These judgments were given ex tempore on 4 and 29 October 2024.
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District Judge Daley :
Foreword
- This is a note of the judgments of this Court as given ex tempore on 4 October 2024 and on 29 October 2024. Mr Salter of Counsel kindly provided me with his note of my judgments as delivered, allowing this note to be more rapidly and economically prepared and published, which is manifestly in the interests of justice especially (but not only) in circumstances where the defendant chose to absent himself at the sentencing hearing. Although I was very substantially assisted by counsel's note, the end result is my own.
- This note does not take the place of a transcript—either party may still apply for such and that will be authoritative—but this note may be relied upon as a fair representation of my judgments. I have taken the opportunity to amplify or clarify the reasoning in places, in accordance with the guidance of the Court of Appeal in Shirt v Shirt [2012] EWCA Civ 1029.
Friday, 4 October 2024
- This is an application by Notting Hill Genesis to commit Mr Aziz for breaches of an injunction order made on 3 July 2023 and continued on 11 September 2023 after trial of the matter.
- At that trial an order was made pursuant to the Anti-social Behaviour, Crime and Policing Act 2014. The order prohibited the defendant from:
i) Entering or remaining at Flat A, 58 Addison Garden, London, W14 0PD from 9 am on 17th July 2023 (in this judgment, "the Property");
ii) Returning to the Property or 58 Addison Garden, London, W14 0PD from 9am on the 17th July 2023 (for the avoidance of doubt this included flats A-D);
iii) Attending or remaining at the claimant's offices situated at 1 Sussex Place, Hammersmith, London, W6 9EA;
iv) Using, or threatening the use of violence towards any of the following categories of people:
a) Any person with a right to reside in or occupy any part of 58 Addison Garden, London, W14 0PD;
b) Any member of the claimant's staff or any agent or contractor of the claimant; or
c) Any person engaged in lawful activity in or in the locality of 58 Addison Gardens London W14 0DP;
v) Engaging in conduct causing or likely to cause harassment, alarm or distress towards any person in any of the categories set out in sub paragraphs (a) to (c) inclusive;
vi) Engaging in conduct causing or likely to cause nuisance or annoyance towards any person in any of the categories set out in subparagraphs (a) to (c) inclusive; or
vii) Damaging or changing the locks of any of the communal doors (including fire doors) at 58 Addison Garden, London, W14 0PD or the lock for the front entrance door at Flat D, 58 Addison Garden, London, W14 0PD.
- The provisions of that order were to last until 3 July 2024. The defendant was present in court and was aware of the terms of that order and bound by them from that date.
- The claimant brings the application. I remind myself that it is the claimant's case to prove, not on the usual balance of probabilities but beyond all reasonable doubt. The claimant must prove that the defendant committed the conduct and was in breach of the injunction. I reminded the defendant—as I did at previous hearings—of his right to remain silent, that it for the claimant to prove the breaches, and of his right to see and test evidence against him. I urged on him at previous hearings to get legal representation; he had representation at the last hearing albeit only briefly before his solicitors withdrew. I gave him a further opportunity to get legal advice and reminded him that it was free via legal aid which he was entitled to regardless of his means. He attended today without legal representation but with his mother.
- I dealt earlier with applications to adjourn the application, but they were not pursued by the defendant today. There was an unissued application to set aside the injunction order but, for reasons I set out earlier, it was doomed to fail.
Evidence
- I heard evidence from Mr Ogodo, the claimant's housing officer. He has provided a written statement in support of the committal. An Order dated 10 January 2024 permitted evidence to by way of witness statement rather than affidavit. I also heard oral evidence from Mrs Aziz, the defendant's mother, through an interpreter.
- The defendant has the right to remain silent. He decided not to give evidence and cannot rely on the statement he produced (I would add, though I did not say it in my ex tempore judgment, that what I mean is that no significant weight can be placed upon it). Insofar as she dealt with the breaches, his mother dealt with counts 2 and 3, adopting the numbering of breaches in Mr Salter's skeleton argument. Mrs Aziz did not really give evidence as to the 23 October 2024.
