Towards and untowards

This is a decision in an application for committal, and is a salutary lesson in the importance of precision in drafting.

London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam) (14 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1552.html

The father in the case was aggrieved at the social workers dealing with his child, and as a result of the way in which he expressed his feelings, an injunction was made.

It had this wording, which seems unexceptional and unproblematic and I make no criticism of the drafting here (but we shall see that it becomes very important)

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour towards Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

I am now going to reprint that, with the critical word (for the purposes of this committal application) highlighted

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour TOWARDS Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

What was alleged in this case (and please note it is important that the Court HAVE NOT gone on to determine whether these things are true) is that

1. on 13 February 2019 Mr Lennard accepts that he attended Wandsworth Town Hall, whereat he “let his frustration get the better of me and I am truly sorry and remorseful about my behaviour towards the two staff members”. The behaviour to which Mr Lennard refers in his first, and in his second statements before this court, is alleged by the two staff members referred to, Gladys Etiobho, in an affidavit dated 28 March 2019, and Nathan Ojiekhudu, in a statement dated 9 May 2019. It can be summarised as follows:
3. i) Mr Lennard barricaded Gladys Etiobho and Nathan Ojiekhudu in a room by using his body and refused to allow them to leave.

ii) Mr Lennard became verbally abusive and stated he would not permit Gladys Etiobho and Nathan Ojiekhudu to leave the room until he could see Grace Okoro-Anyaeche.

iii) Mr Lennard made threats of harm towards Grace Okoro-Anyaeche stating that he would “wait outside and snatch Grace because I want answers” and that he “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.

iv) Mr Lennard is said to have made similar threats to Gladys Etiobho and Nathan Ojiekhudu.

v) When informed that the Police would be called, Mr Lennard himself called the Police and said he had “two hostage workers and if you don’t come now I don’t know what might happen” and proceeded to give the address of Wandsworth Town Hall.

vi) Mr Lennard then allowed Gladys Etiobho and Nathan Ojiekhudu to leave the room but made them wait in the reception area.

The father says that he did use foul language towards Gladys and Nathan, detained them in the room for ten minutes and regrets what he did.

But DID HE BREACH the injunction?

Well,  at first glance,  saying that he  “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.  if proven  (and the Court would need to hear from the three people present, one who says it wasn’t said, two who say it was) would appear to be using threatening behaviour towards Grace. It is aimed very obviously at her.

But Grace was not present. She obviously now knows what has been said, and that must be frightening and distressing.  But the injunction doesn’t say “about”  or “aimed at” it says “towards”

Initially, one might think that there’s no real difference between those formulations, but actually, for it to be legally ‘towards’ someone, they have to hear it.

20. In support of this submission, Mr Wauchope relies on the case of Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199. That case concerned two Customs and Excise officers, accompanied by a bailiff, who attended the defendant’s farm to recover outstanding value added tax. Whilst two Customs officers conducted their business inside the farmhouse the bailiff waited outside in the car. The car was parked in the farmyard where the bailiff was unable to hear any of the conversation in the farmhouse. When the Customs officers ascertained from the defendant that he was unable to pay the VAT due they informed him that the bailiff would have to enter the farmhouse to distrain on his goods. The defendant replied that, “If the bailiff gets out of the car he’s a dead un.” No threats were made to the two officers. The bailiff did not hear the words spoken by the defendant. The defendant was convicted by the magistrates of using threatening words towards the bailiff and appealed by way of case stated.
21. At p 204 the Divisional Court in Atkin recounted the submissions it heard in respect of the meaning of the “used towards another person threatening words”:
22. 1. “In this Court, Mr. Murray on behalf of the defendant, has highlighted the phrase in section 4(1)(a) ‘used towards another person threatening words.’ He submits that the plain and natural meaning of that phrase is that the threatening words have to be addressed directly to another person who is present and either in earshot or aimed at as being putatively in earshot. The phrase does not equate with ‘used in regard to another person’ or ‘used concerning another person.’ He submits that approached in that way the phrase here clearly related to the use of the words within the house to those who were in earshot.”

