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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 >> Birmingham City Council v Ashton  EWCA Civ 1557 (29 November 2012)
Cite as:  EWCA Civ 1557
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ON APPEAL FROM Birmingham County Court
His Honour Judge Owen QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE TREACY
| Birmingham City Council
|- and -
|Mr Neil Ashton
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Michael Singleton (instructed by Community Law Partnership, Birmingham) for the Respondent
Hearing dates : 6th November 2012
Crown Copyright ©
Lord Justice Treacy:
"This incident has left both Miss Benton and her children feeling very upset and frightened to the extent that, prior to the bail conditions being imposed, they were too scared to return home and instead stayed with their grandmother. Miss Benton and her children are still very frightened in their property and are extremely concerned that they may encounter Mr Ashton whilst going about their daily lives. This fear has resulted in Miss Benton and her children on occasion staying with other family members."
"On balance and not without some hesitation (given the absence of direct supporting testimony from the relevant professionals and their contemporaneous records), I accept the Defendant's evidence concerning his condition since his arrest, his cooperation with the medical and other professionals, his insight and his expression of remorse."
"In my judgment Mr Singleton was right, without formally conceding the matter, to identify the principal question as to whether any such order might properly be suspended. If there was no cause to believe or reason to suppose that the behaviour in question would not be repeated, then of course suspension would serve no useful purpose. [The sentence reads more easily if the double negative is eliminated]. If the evidence was such as to show that there was an unacceptable and real risk of this kind of event recurring, not necessarily in precisely the same way, there might be no proper basis upon which to suspend that order."
"The Claimant's position is that nonetheless, notwithstanding all of these matters, the incident was so serious that it would justify the making of an outright order. At first that submission has an attraction and I have sympathy with it, not least given the absence of the medical records, for example. It is to be recalled that the precipitating incident involved the brandishing of a Samurai sword in a residential area. The question however which arises is whether that approach could properly be regarded as a proportionate response given the evidence presented to the court by the parties. In my judgment it is not given my finding in respect of the Defendant's evidence to which I have referred."
"That which might well render it proportionate would, for example, be the additional risk factor of, say, good reason to suppose that the kind of relapse in the Defendant's condition would soon occur, resulting in that kind of behaviour, or perhaps, clear evidence of there being a continuing animosity between the Defendant and Miss Benton, or, perhaps, clear evidence that there is a long-lasting continuing fear on the part of Miss Benton and/or the children which would render it unreasonable to expect the Defendant to return to that locality or that the evidence concerning abstinence, fourteen months stability and support is inaccurate."
"On the evidence presently before me I am satisfied, just, that the proportionate and proper response to the risks posed by the Defendant and his conduct in the past is such that it would be appropriate to suspend the possession order which I otherwise make."
"85. – Extended discretion of court in certain proceedings for possession.
(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may-
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit.
(3) On such an adjournment, stay, suspension or postponement the court-
(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent […] unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
(b) may impose such other conditions as it thinks fit.
(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.
85A Proceedings for possession: anti social behaviour
(1) This section applies if the court is considering under section 84(2)(a) whether it is reasonable to make an order for possession on ground 2 set out in Part 1 of Schedule 2 (conduct of tenant or other person).
(2) The court must consider, in particular-
(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
(b) any continuing effect the nuisance or annoyance is likely to have on such persons;
(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated."
"What in my judgment can be said is that the effect of Mousah is to stress the serious nature of a breach of a condition which involves the committing of a criminal offence. The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates… a sound basis for the hope that the previous conduct will cease."
"Fourthly, the making of a suspended order inevitably involves an assessment as to the future conduct of the tenant. That assessment is grounded on past behaviour, the circumstances in which the offer of compliance is put forward, and the reliance that can be placed on the word of the promisor. That is pre-eminently the province of the trial judge, who draws on a depth of experience of cases of this sort; an intimate knowledge of the facts of this particular case and all their nuances, not all of which translate readily into the written word; and the inestimable advantage of having seen Mr Vertigan over a two day trial. The judge plainly drew on all of that material and gives an account of it in her careful judgment. Her conclusion upon that material cannot be thought to fall outside the proper range of decisions; in fact, I think it was plainly right."
Lord Justice Mummery:
Lord Justice Patten: