Gang Injunctions - are they up to the job?

Sonia Rai represented the London Borough of Southwark on its successful application for the first gang injunction. She explains what was involved.

On 31 January 2011, Part 4 of the Policing and Crime Act 2009 ("the 2009 Act") came into force. Part 4 of the 2009 Act grants powers to the Chief Officer of Police for a police area, the chief constable of the British Transport Police Force and local authorities (see section 37) to make an application to grant an injunction for persons aged 18 and over.

Statutory Guidance has also been published – Statutory Guidance: Injunctions to prevent Gang-related violence December 2010.

Applicants should also be aware of the practice direction to part 65 of the Civil Procedure Rules.

The first gang injunction issued in England and Wales

On 24 February 2011, Croydon County Court issued the first full injunction pursuant to Part 4 and Schedule 5 of the 2009 Act.

The County Court was satisfied on the balance of probabilities that the Respondent, an 18 year old man, who the London Borough of Southwark have asked not to be named for his safety, had encouraged gang-related violence and that the injunction was necessary to prevent the Respondent from engaging in, or encouraging or assisting gang-related violence.

The Council adduced evidence that:

• there were a total of 57 gang attributed offences in the borough between January and March 2010, tracked by Southwark Borough Intelligence Gangs Desk where the victim and/or suspect are known as gang members
• In 2010, three teenagers were murdered in Peckham and these deaths appeared to the London Borough of Southwark to be gang related
• There are three main gangs operating in Peckham, Peckham Young Guns (PYG), Get Money and Guns Anti (Anti GMG) and Spare No1.
• The gangs have a reputation for serious violence and the members regularly congregate in Peckham Town Centre, SE15.
• There is hostility towards rival gangs from other areas in Southwark and neighbouring boroughs of Lambeth and Lewisham, which often breaks out in sporadic "postcode wars"

The Respondent in question was alleged to have been a member of the Anti GMG gang and could be seen celebrating gang culture in music videos uploaded to the internet site, You Tube. Examples of lyrics in the video are:

"If you scream GAS [Lambeth gang] I will shank [stab] you in a second. Niggers know that if they mess with me they will get their throats slashed. I will stick my death stick [gun] in your mouth. Listen I told them I am on a rampage, can't f*ck with my squad or I'll delete your face. I am a blazing nigger; I won't stop shooting until I break my finger"

On 10 February 2011, Lambeth County Court granted an interim injunction on a without notice application. The case was transferred to be heard at Croydon County Court on 24 February 2011

The Respondent attended on the 24th February 2011. He denied he was a member of any Peckham gang but accepted that he was in the videos and that the videos encouraged gang-related violence.

The Court prohibited the Respondent from:

1. congregating or loitering with more than two persons in a public place in London Borough of Southwark
2. entering part of an area of Peckham
3. assaulting, threatening, abusing or insulting any person in London Borough of Southwark
4. producing or marketing any musical material or being in any music video which encourages or is likely to encourage violence against any person
5. associating with named persons

The Court also ordered that the Respondent must attend meetings with a gang mentor. A power of arrest was attached to the terms of the injunction.

The Court ordered that the injunction and power of arrest should remain in force until 23 February 2012. The Respondent did not oppose the injunction order or the terms and the injunction has not been appealed to date

The legal framework

The Court may grant an injunction if the following two conditions are met:

"34(2) The Court is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence

"34(3) ......The Court considers it necessary to grant the injunction for either or both of the following purposes:
(a) to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence;
(b) to protect the respondent from gang-related violence"

Gang-related violence is also defined in section 34(5) of the 2009 Act as "violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that – (a) consists of at least three people, (b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and (c) is associated with a particular area. Applications for a full and interim injunction order can be made with and without notice.

There are consultation requirements before an application for an injunction can be made – however, the applicant must only comply with the requirements before the date of the first full hearing and therefore the applicant does not have to comply with the consultation requirements at the first hearing on an application made without notice.

The full injunction may contain prohibitions and requirements.  However, an interim injunction can only contain prohibitions. The prohibitions and requirements must not have an effect for longer than two years beginning with the day on which the injunction is granted. However, if any prohibition or requirement is to have an effect after the end of one year from the date on which the injunction is granted, the court must order the applicant and the respondent to attend a review hearing on a specified date within the last four weeks of the one-year period

The Court may attach a power of arrest to any prohibition or requirement in the injunction, but the power may only have an effect for a shorter period than the prohibition or requirement to which it relates. An injunction can be varied or discharged by either party at anytime at the review hearing or by way of application.

The Guidance

The guidance is a substantial document and is essential reading before any application is made. There is guidance for the preparation and making of the application, including  evidence-gathering, the drafting of the terms of the injunction, the courts where these applications can be made and heard, and breach and enforcement of the injunction. In my experience of the Southwark case, the Magistrates Court consulted the guidance regularly. However, the County Court may not refer to the Guidance to the same extent. It is also worth pointing out that the statutory status of the Guidance is questionable and is unlikely to be legally binding. Therefore, prospective applicants should consult the guidance as it is useful in setting out the preparation and making of an application. However, as the applicant and the Courts become experienced, it will be of limited use.

