Aristide Hoang-Brown considers the impact of Wigan Borough Council v Lovett [2022] EWCA Civ 1631 - a year since the Court of Appeal intervened to provide much-needed guidance about how courts should approach penalties for contempt for breaches of anti-social behaviour injunctions made under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014.
Wigan Borough Council v Lovett was decided in the context of a report by the Civil Justice Council in July 2020 ‘Anti-Social Behaviour and the Civil Courts’.
Paragraph 379 of the report identified:
“serious concern about the inconsistency of penalties imposed … for breach of orders made under the 2014 Act”, ranging from “judges not considering breaches to be sufficiently serious to warrant action” to “excessive penalties out of line with what the approach would have been in a criminal court”.
Birss LJ in Lovett commented (at [38]) that “…judges faced with this task would benefit from some assistance” and proceeded to give detailed guidance (at [39] to [57]) as to the correct approach to sentencing (a term Birss LJ suggested was “useful” in the civil context [5], albeit technically inaccurate).
The guidance can be summarised as follows:
1. The objectives of sentencing are (i) ensuring future compliance with the order; (ii) punishment; and (iii) rehabilitation [39];
2. The 5 options available to the court are (i) An immediate order for committal to prison; (ii) a suspended order for committal to prison, with conditions; (iii) adjourning the consideration of a penalty; (iv) a fine; and (v) no order [40];
3. The concept of custody threshold has application. Custody should be reserved for the most serious breaches, and for less serious cases where other methods of securing compliance with the order have failed. A custodial sentence should never be imposed if an alternative course is sufficient and appropriate and should be for the shortest term which will achieve the purpose for which it is being imposed [43];
4. Suspension is usually the 1st way of attempting to secure compliance. Another first option in many cases will be to adjourn the consideration of sentence [45];
5. The court should give distinct consideration to the degree of harm and degree of culpability to provide a starting point [46] before making adjustments according to any aggravating and/or mitigating factors present [49]. The CJC’s proposed scheme (set out in the table at [54] of Lovett) is a “valuable tool” for judges to use when carrying out this exercise [46].
The Lovett approach has subsequently been applied in sentencing decisions. The following provide a snapshot.
No order
In Eastlight Community Homes Limited v Clements (unreported, Chelmsford County Court 12 January 2023) HHJ Duddridge made no order despite the defendant not attending any of the 4 hearings and being found to have breached the interim ASB injunction less than a month after it was made.
The breaches involved the defendant entering her neighbour’s land to clean her own window. HHJ Duddridge’s determined the breaches were very minor, “were not targeted at anybody and caused no direct harm” (paragraph 8). There had been no further breaches since her arrest. The defendant’s non-attendance at the hearing was aggravating but not sufficiently so for the custody threshold to be met.
This decision highlights the centrality of the 1st objective of sentencing, namely ensuring compliance with the underlying order. HHJ Duddridge commented “it may be that the arrest itself brought home to her the importance of complying with the injunction and was sufficient to secure her compliance” (paragraph 10).
Suspension in view of rehabilitation
Bromford Housing Association Ltd v Jones (unreported, Gloucester and Cheltenham County Court 28 September 2023) concerned harm category 1 and culpability category B breaches, namely the defendant storing large amounts of butane gas within her property and refusing to allow access to the claimant. Having determined the defendant’s addiction to butane gas was a mitigating factor, DJ Napier suspended the 50- and 70-day concurrent sentences (in part) to allow the defendant’s rehabilitation to continue.
Persistent breaches
The Guinness Partnership v Taylor (unreported, Sheffield County Court 6 April 2023). In a judgment consisting of a detailed and methodical application of the Lovett guidance, HHJ Sadiq determined that the persistence of the breaches (14 in the space of 3 months) was an aggravating factor and weighed in favour of an immediate custodial sentence.
Use of the adjourned consideration mechanism
Derwent Housing Association Limited v Norris (unreported, Derby County Court 15 February 2023 and 22 May 2023) concerned breaches determined to be harm 2, culpability B.
DJ Davies considered the mitigating factors of the defendant’s admission of all breaches, the time since the last breach and, most significantly, the extensive medical evidence of the defendant’s mental health issues. The judge decided to adjourn consideration of sentence, giving an indication that had that step not been taken, an appropriate sentence would have been 28 days.
Just over 3 months later at the adjourned sentencing hearing, as there had been no further breaches, the judge considered a sentence of 14 days was appropriate (suspended on terms of compliance with the injunction).
Lovett has also been referred to (albeit with caution) in sentencing decisions for breaches of injunctions other than those under the 2014 Act, such as in decisions concerning breaches of injunctions prohibiting car cruising: Birmingham CC v Lloyd [2023] EWHC 2359 (KB) and Birmingham CC v Blunderfield [2023] EWHC 2594 (KB) (the former is subject to an appeal which is outstanding).
Lovett’s warm reception from judges (“extremely helpful Court of Appeal guidance” – DJ Davies in Derwent v Norris at paragraph 14) affirms the significant impact the decision has had. The structured, clear approach it promotes provides clarity to Claimants and Defendants alike.
This article was first published in Social Housing Law Association (SHLA)'s December newsletter.