- Mrs Aziz's evidence was given through an interpreter in Arabic. I was satisfied that she understood the question and it would have been more difficult without an interpreter. She had not provided a witnesses statement. I felt obliged to hear her evidence in any event as the wording of the last order said the defendant should file and serve evidence by 27 September if he wished to rely on written evidence. It did not mean he had to rely on written evidence. It did not say, in the order, that if he wanted to rely on oral evidence a witness statement was required.
- Mrs Aziz dealt only with two points. She was asked whether the defendant was living with her, and she answered no. She was also shown a rent statement in relation to Flat D and asked if that statement was a statement in relation to Flat A. The reason the defendant was asking that, I understood, was he wanted to undermine Mr Ogodo's evidence in his witness statement of 25 August 2023 in which he said that Mr Aziz had stopped paying rent for Flat A because Mr Ogodo had stopped the money from being taken from his account.
- Mrs Aziz's evidence does not begin to affect Mr Ogodo's credibility. All it shows is there was an account statement in relation to Flat D. Mr Ogodo's evidence was that the way the rent system works is that a reference number is attached by whoever is paying which identifies the property in respect of which the rent is being paid. In this case the reference identified Flat A. Mrs Aziz does not come near to casting doubt on that evidence.
- I accepted the evidence of Mr Ogodo at the trial leading to the grant of an injunction last year. It is right that I assess his evidence today afresh. Indeed, though Mr Aziz decided he did not want to cross-examine Mr Ogodo, I considered it right that I at least put Mr Aziz's case to him. But I am satisfied that I should accept Mr Ogodo's evidence again: it was not seriously challenged at all.
- Insofar as Mrs Aziz says her son was not living at the Property and that contradicts what was reported by PC Locking in his statement dated 23 October 2024—namely that Mrs Aziz had told the police Mr Aziz did live at the property—(a) it is not the claimant's allegation that the defendant was living there; that is not the breach alleged; and (b) Mr Aziz admits being there. Mrs Aziz's evidence does not help the defendant.
- As to Mr Ogodo, I was satisfied, based on the questions I asked on behalf of Mr Aziz, that he was an entirely truthful and honest witness. I will deal with some particular criticisms levelled at him by Mr Aziz in relation to specific incidents below. But by the questions I could properly put to him, he was not thrown or undermined to the extent I should not accept his evidence
The allegations
- I turn to the allegations, which I shall call, for these purposes, "counts" and number in accordance with Mr Salter's skeleton argument.
- As to count 1, there is not sufficient evidence for the claimant to prove beyond all reasonable doubt that Mr Aziz breached the injunction on the 18 October 2023 by being at the Property. The evidence produced by Mr Ogodo was that the police told him that the defendant had told them that he found a burglar at the property. This is at best second-hand reporting of the evidence. There is nothing at all to show where Mr Aziz was when he caught the burglar, just a statement from the police that there was a burglary on 18 October. Hearsay has its place in civil proceedings, but in the absence of clear evidence from the police officer it is impossible to be sure that what happened was at Property.
- As to counts 2 and 3, namely that the defendant returned to the property or the building or entered or remained at Flat A on 23 October 2023, I am satisfied to the criminal standard that he did. That is partly as he admits he did and partly because Mr Ogodo says that is what happened. Mr Aziz said he could not be in breach because the police were present; ie, that the police presence means the injunction was not breached. It may mean a breach of the peace was less likely, or nuisance or annoyance was less likely, but it is a term of the injunction that he must not be there. If he had been invited by the police that might affect the appropriate sentence, but there is no evidence that the police did invite him there
- Count 4, alleged that the defendant returned to the building on 10 November 2023. The notice of committal referred to 11 November 2023 but Mr Aziz has not contested the claimant amending it to 10 November 2023. And it was right he did not contest it: it was clear what date the claimant was referring to and I would allow it to be amended because the served witness statement of Mr Ogodo gave the date as 10 November 2023. Mr Ogodo's evidence on page 120 at paragraph 10 is very clear as to what happened. And he describes at paragraph 12 that he saw Mr Aziz at other side of the road and crossing the road to the side with No. 58 and proceeding to the entrance door to take it off the latch. As to this:
i) First, the defendant says Mr Ogodo was confused because he referred to him taking the door off its latch on 23 October. On reviewing the recording of his oral evidence, I agree Mr Ogodo said it was on the 23 October that Mr Aziz had unlatched the door but that is not in his witness statement or his notes of the incident on the 23 October at page 143 of the bundle, nor in his affidavit at pages 65-66. It seems to me it was a mistake. He never asserted that the door was taken off the latch on the 23 October, his written account of which does not include any interference with the latch by Mr Aziz.
