected to as such, from identified persons, such as the police officers, PC Jones, PC Dello Gorin, and PC Lloyd. Other parts of it included hearsay evidence from witnesses who the judge was, in almost every case, careful to identify as witnesses who did not want their identities revealed or who wished to remain anonymous, either by inference or expressly out of fear. There was overwhelming evidence of complainants being unwilling to be identified or called because of such fear. There does appear in relation to the one incident of 1st December 2003 (to which I will return) that there was some cross-examination as to the basis of that view, recounted, as it was, by officers or others to the court. But apart from that, it does not appear to have been put to any live witnesses, police officers or others, that the hearsay evidence which they adduced as coming from witnesses who were in fear was in that respect inaccurate and that the witnesses were not in fact or might not in fact have been in fear.
- When one reads the judge's account of the hearsay evidence which I have incorporated in this judgment, it seems to me that, far from endorsing generally the hearsay evidence in the bundle without discriminating between hearsay evidence coming from witnesses who were expressly unwilling by reason of fear to give evidence and other witnesses, the judge was careful in relation to the anonymous witnesses to confine himself to evidence where there was evidence of fear of identification or reprisals precluding the disclosure of their names or their calling. As I have said, in the other cases where the names were identified, the obvious position is that it would have been open to Mr Cottle to require them to attend for cross-examination under CPR 33.4, something which he never did at trial. There may perhaps be some individual exceptions to what I have said with regard to the anonymous witnesses, but it is not such as could possibly determine the outcome of this appeal.
- Mr Cottle emphasised before us the importance of cross-examination and the prejudice, as he submitted, of inability to cross-examine in cases of admission of hearsay evidence. That inability is a natural consequence of the admission of hearsay evidence, where the maker of a statement is not identifiable or available to be called. But it is notable, as I have said, that even where the makers of statements were identified, no application was made for them to be required to attend for cross-examination. Further, even in relation to witnesses who were not identified, there are instances of such witnesses who were identifiable. Mr Cottle has accepted that some of the anonymous witnesses were identifiable, for example, the witnesses referred to in appeal bundle, page 111 and 119 and at transcript 181 and 226. The witness there referred to was resident in No 21 Brighton Street with her children. Number 21 is the house opposite number 30, where the Jameses live. Another instance is appeal bundle at page 148, where there is a reference to the name of one such witness, Hoda Ismal. But as I have said, there was no application under section 3 of the 1995 Act and CPR 33.4 for their attendance and cross-examination.
- Mr Cottle also placed much weight today on the need to preserve equality of arms under the European Convention on Human Rights. He submits that goes in this context even further than the common law position. He referred us to the case of Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, particularly at paragraph 33, where the European court said:
"Nevertheless, certain principles concerning the notion of a 'fair hearing' in cases concerning civil rights and obligations emerge from the Court's case law. Most significantly for the present case, it is clear that the requirement of 'equality of arms,' in the sense of a 'fair balance' between the parties, applies in principle to such cases as well as to criminal cases.
The Court agrees with the Commission that as regards litigation involving opposing private interests, 'equality of arms' implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-á-vis his opponent.
It is left to the national authorities to ensure in each individual case that the requirements of a 'fair hearing' are met."
- Mr Cottle also submits that we should apply in this field what was said in the case of Albert and Le Compte v Belgium (1983) 5 EHRR 533, paragraph 21, about the application in proceedings other than criminal proceedings (in that case disciplinary proceedings against doctors) of the right to have witnesses examined. However, it is clear that that is not -- certainly not in civil proceedings, and not even I think in criminal proceedings -- an absolute right. There was no question in Albert and La Compte of intimidation or fear. The judge in the present case was of course bound to take into account the absence of cross-examination when evaluating, under section 4 of the 1995 Act, what, if any, weight was to be attached to the hearsay evidence called by the respondents. It is clear that he did so. He said this in paragraphs 6 and 7 of his judgment:
"6. It is worth summarising Mr Cottle's skeleton argument on this point (without his authorities) since it ably encapsulates his case. He argues as follows-
1. Article 6(3)(d) ECHR applies to these proceedings.
2. The task is to assess whether proceedings in their entirety are fair; each side must be able to present its case under conditions that do not place it at a substantial disadvantage.
3. If the court finds that the defendants are being placed at a substantial disadvantage, it can take steps to remedy that disadvantage, namely to disregard otherwise [admissible] evidence.
4. If the court refrains from such steps the proceedings are unfair.
5. In the present case, being cross-examined about matters which they themselves cannot test by cross-examination places the defendants at a substantial disadvantage.
I do not disagree with any of the first 4 of those propositions and I certainly agree that the statute and case law as to hearsay evidence has to be viewed through the prism of the ECHR. As to proposition 5, I would substitute 'risks placing' for 'places'. I recognise that risk and it seems to me that I am in the position envisaged by the Court of Appeal in Leeds City Council v Harte  CLYB 4069. This was a case in which all the evidence was hearsay. The judge at first instance cautioned himself as to the weight which it would be right to place on the hearsay evidence, and then made conclusions of fact adverse to the defendant. The Court of Appeal held that he was entitled so to do. Similar guidance was given in Canterbury CC v Lowe  1 L and TR 152.
