Christopher Lovett v Wigan Borough Council

For breach of an injunction under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014, contempt penalties serve civil rather than criminal objectives. The first objective is securing future compliance, followed by punishment and rehabilitation.

Sentencing requires a fact-sensitive assessment of culpability, harm, aggravation, mitigation, proportionality and totality. Custody is reserved for the most serious breaches or where lesser measures have failed. It must be the shortest sufficient term. Criminal behaviour order guidelines are generally unsuitable as a direct measure for civil contempt.

Where sentencing is adjourned, the burden remains on the applicant to prove further breach or aggravation. In their absence, the final penalty should normally be less severe than the indication given when sentencing was adjourned.

The court heard three related appeals concerning contempt penalties for breach of anti-social behaviour injunctions made under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014.

Ms Hopkins admitted one breach. District Judge Coonan adjourned penalty and later imposed 28 days’ imprisonment, suspended. Deputy District Judge Althaus found nine breaches by Mr Smith and imposed 12 weeks’ imprisonment, suspended. HHJ Sephton KC found Mr Lovett had breached an overnight exclusion term on 21 occasions and imposed concurrent terms of 30 weeks’ imprisonment, concurrent with an existing sentence.

The appeals raised the proper approach to penalties for civil contempt, the effect of a failure to publish a contempt judgment, legal representation, possession as an alternative remedy, and whether Mr Lovett could challenge the underlying injunction or rely on alleged procedural and evidential errors.

1. The court allowed the Hopkins appeal and the Smith appeal on sentence, but dismissed Mr Lovett’s appeal and his application to set aside an earlier strike-out order.

2. Breaches of Part 1 injunctions under the Anti-Social Behaviour, Crime and Policing Act 2014 are civil contempt. Their sentencing objectives, in order, are future compliance, punishment and rehabilitation. Criminal sentencing purposes and criminal behaviour order guidelines cannot generally be used directly. The court adopted general guidance based on culpability and harm, while stressing that each sentence must be just, proportionate and tailored to the circumstances.

3. Custody is for the most serious breaches or cases where other means of securing compliance have failed. The court should consider a penalty for each breach and totality, and must impose the shortest custodial term sufficient for the civil objectives. An adjournment of penalty or a suspended committal may provide an opportunity to secure compliance and to amend the injunction or impose suitable conditions.

4. Ms Hopkins’ single admitted breach was at most category B3. At the restored hearing, the burden did not lie on her to prove compliance. There was no evidence of a further breach or other aggravation. The 28-day suspended sentence was set aside and replaced by no order.

5. Mr Smith’s 12-week suspended sentence resulted from direct use of criminal behaviour order guidance and was excessive. The court substituted one month’s imprisonment, suspended for the original period. The failure to transcribe and publish the judgment under CPR r 81.8(8) was a serious irregularity but did not itself justify allowing the appeal. A possession order was a separate remedy requiring a claim under CPR Part 55, not a sentencing alternative in committal proceedings.

6. Mr Lovett could not use an appeal against committal to mount a collateral challenge to the underlying injunction, particularly after earlier unsuccessful challenges. The judge was entitled to consider allegations predating an earlier committal application because their prior omission was not an abuse of process. The challenges to the video evidence and to the fairness of the proceedings disclosed no error.

• Court of Appeal (Civil Division) In [2022] EWCA Civ 1631, allowed Ms Hopkins’ and Mr Smith’s appeals on sentence, substituting respectively no order and one month’s imprisonment suspended; dismissed Christopher Lovett v Wigan Borough Council and his application to set aside the earlier procedural order.

• County Court District Judge Coonan imposed 28 days’ imprisonment suspended on Ms Hopkins after an adjournment of penalty. Deputy District Judge Althaus imposed 12 weeks’ imprisonment suspended on Mr Smith. HHJ Sephton KC found 21 breaches by Mr Lovett and imposed concurrent terms of 30 weeks’ imprisonment.