ii) Mr Aziz says I cannot be sure of Mr Ogodo's account because he did not call the police and Mr Wiggins—who Mr Ogodo says was with him—was not called to give evidence. This does not cast any doubt on Mr Ogodo's evidence. He says he did call the police, and Mr Aziz himself says the police did not act (and that therefore it cannot be a breach).
iii) Mr Aziz says the police did not act, so it cannot have been a breach. The police were convinced Mr Aziz did not go into the property, though as discussed during the hearing, it is impossible to see how the door could otherwise have been unlatched by him without at least some part of Mr Aziz entering the property. And the police are not the arbiters. It is clear what the injunction says, and Mr Aziz accepted he was not to go into 58 Alison Gardens.
iv) Mr Ogodo explained that Mr Wiggins left the claimant's employment in September. He was not called for good and understandable reasons and Mr Ogodo's is the only evidence that I have. Accordingly, and given what I have said about Mr Ogodo's evidence, I am sure that defendant did return to the Property on 10 November 2023.
- Count 5 is that Mr Aziz was subletting (I interpose into my ex tempore judgment that this could never strictly be subletting as Mr Aziz was not a tenant of any part of the Property, but I understood the allegation as one he had purported to let it, or part of it, out) and this was said to be a breach of paragraph 6 of the injunction, namely that Mr Aziz must not do anything which is capable of causing nuisance or annoyance in the Property. Whilst it is possible that subletting could cause such a breach, I am not satisfied that the necessary facts are proven to the criminal standard. This injunction was prohibitive; it was preventing the defendant doing things. It was not one which required him to take positive steps. I would have to be satisfied that the actions of the defendant, after the injunction was made, amounted to (sub)letting. The allegation is infelicitously drafted, referring to a sub-tenant being found rather than asserting the defendant let the Property out. There is no evidence when the letting commenced. Mr Salter pointed to the concept of the continuing breach and suggested once Mr Aziz had let the property he was always in breach. That analogy is not apposite. I am not dealing with whether Mr Aziz was in breach of a tenancy agreement but whether he was in breach of a court order. The claimant would have to show some positive act by him in breach of the injunction. And it would have to get over the paucity of evidence. The only evidence was of a sub-tenant at the premises. Count 5 was not proven.
- I turn now to counts 6 and 7. These are allegations that the defendant acted in a threatening, intimidating or harassing way to Mr Ogodo on 21 December 2023 in the morning outside his office (count 6) and in the evening at Hammersmith tube station (count 7). Count 6 was drafted as occurring on 22 December, but the evidence was absolutely consistent with it being on the 21 December 2023, as per page 141 of the bundle. Accepting Mr Ogodo's evidence, I am satisfied that both allegations are proven. The only evidence on point is given by Mr Ogodo (pages 121 – 123). He was not seriously challenged. I did put the case to him on behalf of Mr Aziz, but he was not shaken in his recollection.
i) One criticism raised by Mr Aziz is that there is no statement from a police officer in relation to the morning events and no police officer giving evidence about the afternoon events. This is far from a good reason for not accepting Mr Ogodo's evidence. Mr Ogodo was very clear in his witness statement and in saying he was very fearful when he was at Hammersmith tube, and he explained it had made him anxious and he found himself looking behind his back to see if the defendant was behind him.
ii) Another criticism made by Aziz is that Mr Ogodo was not sure how long it was that the defendant had been outside the office building in the morning. This is an allegation of following of Mr Ogodo near his place of work and that this caused, in effect, nuisance and annoyance and/or harassment alarm or distress. The fact that Mr Ogodo may not have known how long the defendant was outside the building does not reduce the impact. It would have been surprising to hear that he did know Mr Aziz was waiting.