7. In paras 9 to 15 of his skeleton Mr Sharples for the claimant sets out a list of European cases supporting his argument that hearsay evidence is admissible where there is a fear of intimidation provided the court is frequently reminds itself of the fact that it cannot be tested by cross-examination and has regard to the evidence as a whole, including, of course, the evidence of the defendants. I agree with this, and I would add that, notwithstanding Harte, I think that it is important to compare the hearsay evidence with the 'live' evidence and to adopt a more restrictive view of the hearsay evidence where it seems not to be consistent with the live evidence.
With that guidance to myself in mind, I now turn to the evidence."
- As these passages show, the judge had well in mind the relevance of the European Convention on Human Rights. That Convention guaranteed to the appellants a fair and public trial. But in both domestic and in Convention terms the present proceedings were civil proceedings, even though they involved consideration whether the appellants had committed anti-social behaviour as well as applications for anti-social behaviour orders in respect of which the court has said that it would be appropriate to adopt the criminal standard of proof. The authority for those propositions is R (McCann) v Manchester Crown Court  UKHL 39,  3 WLR 1313. I refer in particular to the speech of Lord Steyn at paragraphs 27 and 34 and of Lord Hope at paragraphs 67 and 77, with both of whose reasoning Lord Hobhouse and Lord Scott agreed; see also at paragraphs 98 and 111 Lord Hutton, with whose reasons Lord Scott also agreed.
- The position regarding hearsay in particular was addressed by Lord Steyn at paragraphs 35 to 36 as follows:
"35. Having concluded that the proceedings in question are civil under domestic law and article 6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of such evidence under the first part of section 1. The weight of such evidence might be limited. On the other hand, in its cumulative effect it could be cogent. It all depends on the particular facts. In my view the ruling of the Divisional Court, set out in paragraph 10 above, was correct.
36. It is submitted that, even if the relevant proceedings are civil, words must be implied into the Civil Evidence Act 1995 which give the court a wider power to exclude hearsay evidence. As the Divisional Court judgment makes clear this is unnecessary and unwarranted. Counsel in the Clingham case then argued that, even if the proceedings are civil, nevertheless the introduction of hearsay evidence infringes a defendants right to a fair trial under article 6(1) 'in the determination of his civil rights and obligations'. This is a misconceived argument. The case has not been heard. Such a challenge is premature. Upon a due consideration of the evidence, direct or hearsay, it may turn out that the defendant has no answer to the case under section 1(1). For the sake of completeness, I need only add that the use of the Civil Evidence Act 1995 and the Rules in cases under the first part of section 1 are not in any way incompatible with the Human Rights Act 1998."
- Lord Hope addressed it at paragraph 77:
"77. For these reasons I do not think that any of the criteria for a finding that proceedings under section 1 of the Crime and Disorder Act 1998 have the character of criminal proceedings for the purposes of article 6 are satisfied. The consequence of so holding is of fundamental importance to the future of this legislation. Cases such as Unterpertinger v Austria (1986) 13 EHRR 175, Kostovski v The Netherlands (1989) 12 EHRR 434 and Saidi v France (1993) 17 EHRR 251 illustrate the reluctance of the Strasbourg court to accept that the use of hearsay evidence is compatible with a defendant's right under article 6(3)(d) to examine or have examined witnesses against him. But I would hold that article 6(3) does not apply to these proceedings and that the rules of evidence that are to be applied are the civil evidence rules. This means that hearsay evidence under the Civil Evidence Act 1995, the use of which will be necessary in many cases if the magistrates are to be properly informed about the scale and nature of the anti-social behaviour and the prohibitions that are needed for the protection of the public, is admissible."
Lord Hutton said at paragraph 113:
"113. The submissions of counsel on behalf of the defendants and on behalf of Liberty have laid stress on the human rights of the defendants. However the European Court has frequently affirmed the principle stated in Sporrong and Lönnroth v Sweden 5 EHRR 35, 52, para 69, that the search for the striking of a fair balance 'between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights' is inherent in the whole of the Convention. In these cases which your Lordships have held are not criminal cases under the Convention and therefore do not attract the specific protection given by article 6(3)(d) (though even in criminal cases the European Court has recognised that 'principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify': see Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 70), and having regard to the safeguards contained in section 4 of the 1995 Act, I consider that the striking of a fair balance between the demands of the general interest of the community (the community in this case being represented by weak and vulnerable people who claim that they are the victims of anti-social behaviour which violates their rights) and the requirements of the protection of the defendants' rights requires the scales to come down in favour of the protection of the community and of permitting the use of hearsay evidence in applications for anti-social behaviour orders."
- The judge's admission of hearsay evidence in the present case does not therefore run into any general problem under the European Convention on Human Rights. The issue becomes, rather, the case-specific issue: whether the way in which he addressed the hearsay evidence and the weight which he attached to it was in all the circumstances appropriate and fair, or whether he acted in some way unfairly in its treatment, or attached disproportionate weight to it in such a way as to make the proceedings unfair. It seems to me that in this respect the Convention adds little to what would any way be involved in the proper application of the discretion provided under section 4 of the 1995 Act. Be that as it may, I have, for my part, no doubt that the judge's exercise of his discretion was appropriate and fair, and that he approached the matter correctly and in a way which cannot be regarded as impacting adversely on the overall fairness of the proceedings.
