Case No: BS/2007/2038
Neutral Citation Number: [2007] EWCA Civ 1503
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday, 30th October 2007

Before:

LADY JUSTICE ARDEN
and
LORD JUSTICE GAGE
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Between:

	LONDON BOROUGH OF LAMBETH
	Respondent/
Claimant	
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DEBRAH	
Appellant/
Defendant	

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(DAR Transcript of 
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Ms L Tagliavini (instructed by Messrs Hartnells) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lady Justice Arden:

1.	This is an application for permission to appeal from the decision of HHJ Welchman sitting in the Lambeth County Court,  dated 15 August 2007, whereby the judge made an order for possession of 3 Arrowsmith House, Vauxhall Gardens Estate, London SE11.  The appeal is not against the making of the order for possession but against the judge’s refusal to stay or suspend the execution of his order.

2.	The background was that the appellant had a secure tenancy.  On 4 August, Lambeth sought possession proceedings on the grounds of rent arrears and anti‑social behaviour, namely allowing illegal drugs to be sold and consumed on the premises. It was said that the defendant had allowed illegal drugs to be sold and consumed on the premises and that, on 1 February 2006, the police had executed a search warrant and found drug paraphernalia in the premises.  In his defence, the defendant contended that he had tried to exclude people from his flat, but that they had forced their way in on several occasions.  He said that he was undertaking a drugs rehabilitation programme.  There were other matters in the defence as well, but that is an indication of the defence which was put forward.

3.	On 26 October 2006 a closure order was made in respect of the premises on the grounds that they were a ‘crack house’. There was evidence that the neighbours were afraid of people who were associated with the premises. That particular order was renewed, but was set aside on appeal by the High Court on 9 March 2007.  On 16 April 2007, the applicant gave an undertaking to the county court not to bring drugs onto the premises, or to possess drugs on the premises, or in any of the premises.  That undertaking, we are told, has not been breached.

4.	On 3 May, the Nuisance and Anti‑Social Behaviour Officer of Lambeth, Mr Aideh, made a witness statement exhibiting a press report which refers to the killing of a resident of the area by a 17 year old youth in September 2006.  On 2 April 2007, that youth was found guilty of manslaughter and a hospital order was made.  It appears that the defendant was high on drugs and had been watching a particular video game the night before, and by his own confusion took the knife and went looking for a black woman to attack.  Numerous witnesses had said that Mr Maxwell (the youth involved) had been staying at 3 Arrowsmith House and that the youth had consumed drugs at those premises and watched the video game there.  I will come on to deal with the way the judge dealt with that matter.

5.	There was evidence of repeated complaints by neighbours and of the use of the common parts near those premises by drug addicts at all times of the day and night.  There was a witness statement by the defendant of 15 February 2007, saying that he had been engaging in drug therapy, but he said that the nuisance at the premises had been caused by other people and not by him.  He said in his witness statement that he had tried very hard to overcome his habit and that he was undertaking rehabilitation and counselling.  He said that he was now completely drug-free and focussed and happy in his life because of the assistance that he had had, and there were good reports from the drug rehabilitation centres he had attended as of January and February 2007.

6.	I now turn to the judge’s judgment.  The judge heard evidence from the Chair of the Vauxhall Gardens Community Centre, and also from a police constable, PC Morgan, who had been involved in two raids on the premises, one in late 2006 and one in early 2006.  The judge also noted in his judgment that Mr Debrah had given evidence and that he had said that he was drug-free, but that no evidence had been placed before the court to substantiate or corroborate that.  Neighbours had given evidence as to the presence of syringes and needles in the recent past.  One of the neighbours had said that everything had been well until Mr Debrah had arrived.  Reference was made to the terrible event which I have referred to, which was said to have been committed by somebody who had been using the defendant’s flat.  But the judge at this point was saying this more to record the witness’s evidence than to place any particular reliance on it.  (That was paragraph 14).

7.	Another neighbour referred to seeing two women leaving the flat on 10 October 2006, whom he (the neighbour) recognised as having been asked to leave an adjoining block not far away because they were smoking crack on the stairways.  The judge also referred to the evidence of PC Morgan and to evidence from the Housing Officer.  He recorded that apparently sexual activity took place around the stairwell near the premises.  The judge said that these matters were obviously extremely concerning and worrying to the residents in the block.  The judge accepted that the area around the premises was a crime hotspot at the time when the conduct complained of was going on.  The judge held that Mr Debrah was not a drug dealer, but he found that the picture which Mr Debrah painted was not a real one (see paragraph 25 of his judgment).

