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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Jones v Birmingham City Council & Anor (Rev1)  UKSC 27 (19 July 2023)
Cite as:  3 WLR 343,  UKSC 27,  WLR(D) 317
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Press Summary Issues & Facts
 UKSC 27
On appeal from:  EWCA Civ 1189
Birmingham City Council and another (Respondents)
Lord Reed, President
Lord Hodge, Deputy President
JUDGMENT GIVEN ON
19 July 2023
Heard on 30 and 31 January 2023
Helen Mountfield KC
(Instructed by Community Law Partnership)
Respondent - Birmingham City Council
(Instructed by Birmingham City Council)
Respondent - Secretary of State for the Home Department
Samantha Broadfoot KC
(Instructed by Government Legal Department)
Lord Lloyd-Jones (with whom Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agree):
(1) Proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act; and
(2) Proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act.
Background to these proceedings
“1 Gang-related violence and the resulting public disorder have become a scourge which affects many cities. It may flow from drug-dealing but is not unusually accompanied by the discharge of firearms or other acts of extreme violence directed at members of other gangs such that entirely innocent members of the public can become caught up in the cross fire. Investigation of such incidents is rendered more difficult (if not impossible) by the refusal of those who are injured to assist the police by naming their attackers (whom they will frequently have recognised), either because they fear the potentially violent consequences of doing so or because they prefer to take the law into their own hands and retaliate in like mode. Additionally, members of the public are fearful of being involved in prosecutions because of the risk of intimidation and violence. The result is not only that public safety is seriously affected but also that maintenance of the rule of law is endangered.
2 The challenge presented by this type of behaviour is not to be underestimated. It has been felt particularly acutely in various areas of Birmingham where a gang known as the ‘Guns and Money Gang’ (‘GMG’) is said to operate. The GMG aligns its loyalty with another gang, ‘the Johnson Crew’, which was previously contained within the INCH 1 gang. However, the INCH 1 fractured into the Johnson Crew and ‘the Burger Bar gang’ following an internal dispute, and these two breakaway groups have been intense rivals ever since. This rivalry increased during the 1990s with both groups (and smaller affiliates) claiming postcode areas as ‘their’ territory. An example of the violence that spilled out as a result is the infamous murder, at a New Year’s Eve party in January 2003, of Leticia Shakespeare and Charlene Ellis, who were caught in the cross fire of automatic machine gun fire wielded by offenders linked to the Burger Bar Gang targeting members of the Johnson Crew.”
“Over the last 6 months, there have been more than 11 firearm discharges alone and 4 more reported shootings in Birmingham City involving two separate gangs; innocent members of the public have been shot or put at risk. Incidents have occurred in busy areas during the day time. The number of incidents alone is alarming and the local press are reporting heavily on each and every shooting, which in itself is alarming for the public and is spreading fear among the communities.”
The present proceedings
“Jerome Jones (whether by himself or by instructing, encouraging or allowing any other person) SHALL NOT
1. Use or threaten to use violence, harass or intimidate any person.
2. Enter the area outlined in red on the map attached to this Order except that he may:
i. Enter the Birmingham City Hospital site from Spring Hill/Dudley Road or Western Road when attending at that hospital for a pre-arranged appointment or emergency treatment and
ii. Travel through the area without stopping, to attend Birmingham City Hospital for treatment in an emergency vehicle or at the direction of the emergency services.
3. Associate with, contact or attempt to contact, whether directly or through another person, by any means whatsoever, including social media, any of the following [10 named] people ...
4. Be in possession of any controlled drug or psychoactive substance as defined by the Misuse of Drugs Act 1971 and the Psychoactive Substances Act 2016 (unless he has a prescription for that drug).
5. Participate in any music video that he knows or ought to know includes any material that relates to the Johnson Crew, Burger Bar Gang or any other gang affiliated to either of those gangs including the GMG and AR gangs, and that may have the effect of promoting, supporting or assisting gang-related violence or drug-dealing by such gangs.”
The area outlined in red covered a substantial part of the centre of Birmingham including much of Handsworth and Winson Green and including Lozells and Newtown to the East. Further, the court ordered that a power of arrest under section 36(6) of the 2009 Act (as amended) applied to paragraphs 1-4 of the order and that it should continue until 4.00pm on 12 July 2019 unless, before that date, it was varied or discharged by the court.
(1) Proceedings under section 34 of the 2009 Act do not involve a criminal charge within article 6(1) of the ECHR; and
(2) The standard of proof for proving the threshold conditions prescribed by section 34 of the 2009 Act for applications for injunctions in respect of gang-related drug-dealing and by section 1(2) of the 2014 Act for applications for injunctions in respect of anti-social behaviour as defined by section 2(1)(a) of that Act, namely proof on the balance of probabilities, is compatible with article 6 of the ECHR.