- I have already recounted how the hearsay evidence was adduced and the absence of any formal objection to its introduction, as well as the absence of any request for further identification of the makers of statements or for those makers who were identified to attend for cross-examination. The hearsay evidence was in large measure contemporaneous with the events described, and where dates were not given the explanation given was that there were so many episodes that the complainants could not categorise them (see, for example, what was said in the course of PC Taylor's evidence on 11th May, at transcript page 49G). The hearsay evidence of racially-aggravated comments against local Somalian residents was corroborated by Miss Clarke in her oral evidence (see, for example, transcript pages 170-172, 180-181 and 183-184).
- That there was racially-aggravated tormenting of Somali residents of the locality by some person or persons was actually confirmed in their evidence by the appellants themselves. Indeed, they said that they knew by whom and that it was not by them, but they declined to identify the actual perpetrators (see transcript pages 253-254). All this, although Mrs James herself attested to at least one period when there was altercation and a problem between her family and a Somali neighbour (see transcript pages 225-226).
- Mr James also agreed that people had been shot at by a ball bearing in pistol in Brighton Street, but he denied that his family had such a gun or that it had been by his children. He said, rather remarkably, that the person concerned had been convicted and that the police were falsely pinning the blame on his family, but he declined to identify who he said the person convicted was (see transcript pages 260-262). Although in a statement dated 10th July 2003 he denied that any such items as a ball bearing gun were in his house, it transpired in his evidence that the family had a starting pistol which the police had later, in September 2003, removed.
- Looking at the matter more generally, the reason for not adducing live evidence from the hearsay witnesses was, as I have said, in the case of those who were not identified, either in every case or in almost every case, fear. That was clearly a reason which the judge was entitled to put into the balance when deciding what weight to place on the evidence. Unless fear is a good potential reason for adducing such hearsay evidence, there could be no proper protection of the interests of the public or indeed the interests of landlords performing a service benefiting the public.
- Second, as I have said, the judge conducted what appears to me to have been a careful balancing of the interests in deciding upon the correct approach to adopt to the hearsay evidence.
- Third, it seems to me that the judge started with and took as his primary concern the live evidence. His conclusion as to the hearsay evidence was that it was consistent with and fitted the pattern established by the live evidence. That is made specific in paragraphs 21 and 22 of his judgment. I should add in relation to the live evidence that in paragraphs 20 to 22 he reached clear conclusions which have not been criticised with regard to the credibility of the witnesses which favoured in every case those called by the Housing Association as opposed to the appellants:
"20. I begin with the live evidence. The evidence of the police officers about Mrs James' abusive behaviour during interviews and Mr James' supine attitude to his children, and the evidence of Mr Wrafter, Mrs Clarke and Mr Mallett was all challenged by the defendants. I have to say that I prefer the evidence of the claimant's witnesses in all these cases. I found Mr Wrafter and Mr Mallett credible witnesses and I see no reason why they should have invented their stories. The same applies to Mrs Clarke who was a most impressive witness. She was clear about her recollection and Mr Cottle was unable to make any inroads in what she said. By contrast, the demeanour of Mr James in the witness box was evasive and unconvincing and I found no difficulty in believing what was said about Mrs James after hearing her give evidence. She is clearly a highly volatile person who cannot accept any criticism and is easily roused.
Likewise, I prefer the evidence of the police officers to that of the defendants. The defendants' case is that the police officers have deliberately lied in order to do them down. Such behaviour is, of course, no impossible, but I have to say that I think it highly unlikely in this case. The police witnesses were careful to distinguish between the hearsay evidence and that which they witnessed and I do not think they were conspiring against the defendants.
21. With that in mind I now consider the hearsay evidence. It seems to me that what is contained in the hearsay evidence is entirely consistent with my findings of fact in the live evidence. The live evidence tends to show that the defendants and their children have been violent and abusive to neighbours, have racially harassed a Somalian family, and have accused damage to property in the street. It further shows that the defendants are incapable of controlling their children and indeed see no reason to do so. It shows that Mrs James in particular is obscenely abusive in an uncontrolled manner whenever she is challenged.
22. In the light of these findings, the hearsay evidence is entirely credible and fits the pattern established by the live evidence. In particular, I have to say that I can well understand why witnesses have been reluctant to come forward and identify themselves. Furthermore, the quantity of hearsay evidence is such that it cannot be safely disregarded. I therefore think that I must regard the hearsay evidence as part of a credible whole."
- With regard to the general European position, McCann indicates that there is no objection to the use of hearsay evidence in the way the judge used it. I would add that even in a criminal context there is European authority that hearsay evidence may be admitted, provided any conviction is not solely or to a decisive degree based on it (see Doorson v Netherlands (1996) 22 EHRR 330, at paragraph 76). Here however we are, as McCann shows, concerned with civil proceedings.
