Go directly to jail, for shouting, begging and rough sleeping

He wrote:

The poor feel the full clenched fist of the criminal justice system, while the well-off are rarely touched by the system at all, and when they are touched it is oh so gently.

An alliance of academics and penal reformers called Is it a crime to be poor? recently set up a website to discuss these issues. Here, we look at penalties for contempt of court through that lens.

Some recent cases of contempt of court

• In January 2022, Watford County Court dealt with Pukakdandawa Lanke, an asylum seeker who was not represented nor present in court. He was found to have breached an injunction by sleeping rough and leaving belongings in front of St Albans Civic Centre. He was committed to 12 weeks immediate imprisonment.
• On 21 February 2021, Mr Batty came before Leicester County Court which found that he had breached an injunction against begging. It ordered 52 weeks immediate imprisonment.
• On 8 January 2021 Bristol County Court heard the case against Nicola Martin, who is homeless and has mental health and addiction issues. She had had an injunction imposed not to be in an exclusion zone and not to beg. She was found to have been begging in the prohibited area. The Court imposed 12 weeks suspended imprisonment.
• On 1 July 2020, Bristol County Court dealt with Ramon Longbottom. The court found that he had breached his injunction by begging, and imposed 26 weeks immediate imprisonment.
• On 19 December 2019, Clerkenwell and Shoreditch County Court, found that Martin Gegeris, (Case No: F03EC362) had breached an injunction against rough sleeping. The court imposed 18 weeks of immediate imprisonment.
• On 25 April 2019, Recorder Hill QC, sitting in the County Court at Birmingham as a Judge of the County Court, sentenced James Maguire to a custodial sentence of 26 weeks for contempt of court (Case Number D02BM967: James Maguire v Birmingham City Council) for breaching an Injunction Order. ‘The basis of the sentences imposed is that James Maguire was in breach of the Injunction by begging in Stratford Road, Birmingham. These breaches were contrary to the terms of the Injunction Order dated 15 December 2018 to which James Maguire was subject’.
• Leleith Maxwell had an injunction imposed upon her not to shout, make a nuisance or disturbance, urinate in public or beg in a named area. On 23 June 2022, Clerkenwell and Shoreditch County Court heard evidence that she had been shouting in the named area and had thus breached the injunction. The Court imposed the penalty of a fine of £300.

Thus we see people who have not been found guilty of any criminal offence sentenced to periods of imprisonment of 12, 18, 26 and 52 weeks, and the sanction of a fine of £300, for breaking injunctions prohibiting shouting, begging and sleeping rough. This obviously raises issues of ethics, social justice and welfare.

Why are we using imprisonment in cases where the welfare net is not supporting those most in need of care in the community?

The law

Criminal Behaviour Orders were introduced in the Anti-social Behaviour, Crime and Policing Act 2014 to replace the Anti-social Behaviour Order regime, together with a civil injunction to prevent nuisance and annoyance (IPNA). Local councils, the police or any social landlord can apply for an IPNA to stop anti-social behaviour. Further, a court may grant an IPNA if it is satisfied on the balance of probabilities that a person has engaged, or threatens to engage, in anti-social behaviour, and it is just and convenient to grant the injunction for the purpose of preventing anti-social behaviour.

Breaching an injunction is not a criminal offence but can carry significant penalties imposed in civil proceedings. The court may issue a fine or impose a suspended or immediate term of imprisonment of up to two years, with the contemnor generally serving half the sentence.

Penelope Gibbs’ article, In Praise of Criminal Courts, outlines the protections available under criminal law; protections that are denied to those appearing before the courts under the 2014 Act. They face potential imprisonment yet are not eligible for criminal legal aid and are frequently unrepresented when committed to prison.

Sanction must be proportionate

In a 2021 contempt of court case dealing with protest against HS2 (Elliot Cuciurean v The Secretary of State for Transport and High Speed 2) the Court of Appeal stated: In line with general principles, any sanction must be just and proportionate and not excessive.

Appeals

Appeals are rare, but a 2000 Court of Appeal case is instructive. In Hale v Tanner, a case of harassment, Lady Justice Hale stated:

The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn… There is a power to fine. There is a power of requisition of assets and there are mental health orders.

In our database of 231 cases of sanctions for contempt of court, not one single mental health order was made. We have noted many examples of serious mental illness where the defendant was committed to prison. One striking case is that of Charlotte Nudd, where the court ordered her to be taken directly from a psychiatric ward to serve 6 months in prison (she had directed vile abusive racist language at a housing officer).

The Civil Justice Council

The Civil Justice Council set up a Working Party to investigate penalties under the 2014 Act and in July 2020 published a report: Anti-Social Behaviour and the Civil Courts. The report noted that although the aims of the legislation were:

Through the inclusion of 'positive requirements', perpetrators may be required to address the underlying causes of their behaviour, for example substance misuse, anger management or problem drinking.

The reality is that what has subsequently taken place on a wide scale in the civil courts has not matched the stated aims. The large majority of orders had not contained 'positive' requirements aimed at addressing underlying behaviour, instead only imposing prohibitions, which are often later breached, as the underlying behaviour is not being addressed(Paragraphs 22 and 23).

The report stated that there were examples of custodial penalties passed which ‘gave rise to real concerns as to familiarity with sentencing principles and the need for proportionality of punishment’ (Para 38). The report cited the case of Louise Gardiner, whose sole breach had been to make a noise inside her own flat. She was given a four-week immediate custodial penalty. ‘It is difficult to reconcile this penalty with custody being a last resort and reserved for the most serious cases within the criminal justice system’ (Para 39).

The report noted the absence of representation of many of those appearing in these courts, and said ‘an urgent review is required of the availability of publicly funded legal advice and representation in respect of all hearings regarding orders sought or obtained under the 2014 Act’ (Para 44).

The Working Party produced a guideline on penalties and stated:

A requirement, through the Civil Procedure Rules or some other method to have regard to the guideline together with mandatory judicial training are urgently required to ensure a principled and proportionate approach to the imposition of penalties in respect of breaches of orders under the 2014 Act (Para 41).

The Law Commission

The Law Commission is currently conducting an enquiry into contempt of court law and practice. They will organise a consultation with interested organisations and individuals and will then make recommendations for reform.

With everyday cruelty being a common feature of our courts hearing contempt of court cases, we hope that the Law Commission will be instrumental in bringing much needed reform.

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Rona Epstein is Honorary Research Fellow, Coventry Law School, Coventry University.

She would like to thank the Oakdale Trust, which funded this research.