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Gull v Gull [2007] EWCA Civ 900

Appeal against a committal order for breach of a non-molestation order that prevented the applicant from entering his mother's home. Sentence reduced from 2 years to 12 months.

The sentence was reduced primarily because the applicant had not used violence or attempted to force entry: he was simply trying to return home to where he used to live. The applicant had low intelligence and this meant he found it difficult to cope outside the family home. Lawrence Collins LJ also adds that a plan should be put in place to help the applicant on release otherwise he would be likely to breach the order again.


Neutral Citation Number: [2007] EWCA Civ 900
Case No: B4/2007/0784
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/08/2007
Before :

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Between :

IQBAL GULL (Appellant)

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KHUMZA GULL (Respondent)

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Mr Ian Miller (instructed by Levi Solicitors LLP) for the Appellant
Mr John Myers (instructed by Switalski's Solicitors) for the Respondent

Hearing date: August 31, 2007
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Lord Justice Lawrence Collins :
I Background
1. This is the judgment of the court on an appeal by Mr Iqbal Gull from an order made on March 20, 2007 by His Honour Judge Gullick in the Bradford County Court committing Mr Gull to prison for twenty one months for breach of a non-molestation order. The order (inter alia) prohibited him from returning to, entering or attempting to enter 2 St Augustine's Terrace, Bradford, where he used to live with his mother, Mrs Khumza Gull until the first of many such orders made in the course of these proceedings which were commenced in March 2002.

2. The breach which was the subject of the present committal order occurred on March 16, 2007, the very same day he was released from prison for a previous breach of the order. There had been numerous breaches before that date in respect of orders made in these proceedings.

3. Mr Gull was born in September 1973 and is therefore now almost 34. He was born in the Bradford area and has lived in Bradford all his life. His father died at the age of 66 or 67 following a road traffic accident, when Mr Gull was aged 17. He has two brothers and a sister. One of the brothers is estranged from the family, and the other brother lives with Mrs Gull, and his sister lives next door.

4. It seems that it in March 2002 there was a violent argument between Mr Gull and his mother. In March 2002 she obtained orders restraining Mr Gull from using or threatening violence against her and ordering him not to enter the family house at 2 Augustine's Terrace. At about this time he was also convicted of common assault against his mother.

5. Since that time several non-molestation orders have been made under the Family Law Act 1996 but notwithstanding which Mr Gull has on several occasions, in breach of the orders, returned to the house.

6. Mr Gull is, unfortunately, of very low intelligence. He has been seen on at least three occasions between 2002 and 2005 in HM Prison, Armley, Leeds, by Dr John Frazer, a consultant psychiatrist specialising in forensic psychiatry, who estimated his IQ at 75-80, i.e. what he described as low normal intelligence or "borderline learning difficulties but not at the level of a learning disability" (i.e. not retarded). In September 2003 he was examined by Rayann Rawlins, a chartered forensic clinical psychologist, who conducted an intelligence test and found that he was at the level of 60-68, which was said to be "mild mental retardation."

7. Following a court order that Bradford Learning Disabilities Team should assess him, he was examined in October 2005 by a consultant clinical psychologist, Mr Graham Baylis, of Bradford District Care Trust, Learning Disability Services, who concluded that Mr Gull was functioning at a borderline level of intelligence. But his opinion was that Mr Gull should not be considered to have a learning disability, but to be a vulnerable adult. He acknowledged that he needed help which would be emotional and generally supportive in order for him to function away from his family home.

II Breaches of the orders
8. There have been at least twenty recorded breaches of orders made in these proceedings. Prior to the order which is the subject of this appeal, the chronology shows the following:

i) April 20, 2002: committal for twenty days (suspended).
ii) June 11, 2002: committal for six weeks.
iii) July 5, 2002: committal for six months.
iv) November 16, 2002: remanded in custody, and three months suspended sentence imposed on January 29, 2003.
v) July 14, 2003: remanded in custody, released on July 21, 2003.
vi) July 25, 2003: 28 days suspended for six months on condition that the original order be complied with.
vii) August 2, 2003: remanded in custody.
viii) August 6, 2003: suspended committal order reactivated, and further committal of 63 days to run concurrently in respect of a breach of August 1, 2003.
ix) November 4, 2003: remanded in custody, and released on January 12, 2004, with no punishment imposed.
x) March 3, 2004: remanded in custody, and released on March 23, 2004.
xi) April 12, 2004: remanded in custody, and three months committal suspended imposed on April 22, 2004, conditional on strict compliance with order
xii) July 17, 2004: remanded in custody, and three months committal suspended on July 20, 2004.
xiii) March 9, 2005: remanded in custody, and suspended committal of six weeks imposed on May 11, 2005.
xiv) July 20, 2005: remanded in custody.
xv) July 27, 2005: remanded in custody to serve suspended committal of 42 days, and an additional sentence of 14 days imposed to run concurrently.
xvi) October 6, 2005: six months imprisonment on two breaches to run concurrently (released on January 4, 2006).
xvii) May 9, 2006: remanded in custody, and committed for twelve months imprisonment on May 16, 2006 (released on November 14, 2006).
xviii) January 1, 2007: twelve months imprisonment suspended for lifetime of injunction.
xix) February 2, 2007: three months of the twelve months suspended sentence revoked, and balance of nine months remain suspended; 28 days imprisonment concurrent for breach, a total of three months imprisonment.