- Let me move to more specific points. Even if there are criticisms which can validly be made of certain aspects of the hearsay evidence put before the judge, it seems to me that the hearsay evidence which he identified and relied upon in his judgment has not been significantly undermined by anything said by Mr Cottle. One specific point on which reliance is placed on behalf of the appellants is ground 3. That relates to the statement in inverted commas in paragraph 12 of the judgment, where there is reference to a record of a complaint about "violence, verbal abuse, shooting pellets, and 'beating up a Somalian man'", with a documentary cross-reference to what is now page 115 in the appeal bundle. That page is a file note made by the Housing Association of a summary of a conversation with an anonymous person, who Mr Cottle accepts can be identified as the occupant of No 21 Brighton Street. According to that file note she referred to verbal abuse when walking along the street, her daughters being followed, the doorbell being rung and the persons ringing it running off, and people being shot as they walked up and down the street, possibly by a pellet gun. She said that there had been quite public incidents of domestic violence between the household of No 30, and then appears the material sentence:
"She has also witnessed them beating up a Somalian man."
- It is said, from the reference in paragraph 12, that the judge held against the appellants matters which were not part of the pleaded case or any oral evidence. It seems to me, however, that the reference made in paragraph 12 was very much made in passing and that the inverted commas are significant. The judge I think was implicitly avoiding any automatic endorsement of that statement. I think it is impossible in these circumstances to conclude, bearing in mind the brevity of the statement and the absence of any emphasis on it at the trial, that the judge intended to make a specific finding that there was such an incident or that he could in any event have been influenced in any material way by this single reference to a written record of a complaint which he put in inverted commas.
- I turn to other specific points on the evidence which form the basis of different grounds, that is in particular grounds 6 and 11 relating to Miss Clarke. Two aspects of her evidence are criticised. First, it is pointed out that the judge described her as "a most impressive witness". In response to this it is observed that she said for the first time in the witness box, and without prior reference in any statement, that she had seen Mr James abusing a Somali family and had stood between them without being able to give any details. It seems to me that that is a non-point and, as I have said, Mr Cottle did not canvass it today orally. During her evidence in chief she was, without objection, shown a copy of Housing Association notes, including a conversation with her on 5th September 2003, and she confirmed in general terms that the allegations made in them were true (transcript page 156). During cross-examination she was asked more specifically whether she knew if someone called Courtney, who was until about six weeks before the trial apparently a friend of the Jameses' children, had been racist towards the Somalis. To that she replied:
"I have heard them all make comments."
Counsel then said "including Eran James?", in other words Mr James, to which Miss Clarke responded:
"I have heard Eran James make several comments. I've heard Lisa make comments and I've heard their children make comments."
She then denied making all of this up and said:
"I have heard him. I am not making that up, I've heard him. I was there when they were having an argument, so I've heard him."
- Then it was put to her that she was making it up also in relation to Lisa James and she said:
"Can I just correct, if I'm making things up, which you are telling me, if I say to you I heard them do it, I'm stood there in an argument in-between people while they're calling them names, I've heard it and me and my daughter have had to go across the road openly, how am I making it up? I am not making it up."
- It is true that in chief she had not said any of this explicitly, but it seems to me difficult to suggest that the answers she gave in cross-examination came out in any way which throws doubt on their credibility, and it is not right to say that she had never made such statements before. The Housing Association notes of the conversation of 5th September 2003 contain this passage, although for some reason it was not reproduced in her written statement of 30th January 2004:
"Eran supports the children's racism towards the Somali people and was involved in attacks on local Somali people."
It seems to me, therefore, that there is nothing in ground 6.
- Ground 11 goes to the timing of these and other incidents about which Miss Clarke gave evidence that, although she could not date them precisely, they had, as I read her evidence, continued since autumn 2003. During her evidence in chief, counsel for the respondents gave notice that he proposed to ask how the situation had been since her statement of 30th January 2004. The District Judge allowed this question over an objection by Mr Cottle (see transcript pages 158-159). Miss Clarke's answer was that the appellants had been better than before, but that now it was summer again the James children were on the roof again, throwing cups off the roof while Mr and Mrs James were there, and shouting in the streets again, including at 2.30 to 3.00 a.m. in the morning (see transcript pages 159-160).
- I should add that Miss Clarke strongly objected to the suggestion of a suspension order, expressing her view in no uncertain terms that it would do no good and be almost equivalent to letting the appellants get away with it. However, that was not of course a view binding the judge. It was her view. She thought that any improvement was simply temporary because of the proceedings.
- The question of the timing of further incidents arose in cross-examination, again as to how matters had been recently. She was asked to recount any recent problems and she said this (at pages 175-176):
"Q. Are you going to say that each member of the James family on separate occasions have intimidated other residents, on occasions that you cannot specify on dates that you do not know, or is it one occasion where they all intimidated other residents?
A. There's been occasions when they have all gone out and intimidated other residents, and there are lots of occasions when specific members of their family."
Then she was asked about dates and she said:
"A. It has been, in five months, five/six months of me moving into the property, up until 2004 that I have seen the James and the things that they've done, the things that they've said to people. It is just because --
Q. But nothing that you can remember?
A. I can remember lots of things; I just can't give you specific dates?"
Then lower down the page.
"Q. How about me saying that you have not seen them threaten anybody since, assume you are correct for a minute, since last autumn. How does that sound?
