Case No:  B00BM169
BIRMINGHAM COUNTY COURT

The Priory Courts
33 Bull Street
Birmingham B4 6DS

12th May 2015

Before:

DISTRICT JUDGE KELLY
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Between:

BIRMINGHAM CITY COUNCIL
Claimant

-v-

MISS GEMMA WALE
Defendant

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Tape Transcription of Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP
Telephone No: 020 7067 2900.  Fax No: 020 7831 6864

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MS KNIGHT of counsel appeared for the Claimant
The Defendant did not appear and was not represented
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JUDGMENT
DISTRICT JUDGE KELLY: 
1.	This is the hearing of the Claimant's application to commit the Defendant to prison for alleged breach of an interim antisocial behaviour order. The background to this matter is as follows:  On 20th January 2015 the Claimant issued a claim for an injunction, pursuant to section 153A and D of the Housing Act 1996.  The claim was issued seeking an         ex-parte interim injunction. 
2.	The matter came before District Judge Truman on 20th of January 2015 when she made an interim order, without notice, to the Defendant. There were three limbs to that order.  Paragraph 1 of the order ordered that:  
"The Defendant, whether by herself or by instructing, encouraging or allowing any other person shall not (1) harass, intimidate, use or threaten violence against Mrs. Ghazala Bibi, Mr. Azan or their children of 193 Hob Moor Lane, Small Heath, Birmingham, or anyone lawfully present at 193 Hob Moor Lane, Small Heath, Birmingham."
3.	Paragraph 2 was to prevent harassment, intimidation or use of threat or violence against Mr. James Ledger of 191A Hob Moor Lane.
4.	Paragraph 3 was to prevent the Defendant from doing anything which causes nuisance or annoyance to any person lawfully present in Hob Moor Road, including, but not limited, to playing loud music, shouting, swearing, making banging noises, stamping and slamming of doors, loud sex noises, so as to be audible beyond the boundaries of the property of 191 Hob Moor Road, Small Heath, Birmingham B10.
5.	Following the making of the without-notice order, the Claimant served the Defendant personally with a copy of the order on 26th of January 2015 and I have before me a certificate of service at page 23 of the bundle, which confirms that personal service.  
6.	Further to the service of the order and details of the on-notice court hearing, the Defendant attended before this court on 30th of January 2015.  On that occasion she was at court without legal representation and indicated to the court that she wished to take legal advice and to obtain representation. At that hearing various case management directions were made, including a requirement that the Defendant file her defence by 20th of February 2015.  
7.	Following  on from that, the matter then came back before the court on 20th of February 2015 when District Judge Bull refused the Claimant's application to extend the terms of the interim order and dismissed that aspect of the interim application, albeit without prejudice to the final hearing.  
8.	On 24th of March 2015 the Claimants then issued the application that is before me in respect of the allegation that the Defendant had breached the terms of the interim injunction District Judge Truman granted.  
9.	The application was listed before District Judge Gibson on 15th of April 2015, an occasion on which the Claimant was represented but the Defendant was not in attendance.  
10.	It was recorded in the preamble to that order that the Defendant had lost her legal representation and was acting in person and had not yet been personally served with the committal notice or the Claimant's application.  
11.	District Judge Gibson adjourned the hearing of the Claimant's application for committal to today, to be heard prior to the trial of the main ASBI claim.  It was recorded in that order that the Defendant should seek to obtain legal advice and representation and the Defendant was warned that if she did not attend the hearing the court will make such order as it thinks fit, which could include an order sending her to prison.  
12.	The Defendant was given permission to file witness statements of any witnesses on whom she intended to rely at the committal hearing, but was reminded that she was under no under obligation to give evidence herself  in relation to the committal application.  
13.	District Judge Gibson allowed a typographical error in the interim injunction to be corrected, so far as paragraphs 1 and 2 of the order are concerned, to read:  "Hob Moor Road" and not "Hob Moor Lane", as it had been drafted on 20th of January.
14.	The committal application was personally served on the Defendant on 17th of April 2015 and I have before me, and accept, the certificate of service provided by the Claimant to the effect that that personal service was effected at 2.05 p.m. on 17th of April 2015.  
