Slamming the brakes on car-cruising

The High Court recently granted Birmingham City Council an injunction under s.222 of the Local Government Act 1972 to restrain the activity of “car-cruisers” whose identities were unknown to the local authority. Jonathan Manning explains the judge's deliberations.

In Birmingham City Council v Persons Unknown (1 March 2010), the local authority applied for an injunction to restrain persons unknown from participating in any “car- cruise” within a defined geographical area in Birmingham.

As described by the judge, car-cruises are events at which drivers of cars show off to crowds of supporters by racing their cars and performing driving stunts and time-trials. The vehicles used include high-performance cars and cars which have been modified in terms of their power.

The activities are noisy, dangerous and illegal, obstructing highways and the premises bordering them, damaging property and putting spectators or other road users at risk of injury or worse. They attract people who engage in other types of anti- social behaviour including the harassment and intimidation of law abiding citizens, the threatening and abuse of those who challenge them, the use of foul language and the misuse of drugs. The noise of revving engines, car horns, racing cars and spectators frequently disturb local residents who are trying to sleep as well as those conducting commercial businesses.

The evidence related to one particular area of Birmingham where there were both residential and commercial premises, but there was evidence of such events having also taken place in other parts of the city.

By the very nature of such events, those attending, whether as drivers, passengers or spectators, vary from day to day and event to event. The total number of attendees regularly runs to several hundred people. They are attracted by advertising on the internet and in magazines, as well as by word of mouth.

The judge held that, although no-one appeared to resist the application, there were five matters which he should consider before making the order sought.

Whether Birmingham CC v Shafi [2008] EWCA Civ 1186; [2009] 1 W.L.R. 1961; [2009] H.L.R. 2; was an insurmountable obstacle to the grant of an injunction

In that case, the Court of Appeal had held that the court in its discretion should, save in exceptional circumstances, refuse injunctions sought under s.222 of the Local Government Act 1972 where an ASBO would be available.

Distinguishing Shafi, the judge held that he was not satisfied that an ASBO would be available in the present case. Whilst, as in the case of all public nuisances, the occurrence of a car-cruise event includes elements of both criminal and anti-social behaviour, the essential feature of car-cruising was the sheer volume of participants, whether drivers or spectators, in circumstances where it had proved impossible to identify individuals who may attend car-cruises on a regular basis or to distinguish any particular groups of individuals.

Car-cruising depended on mass participation. While the police may be able to prosecute or seek ASBOs against individuals or small groups regularly indulging in car-racing or stunt-driving on public roads, it was quite a different matter where hundreds of individuals congregate for such purposes and where, from event to event, the individuals attending may be different. Whether such circumstances are described as exceptional, or whether they were simply not susceptible to the application of ASBO legislation, the court should exercise its discretion to grant injunctive relief, with the object of preventing a serious multi-faceted public nuisance.

Injunctions against the world

In Bloomsbury Publishing Group and Rowling v News Group Newspapers [2003] 1 W.L.R. 1633, it was held that, following the introduction of the CPR, the joinder of a defendant by description rather than by name was not impermissible, and that there was jurisdiction to grant an injunction against persons unknown provided that their description in the order was sufficiently certain as to identify those who were included and those who were not.

In the present case, the judge was satisfied that the proposed injunction spelled out precisely what was meant by “participating in a car-cruise” and, consequently, who were the participants whose conduct was sought to be restrained. Thus the persons unknown by name were identified by a sufficiently certain description to identify those who were restrained.

Whether the relief sought would be effective

The court would not act to grant injunctive relief which would be ineffective, and while there was a plain risk that the activities complained of would simply move elsewhere, this was no reason to refuse an injunction limited to a particular locality, which would benefit a substantial population of residents and commercial businesses in that particular locality and thus, to that extent, would be effective.

Delay

While the court would take account of delay when considering the grant of discretionary relief, given that the evidence was of a regular and continuing public nuisance, the fact that car-cruising had being taking place in the city since about 2001 was not, per se, something which disentitled the authority to the relief sought, particularly given that the injunction was at an interlocutory stage of proceedings.

Human rights

It was axiomatic that before any proceedings could be brought against a named individual for contempt of court, that individual must have been served with a copy of the injunction and all relevant papers, as provided for in the order (including its schedules), sought by the authority. The protections provided by the order as drafted were such that the judge was quite satisfied that there was, in particular, no breach of the requirements of Article 6 of the European Convention on Human Rights (the right to a fair trial).

Jonathan Manning is a barrister at Arden Chambers (www.ardenchambers.com). He appeared for Birmingham City Council in this case.