A. It sounds like rubbish."
- Over the page she was again asked about her evidence that Kane and Marley, two of the children, were in the street recently and she said that she had heard things. It seems to me therefore that she did give evidence of some materiality regarding continuing recent problems. She also gave more specific evidence about two incidents, not on the face of it recent, which the judge permitted her to do in re-examination. One of them related to a lady called Gloria Ojulavisuli who lived at No 19 and another related to the Somali family which lived at No 21, in relation to whom she said that she had interposed herself between them and the Jameses during an altercation (see transcript pages 180-181 and 183-184).
- Again, the appellants' skeleton arguments object to the admission of this evidence, but in each case it seems to me that it was very much a matter for the judge's discretion whether to admit such evidence, and that this court cannot and should not interfere with the exercise of that discretion. The respondents point out, as a supporting factor in that regard, that the appellants themselves were very late in their service of a defence and witness statements, and indeed during the trial on its last day called a social worker without any prior statement or warning.
- I turn next to grounds 1 and 2, which relate to a list of alleged incidents produced by Police Constable Taylor by a statement dated 10th March 2004, which were identified at trial as pages 208F-G. Police Constable Taylor's statement shows that these incidents were simply obtained by him from police records, in particular, he says, from six control room logs, seven crime reports and an intelligence report:
"6th November 2003: Police are called to a large fight in Brighton Street St Paul's on attendance the fight has concluded but numerous persons are in the street including members of the JAMES family. There is a lot of ill feeling directed in particular towards Lisa JAMES as persons unnamed allege they are fed up with the daily problems caused by the JAMES children. No offences disclosed or reported. (Intelligence report 21563/03 refers)
8th November 2003: Police are called to a disturbance in the Brighton Street involving members of JAMES family and other parties in the street. Damages caused to window of JAMES family house. Allegations from all parties but no independent witness are available, no complaints forthcoming. (Log number 0631 of 8/11/03 and crime number 20000 refer).
1st December 2003: Police were called to an assault where the offender believed to one of the JAMES family assaulted the victim by hitting them on the side of his face with a glass beer bottle. Victim would not make a complaint due to fear of reprisals. (Crime Number 21693 refers)
14th January 2004: Call received from ERIN JAMES that his son KANE was attacking LISA and one of he other sons with a knife and that he had taken the keys to the family vehicle. Police attended and on arrival no complaint was forthcoming from any member of the family and all were checked and were in order. (Log number 0387 of 14/1/04 refers).
25th January 2004: Call received from MARLEY JAMES stating he was being threatened by his brother KANE. He then hung up. Communications re-called the address and spoke to KANE who informed the operator 'GET YOUR ASS ROUND HERE' asked if parents were there he replied 'F**K OFF'. Scene attended. Again all parties in order no complaints made. (Log number 0880 of 25.1.04 refers).
25th January 2004: Further call from Mr ERIN JAMES that KANE JAMES was threatening members of the family with a knife, and had taken the keys to the family car. Scene attended no offences disclosed details obtained for a domestic incident report. (Log number 0883 of 25/1/04 refers).
31st January 2004: Call received from Mr ERIN JAMES that his son MARLEY JAMES and KANE BROOMFIELD are fighting with knives. Further call received from MARLEY JAMES that he had been hit over the head with an ashtray and was locked in his bedroom for safety. On attendance all parties refused any medical attention or police assistance. No complaints were received and detailed were submitted for a Domestic incidence form. (Log number 1116 & 1138 of 31/01/04 refers).
10th February 2004: During incident Offender ZAC JAMES had a knife in hand with which they threatened the victim, victim tried to grab the knife in an attempt to protect them causing cuts to hand. Counter allegations received from ZAC JAMES towards victim. (Crime number 28257 refers).
11th February 2004: Police were called to a dispute between the JAMES family and a neighbour over the ownership of a pedal cycle. During this incident both parties allege the opposing parties assaulted them. Damage was also caused to the JAMES family vehicle however there were no witnesses to the damage. (Crime numbers 28254, 28258 & 28260 refer)."
As can be observed, most of these incidents are internal, with reports being made to the police by one or other member of the family in fear of or because of concern about incidents involving some other member of the family.
- The appellants submit that the judge's approach to this material was defective. In summary, they submit that the hearsay evidence could not justify a finding that the matters recorded happened; that in relation to the incident of 1st December, which is not an internal incident, a discrepancy in the material available existed which the judge failed to address; and that the judge was not entitled, if he did, to treat internal incidents as involving any sort of nuisance to the neighbourhood or neighbours. However, I note that all that was said in the final written submissions for the appellants prepared by Mr Cottle below was this, at page 394 in the appeal bundle:
"All of 208f and top of 208g ... occurred inside the house and do not amount to ASB [anti-social behaviour]."
That was the point put to some police officers and I think accepted by them in evidence below.
- It seems to me there may be, in the light of that very brief reference, substantially less force in the submission that the judge ought to have dealt specifically with these suggested incidents than might in other circumstances have been the case. All he did was, in passing in paragraph 9, refer to the production by PC Taylor of a log of incidents allegedly involving the defendants. By itself his conclusion at paragraph 22 might leave room for doubt as to whether or not he was accepting that the incidents occurred, and if so what significance he attached to them. However, the reality is, it seems to me, that the internal incidents were not really in dispute. The page I have already referred to in the written closing submissions (page 394) seems to suggest that, and when one looks at the transcript at page 240 it appears that Mr Cottle intervened to state that it was accepted that internal disputes had occurred in this family, thereby effectively cutting off further enquiry.
