Jenny Moate acted as sole counsel for the Respondent in Declan Molloy v BPHA Ltd  EWCA Civ 1035, instructed by Anna Bennett and Emily Cross of Devonshires Solicitors. She successfully resisted an appeal against a suspended committal order for breach of injunction under the Anti-Social Behaviour, Crime and Policing Act 2014.
The Court of Appeal held that: a) the trial judge was entitled to conclude that racist abuse captured on CCTV, but not witnessed face-to-face, was an attempt to intimidate; and b) it was proportionate to prohibit all abusive language and conduct within a certain defined area, irrespective of intention or impact.
The appellant had engaged in racist harassment of his neighbour B and her family for a number of years. B complained to the police and to her housing association, which was landlord of both properties. She was advised to install CCTV outside the front of the property to obtain evidence. She did so, gathered evidence, and the court made injunctions against the appellant and his wife under the Anti-Social Behaviour, Crime and Policing Act 2014.
Following a further incident of racist abuse captured on CCTV, the housing association took committal proceedings for breach of the order. HHJ Bloom sentenced the appellant to 28 days imprisonment suspended for two years. She found that the use of racially abusive words outside his neighbour’s home were an attempt to intimidate his neighbour because he knew the family would view the CCTV. As part of the conditions of suspension of the committal order, the Judge varied the terms of the inunction to include a blanket ban against using abusive language and gestures in the shared areas outside his home.
There were two grounds of appeal: a) the judge was wrong to find that the appellant’s use of racially abusive words were an attempt to intimidate his neighbours in circumstances where the neighbours were not physically present – the appellant was having a private conversation with his wife, and b) that the ban on using any abusive language or gestures outside the properties disproportionately breached his right to respect for his private life.
Lord Justice Popplewell and Lord Justice Peter Jackson dismissed the appeal.
In respect of ground 1, the Court of Appeal found that the Judge was plainly aware of the difference between a private conversation and words that were intended to come to B’s notice via CCTV; she was entitled to reach the conclusion she did and it was far from perverse.
In respect of Ground 2, the Court accepted that the entrance to one’s home was an important area for most people and that it was not normal to be recorded by one’s neighbour whenever one left or returned home. However, it held that the Article 8 right of B and her family to respect for their family life overwhelmingly outweighed any considerations of privacy which the appellant and his wife would normally be entitled to expect. Whereas the original orders required an inquiry into the appellant’s state of mind, the new order avoided that, which was a necessary and proportionate means of combating further anti-social behaviour.