By Rona Epstein, Honorary Research Fellow at Coventry Law School, Coventry University and founder member of Is It a Crime to be Poor?

Most people think that if you have not been accused of a crime nor committed any crime you could not be sent to prison in England. They would be surprised to know that every day a County Court somewhere in England and Wales sentences someone who has not committed any crime to a term of imprisonment, suspended or immediate.

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 six months. The judge said: ‘You remain an inpatient on a ward at the hospital in Warrington where several patients have tested COVID positive. I am concerned about your vulnerability and safety.’ The judge described her life in these terms: ‘You were a looked-after child from aged four 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.

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. Many of these concerned people who appeared to be particularly vulnerable, and many were struggling with addiction. In this article, we look at some of the cases of women sent to prison for anti-social behaviour. There are various vulnerabilities, such as poor mental health, addiction to drugs or alcohol, bereavement, and having had children taken into care.

The law

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.

No protections

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. 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 pertain in these cases. It is often very difficult for defendants to obtain legal aid for representation; there is no support from probation services; the court is not able to request a pre-sentence report which means that particular vulnerabilities and difficult family circumstances are not always revealed to the court; there are no guidelines instructing the court to take into account the potential negative effects of imprisoning the defendant on dependent children or others who may be being cared for by the defendant, as in criminal cases.

Elderly and in poor health

Being elderly and in poor health is no protection against the rigours of the law of contempt of court. On 16 December 2020 Central London County Court dealt with Evelyn C’s breach of an ASBI. She was not present and was not represented. The Court imposed four weeks’ suspended imprisonment. The judgment states: ‘Ms C is 76 years old and has various medical conditions. The behaviour amounting to contempt may be indicative of underlying mental health issues, and the Court noted the previous involvement of mental health professionals. The Court recognised the stress caused by these proceedings, which was exacerbated by the Covid-19 pandemic, and that as a result of her anti-social behaviour Ms C is at risk of losing her home through possession proceedings which have been brought by CC Housing Trust.’ Her offence was making a noise outside her flat, banging doors, shouting and swearing.

Mental health and addiction

The courts hearing cases of breach of ASBIs frequently mention the defendants’ mental health issues while passing sentences of immediate or suspended imprisonment. For example Natalie W  sentenced in July 2021 at Bristol County Court: her baby had died, and the court commented on her mental health issues, stating that due to the Covid pandemic no mental health help was available to her. The judge said: 'I am very sorry to see her in such a distressed state' and went on to say that he hopes she will get help. The court imposed four months suspended imprisonment for making a noise outside her flat.

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.’ Kelly B breached her ASBI by being drunk and in a prohibited area. On 16 September 2020 the judge at the Central London County Court stated that the defendant ‘is of no fixed abode, has a chaotic lifestyle’. She was under the influence of alcohol. Her drunken aggressive behaviour manifested itself in particular by shouting, swearing, lashing out with her feet and spitting: the defendant’s conduct and demeanour caused nuisance or annoyance. She was sentenced to 48 weeks immediate custody of which 28 weeks was for the breach of suspended sentences.                                                                                               

The court judgments frequently contain comments on addictions – sometimes as an aggravating factor, and sometimes as mitigation. For example, Wandsworth County Court, sentencing Gailene Y, to 12 weeks suspended imprisonment, stated: ‘an aggravating factor, the defendant was drunk’ (25 September 2020).  However, in the case of Jessica C, sentenced on 4 March 2020 to four months immediate imprisonment, Bromley County Court said ‘A mitigating feature is her drug addiction’.  Similarly, on 27 May 2020 the judge at Bristol County Court sentencing Faye S to six weeks suspended imprisonment stated ‘drug addiction is a mitigating feature’.

In September 2021 Bristol County Court heard the case of Nadine B, accused of anti-social behaviour.  Ms B was not represented in court. The judge stated: It was the hope of this court that Ms B would secure herself legal representation.  She has continued to be unsuccessful and appears to have had difficulties trying to come under civil Legal Aid or criminal Legal Aid. Be all that as it may, it is now 28 September and Ms B still does not have representation. The court has no confidence that Ms B is going to get any representation and the time has come to proceed. Noting that the housing association has started eviction proceedings, the judge said: There is no doubt at all that Ms B is at significant risk of losing her home. Ms B tells me that, not least by reason of the loss of her children, [taken into care by social services] she has struggled with drink and drugs and that may very well explain some of her behaviour and some of her own anti-social behaviour.  It appears she is still continuing to struggle with these problems of addiction. The court imposed a four-week suspended prison sentence.

It may seem improbable that someone would be committed to a term in prison for moving a caravan. On 14 December 2021 the High Court heard the case of Leah F. who is a mother of six dependent children. She was found to have permitted a touring caravan to be brought to a specified site and an area of hardstanding to be created, both of which were prohibited by the terms of an ASBI. The High Court committed her to a three-month term of immediate imprisonment.

In times of pandemic

Immediate imprisonment for contempt of court continued to be ordered throughout the Covid pandemic, 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.

For example, 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 N). As noted above, Charlotte N was ordered to prison for six months on 19 October 2021; Jessica C was given an immediate prison sentence of four months in March 2020; Sharon B. was committed to prison for three months for throwing a stone and using bad language on 7 December 2020; Joanne B. was committed to seven weeks imprisonment for loud music and singing after 8 pm on 29 May 2020; Josephine O. who entered prohibited premises was given 26 weeks immediate imprisonment on 29 September 2020.

Appeals

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 recommended:

• the Home Office and Her Majesty’s Courts and Tribunals Service should 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.' 

Conclusion

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 those who are vulnerable, suffering from addiction and other mental health issues, I would question whether the system has been reformed, as the Civil Justice Council had hoped.

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 would 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 welfare provisions should be available to deal with and support those individuals who for various reasons are unable to behave in socially acceptable ways.

Request for collaboration

In this research I have been analysing cases of imprisonment, suspended and immediate, for breach of an ASBI. The situations at stake involve complex issues of mental health, homelessness, addictions, social conditions, poverty and disadvantage. In pursuing this research, I am seeking collaboration from those in the fields of sociology, psychiatry, social work, social care and allied areas.

And finally, let’s campaign together

These cruel laws impact on both men and women. At the moment my focus is on women who are in many cases particularly vulnerable. As noted above, two examples out of many, imprisonment either suspended or immediate was imposed on Natalie whose baby had died and who could not cope with the bereavement, on Charlotte whose background was of unimaginable deprivation and who as a child had suffered a brutal sexual assault, and on others suffering serious mental ill-health and addictions. I urge those concerned with justice for women to campaign to repeal these draconian laws. 

This research has been funded by The Oakdale Trust. I thank the Trust for their support.

Rona Epstein, Honorary Research Fellow at Coventry Law School, Coventry University. R.Epstein@coventry.ac.uk

I do research on human rights and penal reform. See also:

www.centreforwomensjustice.org.uk/new-blog-1/2020/7/9/mothers-in-prison and ohrh.law.ox.ac.uk/brutality-and-false-imprisonment-welcome-to-the-uk/.