The merits and difficulties of obtaining a Gang Injunction

(a)    The standard of proof and venue

As readers are well aware, in order to obtain an anti-social behaviour order ("ASBO"), the applicant must prove beyond reasonable doubt that the respondent has acted in an anti-social manner, that is to say, in a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as himself – see section 1 of the Crime and Disorder Act 1998 and R(on the application of McCann and others) v Crown Court at Manchester; Clingham and Chelsea Royal Borough Council [2002] UKHL 39 (HL). This has caused significant problems for applicants, many of whom have had very little experience of the criminal courts.

Part 4 of the 2009 Act addresses this problem and requires the applicant to establish the necessary elements for an injunction on the balance of probabilities. While this lower standard of proof is to be welcomed, there has been recent case-law that the evidence must be stronger if the allegation is serious – In In the Matter of D [2008] UKHL 33 (HL) the passage as stated by Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, 497−8 was approved. See also Lord Carswell at paragraph 28.

Therefore, the evidence required to satisfy the Court of the requisite elements will need to be strong as imposition of a gang injunction is a serious sanction and a breach of such an order can lead to incarceration of the respondent.

Gang injunctions can only be issued in County Courts, but the on notice hearings can only take place in specified courts. While the Civil Procedure Rules applied to ASBOs, there were no effective sanctions for a failure to comply with court directions. This resulted in cases being adjourned and a failure to serve witness statements by the Defendant. It is the writer's view that County Courts will ensure appropriate case management directions are given and if they are not complied with, there will be appropriate sanctions. In addition, County Court judges will have no difficulty in applying the appropriate standard of proof, in contrast to judges in the Magistrates Court who may not understand it. It should be pointed out that that was a reason given in Clingham as to why the standard of proof should be beyond reasonable doubt in ASBO cases.

(b)    Gang- related violence

Gang-associated violence has been highlighted by the media increasingly and there is a perception that such violence is increasing in severity and extent. It is the writer's view that there will be difficulties in establishing gang-related violence. While gang-related violence is defined in Part 4 of the 2009 Act, the applicant will have to prove:

1. that the respondent has engaged in an activity that causes, encourages or assists in the carrying out of violence
2. that such violence occurs in the course of or is related to the activities of a group; and
3. that the group consists of at least three people, (b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and (c)is associated with a particular area.

It should be pointed out that the legislation does not require that the respondent is a member of a gang, only that his/her activities relate to gang-related violence.

Applicants may find it problematic to prove on the balance of probabilities that an individual's activities are connected to gang-related violence and not just violence. A person can commit violence and be a member of a gang, but it is not necessarily so that the violence is gang-related. It may be difficult to separate out violence and gang-related violence. Rape and violence against persons are not specific to gangs. However, such violence may be gang-related if it is for the purpose to further the gang's infiltration in an area.

In reality, it is the writer's view that without evidence that the respondent is affiliated to a gang (which has all the attributes of a group defined in the legislation) who he/she knows or should know that the group is not adverse to commit violence to further the activities of the gang, it may be difficult to establish the points above, and thus to obtain a gang injunction.

(c) Evidence

As is often the case in gang-related activity, there is often a scarcity of evidence often due to witness intimidation. Gangs rarely write down a code of conduct or a list of members of the gang. Predominantly, it is unwritten and membership fluctuates.

Witnesses may be able to point to an individual and state that he/she is a member of a gang. However, when one analyses the evidence, there is often a lack of factual evidence that the gang even exists. Inevitably, local authorities and the police rely on intelligence and it is usually the extent of the intelligence that leads one to the conclusion that a gang exists and who the members are. Reliance solely on intelligence will not be enough to satisfy the first condition. Direct evidence will be required, and it will be difficult to obtain such cogent evidence.

Hearsay evidence is admissible, but there are problems in relation to this evidence as with any hearsay evidence. For instance if a witness states that an individual is a member of a gang, and that witness is asked to explain why he/she considers that the individual is part of a gang, the witness may state because, "I've been told he is". Thus, it becomes apparent that the evidence is multiple hearsay and has limited evidential merit.

Therefore, applicants will have to look at alternative ways to gather evidence. Social networking sites such as Youtube and Facebook may detail a gang's activities and may even show the faces of the members. In the writer’s experience, applicants have also used evidence such as music videos uploaded to music sites such as YouTube, which may exalt the membership of a gang or threaten violence against non-members.