- Mr James, when he was shown this list, also accepted explicitly at least the incident of 14th January 2004, although he said he did not remember any knife. As to the incident of 31st January 2004, he also said that if there was any such fight it would have involved Kane and Zack, not Kane and Marley. That was hardly a resounding denial of internal incidents.
- So it seems to me that that is the overwhelmingly probable explanation of the way in which the judge dealt with this list as regards the internal incidents. I accept that a pattern of internal disputes would not by itself justify a conclusion of nuisance to neighbours, but the judge indicated that the significance which he attached to the hearsay evidence was that it fitted the pattern of the live evidence, and he had already stated that that was to show not only that the defendants and their children had been violent and abusive to neighbours, had racially abused a Somali family and had caused damage to property in the street, but also to show:
"... that the defendants are incapable of controlling their children and indeed see no reason to do so."
- The internal incidents were capable of having potential relevance on the latter point, and there is nothing to indicate that the judge was attaching any greater significance to them.
- However, that does leave the other category of incident contained in the list. That is in particular the incident of 1st December for which there is a briefly reported incident of police being called to an assault where the offender believed that one of the James family had assaulted the victim by hitting them on the side of a face with a glass beer bottle and where, according to the summary, it is said the victim would not make a complaint due to fear of reprisals.
- Now that incident was the subject of cross-examination (transcript page 37), during which PC Taylor conceded that he could not possibly suggest that a prosecution could be begun on the basis of that evidence. The perpetrator would be unknown. However, it is also right to say that it was the subject of further cross-examination with PC Taylor (see transcript page 104) where a discrepancy between the list and the underlying police record was suggested to him. There was a reference in the appellants' closing submissions to the incident of 1st December, again relying on that discrepancy. So I think it would have been better if the judge had expressly addressed and indicated his approach to the incident of 1st December 2003, as it appeared in the list to which he referred. But for my part I cannot think it right to treat him as having accepted that the incident occurred, or at any rate, if he accepted that it had occurred, as having placed on it any weight which can possibly have been decisive in his decision. There were, it seems to me, far more telling incidents of which there was direct evidence and the hearsay evidence was only invoked by the judge as generally supportive of the pattern which the live evidence involved.
- With regard to inconsistency, it is said that Police Constable Taylor's evidence that the victim was fearful of reprisals (transcript pages 37-38) is inconsistent with the contemporary note made by a police officer to the effect that he had visited the victim in Bristol Royal Infirmary and that the victim had said that he did not want any police action, stating that they were only youths. For my part, I must say that that sounds an odd statement for someone who had had to be admitted to a hospital following a glassing, and there may be more to it than meets the eye. This suggested inconsistency was the point put to Police Constable Taylor in cross-examination at transcript page 145, and he gave the answer (which certainly cannot be rejected as necessarily incorrect in the light of the oddity of the recorded reference by a victim who was hospitalised to youths) that his information came from the sergeant in charge of the investigation.
- As I say, it would have been better if the judge had addressed specifically the incident of 1st December 2003, since he referred to the list of hearsay evidence. But it seems to me in the overall context it is a small point and I cannot accept that there is any possibility that reliance on this incident, even if I thought that he had reached a conclusion that it occurred, could have been decisive in his overall decision.
- That brings me to the other point which was at the forefront of counsel's submissions today. That falls under the heading of grounds 4 and 5, failure to accept and take into account that any significant complaints and incidents had ceased after the issue of the notice seeking possession in September 2003. There is no doubt that this aspect was an important focus of the appellant's case at trial and it was common ground that there had been some reduction in the misbehaviour. I would again agree with the appellants that it would have been better, at least with hindsight, if the judge had addressed this aspect more specifically and fully. But I think, as I will indicate, that there is an indication as to why he did not in his judgment.
- The appellants refer to a suggested inconsistency between evidence given by PC Roach and evidence given by the Somali lady living at No 21 Brighton Street. Police Constable Roach recorded her as referring in November 2003 to persistent racial taunts. However, those were taunts which she said that she has received. It seems to me, contrary to Mr Cottle's submission, that that is quite consistent with her referring to a position up to but not after the end of September. That point arises because it is clear from the evidence of Marion Burrell of SARI (Support against Racial Incidents) that the same woman was telling her that there had been no complaints after about the end of September. It seems to me that the suggested inconsistency between what Police Constable Roach was recording and what Marion Burrell was recording is non-existent. However, it does also follow that, as regards that particular Somali residence, matters improved after the end of September and that may be associated with the obtaining of injunctions against the appellants in early October.
- The appellants also suggest that the judge may have double counted complaints occurring in the period up until September 2003, because the judge referred in one paragraph to PC Roach and in another paragraph to Marion Burrell and did not make clear that they were talking about the same matter. There seems to me no justification for that speculation. The judge was simply identifying different concurring sources of allegations, not necessarily different allegations. The point is again anyway a tiny one in the overall context.