Later at p 204 the Divisional Court went on to observe as follows in light of the submissions made on behalf of the defendant:

“We were referred to decisions of different divisions of this Court in previous cases, Parkin v. Norman [1983] Q.B. 92 and Masterson v. Holden [1986] 1 W.L.R. 1017. We have not found those citations particularly helpful as they were both concerned with an earlier Act, the Public Order Act 1936. The 1986 Act in sections 4 and 5 supersedes section 5 of the 1936 Act. The wording in the new Act is quite different. The phrase ‘uses towards another person’ is entirely new and the construction of section 4 is therefore not assisted, in my judgment, by considering decisions of this Court in regard to the construction of an earlier statute. This statute has, we are told, not been construed by any court and the phrase “uses towards another person” has not been found by counsel in any other statutory provision which would give any helpful indication as to its true meaning in this context. So the exercise is one of purely looking at the wording of the section and deciding what the plain and natural meaning of the words is, bearing in mind that if there were any doubt that doubt would have to be resolved, since this is a penal provision, in favour of the appellant. In my judgment the submissions made by Mr. Murray are correct. The phrase “uses towards another person” means, in the context of section 4(1)(a) ‘uses in the presence of and in the direction of another person directly.’ I do not think, looking at the section as a whole, the words can bear the meaning ‘concerning another person’ or ‘in regard to another person.'”

22. My attention was drawn to no other authorities or materials on the question of the meaning of “towards” in the context that is before this court.

[So here, the word ‘towards’ is significant, and for those reasons the application for committal was dismissed. It may seem a technical point, but for something as serious as committal the technical stuff matters and is essential. The benefit of the doubt, on something where someone might be sent to prison goes in the favour of that person. For ‘towards’ in an injunction, the person being protected needs to be present.  If the injunction instead said ‘shall not make in the presence of any person threats about’ then this would have been capable of being proved as a breach]

26. Having given careful consideration to the matter, and in the context of the alleged breach in question being the use by Mr Lennard of verbal abuse, I conclude that I favour the narrow interpretation of the word “towards” in this context and take Parker J’s order to mean that Mr Lennard is prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of Grace Okoro-Anyaeche. Conduct such as, for example, Mr Lennard publishing his abuse on social media and Grace Okoro-Anyaeche thereafter reading the same, or posting a letter to her with the same result, would be caught in these circumstances. However, verbal abuse by Mr Lennard direct at Grace Okoro-Anyaeche when she is not present will not. On the local authority’s single pleaded allegation, the court here is concerned here with words spoken about, but in the absence of, Grace Okoro-Anyaeche.
27. I take the view I do on the proper interpretation of the word “towards” in these circumstances primarily by reason of the fact that a breach of this injunction carries with it penal consequences. On the one hand, I must, of course, be conscious of the protective function of injunction, and that that protective function argues for a broad, purposive application of its terms. The court grants an injunction to provide protection and relief in circumstances where it is satisfied that such protection and relief is merited. However, against this, the injunction carries with it very serious penal consequences and can, within the current context, result in the imprisonment of the person bound by the injunction for a period of up to two years. The long list of procedural requirements that I set out at the beginning of this judgment further illuminates the strict approach the court takes to the examination of breaches that can result in a term of incarceration.
28. Within this context, and again accepting I am not engaged in an exercise of statutory construction, I bear in mind the words of Lord Justice Taylor in Atkin at p 204 that where the exercise is one looking at wording and deciding what the plain and natural meaning of the words is, in circumstances where the provision in question is a penal provision any doubt is to be resolved in favour of the person subject to that penal provision. Once again, it is the meaning of a provision with penal consequences with which the court is here concerned, namely the order of Parker J dated 6 July 2018 with its attached penal notice.
29. Within this context and having regard to the terms of the order made by Parker J, it seems to me that given the type of conduct alleged in the single allegation of contempt, namely verbal abuse, in order to find a breach, the conduct in question needs to have occurred in the presence of, and to have been directed at the person protected by the injunction. I accept this is a narrow interpretation rather a broad, purposive interpretation of the word “towards” and that this construction may be said to reduce the protective efficacy of the injunction. However, I am also clear that the penal consequences of the injunction argue against extending the effect of the injunction to words that were not spoken in the presence of the person protected by that order.
30. I am reinforced in this view by examining the nature of the behaviour that caused Parker J to make the injunction of 6 July 2018 in the first place, namely the alleged behaviour of Mr Lennard directed towards those named in the injunction. Whilst it may be the case that spoken words will be passed on, once again given the penal consequences of the order there would be obvious difficulties in committing a person to prison on the basis of words that they had spoken being passed on by a third party to the person protected by the injunction who was not themselves present.

The Judge did go on to say that he would hear submissions about whether the injunction and the wording in it should be varied

32. Given the conduct that has been admitted by Mr Lennard in his statements before the court, I will hear submissions on whether the terms of the current injunction should be extended either in their ambit, their duration or both.