8.	The judge did not accept the picture which Mr Debrah presented, of being only an occasional drug user, with people coming in very much against his will.  The judge accepted there was no direct connection between his premises (that is, Mr Debrah’s premises) and the terrible event to which I have referred.  The judge said that Mr Debrah had not recognised the grief which the event had caused to the neighbours (see paragraph 28 of the judge’s judgment).  The judge accepted that Mr Debrah had attracted visitors who had been a nuisance at the premises.

9.	The judge found that the grounds were made out for an order for possession under ground 2 in Schedule 2 to the Housing Act 1985.  He held that the issue was really as to the type of order, and the judge held it was reasonable to make an order for possession and, indeed, that it would have been grossly unreasonable not to do so, on the basis of the findings he had made and the very serious nature of the conduct asserted on the defendant’s part.

10.	The judge went on to hold that the order should not be postponed.  He found that the defendant had made progress up to January 2007; on the other hand there had been very serious breaches about which he had not been frank with the court.  He demonstrated a lack of remorse and perhaps insight.  The judge said it was a fact that people became addicted to crack cocaine and they could easily relapse.  So, he held, there had to be compelling evidence which substantiated the contention that he was drug-free and fully compliant with those who were there to assist him.  He held that there had been an adjournment since the matter had been given a trial date in June 2007, but the court needed to have a key worker, or letter of support, or confirmation on which the judge could have placed reliance.  At paragraph 38 of his judgment the judge concluded that there had been a very serious downplay to the knowledge of the defendant of what had been going on in the past. If he had not been frank, the worrying aspect was with regard to future conduct. In addition, the court did not have material which would provide assurance that there would never ever be a repetition of the past conduct, having regard to the rehabilitation the defendant had made. The judge accepted that he had made progress, but the judge was unable to say how much progress he had made. The judge had very serious reservations about a number of aspects of his evidence and so did not gain reassurance.  

11.	The judge noted that section 85A of the Housing Act 1985 stated that the court had to consider, in particular, the effect that the nuisance had on persons other than the person against whom the order was sought, and the continuing effect the nuisance is likely to have on such persons.  At paragraph 40 the judge referred to the murder in close proximity, at the time when the drug use was rampant in the flat, and he accepted that that was likely to cause anxiety. The neighbours had great anxiety and concern about a repetition of events and there was a heightened risk in the circumstances. The neighbours had already had to put up with nuisance and annoyance and the judge took the view that they should not be put at risk of suffering in the future.  Accordingly, he reached the conclusion that it would not be reasonable to suspend the order. He had regard to the desirability of people being rehabilitated. However, in this particular case, the facts demanded that there should be an outright possession order, and the order for possession to be given up after twenty-eight days and stood over for claim for the arrears of rent.

12.	Permission was refused on paper by Mummery LJ and, since that date, the appellant has submitted a statement of the matters relied upon on this application; and counsel Miss Tagliavini has relied on that statement as her grounds for this application and I take those grounds in turn.

13.	Her first point is that the judge relied improperly on the tragic event to which I have referred.  She refers to paragraph 27 of his judgment, where he sets out the evidence; and then, more importantly, to paragraph 40: 

“One appreciates all too well that this [that is, the conduct referred to section 85A] is grave conduct.  To have a situation where somebody is stabbed to death in close proximity to these premises at a time when drug use is rampant within the flat in question is something which must raise a very acute anxiety. I have not had direct evidence as to this matter, but it is obvious and, indeed, the fact that Miss Clive did not put it that strongly, but it does not mean that I do not think she is a genuine witness. I think her parting shot was really her lack of confidence as to the future based on what she knows has happened in the past and she has a real fear that there will be a repetition of events which will cause great anxiety and concern and put at risk persons who reside in and around the locality of these premises if those who are involved in using drugs are frequenting the premises.”

14.	Miss Tagliavini’s submission is that the judge had made a finding that there was no connection, but appeared here in this paragraph to be proceeding on the basis that there was some connection.  In my judgment, there is no real prospect of success on this ground.  The judge makes it clear that it is the repetition of events to which he is drawing attention, those being events which can reasonably cause great anxiety and concern and put at risk residents.  That was the only linkage that he was making.

