Lovett v Wigan Borough Council

This Court considered three related appeals about committal for breach of injunctions made under the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBIs) and set out principles for sentencing in civil contempt cases arising from breaches of ASBIs. The Court emphasised that the primary objective of penalties for contempt in this context is to ensure future compliance, followed by punishment and rehabilitation, and adopted the Civil Justice Council's calibrated scheme for assessing culpability and harm when arriving at a starting point and range for sentences.

The Court held that custody should be reserved for the most serious breaches or where other means of securing compliance have failed; suspension and adjournment are important tools; and the maximum custodial term under s.14 Contempt of Court Act 1981 (two years) must be borne in mind. The Court also explained procedural obligations in committal proceedings under CPR Part 81, including entitlement to legal representation and the rule requiring transcription and publication of judgments dealing with imprisonment (r.81.8(8)).

• Optivo v Hopkins: the 28-day suspended custodial sentence imposed after an adjournment was excessive and the judge had erred in treating absence of evidence of compliance as justifying imposition of the previously indicated sentence; appeal allowed and sentence replaced with no order.
• Network Homes v Smith: although publication/transcription delays and alternative remedies were considered, the main error was use of the Sentencing Council criminal starting point for breach of a Criminal Behaviour Order; the 12-week custodial sentence (suspended) was excessive and was reduced to one month suspended.
• Wigan Borough Council v Lovett: the appellant’s collateral attacks on the validity of the injunction were struck out as abuse of process; the trial judge’s handling of video evidence and admissibility and the consideration of earlier dates were upheld; the appeal was dismissed.

The appeals arose from committal proceedings for breach of injunctions under the Anti-Social Behaviour, Crime and Policing Act 2014. The Court heard three related appeals together: Optivo v Hopkins (tenant admitted one breach and sentencing was adjourned, then imposed on return); Network Homes v Smith (multiple alleged breaches of a noise-related injunction and a 12-week suspended custodial sentence); and Wigan Borough Council v Lovett (numerous prior breaches, challenge to the injunction and a trial finding 21 overnight-presence breaches).

Nature of relief sought: each respondent sought committal to prison (immediate or suspended) for contempt for breach of civil anti-social behaviour injunctions. Appeals to the Court of Appeal challenged the length or lawfulness of sentences, and in Mr Lovett’s case several procedural and substantive challenges to the injunction and to the handling of evidence.

Issues framed:

• What are the appropriate principles and a workable framework for sentencing in civil contempt cases arising from breaches of ASBIs?
• Were the individual sentences in Hopkins and Smith excessive, procedurally flawed, or wrong in principle (for example by direct reliance on Sentencing Council CBO guidelines)?
• In Lovett, could the appellant challenge the validity of the underlying injunction in an appeal against committal and were the trial judge’s findings on evidence and admissibility correct?

Reasoning and conclusions: The Court explained that contempt sentencing in the civil ASBI context differs from criminal sentencing and that the principal objective is securing future compliance. The Court accepted the Civil Justice Council's recalibrated grid (three levels of culpability and harm with corresponding starting points and ranges, highest starting point A1 at six months) as a helpful tool for judges. The Court warned against directly applying Sentencing Council criminal guidelines for CBO breaches in the civil context, given different maxima and purposes.

Applying these principles: (i) in Hopkins the judge mis-categorised culpability/harm, treated absence of evidence of compliance as an aggravating feature, and the indicated suspended sentence on adjournment should not have been imposed on return; the appeal was allowed and sentence set aside (no order). (ii) in Smith the judge wrongly used the criminal CBO starting point of 12 weeks; the sentence was reduced to one month suspended. Procedural complaints about transcription and alternative possession remedies were rejected on the facts. (iii) in Lovett the Court refused to allow collateral challenges to the injunction (abuse of process), upheld the trial judge’s assessment of the video evidence and his decision to take into account alleged breaches earlier than prior proceedings, and dismissed the appeal.

The Court also reiterated procedural safeguards in committal proceedings under CPR Part 81: entitlement to legal representation, public hearing and transcription/publication obligations and the routes of appeal under s.13 Administration of Justice Act 1960. The Court allowed limited relief in two of the three appeals and dismissed the appeal in Mr Lovett's case.

The Court allowed the appeals in Optivo v Hopkins and Network Homes v Smith in part because the sentencing judges had misapplied sentencing principles and, in the case of Smith, improperly applied criminal CBO starting points; the sentences were replaced (Hopkins: no order; Smith: one month suspended). The Court dismissed Lovett's appeal and refused to set aside Andrews LJ’s order striking out collateral challenges to the injunction, holding those challenges to be abusive and upholding the trial judge's factual findings and sentence handling.

All three matters were appeals from County Court committal proceedings. Hopkins: appeal by right under s.13 Administration of Justice Act 1960 filed in the County Court at Croydon, transferred to the County Court at Central London and then to the Court of Appeal under CPR r52.23(1). Smith: appeal filed at County Court at Central London and transferred to the Court of Appeal under CPR r52.23. Lovett: multiple prior committal proceedings and High Court proceedings (appeal dismissed by Knowles J on 30 April 2021); subsequent committal and sentencing by Recorder McLoughlin (April 2022); Notice of Appeal against the July 2022 trial to this Court; Andrews LJ made case management and strike-out orders (6 October 2022) which were challenged but not set aside.