Anti-Social Behaviour Injunctions: Court of Appeal decision clarifies sentencing options for committals

Lovett v Wigan Borough Council [2022] EWCA Civ 1631

The Court of Appeal has provided clarity on the sentencing options for committals following the breach of anti-social behaviour injunctions (ASBIs) under the Anti-Social Behaviour Crime and Policing Act 2014 (ASBCPA 2014).

Case summary

The Court of Appeal dealt with three conjoined appeals. Two appellants (H and S) had appealed against sentences imposed for breach of ASBIs made under ASBCPA 2014, whilst the third appellant (L) appealed against a finding that he was in breach of an ASBI. In each case, the ASBIs had been made by the civil courts and the breaches were dealt with under the contempt of court jurisdiction.

H had admitted one breach of the ASBI and the judge adjourned the sentencing hearing, indicating that she was considering a 28-day custodial sentence suspended for six months. At the restored hearing, nine months later, the judge imposed the indicated sentence, with reference to the Sentencing Council Guidelines (“the Guidelines”). The Court of Appeal allowed H’s appeal, as although the judge was right to adjourn, the initial sentence indicated was too severe for a single breach which had caused minimal harm and the judge had not been clear about the potential outcomes at the restored hearing, in relation to H’s conduct in the intervening period. The suspended sentence was quashed and there was no order on the committal application.

S had been sentenced to 12 weeks’ imprisonment suspended for a year for nine breaches of the ASBI, the judge had applied the Guidelines. S’s appeal was also allowed, as the judge’s starting point of a 12 week custodial sentence was an error, and related to the breach of a Criminal Behaviour Order. The original sentence was quashed and replaced with a sentence of one month’s imprisonment suspended for a year.

L had been committed to prison for 30 weeks in respect of 21 breaches. L’s appeal was dismissed.

Commentary

The Civil Justice Council’s 2020 report, Anti-Social Behaviour and the Civil Courts (“the CJC Report”), looked in detail at the issue of anti-social behaviour in the civil courts, including how injunctions can be properly used. The Court of Appeal in this case looked at what sentences should be imposed for the breach of ASBIs, and whether county courts should still be using the Guidelines. The court confirmed that the purpose of the committal process is threefold, i.e. ensuring future compliance with an order, punishment and rehabilitation. However, in practice, the focus is generally on future compliance.

It was confirmed that, as set out in the CJC Report, there are five options a court has in respect of breach of an ASBI – an immediate custodial order, a suspended order, adjourning for consideration, a fine no order.

County court judges have previously struggled with the application of the Guidelines, which were principally designed for use in relation to ASBOs and which use a five year sentencing range, whereas the maximum penalty that the civil courts can impose for contempt is two years. The Court of Appeal held that the Guidelines are no longer the most appropriate measure for ASBI breaches and considered the guidance that the CJC Report set out.

The court set out the following guidelines to allow judges to approach the task in a systematic manner:

• The objectives of sentencing are to ensure future compliance, punishment and rehabilitation in that order.
• The options to suspend a sentence or adjourn for consideration offer the opportunity to amend the ASBI, impose conditions, or add positive requirements.
• Custody has to be reserved for the most serious of breaches, or for less serious cases where other methods of securing compliance had failed. A custodial sentence is not to be imposed if there is a sufficient alternative option that is appropriate and any custodial term has to be the shortest necessary to achieve the court’s purpose.
• It is good practice to consider a penalty for each proven breach and any terms of imprisonment imposed can be made to run concurrently or consecutively.
• Although a suspended sentence is often used as the first means of ensuring compliance, an alternative would be to adjourn consideration of sentence, and to indicate what sentence would have been imposed had the matter not been adjourned and to clearly state the consequences of good or bad conduct during the adjournment by way of a recital in the order. An absence of breaches in the interim will generally result in a lesser sentence than initially indicated, and any future breach will be treated as substantially more serious.
• Distinct consideration should be given to harm and culpability, and the three-level scheme proposed by the CJC report was a valuable tool.
• Separately identifying harm and culpability allows the court to determine a starting point and range within which the sentence can be adjusted to take account of aggravating and mitigating factors such as history of disobedience, the particular vulnerability of any victim, genuine remorse, ill-health, lack of maturity, or an early admission and suitable apology. Any adjustment from the starting point has to be identified and explained, and cogent reasons have to be given for a sentence outside the indicative range.

Practical considerations for ASB practitioners

In practice, it is expected that county courts are likely to utilise the option of adjourning consideration often following the ruling in Lovett v Wigan Borough Council. This is likely to take up a lot of court time and practitioners will need to ensure that if an adjourned hearing is to be listed, the directions made at the initial committal hearing set a date for the adjourned hearing if possible, to avoid the adjournment period running on for longer than agreed. As referred to above, the judge at the initial hearing should also make clear what the consequences of good/bad conduct will be in the time between the initial and adjourned hearings. At the adjourned hearing, evidence will be required to set out what the defendant’s behaviour has been like in the intervening period and consideration should be given to whether an application is required to vary/extend the original injunction.

Practitioners should consider what it is that you actually want to achieve. If your main objective is to obtain possession for a breach of an ASBI, you may want to consider seeking no order on the committal, so that you can then proceed to commence possession proceedings for the breach of the ASBI. If a court was to adjourn for consideration at this point, your overall aim of possession is likely to be delayed. If you want to seek a committal to prison, obviously your approach will be different.

It is also important to remember that most committal trials will likely be one day and at best a court will only be able to deal with 10 incidences/breaches. Consideration should be given to which incidents you rely upon and the evidence you have to prove the breaches.

Sian Evans, Partner and Sector Lead for Housing at Weightmans LLP, was part of the working party that contributed to the CJC Report.