Case No: B5/2009/0273

Neutral Citation Number: [2009] EWCA Civ 339
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE O’BRIEN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24th February 2009

Before:

LADY JUSTICE ARDEN
LORD JUSTICE RICHARDS
and
LORD JUSTICE RIMER
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Between:

	CAMBRIDGE CITY COUNCIL	
Respondent/Claimant	
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JOYCE	

Appellant/Defendant	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

Ms C Allison (instructed by Cambridge City Council) appeared on behalf of the Respondent.
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Judgment

Lady Justice Arden:

1.	Mr Joyce now appeals against the possession order and the order for committal made by HHJ O’Brien in the Cambridgeshire County Court on 27 January 2009.  For the purpose of appealing against the possession order, he needs the permission of this court but he needs no permission in relation to the order for committal.  

2.	Mr Joyce, who appears today and who has made submissions to the court, is a secure tenant of 9 Teversham Drift in Cherry Hinton, Cambridge.  He became a tenant of the city council in about 1999.  In 1990 he sadly suffered an accident.  For some time he has had to use a wheelchair.  It is a condition of Mr Joyce’s tenancy that he should not harass anybody because of their race or for other reasons.  The tenancy conditions state that harassment includes abusive behaviour.  They also require that he should not do anything on or around the property which could annoy or disturb anyone, including using any indecent or offensive gesture.  

3.	On 10 March 2008 Mr Joyce was made the subject of a restraining order in respect of his neighbours, Mr and Mrs Veasey, Mr Lee, Mr Cullum and Mr Vining.  This order was made by the magistrates’ court.  The order required him not to make any photographic images of those persons or to contact them directly or indirectly.  Further, on 22 July 2008 HHJ Plumstead made an injunction, that is, an order restraining the defendant from engaging in conduct which is capable of causing nuisance or annoyance to fellow residents of Teversham Drift, and in particular from using intimidating language or behaviour towards other residents or using any surveillance camera or audio or video recording equipment in Teversham Drift, such that it is directed at any property in the area.  He was also forbidden to use violence or intimidating language or behaviour towards any member of the housing management team of Cambridge City Council.  He was also forbidden from entering specified premises of the council including Mandela House except on the first day of publication of a document called the Home Link Scheme List which was normally published on alternative Fridays.  

4.	On 3 June 2008 the city council started proceedings for possession against Mr Joyce.  They relied on a schedule of breaches of the tenancy.  They claimed that these breaches constituted grounds for the termination of the tenancy under grounds 1 and 2 of schedule 2 and 85 of the Housing Act 1985.  

5.	This matter came on for trial in December 2008.  At that trial the city council relied on some 23 breaches of the tenancy agreement.  The trial took place over some six days and there were many witnesses.  Mr Joyce was present for the first four days but on the fifth and sixth day he chose not to attend.  A police officer went to his house and the events are described in paragraph 53 of the judge’s judgment.  Mr Joyce said that he had made a decision not to attend the trial.  As I see it this was a deliberate choice, and it meant that he lost the chance to give evidence himself or to put his case to the judge by means of that evidence.  But it was, as I say, his own choice.  

6.	At the end of the trial the judge reserved judgment and gave a written judgment of over 20 pages.  It was a careful judgment.  The judge found that 11 allegations were proved on a balance of probabilities.  He found that three allegations were proved beyond a reasonable doubt.  It was those three allegations that were relied on for the purposes of showing that there had been a breach of the injunction, and the judge carefully directed himself that the matters had to be established beyond reasonable doubt.  Three allegations were relied on as breaches of the injunction.  There was a fourth allegation which the judge did not find proved beyond reasonable doubt.  

7.	As regards those he did find proved, there was allegation no. 9: that on 3 October 2008 from 3.25-5.50pm Mr Joyce was staring at Mr and Mrs Veasey through their kitchen window and making dubious signs towards them.  Mr and Mrs Veasey found this behaviour uncomfortable and intimidating.  That was the ninth allegation, which the judge found satisfied.  I should say that the properties occupied by Mr and Mrs Veasey and Mr Joyce are not precisely opposite each other but very close, such that at a diagonal angle it is possible for Mr Joyce to see across to Mr and Mrs Veasey’s house.

8.	The judge also found allegation no. 10 proved beyond a reasonable doubt.  That was: 

“On 27th October 2008 at approximately 1.50pm, when Mr and Mrs Veasey were talking to a young man at their own front door, Mr Joyce came waving his arms and shouting a tirade of filthy and vicious abuse at Mrs Veasey, including saying you fucking bastards and other obscenities.  The residents went inside their home and could hear the defendant continuing to shout the abuse at them for some time.” 

The judge also found that allegation proved beyond a reasonable doubt.  

9.	The third allegation proved beyond a reasonable doubt was allegation no. 40, which related to Mandela House.  The allegation was that on 13 November 2008 at approximately 10.15am, Mr Joyce entered the premises of the city council without any prior appointment and refused to leave the premises without getting a Home Link magazine.  He was told the magazine was not available until 14 November 2008 and that he should leave and come back the next day.  Mr Joyce refused to leave and became aggressive by raising his voice and pointing at the staff member.  Despite being warned that the police were being called, Mr Joyce refused to leave the premises and stayed in the office for almost one hour.  The judge found that allegation proved, and I will return to it later in this judgment.  