- There is a further point on the suggested inconsistency between the statements of PC Roach regarding the Somali living at No 21 and the statements of Marion Burrell, and that is that Mr Cottle's skeleton argument is wrong to refer to PC Roach as referring to this woman as speaking of daily racial taunts. The phrase she actually used was "persistent racial taunts" (see page 181) and the judge, when he recited the hearsay evidence on which he relied did not actually recite that piece of evidence. That again seems to me, however, a very small point.
- The important point is that there was an improvement and that was common ground. Marion Burrell confirmed that, although she no longer had direct responsibility since September 2003, SARI had not itself received any reported incidents since then, save she said "swearing and shouting" (see pages 77 and 84 in the transcript). Swearing and shouting is itself however of some potential significance. The judge, as I have said, heard other evidence, not just the hearsay evidence from Police Constable Taylor, but also the direct evidence from Miss Clarke, the next-door neighbour to No 30, whom the judge found an impressive witness. I have recounted her evidence. So it would not be right on any view to suggest that the judge should have approached this case on the ground that all problems had died away.
- Nevertheless, the general question arises whether his failure to deal with this aspect more specifically makes his judgment vulnerable to a criticism that he overlooked it, or failed to take it sufficiently into account, when deciding what if any relief to grant by way of suspension. Despite the importance to be attached to explicit judicial reasoning, I do not think that either is to be presumed (see, for example, Minchburn Ltd v Fernandez (1986) 19 HLR 29, at paragraphs 32-33 and 34). The general legal position appears in several authorities, particularly Canterbury City Council v Lowe (2001) 33 HLR 53, page 15, and pages 18-19 at paragraphs 25, 36 and 43; Lambeth London Borough Council v Howard (2003) 33 HLR 636 at paragraph 58; and New Charter Housing (North) Ltd v Ashcroft (2004) HLR 587 at paragraph 36.
- In Canterbury City Council v Lowe, Kay LJ, giving the judgment of the court, said:
"25. ... The issue of whether to suspend must be very much a question of the future. There is no point suspending an order if the inevitable outcome is a breach. Any factor which is relevant as to whether there will be future breaches must, in my judgment, be relevant to the question of suspension. This would include the fact that following an injunction things had considerably improved or that a person is likely to observe an injunction if one was granted at the same time.
26. I, therefore, reject the suggestion that the assistant recorder should not have considered the matters as she did. They were factors be taken into account. Whether they should have proved decisive, as they seem to have done, is a matter to which I shall return."
- At paragraph 36 he identified the relevance in cases such as the present of the difficulty of proving a breach of a suspended order. He referred in particular to the difficulty of getting witnesses to come forward, which he said was clear in the case before him, and the further difficulty of proving exactly who was responsible for any further conduct which was relevant bearing in mind the sort of person the respondent was (again in the case before him) found to be. He said more generally:
"Cases of this kind are worrying. There is a need to support those who do have the courage to come forward and complain when complaint is legitimate about their neighbours in this sort of way."
- Waller LJ added to the factors adumbrated by Kay LJ this (at paragraph 44):
"... as it seems to me simply granting an injunction in this type of case is unlikely to diminish the fear that neighbours feel. Mr Schofield and his daughter have lived a fair period under fear and in the way that is described in the judgment that my Lord has recited. Furthermore, the other neighbours have apparently lived in fear. As it seems to me, it is most unlikely that that will be assisted by an injunction. All that will cure that element is an immediate order for possession, ..."
The court in the circumstances of that case replaced the suspended order with an immediate order.
- In Lambeth London Borough Council v Howard, the court (in a judgment given by Sedley LJ) again had to consider whether and in what circumstances an order for possession should be suspended, and said that the court should take into account a tenant's efforts to improve his behaviour and the effect on neighbours in the event that the order was suspended. It said, as the headnote recounts:
"The Court of Appeal will not interfere with an exercise of the judge's discretion to suspend an order unless satisfied that the judge has taken into account some matter which he should not have taken into account or has left out of account something which he should have taken into account, or that for some other reason the decision is plainly wrong ..."
That conventional statement of the approach of this court also applies in a reverse sense, when considering a decision not to suspend.
- At paragraph 23 Sedley LJ identified the potential significance of a complete failure on the part of tenants, who had clearly misbehaved themselves, to acknowledge that they had done anything wrong. He said that, if the appellant in the County Court had a point in support of the suspension of the possession order, it was that the judge had failed to mention the trouble-free period of a year when he was assembling his conclusions. He said that counsel had wisely concentrated on this point. But Sedley LJ went on to say this:
"At the hearing, however, the point had almost certainly been overlaid by Mr Howard's [that is the tenant'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 selfjustification persists. It does not inspire any greater belief in his capacity to turn over a new leaf than the judge below evinced."
- Those considerations find a considerable parallel in the circumstances of the present case. Here too, in so far as there is any criticism of the judge for failing specifically to address the question of improvement in behaviour, the likely explanation is that that point was almost certainly overlaid by the severity of the conduct which was found to be proved and by the continuing total denial during the course of the trial that anything had been done wrong.
