Claim No. B00SS723
Defendants: Neil Farrelly, Darius Rackevicius and Oksana Mikiuniene
On Monday 21 November 2016, Judge Moloney QC imposed suspended prison sentences of 12 weeks imprisonment upon the three Defendants named above. The sentences were imposed for breaches of an injunction dated 27 November 2015 and were each suspended for two years upon condition that the Defendant does not commit a further breach of that injunction or the injunction dated 20 October 2016 within that time. I set out below in written form the reasons given by me orally in the course of the hearing for the orders I made.
Reasons for Committal
In or about April 2015 a group of people began camping in tents in the public parks on Southend seafront commonly known as Cliff Gardens without the permission of the landowner (the Council) and so as to cause nuisance and annoyance to park users and neighbouring residents.
- On 27 November 2015, at Southend County Court, District Judge Foss granted an order for possession of the land on which the camp was situated, and also an injunction order (the Order) directing the campers to vacate the land within 24 hours and not to camp or otherwise reside in Cliff Gardens for a period of 12 months from the date of service of the Order. The Order permitted service by the placing of notices upon stakes in the Gardens.
- The three Defendants named above were expressly named in the Order along with persons unknown.
- The possession order was enforced shortly afterwards and the camp vacated before the injunction Order had been served.
- In June 2016 the camp was re-established. On 24 and 29 June 2016 Council officers served the Order upon the campers by posting copies of it on stakes at the camp as provided by the Order.
- Mr Farelly the 1st Defendant was seen on that occasion to be in residence at the camp. The 2nd and 3rd Defendants, Mr Rackevicius and Ms Mikiuniene, were not seen on that occasion, but were later seen and identified in residence on 24 August 2016 (as was Mr Farelly). I am satisfied so that I am sure that they had then been in residence for some time and had had notice of the injunction by reason of the notices placed on 24 and 29 June 2016. It follows that in respect of each of the three I am also satisfied so that I am sure that they have deliberately breached the injunction with notice of its terms by remaining in occupation of the site over a period in July and/or August 2016.
- On 5 September 2016 the Council issued an application for committal of these three Defendants (together with other named persons and persons unknown) for breach of the Order in the manner described above. That application was served upon them on 6 October 2016 by leaving copies at their tents as authorised by the order of DJ Molineaux dated 16 September 2016.
- On 20 October 2016, HHJ Vavrecka directed that this application for committal be listed for hearing before a Circuit Judge at 10 am on Monday 21 November 2016. The 2nd and 3rd Defendants were present in Court on that occasion and thereby had notice of the hearing. On 8 November 2016 HHJ Vavrecka’s orders and directions were personally served on the 1st Defendant and explained to him by a Council officer.
- On 21 November 2016 the matter was called on before me at 1030. None of the Defendants, including the 1st, 2nd and 3rd Defendants, were present or represented. For the reasons set out above I was satisfied that the 1st, 2nd and 3rd Defendants had had notice of the hearing and had chosen not to attend (as was their right).
- Following consideration of the matters put before me by Counsel for the Council, I concluded that on the face of the injunction Order of 27 November 2015 there was room for doubt as to whether it extended to persons not expressly named in it who were not resident in the camp at the time that Order was made, but only became resident there later on. The only other person named in the 2015 Order was Monica Flinck, who has not been positively identified as residing at the camp in 2016. The other persons named in the application to commit appear to have been resident in 2016 but cannot be proved to have been resident (as “persons unknown”) at the time of the 2015 Order. For those reasons I dismissed the committal applications in respect of the Defendants other than the 1st, 2nd and 3rd (This is of course without prejudice to any committal in respect of breaches of the 2016 injunction recently granted by Judge Vavrecka.)
- As above stated, I am satisfied so that I am sure that the 1st, 2nd and 3rd Defendants have been in deliberate and persistent breach of the 2015 injunction by residing in the camp in 2016 with notice of the terms of the 2015 Order. Their conduct has been a serious nuisance to the park users and local residents. I take particular notice of the fact that this camp is not in a remote or secluded place where peaceful camping by the homeless might arguably be a legitimate exercise of their human rights; it is in the heart of one of the most attractive and popular areas of a busy holiday resort.
- For those reasons I consider that a sentence of imprisonment is necessary in this case. There is no evidence before me to distinguish between the culpability of the three Defendants and a term of 12 weeks imprisonment is the minimum appropriate. I will however suspend it in each case for two years, on the condition that the Defendant does not commit any further breach of the 2015 or 2016 injunctions after 23.59 on Sunday 27 November 2016 (to give them a final opportunity to move out). At present the 2016 injunction expires on 26 November 2017, so unless it is extended it will not be a breach to reside in Cliff Gardens after that date; but I have suspended the sentence for two years to allow for the possibility that its term may be extended.
- Because none of the Defendants attended the hearing before me, it is their right to apply to the Court on 48 hours’ notice to the Council for an order that the committal be set aside, or the sentence varied, or their breach be purged.
- I direct that my orders of today’s date, and a copy of these reasons, be personally served on each of the 1st, 2nd and 3rd Defendants; if that proves impossible or impracticable the Council may apply to the Court for an alternative mode of service.
HHJ Moloney QC
21 November 2016