15.	As I indicated earlier, the Defendant has not attended today and I had previously allowed the Claimant's application to proceed in the absence of the Defendant in circumstances where the Defendant was fully aware of today's hearing and indeed had been given the opportunity to obtain legal advice and representation prior to the application being determined today.  
16.	The particulars of the notice to commit appear at page 34 of the bundle. In the committal notice are a number of particulars.  However, counsel for the Claimant indicated at the outset of today's hearing that the Claimant does not seek to rely on all of the particulars contained in the committal notice. Not least because in relation to the first five particulars that are pleaded, those are on dates prior to the personal service of the interim injunction on the Defendant.
17.	It therefore follows that I am asked to consider seven particulars of breach, commencing at paragraph 9 of the notice onwards. Those being on 27th of January, 28th of January, 29th of January upon which there were two incidents, 1st of February, 6th of February and 9th of February 2015.
18.	I have heard evidence before me from Mrs. Ghazala Bibi, who provided affidavit evidence in support of the application to commit.  Mrs. Bibi has confirmed the contents of that affidavit again on oath before me today and has also clarified some of the factual background to the incident.  She has stood by that which appeared in her affidavit and her evidence did not change in any material respect from that which appeared in her affidavit.
19.	I have also heard evidence from Freeda Younis, who is the housing officer employed by the Claimant responsible for the property in which the Defendant resides. She, again, has confirmed the affidavit evidence she has provided in relation to the application to commit.  Miss Younis took some time to go through the exhibits to that affidavit which consists of a number of police logs recording occasions upon which the Defendant's behaviour was reported to the police by Mrs. Bibi.
20.	I turn now to deal with findings of fact I must make in relation to the allegations of breach.  I remind myself that this is a committal application and therefore I have to apply the criminal standard of proof and satisfy myself so that I am sure that the factual allegations are made out on the evidence the Claimant puts before me.
21.	It will be apparent from the preceding part of my judgment that I have heard no evidence from the Defendant, nor has she sought to submit any witness evidence to the court for me to consider in relation to the allegations that are made against her.
22.	The first allegation I am asked to consider is one on 27th of January 2015 at 22.20 hours.  The particulars of notice assert that:  
"You, the Defendant, caused nuisance and annoyance by arguing and banging on the window, in breach of paragraph 3 of the interim order."
23.	The evidence I have before me from Mrs. Bibi in the body of her affidavit is that on 27th of January at this said time there was arguing for about ten minutes between the Defendant and her boyfriend, Wayne, following which they then left the building.  
24.	Mrs. Bibi goes on to comment on the Defendant and Wayne returning to the property at 6.20 a.m., albeit that is not part of the allegation as pleaded in the notice of breach.  
25.	The evidence that Mrs. Bibi gave was expanded upon orally today in which she described Wayne (the Defendant's partner) banging on the window of the Defendant's property.  The description was that it was Wayne that was doing the banging on the window and not the Defendant.  The allegation is that it was the Defendant who caused the nuisance and annoyance by arguing and banging on the window.  
26.	I am satisfied so that I am sure that there was an incident of arguing for approximately ten minutes at twenty-past-ten on the evening of 27th of January 2015.  I am not satisfied that the allegation in relation to the Defendant banging on the window is made out in circumstances where Mrs. Bibi's recollection is that that was Wayne and not the Defendant. 
27.	Based on that finding of fact, in my judgment the arguing, such that it interfered with Mrs. Bibi and her family's occupation of their property (which is a flat immediately above that of the Defendant) amounts to a breach of paragraph 3 of the interim order being a nuisance or annoyance to Mrs. Bibi, being a person lawfully present in Hob Moor Road.  
28.	I turn to the next allegation, on 28th of January 2015 at approximately at 11.50 hours the Claimant's allegation is that the Defendant caused nuisance and annoyance by banging on neighbour's windows in breach of paragraph 3 of the above order.
29.	Again, Mrs. Bibi's evidence in relation to the banging on the windows was that in relation to this incident she could not see who it was that was banging on the windows.
30.	I am not satisfied so that I am sure that it was the Defendant on that occasion that was banging on the windows, particularly in circumstances where the evidence before me is that it was usually Wayne or visitors rather than the Defendant who was the secure tenant and therefore more likely to be the key holder to the property, being the person who was guilty of banging on the windows.
