England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTI 1999/0386/2

(HIS HONOUR JUDGE RIDDELL )

Royal Courts of Justice

Strand

London WC2

Tuesday, 27 July 1999

B e f o r e:

LORD JUSTICE WALLER

LORD JUSTICE BUXTON

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THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ENFIELD

Claimant/Appellant

- v -

(1) D. B. (A MINOR)

(by his Litigation Friend,

The Official Solicitor of The Supreme Court)

(2) W. B.

Defendants/Respondents

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR R BHOSE (Instructed by Jan Luba, Housing Team, 2 Garden Court, Temple, London, EC4Y 9BL) appeared on behalf of the Appellant

MR J LUBA (Instructed by Official Solicitor, 81 Chancery Lane, London, WC2A 1DD) appeared on behalf of the First Respondent

MR M KELLY (Instructed by Leslie Brown & Co., Fore St. Edmonton) appeared on behalf of the Second Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LORD JUSTICE WALLER: On 10 March 1999 an appalling incident took place in the offices of the Enfield Social Services, the Children and Family Unit at 36-44 The Mall London N9. The second defendant and her son, the first defendant, attended those offices on the afternoon of that day. After an interview relating to the question whether housing accommodation could be provided for the son, the son, the first defendant, without any excuse, used and threatened extreme violence on the staff at that office. It is accepted that what is said in the appellant's skeleton argument at paragraph 4 is a fair summary of what took place. The son kicked a door, then attacked a lady - I am not for obvious reasons going to name anybody in this judgment - throwing a chair at her, kicking her on the leg, pounding her with his hands and hitting her so hard to the body that she span round and hit a glass screen. He then kicked another lady extremely hard in her lower back. He proceeded next to push another lady with force against a wall before attacking a man whom he then kicked and hit, knocking him to the ground and then stamping on his head. He also kicked yet another lady. The mother, the second defendant, joined in the attack, kicking out at the staff, narrowly missing the head of one of them. The son, the first defendant, was physically restrained by a number of staff members and after being restrained on the ground he looked up at one of the members of the staff and threatened, saying:

"I know your face and when I get out of here I'm going to get you".

Not surprisingly all members of the staff at that office felt threatened and traumatised by such an incident, particularly those directly involved and directly threatened.

The London Borough of Enfield applied for injunctive relief. They did so initially without notice, applying to the judge on 12 March 1999. An order was made in the terms which appear on page 11 of our bundle. It is an order which commences with the words:

"If you do not obey this order you will be guilty of contempt ... and you may be sent to prison."

It then forbade both defendants from using or threatening violence to any officer, employee or agent of the London Borough of Enfield or any other member of staff of the council; forbade them from threatening, harassing or pestering any officer, employee or agent of the London Borough of Enfield or any other member of staff of the council and forbade them from entering or attempting to enter the offices of the London Borough of Enfield at 36-44 The South Mall Edmonton Green. The order then provided for an undertaking being given for the commencement of proceedings by 4pm on Monday, 15 March.

The judge was asked on that occasion to make an order under Section 152 of the Housing Act 1996. I will return to the terms of that section in a moment. But the important point is that if an order under that section could have been made it would also have been possible to include in the order a power of arrest. That would have enabled either of the defendants if they were in breach of the order to be arrested without warrant. As it was, the order contained a penal notice, but that would have required an application by the council to the court if it was to allege that the defendants were in contempt. But if such an application had been made and if there had been a breach then having regard to the fact that a penal notice was on the order that could have resulted in imprisonment being imposed for the contempt.

The matter was due for reconsideration as that first order made clear on 18 March 1999. On this occasion the defendants appeared in person. They did not oppose the council's application for the continuation of the interlocutory relief previously granted and indeed would not have opposed the making of an order under Section 152 if the judge had been prepared to make one. Orders were made on that day, as appears from pages 13 and 15 of the bundle.

So far as the first defendant is concerned, that is the son, on this occasion the order recognised that the son was a minor being aged only seventeen and a half and contained a penal notice which said that if he did not obey the order he would be guilty of contempt and he may be fined. Otherwise the order was in slightly different form forbidding the son coming within 100 metres of the South Mall, from communicating with the plaintiff's employees at its social services department at 36-44 The Mall, save through solicitors and/or by letter. The order further forbade him, whether by himself (or by instructing or encouraging other persons) from using or threatening violence towards, or engaging in conduct causing nuisance or annoyance to any of the plaintiff's employees, in particular those who work at or visit 36-44 The Mall, South Mall, Edmonton Green Shopping Centre London.

