The recent Court of Appeal case of Lovett v Wigan Borough Council [2022] EWCA Civ 1631 provided some much-needed clarity on sentencing in cases where there has been a proven or admitted breach of an Anti-Social Behaviour Injunction. 

Prior to this decision, courts have used the guidance issued by the Sentencing Guidelines Council in relation to a breach of an Anti-Social Behaviour Order. However, this was far from ideal due to the sentencing powers in the civil court being considerably more restrictive than that available to judges when dealing with a breach of an Anti-Social Behaviour Order in the criminal court.  

The Civil Justice Council produced a report in July 2020 which highlighted some of the inconsistencies of penalties imposed for breach of Injunction Orders and raised serious concerns about the lack of consistency. The report found that the current sentencing guidelines being used gave only limited assistance. The report identified a need for bespoke guidelines for breaches of orders under the Anti-Social Behaviour Crime and Policing Act 2014, to enable a consistent approach to sentencing with a clear structure.   

In Lovett v Wigan Borough Council, the Court of Appeal concluded that the previous Sentencing Council Guidelines were no longer the most appropriate guidelines to be used and that Judges should use the sentencing guidance contained in the Civil Justice Council report which were set out in Annex 1 of the report, as seen here: https://www.judiciary.uk/wp-content/uploads/2022/07/ASBI-final-accessible.pdf  

The Civil Justice Council set the guidance out in the following table 

Harm		Culpability A (very serious or persistent breach)	Culpability B (deliberate breach falling between A & C)	Culpability C (minor breach / breach just short of reasonable excuse)
1 (breach causes very serious harm or distress / breach demonstrates a continuing risk of serious criminal and/or anti-social behaviour)	Starting point	6 months custody	3 months custody	1 month custody
	Range	8 weeks to 18 months custody	Adjourned consideration – 6 months custody	Adjourned consideration – 3 months custody
2 (cases falling between categories 1 & 3)	Starting point	3 months custody	1 month custody	Adjourned consideration
	Range	Adjourned consideration – 6 months custody	Adjourned consideration – 3 months custody	Adjourned consideration – 1 month custody
3 (breach causes little or no harm or distress / breach demonstrates a continuing risk of minor and/or anti-social behaviour)	Starting point	1 month custody	>Adjourned consideration	Adjourned consideration
	Range	Adjourned consideration – 3 months custody	Adjourned consideration – 1 month custody	No order / fine – two week’s custody

 

The Court of Appeal in Lovett also offered the following guidance: 

• The objectives of sentencing were to ensure future compliance with the order, punishment, and rehabilitation in that priority. 
• Suspension and adjournment of sentencing offered the opportunity to amend the injunction, such as imposing further conditions or adding in positive requirements. 
• Custody should be reserved for the most serious of breaches or repeated breaches where other methods of securing compliance have failed. 

• Consideration of harm and culpability determines a starting point and range, which can then be adjusted taking into account aggravating and mitigating factors.  
• Sentencing should still be proportionate when taking into account the relevant factors.  
• The court can adjourn for consideration of sentence with the judge giving an indication of what sentence might have been imposed and the consequences of any conduct in the intervening period.  

The court emphasised that this guidance related to breach of orders under Part 1 of the Act.  It is unclear whether they would still be applicable in other contempt proceedings for breach such as in breach of tenancy injunctions. 

The decision gives some much-needed clarity as it is a clear and structured approach to sentencing and the concept of adjourning for consideration with the judge giving an indication on sentencing may be an incentive for Defendants to comply with the order going forward. 

If you have any queries about Injunctions or Contempt Applications, please contact Amy Tagoe, Associate Solicitor at MSB. 

 

Law is correct as at 26th January 2023 

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.