iii) Mr Ogodo has been criticised for not producing CCTV. The absence of such evidence does not make it any less likely that Mr Ogodo is recalling events accurately, although the evidence of CCTV would have made it cast iron. Its absence does not make it any less likely than does the absence of other evidence from another potential witness (as again asserted by Mr Aziz), namely Ben, a colleague of Mr Ogodo.
iv) Finally, Mr Aziz says that that Mr Ogodo's evidence is deficient in that in neither his statement to police, nor in the police record, did Mr Ogodo say he felt threatened or intimidated or caused nuisance or annoyance. In his statement to this court, he has described having his path blocked. I put to him Mr Aziz's case that it could not have been barred because there were three sets of stairs. Mr Ogodo said the incident had occurred on the path. Mr Aziz did not have any follow up questions. I accepted Mr Ogodo's evidence, including that his path was blocked with Mr Aziz maintaining eye contact in a way he found intimidating. That was the morning incident. In the afternoon he saw Mr Aziz behind him, the latter started to pace up and down, and Mr Ogodo says he felt threatened and intimidated. I am entirely satisfied that Mr Ogodo would have felt intimidated by that behaviour. He was only challenged on the basis that he did not mention this to the police. In any event, the injunction was an injunction prohibiting conduct that is capable of causing a nuisance or annoyance, or capable of causing harassment, alarm or distress. I am satisfied so that I am sure that the conduct occurred, that it was capable of causing harassment, alarm or distress, and that it did cause nuisance and annoyance. Therefore, on counts 6 and 7 I find Mr Aziz in breach.
- Accordingly, the defendant is in contempt as per the pleaded allegations on 23 October, the first pleaded allegation on 10 November 2023 and the two allegations on the 21 December 2023.
- I will adjourn sentencing. Mr Aziz, I strongly suggestion that you get legal representation. You are entitled to Legal Aid. Your mitigation will be heard at the next hearing. It may be that I shall decide to adjourn sentencing for a longer period. The right answer might be to let time pass to see if you do comply and decide on the penalty at end of that period. It is right to consider even that at a later time than today.
Tuesday, 24 October 2024
Whether to proceed in absence of defendant
- I am concerned today with the sentence of Mr Aziz in respect of his proven breaches of contempt. He was found by me on the 4th of October to be in breach of an injunction order. On that occasion I adjourned consideration of sentence for a fixed time with a time estimate of one hour and a half. In that order I said I could proceed in his absence. That is a statement of law, but its inclusion emphasised that there was a risk that if he did not attend, the Court could proceed.
- For the record, I urged the defendant to get legal advice at that time. I advised him more than once to do so at that hearing and at previous hearings, and told him that he was entitled to criminal legal aid. I told him at the last hearing I would hear his mitigation today, and that the purpose of adjourning would be to hear that.
- Mr Aziz did attend. I understand he previously attended Court dressed as Santa Claus. Today he was dressed in what appeared to be a comedy version of barristers' robes. Probably one can obtain the like on Amazon. He is not a member of the Bar, and I asked him to take 5 minutes to remove those items and come back into court. I pointed out that it appeared to me disrespectful and discourteous to the court process to appear dressed like that. He was being sentenced for breach of a court order. Had he remained, I could have explained that one of the important considerations is the extent to which he is likely to comply with court orders in the future. As it is, I question whether he has respect for the court process.
- I am aware that the issue of capacity to litigate has been raised previously but I decided in September that he had capacity. He was able to weigh and remember information, he was able to make judgements about the decisions in the litigation and to weigh relevant factors. I asked myself today if he displayed any behaviour that should make me consider again whether he now lacks capacity. In my judgment, his behaviour today does not suggest he lacks capacity. His attitude throughout these proceedings has been one in which he has at most times taken maximum advantage of the system. He has drawn out these proceedings for the best part of a year by claiming he lacked capacity which I have found not to be the case. (In my ex tempore judgment, I here referred to the defendant having failed to provide a copy of an expert report which he had obtained and seen and my inference that it was not supportive of a lack of capacity. I have since reminded myself that the report was eventually produced and in fact revealed that the defendant failed to co-operate, as a result the author being ambivalent on capacity to litigate, which has the same net result on my decision.) I remind myself that Mr Aziz refused to speak during his brief appearance at the hearing. The defendant has a right of silence and so I will not hold that against him. But he chose instead, following my request to remove the offending items, to leave the building.
