Committals in Anti-Social Behaviour cases: some much-needed guidance

The recent case of Lovett v Wigan Borough Council addressed sentences for proved or admitted breaches of anti-social behaviour orders (ASBIs). 

Background

This judgment dealt with three related appeals concerned with breaches of ASBIs made under the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). The appeals were based upon ASBIs, with committal applications that followed which resulted in sentences being handed down for breach of ASBI orders.

The Court of Appeal considered general principles of sentencing of breach of ASBIs as well as the Report by the Civil Justice Council (“CJC”) dated July 2020 entitled “Anti-Social Behaviour and the Civil Courts”.

The combination of the CJC’s Report and the guidance afforded by the judgment given in Lovett has provided some much-needed clarity on sentencing in cases where there has been proven or admitted breach of an ASBI.

Before Lovett

Prior to Lovett, the courts have relied upon guidance from the Sentencing Guidelines Council in relation to breach of anti-social behaviour orders. Given that these were not bespoke for the civil courts, in practice, they have acted as restriction of the powers of Judges when dealing with such a breach, as opposed to Judges who dealt with the breach of an anti-social behaviour order in the Criminal Courts. The leading case that lawyers will be familiar with is the case of Amicus v Thorley [2012] EWCA Civ 817 in which the Sentencing Guidelines Council’s guidance was drawn upon in a civil context. The Report highlighted the inconsistencies and demonstrated a call for a more distinct and bespoke approach to sentencing in the civil courts.

The Court of Appeal’s judgement in Lovett was the answer to this call. Together and in turn they provide clear assistance to show that injunctions can, and need to be, used properly in the civil courts, and that despite the strange overlap between the elements of criminal and civil law, with the right approach, this intersection can work practically. It is not the case that the Sentencing Guidelines are to be completely discarded when considering sentencing - however, a more nuanced approach is needed.  

The Judgment in Lovett

The Lovett judgment is important because it:

1. provided clear, structured guidance moving forward for the purposes of practically assessing penalties, by affirming the guidance contained in the CJC Report; and
2. pinned down the key differences between sentencing in crime and sentencing as a penalty for contempt of court in the civil courts.

Turning to the first point, the Lovett judgment served to validate and bolster the guidance set out in the CJC Report. This signals to other Judges, and practitioners, that the CJC is to be used as a helpful, practical tool, as opposed to mere opinion. The Court of Appeal’s judgment clearly signals that Judges should move away from guidance by the Sentencing Guidelines Council and move towards the more bespoke approach as outlined in the Report.

The CJC Report set the more ‘bespoke’ formula guidance out in a table format, as follows:

Analysis of the above table in the context of the judgment in Lovett:

It is noteworthy that, as in the approach in crime, the CJC Report underlined, with distinct consideration, the degree of harm and degree of culpability as factors which have application here. The CJC Report presents a scheme based on three levels each of culpability and harm. This should allow for the guidance to be a useful tool for judges to use given that each case will have different facts, and it is worth bearing in mind that sentencing is highly fact sensitive.

The second point relates to the distinction between criminal law and civil law. Essentially, the current Sentencing Council guidelines which relate to a breach of a Criminal Behaviour Order, can only be relevant in the very broadest and generalised sense in a civil context for contempt of court. To directly transpose sentence length from the Sentencing Guidelines is likely to be wrong - a more nuanced approach is needed.

To these ends, the Court in Lovett underlined the principal objectives of sentencing for breach of an order under Part I of the 2014 Act. In order of priority these are:

1. Ensuring future compliance with the order.
2. Punishment.
3. Rehabilitation.

In light of the intention to ensure compliance with the order, the Court of Appeal stated that suspension and adjournment may provide an opportunity for Defendants to demonstrate a change in their behaviour, so as to act as an incentive to comply. For applicants, this also provides an opportunity to amend the injunction itself (if appropriate) as well as an opportunity to impose a variety of other conditions, for example, potentially a positive requirement.

This relates directly to the concept of custody threshold, and in Lovett, the Court of Appeal emphasised that custody should be reserved for the most serious breaches, and for less serious breaches where other methods of securing compliance with the order have failed. Custody must therefore be viewed as a ‘last resort’.

The Court of Appeal recommended that suspension operates as the first mechanism of attempting to secure compliance with the underlying order. Depending on the circumstances, adjournment may be more appropriate. However, it is clear from the judgement that Judges can, and should give, an indication of what the sentence would have been imposed if the matter had not been adjourned. This, together with a clear statement as to the consequences for good and bad behaviour in the intervening period, should act as both a deterrent and an incentive.

Conclusion

The decision in Lovett gives some much-needed clarity and it is clear and structured in its approach to sentencing. Further it clearly delineates and encourages the concept of contemplating the possibility of adjourning for consideration, with the Judge giving an indication at this point, on sentencing as this may act as an incentive for Defendants to comply with the order going forward, which can impact on any custodial sentence to be served by a Defendant.

The Court of Appeal in Lovett made it clear that the CJC Report is to be taken seriously and the full range of sentencing powers can be used by Judges. The judgment speaks volumes about the importance of sentencing, its functions and its wider meaning within the context of the civil court’s role in maintaining law and order in society (something so often associated with the Criminal Courts predominantly). Lovett underlines a push for a more cohesive, yet separate, approach to sentencing/committals, providing an important practical, and theoretical, bridge between the civil and criminal courts.

Practical points to consider

In any committal case, consideration must be given to the breaches put before the court.  These must be carefully selected and proven to the criminal standard of proof (beyond all reasonable doubt), as opposed to the civil standard of proof (on the balance of probabilities).