31.	The pleaded allegation on behalf of the Claimant in relation to this incident is not that the Defendant caused or permitted others to bang on the windows but that she herself banged on neighbours' windows and, accordingly, I consider it on a strict interpretation of the particulars as pleaded and I am not satisfied that the allegation on 28th of January is made out because the Defendant herself was not the person banging on the window.
32.	I turn to consider the allegation on 29th of January 2015 in which it is said that at approximately 1.50 hours the Defendant caused nuisance and annoyance by banging on the window, screaming and shouting whilst having sex in breach of paragraph 3 of the order.  
33.	I have before me evidence from Mrs. Bibi in her affidavit, as confirmed, that in relation to this first of two alleged incidents on 29th January:  
"In the early hours of 29th of January there were different people banging on the window, but left about five minutes afterwards and then around five a.m. Gemma started screaming and shouting whilst having sex, which woke us up.  This lasted ten minutes."
34.	Again, for the same reasons that follow in relation to my judgment on the matters of 28th of January, I am not satisfied that the Defendant was banging on the window. Mrs. Bibi's account simply being that different people were banging on the window but then left.  
35.	However, I am satisfied that during the course of the early hours of 29th of January 2015, at a later time than 1.50 but at around five a.m., the Defendant was guilty of screaming and shouting whilst having sex at a level of noise which caused nuisance or annoyance to Mrs. Bibi and her family. I am satisfied so that I am sure that Mrs. Bibi was able to correctly identify the Defendant, the Defendant being the person who occupied the property below and who had been living there and had been seen regularly at the property over the preceding days and following days in circumstances where she was the sole tenant.   So I am satisfied that the allegation on 29th of January is made out in part, save as to the banging on the window.
36.	I turn to consider the second allegation on 29th of January at around quarter-to-five in the afternoon where it is alleged that the Defendant intimidated and harassed Mrs. Bibi by shouting:  "Look, she's looking, the fucking bitch."  An allegation, which unlike the other allegations is said to be in breach of paragraph 1 rather than just paragraph 3 of the interim order.  
37.	I have before me evidence from Mrs. Bibi as to the incident which is said to have happened at that time and she describes standing by the window talking to her husband and warming her hands on the radiator. She states that as she was looking out of the window, she was seen by the Defendant and it was that point the Defendant shouted to Wayne the reference to Mrs. Bibi:  "Look, she's looking, the fucking bitch."
38.	In support of the evidence that was contained in the affidavit, Mrs. Bibi again confirmed today what had happened on that occasion, the fact that she regularly stood next to the radiator by the window whilst the television was on because it helped her poor circulation and to warm her hands.  
39.	She described telephoning the police on that occasion.  There is contemporaneous evidence in support of Mrs. Bibi's account by virtue of a police log which appeared at pages 204 and 205 of the bundle, recording a telephone call from Mrs. Bibi shortly after five p.m. on 29th of January, that at that time the report is made by Mrs. Bibi to the police that the Defendant had been calling her a fucking bitch.
40.	I am satisfied so that I am sure on both the evidence I have heard from Mrs. Bibi today, but also as supported by the police log (which is exhibited to the housing officer's witness evidence) that on that occasion the Defendant did indeed swear at Mrs. Bibi, as is alleged. I find that such conduct is a breach of paragraph 1 of the interim order in that it harassed or intimidated Mrs. Bibi and also a breach of paragraph 3 of the order in that it caused a nuisance or annoyance.
41.	Turning to the fifth allegation I have to consider.  On 1st of February 2015 it is alleged that at around ten-past-eleven until half-past-seven in the morning the Defendant caused nuisance and annoyance by banging, shouting, fighting, running around, screaming:  "Fucking prick" in breach of paragraph 3 of the interim order.  
42.	There are a variety of behaviours that are alleged within this one allegation. I deal, firstly, with the allegation of banging at the property.  The evidence of Mrs. Bibi in her affidavit in relation to incidents on 1st of February 2015 is dealt with at paragraph 14 of her affidavit in which she describes banging from downstairs starting and Mrs. Bibi and her family not being able to get to sleep, culminating in a call to the police that she made at about twenty-past-one in the morning. 
43.	That account is corroborated by a copy of the police log, which appears at page 210 of the bundle dealing with the call that Mrs. Bibi made on that night to the police.  A report was made at approximately half-past-one in the morning by Mrs. Bibi to the police in which Mrs. Bibi reported banging around the house and throwing things coming from Defendant's property.  