15.	He referred to the evidence of the neighbour Miss Clive and went on to say that was a heightened risk; that is, a risk of suffering by the neighbours.  He was not saying that the youth who was convicted of manslaughter for the tragic event was a person who had been using the flat and that there was a direct connection in that sense; he specifically disclaims that.  In my judgment the judge was entitled to say that there was a heightened risk of suffering where there is a risk that drug use will restart in the premises.  That will lead to events outside the flat which could probably cause great concern and anxiety to the neighbours.  In my judgment he was entitled to say that.

16.	Miss Tagliavini’s second ground is that the judge failed to give proper weight to the fact that no allegations were made of any of events occurring in the flat since April 2007.  It was common ground below that there were no allegations of conduct after that date.  She further submits that the judge was in error in taking into account section 85A when the issue he was considering was the question of a stay of a possession order.  

17.	As to that matter, Miss Tagliavini is correct in saying that section 85A deals with the possession order, and it is in that connection that Parliament has provided that the court must consider in particular the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought, and other matters in section 85A(2).  But when the judge is considering whether to grant a stay, his discretion is not circumscribed. The discretion in 85A(2) is unrestricted, though it has to be exercised judicially and this court has held in Manchester City Council v Higgins [2005] EWCA Civ 1423 that it should be exercised with particular reference to the future.  But it would be extraordinary if Parliament, having said that the court must take certain things into account in deciding whether to make an order for possession, has said that they must be left wholly out of account when considering a stay, because the two matters are undoubtedly connected.  In my judgment, therefore, there would be no prospect of success on an application in saying that the judge had made an error of law at this point.  Indeed, all the judge has said is that he must consider these points.  He is not saying that he gives them exceptional weight or more weight than other factors.

18.	Miss Tagliavini goes on to submit the judge was unduly influenced by what had happened in the past because he was focussing on section 85A and at one point she submitted that he had excluded the defendant’s interests.  But the judge did take into account the defendant’s interests.  He had considered the position of the defendant at paragraph 38, and later on he says that he considers that it is desirable that addicts should be rehabilitated.  Insofar as Miss Tagliavini goes on to submit as she does -- that the judge focussed too strongly on the neighbour’s evidence, she is really challenging the judge on a matter of weight.  She is really saying that the judge should have given more weight to the third party evidence about rehabilitation, but she does not submit that the judge was perverse in his conclusion.  That is very fair and proper of her to say that, because she cannot say that the conclusion is one that the judge could not reasonably come to in the proper exercise of his discretion.  Her real argument is that the judge had not carried out the balancing exercise between the applicant and the respondent to its fullest extent.  She says he should have given more weight to the defendant’s good behaviour at the time of the trial; and there was no evidence to show that he would re-offend, and there was no evidence of any convictions.  These were points that she made to the judge at the time of the trial. There was also (as she pointed out) no evidence of any incident since April 2007; and she pointed out that on the exercise of this discretion the court had to look to the future (see Manchester City Council v Higgins).  But those, as I have said, were not the only considerations. Indeed, Winston Churchill is reputed to have said: the farther backward you can look, the further forward you are likely to see.  

19.	As Gage LJ said in the course of argument, it was for the judge to weigh up the defendant’s character and to form a view as to the risk of reoccurrence of the nuisance.  There was no evidence (as Miss Tagliavini says) that he would definitely reoffend.  There was no suggestion of any breach of the undertaking that he had given; and so the judge had to make an evaluation of the future, and that was a matter for him; and in my judgment he was entitled to come to the conclusion that he did and there would be no prospect of success on appeal.

20.	Lastly, Miss Tagliavini relies on proportionality, and in particular on the judgment of Sedley LJ in the case of Sheffield City Council v Shaw [2007] EWCA Civ 42, to the effect that in this situation Article 8 is engaged, but she fairly accepted that this particular point had nothing to add in this particular case, and I would certainly want to reserve this point for further argument in the light of the decision of their Lordships in Kay v Lambeth [2006] UKHL 10.  For these reasons I would dismiss the applications.

Lord Justice Gage: 

21.	I agree.

Order:   Application refused