Such evidence can be useful, but the individual may claim that the name of the gang is not a gang but a name of a music group and that the group is not involved in gang violence, they are only singing about violence as do many pop stars. This is a legitimate argument and many civil liberty groups will argue that this is freedom of expression. However, it will be difficult for a respondent to state that he is not encouraging gang violence if he is glorifying gang violence in several videos. Therefore, it is worth exhibiting the video but also a transcript of the lyrics, which can often be graphic and violent. It may also be worth exhibiting the comments below the video which may show the negative effect of the songs and may even have evidential value (albeit multiple hearsay) that the members of the video are all in a gang that causes violence.

It will be a question for the judge to determine whether the evidence satisfies the first condition and in all probability, there will be very few cases where the first condition is established easily.

The second condition (that the Court considers it necessary to grant the injunction) is a question of judgment for the Court. In most cases it should follow that an injunction will be necessary if the first condition is fulfilled, and thus once the first condition is satisfied, there should be very few problems in establishing the second condition. Clearly, evidence will be required for the Court to be satisfied that the injunction is necessary, but such evidence may be general in nature (such as statistics on gang-related deaths) and specific to the case (for instance a report on the respondent by an appropriately qualified social worker or medical professional). Circumstances that may lead the Court to decide that the injunction is not necessary could include situations where the respondent is already incarcerated or when he/she is already engaging with professionals to address the gang-related behaviour.

In summary, there can be problems associated with obtaining evidence that an individual's activities are gang-related violent or encourage or assist such violence. The same problem may not necessarily arise if the applicant makes an application for an ASBO as the applicant only has to prove that the act in question causes or was likely to cause harassment, alarm or distress (which can be a relatively low threshold to cross).

However, the writer has successfully argued that a “gang video" encouraged gang-related violence and obtained an injunction, even though it was not possible to establish gang membership. The writer considers that it will be easier to establish that the respondent has encouraged gang violence rather than assisting or participating in gang violence unless there is direct evidence (such as a witness or criminal conviction with findings of fact that the violence is gang-related).

(d)    Duration and Power of Arrest

ASBOs have a duration of a minimum of two years, however an individual prohibition could have a duration of less than two years – see Lonergan (ashley) v 1) Lewes Crown Court (2) Brighton & Hove City Council & Secretary of State for the Home Department (Interested Party) [2005] EWHC 457 (Admin) (HC).  In contrast, gang injunctions can only be for a maximum period of two years. However, they do have the flexibility in allowing prohibitions and requirements to have different durations. The two-year limit should be welcomed as in the writer's experience, the inflexibility of the duration of the ASBO was often a hindrance to obtaining an ASBO.

With ASBOs the terms granted can only be prohibitory, but an Applicant can apply for an intervention order if the respondent is over 18 years old (section 1G of the Crime and Disorder Act 1998) or a child safety order if the respondent is under 18 years old (section 11 of the Crime and Disorder Act 1998). With gang injunctions, an Applicant can ask for a requirement such as ordering the Respondent to engage with workers. This is a welcome addition to the legislation and gives the Applicant the flexibility to tailor any requirement to the respondent's circumstances. This may be of considerable value, particularly if a power of arrest is attached to such a requirement.

A power of arrest can be attached to any or all of the prohibitions and requirements. Clearly, a power of arrest, when exercised, has an extremely serious interference with a person's private life. Therefore, applicants should ensure that they ask for a power of arrest to be attached to paragraphs where such an interference may be justified. In any event, written evidence will be required setting out why a power of arrest is necessary and what paragraphs it should be attached to. Such evidence may include previous non-compliance by the respondent with court orders as well as the respondent being a risk to the public should the injunction be breached

In most cases, a power of arrest will be necessary for conditions that restrict violence. In those circumstances, the writer considers that courts will grant powers of arrest for conditions that prohibit violence but that it may more problematic to obtain a power of arrest for instance in a prohibition that restricts a person's movements.

Conclusion

Gang injunctions should be welcomed as another tool to tackle anti-social behaviour. At present, they can be used against persons over 18 year olds. Whilst it is likely that there will be a pilot to extend the order to persons under 18 year olds for the time being their effectiveness is somewhat restricted, given the number of gang members who inevitably will be minors. In relation to those individuals, an applicant will need to consider the use of an ASBO.

Further, this tool is not available to registered providers of social housing. This is problematic given that for many years now housing associations have been at the front-line of combating anti-social behaviour and increasingly have taken over management or ownership of a local authority’s housing stock.

It is too early to judge whether a gang injunction will be an effective tool. In the writer’s opinion, they will not replace ASBOs as it will be problematic to establish the first condition. However, if they are used carefully, then they can be an effective tool to target specific behaviour. In all likelihood, they are unlikely to be widely used.

The first gang injunction has been obtained and no appeal has been lodged to date. It is too early to judge what the reception of the Courts will be to further applications for orders, and more importantly, how the Courts deal with an individual when they have breached such an order.

Sonia Rai is a barrister at 5 Paper Buildings.