[2025] UKUT 192 (AAC)

Ground 2 is set out at para 12(2) – and paras 22-24 – of the Grounds dated 15 December 2023.

The UT watched the CCTV Footage. Contrary to the submissions set out in the Grounds, we find that MC did move into W’s personal space, more than once, during the Incident. Again, events need to be viewed in their proper context. Personal space is a relative/contextual concept, with a significant subjective element to it. Substantial weight ought to be given to the perspective of the person whose space is said to be being invaded. We factor in W’s issues and vulnerabilities; including his need to feel safe, reassured, not to be “probed”, and to have his space respected, etc.

Context also requires us to consider the tone and manner of the nature of MC’s interactions during the Incident, including MC’s body language, posture and positioning generally (including the fact that he did position himself square/front on to W), along with his words (and his tone/volume). The invitation from MC’s original counsel to consider MC’s movements without sound is to ignore the reality and importance of context and the interaction between relevant factors.

The time and location were also factors weighing against MC: this was in the heart of W’s safe space – his home, his kitchen, and in the evening.

It is also helpful to consider the words, physical positioning and reactions of W, as things developed through the Incident. That, too, is part of the context, in which judgments about “personal space” ought to be weighed.

We are of the view that there was no need for the physical proximity MC engaged in.

Moreover, there was the repeated nature of MC’s movements into W’s personal space: (a) MC did it early on, moving at some pace, following W, into a position in which he was too close to W, and then remaining in it for too long.

The reference to “two tiles” of distance between MC and W needs to be considered in context. The tiles on the kitchen floor were not big tiles. The point is that MC was too close, when viewed from the reasonable perspective of W, in all the circumstances; MC did not keep himself at a reasonable distance at numerous points.

This ground, especially when viewed in its proper context, is ill-founded. It is not surprising that both decision makers independently came to the (rational and reasonable) view that MC had encroached on W’s personal space. In any event, again, any mistake in relation to it would be immaterial, given the other elements of the Relevant Conduct and, in particular, the direct threat of physical abuse/assault.