(1) Whether the Court of Appeal erred in law by distinguishing and declining to follow the decision of the House of Lords in R (McCann) v Crown Court at Manchester  1 AC 787 (“McCann”) that the criminal standard of proof should be applied in proceedings in respect of an anti-social behaviour order under section 1, Crime and Disorder Act 1998, and in failing to apply that standard of proof to applications for injunctions under section 34 of the 2009 Act and section 1 of the 2014 Act (based on conduct under section 2(1)(a) of that Act).
(2) If the Court of Appeal was entitled to depart from the decision of the House of Lords in McCann, whether, in any event, it erred in law in holding that the criminal standard of proof did not need to be applied to the first condition under section 34 of the 2009 Act and section 1(2) of the 2014 Act in order to satisfy the requirements of fairness in article 6(1) of the ECHR when considering whether to make an injunction under either or both of those provisions.
The 2009 Act
34 Injunctions to prevent gang-related violence and drug-dealing activity
(1) A court may grant an injunction under this section against a respondent aged 14 or over if the first and second conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that the respondent has engaged in or has encouraged or assisted—
(a) gang-related violence, or
(b) gang-related drug-dealing activity.
(3) The second condition is that the court thinks it is 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 or gang-related drug-dealing activity;
(b) to protect the respondent from gang-related violence or gang-related drug-dealing activity.
(4) An injunction under this section may (for either or both of those purposes)—
(a) prohibit the respondent from doing anything described in the injunction;
(b) require the respondent to do anything described in the injunction.
(5) For the purposes of this section, something is ‘gang-related’ if it occurs in the course of, or is otherwise related to, the activities of a group that—
(a) consists of at least three people, and
(b) has one or more characteristics that enable its members to be identified by others as a group.
(6) In this section ‘violence’ includes a threat of violence.
(7) In this Part ‘drug-dealing activity’ means—
(a) the unlawful production, supply, importation or exportation of a controlled drug, or
(b) the unlawful production, supply, importation or exportation of a psychoactive substance.
(8) In subsection (7)—
(a) in paragraph (a), ‘production’, ‘supply’ and ‘controlled drug’ have the meaning given by section 37(1) of the Misuse of Drugs Act 1971;
(b) in paragraph (b), ‘production’, ‘supply’ and ‘psychoactive substance’ have the meaning given by section 59 of the Psychoactive Substances Act 2016.
35 Contents of injunctions
(1) This section applies in relation to an injunction under section 34.
(2) The prohibitions included in the injunction may, in particular, have the effect of prohibiting the respondent from—
(a) being in a particular place;
(b) being with particular persons in a particular place;
(c) being in charge of a particular species of animal in a particular place;
(d) wearing particular descriptions of articles of clothing in a particular place;
(e) using the internet to facilitate or encourage violence or drug-dealing activity.
(3) The requirements included in the injunction may, in particular, have the effect of requiring the respondent to—
(a) notify the person who applied for the injunction of the respondent’s address and of any change to that address;
(b) be at a particular place between particular times on particular days;
(c) present himself or herself to a particular person at a place where he or she is required to be between particular times on particular days;
(d) participate in particular activities between particular times on particular days.
(4) A requirement of the kind mentioned in subsection (3)(b) may not be such as to require the respondent to be at a particular place for more than 8 hours in any day.
(5) The prohibitions and requirements included in the injunction must, so far as practicable, be such as to avoid—
(a) any conflict with the respondent’s religious beliefs, and
(b) any interference with the times, if any, at which the respondent normally works or attends any educational establishment.
(6) Nothing in subsection (2) or (3) affects the generality of section 34(4).
(7) In subsection (2) ‘place’ includes an area.”
“36 Contents of injunctions: supplemental
(2) The injunction may not include a prohibition or requirement that has effect after the end of the period of 2 years beginning with the day on which the injunction is granted (‘the injunction date’).
(3) The court may order the applicant and the respondent to attend one or more review hearings on a specified date or dates.
(4) If any prohibition or requirement in the injunction is to have effect after the end of the period of 1 year beginning with the injunction date, the court must order the applicant and the respondent to attend a review hearing on a specified date within the last 4 weeks of the 1 year period (whether or not the court orders them to attend any other review hearings).
(a) the respondent is under the age of 18 on the injunction date, and
(b) any prohibition or requirement in the injunction is to have effect after the respondent reaches that age and for at least the period of four weeks beginning with the respondent’s 18th birthday,
the court must order the applicant and the respondent to attend a review hearing on a specified date within that period.”
“(6) The court may attach a power of arrest in relation to—
(a) any prohibition in the injunction, or
(b) any requirement in the injunction, other than one which has the effect of requiring the respondent to participate in particular activities.