- I have to consider the question of whether it is appropriate to proceed in the defendant's absence. I was taken by counsel to the case of Frejek v Frejek [2020 EWHC] 1181 (Ch) where the principles are set out for proceeding in the absence of the defendant. I remind myself it is a multifactorial exercise of judgement.
i) The first question is whether the respondent has been served. He clearly was at the last hearing when the date was set in open court and regardless of that attended today and knew where he had to be.
ii) The second is whether he had sufficient notice. He had since 4 October, and he has not said he needs more time for any purpose.
iii) The third is any reasons for non-attendance. No reason has been advanced at all: the defendant has just chosen to leave when addressed about his mode of dress. I did not say I would not hear him.
iv) Fourth, whether the defendant has waived his right to be present. Clearly, he has by absenting himself.
v) Fifth, whether an adjournment would be likely to secure the defendant's attendance. As to whether he would attend an adjourned hearing and take it more seriously I am very doubtful, given his disregard for the court today.
vi) Sixth, is the question of disadvantage to the defendant. There is plenty of disadvantage to him and his Article 6 rights. I do not lose sight of that. But I bear in mind that the contempt application deals with some breaches committed more than one year ago. Contempt proceedings are not to be drawn out but dealt with within a reasonable time frame: a further adjournment would not serve that end.
vii) Seventh, I consider the prejudice to the applicant. I do not give much weight to that in this particular case. I do remind myself that the claimant is a housing association and does not have bottomless funds, however I would not allow for the cost to stand in the way of someone's rights when their liberty is at stake.
viii) Eighth, I consider the prejudice to the forensic process if the application was to succeed. However, the forensic process has been concluded: the defendant has been proven to be in contempt.
ix) Finally, the overriding objective, that is to deal with matters justly but at proportionate cost. In my judgment the defendant's Article 6 rights are engaged but this application has been ongoing for far too long.
- Weighing those factors (I interpose to explain that as will be apparent, they overwhelmingly favoured proceeding), I will proceed today.
[Counsel addressed the Court on the powers available, on the seriousness of the proven breaches in terms of culpability and harm, and mitigation that could be raised on the defendant's behalf.]
Sentence
- I have to sentence Mr Aziz for the breaches of injunction he was found on the 4th of October to have committed. In summary there were three incidents but 5 breaches:
i) two breaches on 23 October 2023 when Mr Aziz attended No. 58.
ii) 10 November 2023 when he attended for the second time
iii) two brecahes on 21 December 2023 when Mr Aziz was threatening and intimidating to the claimant's housing officer on two separate occasions, at 9.20 in the morning and 6.15 in the evening, at two separate locations (the claimant's offices and Hammersmith tube station).
- Guidance on sentencing was given in the case of Lovatt v Wigan Borough Council [2022] EWCA 1631. The Court of Appeal helpfully set out the approach the court should take. Until that point there had been precious little guidance on the approach courts should take for civil contempt. The objectives of sentencing in civil contempt proceedings are, in order:
i) ensuring compliance with orders,
ii) punishment, and
iii) rehabilitation.
I approach my sentencing duties in that way.
- The range of sentences available to me ranges from an immediate custodial order then, by way a suspended order, to a fine, to adjourning consideration or to making no order.
- The Law Commission is at present making proposals for wider sentencing powers, but these are not available to me at present and will not become so unless and until its eventual recommendations are passed and enacted by Parliament.
- This then is my analysis of the seriousness of the breaches. In doing so I determine for each breach the culpability and harm caused.
- As to attendance at the property on the 23rd of October it seems to me that the defendant's behaviour was deliberate, though not as persistent as Mr Salter submitted in extremely measured and enormously helpful submissions. He said that the breach should be taken in the context of the other breaches and treated as persistent because there were further breaches. But it seems to me right to treat them separately, to treat each breach on the facts as they were at the moment of breach.