10.	The judge, having found that those various allegations were proved, then considered whether it was reasonable to make an order for possession, because it will be recalled that under grounds 1 and 1 of schedule 2 possession is not ordered unless the court it satisfied that it is reasonable to do so.  The judge took into account medical evidence about Mr Joyce.  This showed that Mr Joyce had problems, that he had some mental impairment but that he still had the capacity to make decisions and an ability to distinguish right from wrong.  The judge then considered the effect of Mr Joyce’s actions on his neighbours.  He noted that Mr Joyce had shown no remorse.  He held that the court had to balance the position of Mr Joyce with his problems and his physical difficulties on the one hand, and then on the other hand the position of the neighbours and officers of the city council.  He considered it right to make the order and declined to suspend it on the grounds there was no point in suspending it.  He pointed out that there had been a restraining order in the magistrates’ court and that that had not made Mr Joyce make any change in his behaviour.  He ordered that possession be given up in 28 days.  He made the injunction permanent, and in relation to the three breaches of the interim injunction he imposed a period of 21 days’ imprisonment concurrent on each breach, suspended on condition that Mr Joyce gave up his tenancy when required to do so, and secondly that there were no further breaches of the injunction.

11.	Before going through the grounds of appeal I must note that, insofar as this is an application for permission to appeal against a possession order, section 77(6) of the County Courts Act 1984 provides that the appeal cannot be on the basis of a judge’s findings of fact, but this court has held that it may be on the basis of the evaluation by the judge as to what was reasonable, and this court therefore can interfere with those findings only if the judge’s assessment was plainly wrong.  

12.	I will now go through the grounds of appeal.  These may be taken from section seven of the appellant’s notice, and I take them each in turn.  The first ground is, in effect, if I may summarise it, that the judge’s findings were in certain respects against the weight of the evidence.  I should say that Mr Joyce does accept some of the findings but he says that the decision was based on the lies of staff of the city council and witnesses, that some of the statements and affidavits were falsified and that not all of his video evidence, that proves that the city council had, as he puts it, perverted the course of justice, was seen or heard.  

13.	Mr Joyce went through his points in his oral submissions to us.  His first point was that Mr Veasey should have been disbelieved.  He says that he cross‑examined Mr Veasey effectively.  He further submits that the statements of Mr Bailey and Ms Victoria Bailey should have been submitted in support of his case.  Dealing first with Mr Veasey, the judge obviously saw the cross‑examination and it was a matter for him as to whether he accepted the evidence of Mr Veasey, and the fact that Mr Joyce would have come to another conclusion is not to the point.  As regards the statements of Mr Bailey and Ms Bailey, these were in the form of letters which Mr Joyce produced to the judge, but the position was that there had been an order at case management stage barring further evidence.  This evidence was in the form of letters only, and as I understand it Mr and Ms Bailey were not available to give evidence orally.  The judge excluded the evidence, and in my judgment it cannot be said that the judge was wrong to make that decision.  

14.	Mr Joyce says there was no breach of the order with respect of his going to Mandela House because his mother, Mrs Anna Joyce, gave evidence that the Home Link document was often available on a Thursday and it will be recalled that Mr Joyce attended Mandela House on a Thursday.  Mrs Joyce gave evidence before the judge and there can be no doubt that the judge took that into account.  But the judge also had evidence from officers of the council, from Mrs Marianne Crozier, who was officer in charge of cases involving difficult behaviour, and Ms Lucy Dumbrell and Ms Charlotte Sygmuta, and they gave evidence in relation to the council’s offices.  The judge’s conclusion is quite clear.  He concluded that there was no doubt that, while the magazine was on occasions available on Thursdays, it was not published until Friday.  He found that Mr Joyce was well aware that he could not have been there on the day in question and that he should have left Mandela House when he was asked to do so, which he had not done, and the judge held Mr Joyce had a deliberate intent to avoid the injunction.  Those are all clear findings of primary fact by the judge and there is no basis on which this court can interfere with them.

15.	Mr Joyce further submits that he has CCTV footage showing that the allegation no. 10 could not have occurred.   He has sent to this court a DVD which is said to record the footage taken on 27 October 2008.  I should make it clear that this court has not looked at that DVD.  Mr Joyce explains that the CCTV footage, as he put it, does not show either him or Mr Veasey outside their properties and does not show Mr Joyce going round to the front of Mr Veasey’s property.  But if that is so, and obviously we are not able to tell whether that is so, then the camera must have been pointed at the properties in Teversham Drift, and that would have constituted a breach of the injunction.  Irrespective of that important point, the footage was available and if it was proper to be used it could have been deployed at the trial.  There was no good reason for not making it available at the trial if it was thought to be helpful, and in those circumstances I do not consider that it could be admitted on an appeal and therefore it cannot assist Mr Joyce on his application for permission.  As I see it, the judge went through each of the allegations with great care.  He listened to the evidence at great length, he was shown the CCTV footage and had a commentary on it from Mr Joyce so that he could understand what was being shown.  He directed himself with very great care as to whether the individual allegation had to be shown on a balance of probabilities or beyond a reasonable doubt.  He had a long opportunity to consider the evidence as there was a six-day trial.   He saw the witnesses.  Nothing which Mr Joyce has told the court, in my judgment, enables this court to say that the findings which the judge made on the three allegations of breach of the injunction or in relation to the possession order were against the weight of the evidence or that they should be set aside.  