An order was made against the second defendant, the mother. This penal notice was in the same form as on the first order. Its terms were very similar to those as against the son and the details do not matter. The orders made on that occasion also record that the council's application for injunctive relief together with an application for powers of arrest pursuant to Section 152 of the Housing Act 1996 be dismissed.

Before the judge the question whether the court had jurisdiction to make orders under Section 152 was fully considered. The judge was His Honour Judge Riddell, and he decided first that there was no jurisdiction to make such an order on the facts of this case and, second, that even if there technically was jurisdiction it would not be right for the court to use the powers under that section in the circumstances of the case. This is an appeal from that decision and we have a transcript of the judge's judgment.

Section 152 of the Housing Act provides as follows:

"Power to grant injunctions against anti-social behaviour

(1) The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from-

(a) engaging in or threatening to engage in conduct or causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises,

(b) using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or

(c) entering residential premises to which this section applies or being found in the locality of any such premises.

(2) This section applies to residential premises of the following descriptions-

(a) dwelling-houses held under secure or introductory tenancies from the local authority;

(b) accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985 (homelessness).

(3) The court shall not grant an injunction under this section unless it is of the opinion that-

(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection(1)(a), and

(b) there is a significant risk of harm to that person or a person of similar description if the injunction is not granted.

(4) An injunction under this section may-

(a) in the case of an injunction under subsection (1)(a) or (b), relate to particular acts or to conduct, or types of conduct, in general or to both, and

(b) in the case of an injunction under subsection (1)(c), relate to particular premises or a particular locality;

and may be made for a specified period or until varied or discharged.

(5) An injunction under this section may be varied or discharged by the court on an application by-

(a) the respondent, or

(b) the local authority which made the original application.

(6) The court may attach a power of arrest to one or more of the provisions of an injunction which it intends to grant, under this section.

(7) The court may, in any case where it considers that it is just and convenient to do so, grant an injunction under this section, or vary such an injunction, even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

If the court does so, it must afford the respondent an opportunity to make representations relating to the injunction or variation as soon as just and convenient at a hearing of which notice has been given to all the parties in accordance with rules of court.

(8) In this section ´local authority' has the same meaning as in the Housing Act 1985."

The argument of the council can be put perhaps most succinctly in a way by reference to a map which is attached to Kaunchita Maudhub's affidavit which was sworn on 17 March 1999 and by reference to what she says in that affidavit. It is submitted that the council is a local authority; there is no contest about that. It is further submitted that the court was and should have been of the opinion that there was "a significant risk of harm" to the persons subjected to the ordeal if an injunction was not granted, that being one of the bases for jurisdiction under Section 152(3)(b); there was also no contest about that.

It is around the further submission that the dispute exists. It is submitted that the court should also be of the opinion that these defendants used or threatened violence (then following the language of subsection (3) of Section 152(1)(a)) - against a person or persons of a description mentioned in subsection (1)(a). The particular description which is relied on here is that these defendants were persons engaged in lawful activity in the locality of such premises. So the argument by reference to the map is in simple terms that these offices were in the library as shown on that map, that there are residential premises within a short distance of the library and thus it is said the staff who were threatened with violence and against whom violence was committed were engaged in a lawful activity in the locality of the residential premises. One has in order to deal with that submission to examine more closely the language of Section 152(1)(a). It is part of the submission of the council that subsection (1)(a) contemplates three separate and distinct descriptions of persons, all of whom fall to be protected. First it is said (and I quote from paragraph 16 of Mr Bhose's skeleton):

"1. a person who resides in residential premises to which the section applies or who resides in the locality of such premises ...

2. a person who visits any residential premises to which this section applies or who visits the locality of such premises ...

3. a person who otherwise engages in a lawful activity in residential premises to which the section applies or who otherwise engages in a lawful activity in the locality of such premises... "

That submission is made in order to persuade the court in effect to broaden the scope of the subsection and also in that regard to seek to persuade the court that in relation to the person being sought to be protected there does not have to be any real nexus between that person and the residential premises. I, for my part, am clear that this subsection does not apply so as to protect persons simply residing in the locality of the residential premises. I say that because it seems to me that that would give no meaning to the word "in" where it appears immediately after the first word "residing" in Section 152(1)(a). It seems to me to make no sense to contemplate a person "residing in...in the locality of such premises" which would seem to me to be the natural reading of those words if "residing" was to have anything to do with "the locality of such premises". It furthermore seems to me that it is not a natural reading of the language to contemplate that somebody "visiting ... in the locality of such premises" should be covered by the subsection. Mr Bhose's submissions 1. and 2. it will be noted do not follow the language of the subsection excluding the word "in" when as a matter of language it is inconvenient to incorporate it. It seems to me that these last words of the subsection apply simply to a person who is otherwise engaging in a lawful activity either in residential premises to which the section applies or in the locality of such premises. Once that is clear, it seems to me further that the section clearly has in mind, as the judge decided, that there should be a nexus between the residential premises and the person who is sought to be protected by the subsection. So it has in mind peculiarly persons such as the milkman, the gasman, the water board officials as obvious examples. As it seems to me the judge was clearly right that persons who are working in an office which it so happens is only a few yards from residential premises were not persons whom this section was designed to protect. So on the issue that the judge was asked to rule on, I would dismiss the appeal.

