Seen through the lens of human rights and social justice, contempt of court law and practice appears to be a prime example of the criminal justice system being misused to punish the poor, the disadvantaged, the most damaged and despised, and the least supported people in our society. I argue that imprisonment should be restricted to those who have broken the criminal law. Anti-Social Behaviour legislation is unjust and should be repealed. There is of course anti-social behaviour in our, as in other societies, but there should be welfare provisions to deal with and support those individuals who for various reasons are unable to behave in socially acceptable ways. While it is not difficult to argue against imprisoning people who have breached an Anti-Social Behaviour Injunction (ASBI), it is obviously a challenging task to propose sensible and human rights compliant solutions to the problems posed by anti-social behaviour. In pursuing this research, I am seeking collaboration from those in the fields of sociology, psychiatry, social work, social care and allied areas.
Straight from psychiatric hospital to prison
On 19 October 2021, Milton Keynes County Court ordered Charlotte N to be taken from a psychiatric hospital to serve a prison sentence of 6 months. The judge said: ‘You remain an inpatient on a ward at the hospital in Warrington where several patients have tested COVID +ve. I am concerned about your vulnerability and safety.’ The judge described her life in these terms: ‘You were a looked-after child from aged 4 due to your mother’s own mental health difficulties and you were placed in various care homes and foster care placements between aged 4 -14yrs. Whilst in a children’s home you were the subject of sexual assault, including gang rape by older males. As an adult you had a short marriage during which you suffered sexual and domestic abuse. You have a history of overdosing and self-harming behaviours.’
You may ask what her crime was to deserve to be taken directly from hospital to prison. In fact, she had not committed any crime. She had breached an Anti-Social Behaviour Injunction (ASBI). She had made a noise with a wheelie bin which of course disturbed and annoyed her neighbours, let the property become dilapidated, and directed a flow of vile, obscene, racist abuse at an employee of the housing trust as he was doing his job by trying to enter her flat. Using foul language, however unpleasant, is not a crime. She had been told by the court to engage with mental health services but had not done so.
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.
In March 2015, Part 1 of the Anti-Social Behaviour Crime and Policing Act 2014 came into force. It introduced new powers for the police and the courts, including the imposition of a civil injunction, an ASBI − Anti-Social Behaviour Injunction. Breaching an injunction is not a criminal offence but can carry significant penalties imposed in civil proceedings. Cases are heard in the county courts as a civil matter – breach of an injunction is not a crime. 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. None of the usual protections available under the criminal law − a pre-sentence report, for example − are available in these civil court hearings. Representation is difficult to obtain, criminal legal aid is not available, civil legal aid is very difficult to find. Half the defendants are unrepresented.
145 cases of contempt of court 2019 – 2022
I have analysed 145 cases of contempt of court decisions in 38 different county courts from 2019-2022: 108 men, 37 women. Many of these concerned people who appeared to be particularly vulnerable. Eighty-one immediate imprisonments were ordered and 64 suspended, and three fines imposed ranging from £120 to £250. The reports do not indicate whether or how a means enquiry was made before these fines were imposed. The largest group of 44 cases concerned nuisance to neighbours including noise, bad language, threats, and shouting. Thirty-two cases involved individuals found to be in prohibited areas. There were twelve cases related to drug dealing or possession, six of begging and sleeping rough.
For example, in August 2019 Birmingham County Court sentenced James M to 26 weeks immediate imprisonment for breaching an injunction by begging (Case Number D02BM967). The same punishment was imposed on Martin G. for sleeping rough and possession of a crack pipe. Reading the reports we find an array of mental health issues. Sentencing Evelyn C. to four weeks’ suspended imprisonment, the court said ‘there are underlying mental health issues’ and that there has been involvement with mental health professionals. She is 76 years old, being threatened with eviction; her offence was making a noise outside her flat, banging doors, shouting and swearing. On 22 February 2021 − in full lockdown because of the Covid-19 pandemic − Clerkenwell and Shoreditch County Court committed Mr Tack to six weeks’ immediate imprisonment, for breaking an injunction not to make a noise in the early hours (Poplar Housing v Tack).
On 16 February 2021 Leicester County Court committed Mr Batty, who is addicted to drugs, to one year’s immediate imprisonment for two breaches of an injunction against begging. Mr Batty was not in court and was not represented. On 6 December 2021 Swindon County Court imposed seven months immediate imprisonment on Michelle P, who is addicted to drugs, the judge stating: ‘The Defendant expressed remorse for her actions and explained the assistance she was seeking to deal with her addictions.’
In addition, the court may make an order of a fine or costs. Michael R, a man who was homeless and an alcoholic was found to be in a prohibited place (his father’s home) and was ordered to pay costs of £2093 (Kingston upon Thames Court, 17.3.2020). Brentford County Court imposed a fine of £120 on two contemnors.
In times of pandemic
In this study there were 46 cases of immediate committal ordered between March 2020 and March 2021, when one would have expected the courts to be making every effort to avoid sending people to prison. The following are examples. Nicholas M. fed pigeons on his balcony, which caused mess from birds: he was committed to 15 weeks’ immediate custody on 12.6. 20 (Bristol City Council v Nicholas Momber). Joyce N. was committed to 8 weeks’ immediate imprisonment on 19 June 2020 by Manchester County Court, for breaking an injunction not to be in a prohibited place (One Manchester Ltd v Joyce Nyathi). And, as noted above, on 21.2.21 Mr Batty was sent to prison for one year for two incidents of begging.
Thus, immediate imprisonment at a time when, according to the Prison Reform Trust report, Covid-19 restrictions meant that prisoners were held in conditions that amounted to solitary confinement, deprived of all activity and social contact, which, unsurprisingly had a devastating impact on their mental health and wellbeing, and was arguably inhuman and degrading treatment within Article 3 of the European Convention on Human Rights.
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’.
Mental health orders appear to be used very rarely. The case of Charlotte N, above, is unusual in mentioning a (failed) attempt to have a defendant engage with mental health services.
The Civil Justice Council report
Some judges expressed concern at the way the system was working, leading to the Civil Justice Council enquiry and report published in July 2020. It stated that ‘most injunction orders are made against unrepresented people’ (page 6). It made 15 recommendations, including:
- an urgent request for the Home Office and Her Majesty’s Courts and Tribunals Service to collect data on these cases to allow for full analysis of their use and efficacy
- widening the scope and provision of the NHS Liaison & Diversion service, to ensure a joined-up approach by local agencies to tackle the underlying causes of anti-social behaviour
- widening the scope and provision of legal aid to ensure that no individual faces the prospect of being sent to jail without access to legal advice, and
- adopting a new sentencing guideline to be used by the judiciary when hearing cases of anti-social behaviour.
The report stated: ‘Given the seriousness of imposing a custodial penalty, attendance at a module which covers committals should be a compulsory part of judicial training.’
The Civil Justice Council’s report made fifteen recommendations. The Council has made no public statement on whether any of the recommendations have been implemented. Given the continuing imposition of suspended and immediate imprisonment on vulnerable people suffering from addiction and other mental health issues, I question whether the system has in fact been reformed, as the Civil Justice Council hoped. The law regarding anti-social behaviour is basically unjust, cruel and in conflict with human rights. It should be repealed. There are many unmet social needs in our society; the criminal justice system should not be used as a sticking plaster in a vain attempt to cover the deep and damaging social divide.
This research has been funded by The Oakdale Trust. I thank the Trust for their support.
Honorary Research Fellow, Coventry Law School, Coventry University R.Epstein@coventry.ac.uk