- The court in Lambeth London Borough Council v Howard also dealt with the relevance of the European Convention on Human Rights at paragraphs 29-32. Although Sedley LJ indicated that it could do no harm and might often do a great deal of good to approach the exercise of whether or not to suspend a possession order by considering it terms in proportionality, it is quite clear that he did not consider that that in fact fundamentally differed from the position at common law or apart from the Convention.
- At paragraph 39 Sedley LJ concluded that it was right not to suspend an order. He used the graphic phrase, which has been referred to before us, "the shadow of the past is too heavy upon the present" in support of that conclusion.
- Finally, in New Charter Housing this court (at paragraphs 30-32) identified certain further considerations in relation to the making of a suspended possession order. This too was a case where the court replaced a suspended order with an outright order for possession within six weeks, on the ground that the judge on his own findings had no reason to suppose that the tenant would take any opportunity offered by suspension. The facts of that case are different, as the facts of any individual case are likely to be, from those of the present. But the court mentioned the relevance of the interests of neighbours and the difficulties of proving breach of conditions imposed in an order, a point which had been referred to in the Canterbury case.
- That being the general legal framework, it seems to me that the key to the judge's conclusion is to be found in large measure in factors I have already mentioned. In paragraphs 23-24 he was expressing, tersely and forcefully, his view that there was no point in a suspended order. In expressing that view he cannot have forgotten the points which were made in relation to recent conduct, but they were overlaid, as I have said, by the severity of the proved conduct, the fact that there was evidence of some continuing conduct, particularly from Miss Clarke, and the way in which the trial proceeded, with a complete absence of recognition of fault or remorse on the part of these appellants. The judge said this:
"23. It follows that I find the allegations against the defendants proved. I must now consider whether any order should be suspended. I take account of the evidence of the defendants' social worker who clearly thought it would be disastrous for the family to be evicted. That may well be so. I also accept that it would be far more convenient for social services if the family remain where it is
24. However, that is not the test to be applied. I must have regard to the interest of neighbours and adjoining occupiers. This is a family which has, in effect, terrorised the neighbourhood in the 2 years or so they have been at the property. The defendants clearly cannot or will no control their children and see no reason to do so. Mr Cottle's suggestion of anti-social behaviour order against Marley is, in my view, unlikely to solve the problem. I regret to say that the neighbourhood has to be protected from this family and the only way to achieve this is to make an outright possession order in 28 days, that is to say (allowing for service of order) by 9 July 2004.
As to the injunctions, I consider that the present injunction should run until possession and that they should thereafter stand discharged with the applications adjourned generally for 6 months with liberty to restore. My reason for this is that I do not know where the family will be living and it seems unrealistic to continue the orders in exactly the same terms."
- This was also consistent with what he had said earlier in paragraph 4, to the effect that if the appellants' case was substantiated on the facts then an outright possession order was inevitable. As I say, I do not consider that the judge can realistically have forgotten or failed to take into account all that had been said about subsequent improvement. On the contrary, I think he was determining implicitly that any such improvement gave no reliable security as to the future.
- The main focus of the evidence before the judge was, of course, on evidence leading up to the proceedings. The ultimate picture involved some evidence about subsequent conduct which was not so reassuring that it could be decisive. The appellants remained almost entirely unadmitting and unrepentant. There was only at the end of the trial what the respondents in their skeleton argument have justifiably described as the most pallid regret relating to unspecified nuisance, "if" the appellants' children had caused it to other people. In those circumstances, I do not consider that this court can or should interfere with the judge's judgment on the grounds suggested under grounds 4 and 5, or that it was either unnecessary or disproportionate to make an immediate order for possession.
- Ground 6, the final catch-all, can add nothing to the position in the light of the conclusions which I have reached on its components.
- For those reasons, I, for my part, would dismiss this appeal.
- LORD JUSTICE CARNWATH: I agree. I would only that I would have been content to reach the conclusion by a more summary route. Although we were referred to a bundle containing 22 authorities, including eight European ECHR authorities, this case raises no new issue of principle. The relevant approach has been explained in a series of Court of Appeal cases to which my Lord has referred. In this case, on any view of the evidence, and even taking account of the points made by Mr Cottle, there was ample evidence that this family had, as the judge concluded, been terrorising the neighbourhood for two years or so. In those circumstances, in line with the authorities, an order for possession was inevitable. The only question was whether it would be suspended.
- In some cases (of which West Kent Housing Association Ltd v Davies (1998) 31 HLR 415 is an example), the court has been able to find that the defendant has learnt his or her lesson and there is a real prospect of compliance. This case does not begin to approach that. Indeed, as the judge recorded, far from making any serious attempt at an apology, Mrs James is recorded in paragraph 17 as saying "'why should I change myself? I have done nothing wrong'" and Mr James as saying "'I have done nothing to apologise for.'"
- Not only do I think the judge was right not to suspend this order, I would have been astonished if he had taken any other course.
- LORD JUSTICE PETER GIBSON: I also agree.
ORDER: Appeal dismissed with costs; stay of the execution of the warrant for possession lifted; order for costs made against the unsuccessful appellants, but the application is adjourned to the costs judge; detailed assessment of the Appellants' Community Legal Services Funding costs.
(Order not part of approved judgment)
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