But a further point has been taken on the appeal by Mr Luba on behalf of the first defendant, the minor. He submits that in any event Section 152 is not intended to enable an injunction to be granted against a person who is a minor. He relies on certain words and language used either in Section 152 or in Sections 155 and 156. So far as Section 152 is concerned, he starts by

emphasising that the title to this part of the Act refers to tenants. He submits that only adults can be tenants and he thus submits that that is a pointer to only adults being the subject of this section. The difficulty with that submission is that on any view Section 152(1) does not appear to limit itself to tenants. It seems to have chosen the word "a person" with some care and there seems to be no reason why that should not have been a deliberate choice having regard to the fact that it would be likely that Parliament would intend injunctions to be granted not only against the persons who were actually tenants of the residential premises but also to members of the tenant's family or other persons residing in those premises. He then submits that the very fact that there is a power of arrest in Section 152(6) is a pointer to these provisions not being meant to apply to minors. He goes on to look at the language used in Sections 155 and 156 which refer to remand and to provisions which he submits more naturally apply to adults than to minors. He accepts that in major respects the provisions to which he points have not in fact been brought into force but he submits that that does not affect his argument so far as statutory construction is concerned. He points out that under the Crime and Disorder Act 1988 anti-social behaviour orders can be made against minors and he would thus suggest that minors are intended to be excluded from the powers given by Section 152. For my part, I do not find those arguments very persuasive. The word "remand", for example, can be used in the context of minors in the criminal law and as it seems to me use of that word is not a pointer in the direction of minors not being intended to be included in these provisions. But it is right to say that this point was not taken before the judge. It was not the subject of any cross-notice and it is not thus a point which anybody present before this court, Mr Luba or Mr Bhose, has had a great opportunity of researching. Thus, apart from saying that I am unimpressed at this stage by it, it would be wrong, as it seems to me, to reach a final conclusion on the point.

But, for the reasons I have endeavoured to give, I would dismiss this appeal.

LORD JUSTICE BUXTON: I also agree that the appeal should be dismissed. Part 5 of the Housing Act 1996 is headed "Conduct of Tenants" and in addition the long title of the Housing Act 1996 specifically states that part of the Act is directed at the conduct of tenants. Nevertheless, despite those strong indications, I am not prepared, as at present advised, to hold that Section 152 of that Act is limited to the granting of injunctions against local authority tenants. Mr Bhose appositely drew our attention to the contrast between Section 152, which is formulated in terms of injunctions prohibiting "persons", and Section 153, which is specifically directed at breaches by tenants of the terms of their tenancy agreements. However, it is not necessary for the decision of this appeal to come to a final decision on that point because even if Section 152 extends beyond the boundary of local authority tenants as objects of it, and therefore in that sense extends to Mr and Mrs B., for other reasons it does not properly extend to their particular cases.

I turn to the construction of Section 152(1)(a) which my Lord has already set out. In doing so, I note that Section 152(1)(a) is not in the same form and does not use the term "locality" in the same context and arrangement as does Ground 2 of Schedule 2 to the Housing Act 1988. That was equally introduced by the 1996 Act but is in terms a ground for possession by reason of nuisance and other conduct towards persons residing, visiting or otherwise engaging in lawful activity "in the locality", rather than "in the locality of any particular premises". That difference causes me to view with caution arguments that the construction of those two provisions must stand or fall together.

Turning to Section 152(1)(a) itself, I do not agree with my Lord that it is impossible as a matter of construction for the phrase "in the locality of such premises" to attach to residents. It is in my judgement possible to read the section as directed at nuisance or annoyance to a person residing in residential premises to which this section applies or in the locality of such premises. I do, however, consider that, even if that construction is possible as a matter of English grammar, it is extremely doubtful that Parliament intended that construction to extend, as is argued before us that it did extend, to the protection of persons living in private accommodation which happened to be, as a matter of language, in the locality of premises of a type to which Section 152(1)(a) extends. There is no reason for such provision. It would turn entirely on the accidental or erratic location of the location of the claimant's home premises and would be a provision not appropriately found in what is a local authority Housing Act. Further, I am quite clear, as was my Lord, that the provision about visitors cannot as a matter of English language apply to visitors who are in the locality of premises to which the Act applies. It makes no sense as a matter of English to read, as the Act would have to read, "a person visiting in the locality - visiting residential premises to which this section applies". People do not "visit in" a locality, nor would a draftsman say that they did. The overwhelming indication therefore of Section 152(1)(a) is that the phrase "in the locality of such premises" attaches and attaches only to the third limb of the section "engaging in a lawful activity". That is, of course, the case that is put here, that the persons who were so deplorably terrified when working in the social services office of the local authority were so working in the locality of residential premises, even though of course they were not in the locality of any residential premises occupied by or in any way connected with the defendants. Like my Lord, I cannot think that the Act extends in that way. The emphasis is on activities that occur, protection that is needed in, as I have said, the locality (and I emphasise) "of residential premises".