44.	On page 211 of the trial bundle there is an entry at 1.30 a.m. on 1st of February 2015 in which the police record:  "No shouting, just banging around."  That description is consistent with the description that Mrs. Bibi gives in her witness statement that the original problems at that time in the morning amounted to banging.  
45.	Mrs. Bibi's evidence then goes on (and I am conscious that the particulars put the time bracket for this allegation between ten-past-eleven in the evening into the early hours at half-past-seven the following morning) that it was then continued by, according to       Mrs. Bibi's evidence, banging getting louder and by four a.m. things being thrown around and laughing noises coming from the property.
46.	I am satisfied so that I am sure that Mrs. Bibi's account, as she described this in her affidavit evidence, is accurate.  Not only does the banging accord with the contemporaneous police log, she goes on to provide information as to what happened later in the course of that night, such that it amounted to nuisance or annoyance to her and her family.
47.	I am not satisfied so that I am sure as to the Defendant screaming:  "Fucking prick" on 1st of February 2015. There is no evidence of any shouting in Mrs. Bibi's written witness evidence as to events on 1st of February 2015 and the police log that I have just referred to specifically states that there was no shouting.  
48.	It appears that in drafting the notice to commit the Claimant's solicitors may have confused events on 1st of February and combined them with a further incident on 5th of February in which Mrs. Bibi does describe such shouting taking place.  
49.	But I consider this application on the basis on which it was drafted because that is the basis upon which it has been served upon the Defendant. Therefore so far as incidents on 1st of February are concerned, I am sure and make findings as to banging and things being thrown around by the Defendant throughout the night over a lengthy time, starting at ten-past-eleven on 1st of February, but going right through until four or five a.m. the following morning.
50.	Dealing with the next allegation, on 6th of February 2015 it is alleged that the Defendant was in breach of paragraph 3 of the interim order by running around in the property downstairs, such that it caused nuisance or annoyance to Mrs. Bibi and her family.  
51.	I have evidence before me from Mrs. Bibi in the form of her affidavit that on 6th of February, late at night, she was, again, disturbed by the noise of running around.          Mrs. Bibi's evidence - understandably - is that she cannot say for certain who it was that was running around on 6th of February because she did not actually see the person that was in the flat, but her assumption was that that it was, again, the Defendant in conjunction with the Defendant's boyfriend.
52.	I find as a fact, on the basis that I am sure, that on 6th February it was, once again, the Defendant that was guilty of being the perpetrator of the noise that was generated by the sound of running around.  This is, after all, the Defendant's property for which she is the sole tenant and in circumstances I have already indicated where was seen residing at the property in the days immediately before and immediately following 6th of February 2015. I therefore find the allegation on 6th of February made out.
53.	So far as the allegation on 9th February 2015 is concerned, the Claimant alleges that shortly before five a.m. in the morning the Defendant was guilty of banging on walls and running around and that later on in the day she was guilty, again, of banging on the walls and in the early hours of the morning guilty of setting the fire alarm off twice, all of which, it is said, amounts to a breach of paragraph 3 of the order.
54.	The evidence I have before me in relation to that allegation, again appears in the affidavit evidence of Mrs. Bibi.  I accept her evidence as to the description of events that took place on 9th of February in that she describes at about twenty-five-past-twelve someone banging on the walls.  Although she did not know who it was, she says she could hear banging and then at 4.45 a.m. she could hear someone running around in heels, during which time the fire alarm was set off twice. 
55.	Mrs. Bibi clarified her evidence today to confirm that so far as the incident on that night was concerned, she was aware of the Defendant's pace and style of running, having heard her running around on previous occasions and formed the view that it was, again, the Defendant being the creator of the noise on that occasion.
56.	I find as a fact that that was indeed the case to the criminal standard.  Again, in circumstances where the Defendant is the sole tenant and the person responsible for the property downstairs.