16.	I move then to the basis on which the appeal on the contempt matter is advanced, and that relates to the conviction, as he puts it, before the magistrates’ courts.  That is the restraining order to which I have referred.  Mr Joyce points out that he is appealing against that order.  He says that the council engineered with his neighbours so that they could get an eviction order which they had not previously got between 1996 and 1998, and that he will win the appeal, that is, against the restraining order, meaning that the council has no case against him.  In short, Mr Joyce says that the judge should not have taken any account of the fact that he was made the subject of a restraining order and that he should therefore have taken account of the fact that he was appealing against the conviction.  But that is precisely what the judge did.  When the judge came to make his findings as to whether there had been a breach of the tenancy conditions or of the injunction, he expressly took no account of the conviction – see paragraph 111 of his judgment.  Therefore there can be no substance in the allegation that the city council engineered with his neighbours so that they could get an eviction order which they had previously not got.  As I have explained, the judge relied on the restraining order for a very limited point, and that in my judgment he was entitled to do.  

17.	The next matter said to constitute grounds for appeal is that there was a failure to disclose documents which would have shown, in short, that the council had a vendetta against him.  Mr Joyce alleges, for instance, that his housing file was not disclosed to him, although the respondents in their skeleton argument have explained at some length the disclosures which they gave, including the housing file, and the fact that they complied with orders of the court.  More fundamentally, however, and I do not think I need to go into the details of disclosure, the allegation of a vendetta in the past cannot possibly excuse or explain or diminish the seriousness of the allegations placed before the judge.  Therefore in my judgment there is no prospect of success on this point.  

18.	The last ground for appeal is that there was an exclusion of evidence so that Mr Joyce did not get a fair trial, and this relates to the conviction.  Mr Joyce says the reason why they got the conviction was “because all my audio and video evidence proving my neighbours were and still are in breach of their tenancy conditions and breaking the law was not allowed, because the prosecution knew they had no case so I did not get a fair trial.  I am a victim of a miscarriage of justice.  The conviction is unsafe.”  But as Mr Joyce explains and confirms in his submissions, that ground of appeal relates wholly to the criminal conviction which is under appeal, and that matter was not taken into account by the judge in making his findings.  Mr Joyce says that his neighbours were in breach of their tenancy conditions, but that cannot assist him on this application.  As I have said, the judge took no account of the conviction in making his findings, and accordingly this matter cannot afford any ground for acceding to Mr Joyce’s applications.  Mr Joyce says in a letter to the court that his DVD also deals with an incident on 15 September, but that was the very incident which the judge did not find proved beyond all reasonable doubt and which therefore did not constitute a ground for holding him in breach of the injunction.  

19.	I now turn to the question of the sentence imposed by the judge.  The position is that the judge passed his sentence without Mr Joyce having made submissions in front of him.  This was because, for the reasons I have explained, Mr Joyce was not present at the trial on the fifth and sixth days.  But we gave Mr Joyce a full opportunity to say what he wished to say about the sentence and the conditions imposed by the judge.  At various points in his submissions, Mr Joyce reiterated that he had been misled into acting as he did because the police had given him certain information or housing officers had given him certain information or indications which they had not observed, or that his neighbours had also been in breach of their tenancy conditions.  He did not express to us any remorse for his actions, which had caused great distress to his neighbours.  One of the witnesses was a Mrs Brandon, who came along to give evidence, and was 82 years old.   Another person involved in these affairs was Mrs Veasey, was being made ill as a result of the distress caused.  The judge had all these matters before him.  There is no prospect of showing that the judge’s sentencing was purely wrong, as it would be necessary to do.  The judge considered alternative sentences.  He did not order immediate imprisonment.  He imposed a limited sentence of 21 days only.  He ordered it to be suspended on two conditions, which did no more than require Mr Joyce to comply with orders of the court which he was bound to comply with in any event, and the orders would, of course, have to have been served.

20.	To summarise, the basis of the judge’s judgment were his findings.  In relation to the allegations relied upon in support of the application for possession, there was some 13 grounds.  I see no basis for interfering with any of them.  In relation to the breaches of the injunction there were three grounds proved.  For the reasons given above, I see no reason for intervening on any of those findings either.  In addition, there was no basis in my judgment for saying that the sentence was clearly wrong.  

21.	In all those circumstances I would dismiss both the appeal and the application for permission.

Lord Justice Richards:  

22.	I agree.

Lord Justice Rimer::  

23.	I also agree.

Order: Appeal dismissed; application refused