Supreme Court grants permission to appeal over gang injunction secured by council

The Supreme Court has agreed to hear an appeal over whether a gang injunction obtained by Birmingham City Council breached human rights law.

The Court of Appeal in Jones v Birmingham City Council [2018] EWCA Civ 1189 had rejected a legal challenge from a 21-year-old man affected by the injunction.

The case concerned the provisions of Part 4 of the Policing and Crime Act 2009, which introduced a new remedy enabling the county court or the High Court to grant an injunction for the purpose of preventing gang-related violence (including the protection of those involved with it from such further violence).

By s. 51 of the Serious Crime Act 2015, from 26 May 2016, the statutory purpose also applied to gang-related drug-dealing activity. Finally, Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 replaced the old scheme for anti-social behaviour orders (in force on 23 March 2015).

In February 2016 Birmingham City Council obtained interim injunctions against members of the Guns and Money Gang, the Johnson Crew and the Burger Bar gang pursuant to s. 34 of the 2009 Act and s. 1 of the 2014 Act.

The 18 individuals affected included the appellant. They were banned, amongst other things, from parts of Birmingham under the injunction.

An appeal to the High Court that the order was incompatible with Article 6 of the European Convention on Human Rights was heard in October 2016 by Mr Justice Burton, who rejected the challenge. In doing so, the judge adopted the reasoning of Mr Justice Kerr in Chief Constable of Lancashire v Wilson and others[2015] EWHC 2763 (QB).

The appellant appealed again. Before the Court of Appeal it was contended on his behalf that the proceedings under the relevant legislation, while civil, were in respect of a criminal charge and therefore attracted the provisions of Article 6(1), (2) and (3) ECHR. Alternatively, the fair trial provisions of Article 6(1) required proof to be at the criminal standard, beyond reasonable doubt, rather than (as the legislation prescribed) on the balance of probabilities.

Both the council and the Home Secretary argued that injunctions granted under the legislation did not entail the determination of a criminal charge and fell within the civil limb of Article 6(1). Further, they submitted that even if the proceedings did involve the determination of a criminal charge, Article 6 did not mandate a specific standard of proof and the civil standard (with the identified protections) was sufficient. As for the alternative argument, 'fair trial' requirements did not require the criminal standard of proof and the legislation was fully compatible with the obligations of the UK pursuant to the ECHR.

In the Court of Appeal the President of the Queen’s Bench Division, Sir Brian Leveson, with whom Lord Justice Underhill and Lord Justice Irwin agreed, said: “Parliament was entitled to address the very real social harm which gangs and other anti-social behaviour have been inflicting on society in the way in which this legislation seeks to do. Built in to each legislative scheme are safeguards intended to address the impact on individuals.

“In my judgment, the legislation does not trigger the bringing of a criminal charge for the purposes of Article 6 of the ECHR and neither is the requirement that the court address the issues on the balance of probability a breach of Article 6.”

He added: “For these reasons which are entirely in line with the careful reasoning and conclusions of Kerr J, adopted in this case by Burton J, I would dismiss this appeal.”

The Supreme Court’s latest list of permissions decisions (issued last week) revealed that on 30 March 2022 a panel comprising Lord Briggs, Lord Stephens and Lady Rose granted permission to the appellant.