The Court's Evolving Approach to Sentencing - Breach of Injunctions made under Anti-Social Behaviour Crime and Policing Act 2014 (the Act)

In the recent case of Lovett v Wigan Borough Council [2022] EWCA Civ 1631 the Court of Appeal examined and restated the general principles around sentencing with specific consideration given to case law, and the Civil Justice Council's 2020 report 'Anti-Social Behaviour and the Civil Courts' (CJC report). Lovett is now the leading case on sentencing for breach of a civil injunction and an understanding of the Court of Appeal's reasoning is essential for any anti-social behaviour practitioner.

Lovett v Wigan Borough Council - Overview

In Lovett the Court significantly reduced the sentences of two appellants and dismissed the appeal of a third. The Court gave the following key guidance for Judges when sentencing:

• The objectives of the sentencing exercise were ensuring future compliance, punishment, and rehabilitation, in that order.

• Suspension and adjournment of sentences offered the opportunity to amend the injunction, impose conditions, or add positive requirements such as attendance at mediation sessions.

• Custody had to be reserved for the most serious breaches, or for less serious cases where other methods of securing compliance had failed.

• Separately identifying harm and culpability allowed the court to determine a starting point and range within which the sentence could be adjusted to take account of aggravating and mitigating factors. Any adjustment from the starting point must be identified and explained by the Judge.

Although a suspended sentence was often used as the first means of securing compliance, an alternative would be to adjourn consideration of sentence, to indicate what sentence would have been imposed had the matter not been adjourned, and to clearly state the consequences of good or bad conduct during the period of adjournment

The Importance of Lovett - What has Changed and What has Remained the Same?

The Court held that there was a distinction between the sentencing principles applicable in criminal cases and those applicable in civil contempt cases. The court recognised that the civil courts had fewer sentencing options than the criminal courts and confirmed that the emphasis in the civil court was more on ensuring future compliance than on punishment.

The second important change is the approval of the new sentencing matrix in the CJC report, which redrafted the sentencing matrix from the previous guidance to reflect the sentences available in a civil contempt case. The new matrix shares many common features with the old guidance but may well result in shorter sentences.

'Adjourned consideration' is likely to feature heavily going forward. It will increase costs as a second hearing will be necessary and may require the landlord to provide evidence of further 'bad conduct' short of breach. However, it requires the judge to say what sentence they would have imposed. This should focus defendants' minds on compliance and hopefully make them less likely to breach again.