(7) If the court attaches a power of arrest, it may specify that the power is to have effect for a shorter period than the prohibition or requirement to which it relates.”
The 2014 Act
“1 Power to grant injunctions
(1) A court may grant an injunction under this section against a person aged 10 or over (‘the respondent’) if two conditions are met.
(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour.
(3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.
(4) An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—
(a) prohibit the respondent from doing anything described in the injunction;
(b) require the respondent to do anything described in the injunction.
(5) Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid—
(a) any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment;
(b) any conflict with the requirements of any other court order or injunction to which the respondent may be subject.
(6) An injunction under this section must—
(a) specify the period for which it has effect, or
(b) state that it has effect until further order.
In the case of an injunction granted before the respondent has reached the age of 18, a period must be specified and it must be no more than 12 months.
(7) An injunction under this section may specify periods for which particular prohibitions or requirements have effect.
(8) An application for an injunction under this section must be made to—
(a) a youth court, in the case of a respondent aged under 18;
(b) the High Court or the county court, in any other case.
Paragraph (b) is subject to any rules of court made under section 18(2).
2 Meaning of ‘anti-social behaviour’
(1) In this Part ‘anti-social behaviour’ means—
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
(b) conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or
(c) conduct capable of causing housing-related nuisance or annoyance to any person.
(2) Subsection (1)(b) applies only where the injunction under section 1 is applied for by—
(a) a housing provider,
(b) a local authority, or
(c) a chief officer of police.
(3) In subsection (1)(c) ‘housing-related’ means directly or indirectly relating to the housing management functions of—
(a) a housing provider, or
(b) a local authority.
(4) For the purposes of subsection (3) the housing management functions of a housing provider or a local authority include—
(a) functions conferred by or under an enactment;
(b) the powers and duties of the housing provider or local authority as the holder of an estate or interest in housing accommodation.”
“3 Requirements included in injunctions
(1) An injunction under section 1 that includes a requirement must specify the person who is to be responsible for supervising compliance with the requirement.
The person may be an individual or an organisation.
(2) Before including a requirement, the court must receive evidence about its suitability and enforceability from—
(a) the individual to be specified under subsection (1), if an individual is to be specified;
(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.
(3) Before including two or more requirements, the court must consider their compatibility with each other.
(4) It is the duty of a person specified under subsection (1)—
(a) to make any necessary arrangements in connection with the requirements for which the person has responsibility (the ‘relevant requirements’);
(b) to promote the respondent's compliance with the relevant requirements;
(c) if the person considers that the respondent—
(i) has complied with all the relevant requirements, or
(ii) has failed to comply with a relevant requirement,
to inform the person who applied for the injunction and the appropriate chief officer of police.
(5) In subsection (4)(c) ‘the appropriate chief officer of police’ means—
(a) the chief officer of police for the police area in which it appears to the person specified under subsection (1) that the respondent lives, or
(b) if it appears to that person that the respondent lives in more than one police area, whichever of the relevant chief officers of police that person thinks it most appropriate to inform.
(6) A respondent subject to a requirement included in an injunction under section 1 must—
(a) keep in touch with the person specified under subsection (1) in relation to that requirement, in accordance with any instructions given by that person from time to time;
(b) notify the person of any change of address.
These obligations have effect as requirements of the injunction.”
Article 6(1) of the ECHR
“Article 6 Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Article 6(3) sets out certain minimum rights of a person charged with a criminal offence.
“… [W]hile article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, paras 45-46).”
The court then went on, however, to note (at paras 29-30) that the applicant in that case had had the benefit of adversarial proceedings in which he was able to submit the arguments he considered relevant to his case. Furthermore, although in its view a more substantial statement by the appellate court of the reasons for its decision might have been desirable, it considered that the applicant could not validly argue that this judgment lacked reasons. It concluded that, taken as a whole, the proceedings were fair for the purposes of article 6(1).
“31. …The court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were ‘fair’ within the meaning of article 6(1).
32. The requirements inherent in the concept of ‘fair hearing’ are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the contracting states have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases.
33. Nevertheless, certain principles concerning the notion of a ‘fair hearing’ in cases concerning civil rights and obligations emerge from the court’s case law. Most significantly for the present case, it is clear that the requirement of ‘equality of arms’, in the sense of a ‘fair balance’ between the parties, applies in principle to such cases as well as to criminal cases.”
(See also, with regard to the greater latitude accorded to national courts when dealing with civil cases, the observations of the Strasbourg court in Saliba v Malta, (Application No 24221/13)  ECHR 1058 at para 67, considered further below.) The court then turned to address the overall fairness of the proceedings. It considered that equality of arms implies that parties must be afforded a reasonable opportunity to present their case, including evidence, under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent. It was left to the national authorities to ensure in each individual case that the requirements of a fair hearing were met. However, in Dombo Beheer the applicant company had been placed at a substantial disadvantage vis-à-vis the bank and there had accordingly been a violation of article 6(1) (at paras 33-35).
