I accept custody must be reserved for the most serious offences, but when is enough really enough? I was representing the Claimant at a committal hearing against a Defendant who had breached the injunction order numerous times by being found in an excluded area.
The proceedings were a mix of Power of Arrest enforcement and an Application under 81 of the Civil Procedure Rules. The Court had already made three findings of breach but in the interim between the findings and sentencing Hearing, the Defendant was found in an excluded area causing a scene and assaulting their ex-partner.
A number of issues were raised in the committal hearing which offer a useful recap of the committal rules and matters we all need to bear in mind when progressing these proceedings.
Any Defendant arrested under a Power of Arrest must be brought before the Court as soon as practicable, and ordinarily within 24 hours of arrest under section 9 of the Anti-Social Behaviour, Crime and Policing Act 2014.
The Defendant must always be informed of their rights, including that they are entitled to legal representation; legal aid may be available without means testing; they need not give evidence in their defence; they have the right to remain silent and not incriminate themselves, although adverse inferences may be drawn from that silence. The Court can proceed in the Defendant’s absence and can impose a fine, imprisonment, or seize assets. A Defendant has the right to appeal any committal order and must be supplied with a committal information sheet.
The Court ordinarily has power to remand up to 8 days ASBCPA 2014 Schedule 1 (4)(1). Any committal application under CPR 81, whilst the Defendant is on bail, must be determined within 28 days CPR 65.47(3).
In my matter, it was clear the Court was reluctant to remand, despite the findings and numerous breaches and being satisfied of production within 24 hours. The Defendant was told they needed to convince the Court to grant bail, to which they responded “I can’t promise anything” instead of pleading for their liberty or showing any remorse. The Defendant may well have thought with an abuse of two successful bail applications, their luck had run out, but if they had given any hope to the Court, I felt bail would have been granted yet again.
Was bail ever a real option in this case?
The Court considered Schedule 1, Part 1 of the Bail Act 1976 which included but was not exclusive to:
- Whether the Defendant would likely attend the next Hearing;
- Whether they would comply with the Order while on bail;
- The nature and seriousness of the alleged breach and strength of breach evidence;
- Whether the Defendant would interfere with any witnesses or harm others;
- The suitability of the address, Defendant’s associations and ties within the community.
The authority of the Court needed to prevail to ensure future compliance and prevent further abuse of police, housing and Court resources. Ultimately, the Court found the breach amounted to a category 3 harm and highest culpability for persistent breach and sentenced the Defendant to 28 days imprisonment.
This was certainly a case where enough was enough.