- The breach was deliberate but caused little or no harm or distress. I agree I should look at what the provision breached was trying to protect or control. It was designed to protect the occupants of flat D against Mr Aziz's attempts to take over the management of that flat. On that occasion, I ask myself, who was there? It was the defendant's mother and the police officers. They were caused little or no harm or distress. I therefore consider the starting point to be the Civil Justice Council's category B3 (paragraph 54 of Lovatt). The starting point is adjourned consideration with a range from there to one month's imprisonment. I take into account that the defendant is not since November alleged to have visited the property. This is a mitigating feature.
- In relation to the second attendance, again there was little or no harm or distress. This is similarly a breach I would categorise as B3 for the same reasons but with the aggravating feature of its being a repeat breach. As with the other breaches, I have no personal mitigation from the defendant because he chose not to remain; but I do know that he has not repeated the breach. The custody threshold is not reached for either of the breaches involving attendance at the property.
- As to the third incident, or group of incidents, the harassment of the housing officer, I am well satisfied that the custody threshold is reached. In my judgement, it falls squarely in category B2. It was serious and persistent. It was a deliberate breach. It was intended to cause harm to the claimant's housing officer. This was the basis on which I found him to be in breach, as it caused harm and distress to Mr Ogodo. It is plainly category 2 in terms of harm as Mr Ogodo reported he felt intimidated and threatened. I found that he was intimidated and threatened when his way was blocked and he was followed. Although I do not hold the fact by itself against him, it is consistent with Mr Aziz's performance in court when he attended in a confrontational manner by dressing as a member of the bar. But focussing entirely on the experience of Mr Ogodo, this was intended to be, and was, a situation where he at least felt harassed.
- The starting point is one month's imprisonment. In my judgement it is aggravated by there being more than one attempt on the same day to intimidate Mr Ogodo. It was a course of conduct persisted in across the working day. It is further aggravated slightly by this not being the first occasion when Mr Aziz breached the order: he had previously breached it and had been arrested for that breach on 23 October 2023. Again, the same mitigation applies insofar as the defendant has not committed breaches that are evidenced before me for 10 or 11 months. Overall, this puts it at the upper end of category B but not yet category A. Again, there is no other personal mitigation.
- For the first two breaches on 23 October 2023, which I treat as one, an adequate penalty is the finding of contempt and I make no further order.
- For the attendance at the property, the third count, on the 10th of November 2023, I would fine the defendant. I will adjourn consideration of that fine for six months. That further hearing will be vacated, and no fine imposed, if the claimant notifies the court in advance that there have been no further breaches of the conditions I shall impose. The burden will nevertheless be on the claimant to prove breach of the conditions I impose. If the hearing is not vacated the defendant will need to provide the Court with a statement of his means.
- As to the two intimidating and harassing incidents, my sentence for each is one of seven weeks' imprisonment, to be served concurrently. I bear in mind the passage of time, although I am concerned about Mr Aziz's apparent disregard for the court process. Nevertheless, I suspend both sentences for a period of six months on condition that the defendant does not:
i) use or threaten the use of violence towards any member of the claimants' staff or any agent or contractor of the claimant
ii) engage in conduct causing or likely to cause harassment alarm or distress towards any member of the claimants' staff or any agent or contractor of the claimant.
These will be the same conditions with which the defendant's compliance will allow the adjourned sentence for the third breach to be reduced to no order.
- I have considered the alternative of adjourning sentence for the harassment breaches. It would not be appropriate to adjourn sentence and have no sentence imposed at this time. It would not adequately mark the seriousness of the defendant's failure to comply with an order by intimidating and harassing if no or a lesser penalty were imposed following adjournment, and that is why I have not adjourned sentence for these.
- These were serious incidents and housing officers have a right to go about their business, and a right not to be intimidated or harassed whether by their tenants or others. Mr Aziz should be aware that should the Court find any breach of the conditions I have imposed, it would most likely activate the sentences.
- I have stepped back and looked at the totality the custodial sentences and the possibility of a fine at a later hearing. Taken together I am satisfied they are commensurate with the seriousness of these breaches.
- The defendant has the right to appeal. He does not need permission to do so. He can appeal to the Court of Appeal or the Circuit Judge, the latter being the more appropriate route, against any of the breach findings or against the sentence. He has 21 days from today to do so.
