Gill v Birmingham City Council

An appellate court will rarely interfere with primary findings of fact made by a trial judge who heard the witnesses, particularly where the findings are rationally explained and the judge has addressed credibility and the competing evidence. In concurrent committal and criminal proceedings arising from the same conduct, the first court to sentence must not anticipate a later sentence; the second court must take the first sentence into account so that the defendant is not punished twice. A committal court may sentence for breaches of an injunction even though the defendant has pleaded guilty to related criminal offences but has not yet been sentenced. The sentence remains open to appellate review for manifest excessiveness.

The appellant appealed as of right against a committal order made by the County Court at Birmingham. He had been found to have committed seven breaches of an anti-social behaviour injunction protecting his former partner and was sentenced to 14 months and 23 days’ imprisonment. The breaches included repeated attendance at her home, threats of violence and criminal damage.

He challenged the factual findings, argued that the County Court should not have sentenced him for two breaches which also formed the subject of guilty pleas in the Magistrates’ Court, and contended that the sentence was manifestly excessive. The central issues were the proper appellate approach to findings based on oral evidence, the management of concurrent proceedings, and the proportionality of the committal sentence.

1. Findings of fact. The appeal against liability for breach was dismissed. The judge had directed herself correctly on the criminal standard of proof, assessed the witnesses and addressed the appellant’s case. Applying Cook v Thomas [2010] EWCA Civ 227, the appellate court held that there was no basis to interfere with rational primary findings made after hearing the oral evidence. The judge was entitled to rely on Miss Jordan’s evidence concerning the later breaches even if an earlier allegation had been withdrawn.
2. Concurrent proceedings. The County Court was entitled to sentence for the fourth and fifth breaches although the appellant had pleaded guilty to related criminal offences in the Magistrates’ Court and sentence had not yet been imposed. The guidance in Lomas v Parle (Practice Note) [2003] EWCA Civ 1804; [2004] 1 WLR 1642 requires the first court to sentence without anticipating a later sentence. The second court must take the first sentence into account and be fully informed of its basis, so that the same conduct is not punished twice. Slade v Slade [2009] EWCA Civ 748; [2010] 1 WLR 1262 did not require the County Court to await the Magistrates’ Court’s sentence.
3. Sentence. The original sentence was manifestly excessive. Relevant aggravating factors included seven breaches, repeated late-night attendance at the protected person’s home, threats and property damage, her vulnerability and distress, breaches committed on bail, and three previous committal orders. The court held that greater credit should have been given for the appellant’s guilty pleas, together with his personal circumstances, time on remand and genuine attempts to reform.
4. The appeal was therefore dismissed as to liability but allowed in part as to sentence. The sentence was reduced to 12 months’ imprisonment.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 608: appeal dismissed on the findings that the injunction had been breached, but allowed in part by reducing the sentence to 12 months.
• County Court at Birmingham — [2016] EW Misc B3 (CC): seven breaches of the anti-social behaviour injunction were found proved and a committal sentence of 14 months and 23 days was imposed.