A same approach is to be found in Section 152(1)(c) which enables persons to be prohibited from "entering residential premises to which this section applies or being found in the locality of any such premises". Unless the Act assumes that there is a connection between the persons present in the locality and residential premises of a type that are protected by the Act, then these provisions would be unacceptable. It cannot be that Parliament intended these very strict provisions to apply to someone who is simply found in the locality of residential premises, unless his presence there had a connection with those premises. Similarly, persons engaged in lawful activity must, in my judgment, be engaged in lawful activity relevant to and connected with the residential premises that the Act exists to protect. Obvious cases to which that would apply would be, as was suggested in argument, the milkman delivering the milk, the local authority rent collector collecting the rent, and no doubt a housing officer of the local authority who is attending at the premises in order to perform his or her lawful duties. They do not apply to persons who are engaging in a lawful activity in a place that is unconnected with the residential premises: as is undoubtedly the case, I have to say, with the social services unit in which these deplorable events took place. As Mr Bhose accepted, and as is obvious, the social services unit might just as well have been located in the town hall or in a neighbourhood office a considerable distance from the residential premises; nor is there any reason why Parliament should choose to protect persons working in such a place just because they were in the locality, in language terms, of local authority housing.

In my judgement therefore the judge was quite right in holding that there must be a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises that give this section its force and meaning. The judge did not specify in detail what that link must be and I myself do not find it easy to set out in statutory terms what the connection should be, but connection of a kind it is clear to me there must be before these stringent provisions can be used. What that connection is and whether the connection is sufficient is very much a matter for the trial judge. Here the trial judge approached the case properly, directing himself correctly, and made a factual decision which was not only within the limits of his judgement but was plainly right.

I turn to the second question, that is to say the question of the infancy of one of the defendants. Like my Lord, I do not think that this is the case to come to a final conclusion, indeed to come to any conclusion by way of judgment, on the arguments that were put before us. Like him, however, my initial reaction is not to be persuaded by them. First, if I am right in thinking that it is strongly arguable, and I go no further than that, that Section 152 extends beyond local authority tenants to persons generally, then Mr Luba's first point that an infant cannot be a tenant of course falls away. Secondly, I am far from persuaded, again as at present advised, that a general provision that envisages a fairly draconian system to deal with highly undesirable behaviour and which envisages the possibility of remand in custody does not therefore on its face apply to a child or young person. Those are matters, however, that I would wish to see argued more fully than in the circumstances of this case has been possible before coming to a final conclusion on them. As was fairly made plain, it is not necessary to decide the point in order to dispose of this appeal.

I would venture to end with two further remarks. First, I do not regard anything that has been said in this case as inconsistent with the judgments of this court in the case of Manchester City Council v Lawler and McMillan 31 HLR 119 to which our attention was drawn. That case was concerned with two questions. first of all, the construction of ground 2 in the schedule to the Housing Act 1985: which, as I have said, is in a different form from the provisions that we are concerned with. Secondly, with the proper construction in terms of geographical area of the concept of "locality". There was no difficulty in the court below in our case on that point. The judge, as I understand it, was prepared to accept that as a matter of language the social services office was in the locality of the residential premises. The question for him, as for me, was whether the lawful activity concerned was one to which the Act in fact applied.

I join with my Lord in expressing the strongest possible disapproval of the conduct that occurred in this case and the concern of the court that local authority offices should be properly protected against that sort of behaviour. One is glad to hear that the behaviour has not been repeated. One hopes that the situation will continue in that way. The fact that Parliament in Section 152 has not provided the particular protection sought in detail for the local authority offices does not mean that the courts are powerless so to protect them, as indeed they are protected by an injunction that exists in this case, although not in the form originally sought. Like my Lord, however, I would dismiss this appeal.

Order: Appeal dismissed with the costs of the first and second respondents to be paid by the appellant; application for permission to appeal to the House of Lords refused; identification direction. ( This order does not form part of the approved judgment )