III The committal order under appeal
9. Mr Gull was released on March 16, 2007. On that day Mr Gull's sister, Ms Nargis Gull, was staying at 2 St Augustine's Road while her mother was away in Pakistan. Mr Gull telephoned the house to say that he was coming home, and a short time later he knocked at the door asking to be let in. Ms Gull refused. He telephoned again, and knocked on the door asking to be let in, and rang the doorbell continuously. Ms Gull called the police, who arrested him.

10. Judge Gullick committed Mr Gull for 21 months. The judge accepted that Mr Gull had learning difficulties, and that he was ill equipped to function independently in the community.

11. He referred to the medical evidence that Mr Gull continued to fail to learn from experience, which might have been a consequence of his long term learning difficulties (in turn which may have been brought about by childhood meningitis).

12. Mr Gull was fully aware of the nature of the injunction, was aware that he had breached it, but continued to do so in the absence of any suitable accommodation being provided. The doctor said that were he to have a package of care the risk of breaching the injunctions would be less, but unfortunately, said the judge, it remained to be seen whether or not the authorities in Bradford would provide him with the necessary support and accommodation. He required support in stable accommodation where his needs might be met.

13. The services would be provided by local social services in Bradford, and not by the mental health services. Mr Gull would not take prescribed medication nor engage in the support activities available in the prison environment. He also referred to the evidence that Mr Gull was a vulnerable person, open to exploitation, but would not fit well into any of the services for those with learning disabilities in Bradford.

14. It was pointless to pass a form of suspended order. The judge referred to the sanctions in relation to the previous nineteen occasions. He was concerned that in relation to the most recent two breaches they had occurred almost within twenty four hours, firstly within twenty four hours of a District Judge passing a suspended sentence, and on the present occasion within twenty four hours of his release from prison.

15. There was a serious breach of the order and he had to sentence it against the background of a history of disobedience. The maximum sentence was two years. His expression of regret and remorse was of little weight.

16. The judge told Mr Gull that there were agencies who might be able to help him if he wanted to help himself, but at the moment he clearly did not. Orders of the court were made principally for protecting Mr Gull's mother and he had to understand they should be obeyed. The least sentence he could pass was twenty one months imprisonment.

IV Grounds of appeal
17. For Mr Gull, Mr Miller accepted that a prison sentence was inevitable following the repeated breaches of the order. But the sentence was excessive because (a) he admitted the breach at the earliest possible opportunity without prevarication; (b) his mother was absent from the house; (c) he was not violent on the occasion of the breach, and it was a common feature of the breaches that he was usually imploring to be allowed back into the house to live; (d) he did not try to force entry but repeatedly knocked on the door or telephoned; (e) the psychologist and psychiatrist reports set out an unhappy picture of a man of low intelligence with a form of learning disability, ill equipped to function within the community. The deterrent element had no effect, due in part to the various personality problems he labours under which cause him to be bullied and homeless when not in prison. For the mother it is said that the chronology demonstrates the range of options which have already been tried, from which it is clear that non-custodial options or short terms of imprisonment have not been successful in moderating his conduct.

V Conclusions
18. This is a most unfortunate case. We should record that it is particularly unfortunate that steps were not taken to bring on the appeal sooner. Mr Gull was in custody from March 16, the order was made on March 20, and the appeal was lodged early in April.

19. Orders of the court must be obeyed, and it is course right that the court should mark its disapproval of repeated and deliberate breaches of its orders. So also the court should have regard to the importance of imposing sanctions designed to ensure compliance in the future.

20. But this is a case of an appellant with a vulnerable personality, of low intelligence, and with learning difficulties which are close to, but do not reach, the threshold of disability. What he did was to go home, and he did not engage in, or threaten, violence.

21. In these circumstances we consider that the sentence (nearly at the 2 year maximum) was excessive, and that a sentence of 12 months should be substituted. The effect would be that Mr Gull would be due for release in the course of the next 2 weeks.

22. But we do not consider that we should simply leave the position there. This is a case which calls out for pro-active steps to be taken by Mr Gull's advisers, Bradford Social Services, and (if it were at all possible) by Mr Gull's family themselves.

23. Mr Gull has great difficulty in living independently. He has never had any permanent accommodation outside his mother's house. On his mother's behalf it is said that there is a rift in the family which cannot be cured. He is not entitled to mental health services as a person with disability. He is entitled to accommodation as a homeless person, but seems to have some difficulty with accepting the hostel accommodation which may be provided.

24. We were told that the Muslim community in Bradford does not have support services which would deal with the problem in this case, but it seems likely that if called upon community leaders might be able to mediate the problem which has arisen in this family.

25. There is a very strong probability that if these problems are not addressed before Mr Gull is released he will again be in breach of the order, and the cycle will restart.

26. We are of the very strong opinion that a plan must be formulated by Mr Gull's advisers in conjunction with Bradford Social Services (to whom this judgment should be supplied) to manage Mr Gull's release into the community. Otherwise there is a very strong likelihood that he will be in breach again.

27. We were told that future orders will be made under the new section 42A of the Family Law Act 1996, which has been inserted (as from July 1, 2007) by the Domestic Violence, Crime and Victims Act 2004. The effect would be to criminalise breaches, so that a wider range of sentencing options would be available to the court.