57.	The incident in relation to the events on 9th of February 2015 is further supported by a police log that appears at page 219 of the bundle, which shows that Mrs. Bibi made a contemporaneous complaint at shortly before five a.m. in the morning in relation to the Defendant banging on walls and running around.  Again, consistent with the evidence that she gives in her affidavit.
58.	It follows from my judgment that in relation to the seven alleged breaches I am satisfied in relation to six of the incidents with the exception of the incident on 28th of January 2015.   I accept that those allegations are proved.  Three of them are proved in full, three of them have been proved in part, but nonetheless in circumstances where I have made findings that amount to breaches of paragraph 3 of the interim injunction.  
59.	The allegation on 29th of January 2015, in addition to being in breach of paragraph 3 of the interim order, also amounts to a breach of paragraph 1 of the interim order and to that extent I find the committal application proved.  
60.	The Defendant has not attended today and in ordinary circumstances, on the Defendant's attendance, this would be an opportunity for her to make any representations she wanted to as to how the court should deal with the breach, it having been proved.  I have no representations from the Defendant that I can take into account and therefore I have to proceed to consider the appropriate response of the court in the absence of the Defendant making any submissions to me. 
61.	Having considered the nature of the breaches of the interim injunction, I take into account the following. Firstly, although this order was made on a without-notice basis, it was then served upon the Defendant on 26th of January of 2015.  In relation to the breaches that I have found proved, there were three breaches in the immediate days after service of the order which, in my judgment, aggravate the nature of the breach.  There was an incident on 27th and then the two incidents I found proved on 29th of January 2015 which occurred within days of service of the order on 26th of January.  The incident on 29th of January 2015 I find particularly aggravating in circumstances where it marks an increase in the nature of the Defendant's antisocial behaviour insofar as it is was verbal abuse specifically directed at Mrs. Bibi as opposed to noise nuisance of a more general nature. 
62.	If one were being charitable to the Defendant it may be argued on her behalf - and I take account of the fact that she is not here to make any representations - that she may have been in some doubt as to precisely what the interim injunction meant and the seriousness of the order.  However, in my judgment a further aggravating feature of this case is that the Defendant was present before the court on 30th of January of this year when she attended without representation.  Once she had attended that hearing it must have been abundantly clear to her (a) the seriousness of the proceedings that were going through the court and (b) the seriousness of the interim injunction that existed. Once she had attended court on 30th of January 2015 it follows therefore that she should have been completely alive to the interim injunction and the need for compliance.
63.	In relation to the remaining three breaches that I have found proved, they occurred on 1st, 6th and 9th of February 2015.  The incident on 1st of February 2015 happened two days after she had been at court in relation to these very proceedings.  That, in my judgment, is an aggravating feature of the case.
64.	I am also mindful of the fact that in relation to the six breaches that I have found proved, they happened over a short period of time (a period of some fourteen days) and whilst there have not been breaches put before me in relation to her conduct thereafter, I am mindful of the fact that it is in circumstances where I am told she has been bailed to keep away from her address and thus is not able to attend the property at the moment in any event.
65.	I also take account of the fact that by her absence at Court the Defendant has not put herself in a position of showing any remorse for her behaviour or indeed any engagement in the court process whatsoever.
66.	Taking all that into, I nonetheless recognise that with the exception of the incident on 29th of January, in the main these are items of noise nuisance, non-specific to Mrs. Bibi, although, inevitably, having an extremely severe effect on Mrs. Bibi and her family who are living lawfully and peacefully in accommodation immediately above that of the Defendant.
67.	In light of the amount of breaches found, the lack of remorse and the Defendant's attendance at court literally days before half of these breaches took place, I take the view that an immediate term of imprisonment is justified on the facts of this case. I do, however, take account of the fact that these are the first breaches proved in relation to the interim order. They, fortunately, they do not go as high as amounting to actual or threatened violence against Mrs. Bibi or her family and therefore I take that into account when determining the length of custodial sentence. I take the view that a period fourteen days immediate imprisonment is appropriate to run concurrently on each breach.