“The European court for its part assesses the fairness of proceedings in national jurisdictions retrospectively, since applicants are required to exhaust their national remedies before resorting to it, and the court repeatedly asserts and follows the practice of making its assessment on an overall consideration of the national proceedings, viewed as a whole …”
(See also R (Roberts) v Parole Board  UKHL 45;  2 AC 738 per Lord Woolf CJ at para 83(vii); Secretary of State for the Home Department v MB  UKHL 46;  1 AC 440 per Lord Bingham at para 35.)
So the question becomes whether there is, considering the legislative scheme in the round, a fair balance between the interests of the parties.
“Article 6(1) of the Convention does not lay down any rules on the admissibility or probative value of evidence or on the burden of proof, which are essentially a matter for domestic law”.
Although the court here refers to the burden of proof and not expressly to the standard of proof, this statement is clearly wide enough to cover both.
R (McCann) v Crown Court at Manchester
“An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged ten or over, namely - (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him; …”
On an application to the magistrates’ court, if it was proved that the conditions in section 1(1) were fulfilled the court was empowered to make an anti-social behaviour order which prohibited the defendant from doing anything described in the order (section 1(4)). The legislation did not specify the standard of proof applicable under section 1(1)(a). The prohibitions which might be imposed were those necessary for the purpose of protecting certain groups of persons from further anti-social acts by the defendant (section 1(6)). An anti-social behaviour order was to have effect for a period (not less than two years) specified in the order or until further order (section 1(7)). Provision was made for an application to be made to vary or discharge an order (section 1(8)). Except with the consent of both parties, no anti-social behaviour order should be discharged before the end of the period of two years beginning with the date of service of the order (section 1(9)). Section 1(10) provided that if without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall commit a criminal offence.
“have concluded that in reality it is difficult to establish reliable gradations between a heightened civil standard commensurate with [the] seriousness and implications of proving the requirements, and the criminal standard. And we have concluded that for the purposes of this particular case, and we do not intend to lay down any form of precedent, so I emphasise that for the purposes of this particular case, we will apply the standard of being satisfied so that we are sure that the conditions are fulfilled before we would consider the making of an order in the case of each [defendant] severally …”
“Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).” (Original emphasis.)
“Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
"I turn next to the Commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the “balance of probabilities." (Original emphasis.)
"I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case, at p 812, that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard."
(1) It is now established that there is only one civil standard of proof at common law and that is proof on the balance of probabilities.
(2) Nevertheless, the inherent improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. As a result, proof of an improbable event may require more cogent evidence than might otherwise be required.
(3) However, the seriousness of an allegation, or of the consequences which would follow for a defendant if an allegation is proved, does not necessarily affect the likelihood of its being true. As a result, there cannot be a general rule that the seriousness of an allegation or of the consequences of upholding an allegation justifies a requirement of more cogent evidence where the civil standard is applied. I would therefore respectfully disagree with the contrary statement by Richards LJ in N (cited at para 49 above) and with the statements of Lord Carswell (at para 28) and Lord Brown (at paras 43, 47) in Re D  1 WLR 1499;  UKHL 33, to the extent that they may be read as supporting that statement of Richards LJ in N.
“This means that the court must act with scrupulous fairness at all stages in the proceedings. When it is making its assessment of the facts and circumstances that have been put before it in evidence and of the prohibitions, if any, that are to be imposed, it must ensure that the defendant does not suffer any injustice.”
He then turned to the standard of proof. It is significant, to my mind, that he began his consideration of this topic (at paras 81-83) by referring to the observation of Lord Phillips MR in McCann in the Court of Appeal ( 1 WLR 1084, para 65) that anti-social behaviour orders have serious consequences and expressed the view that it was with that point in mind that Lord Phillips commended the course which the Recorder of Manchester followed in the Crown Court when he had said that (para 67), without intending to lay down any form of precedent, the court had decided to apply the standard of being satisfied so that they were sure that the statutory conditions were fulfilled before they would consider making an order in the case of each defendant. Lord Hope endorsed that approach and then (at paras 82-83) set out his reasons for coming to that conclusion. Referring to the submission on behalf of the Secretary of State that those were civil proceedings which should be decided according to the civil evidence rules, Lord Hope continued (at para 82):
“But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”
This, he observed, was the view of the Court of Session in Constanda v M 1997 SC 217. He continued (at para 83):
“There is now a substantial body of opinion that, if the case for an order such as a banning order or sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implication of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard”.
At this point he referred to B and to Gough. He next accepted the submission on behalf of the Secretary of State that the condition in section 1(1)(b) of the 1998 Act that a prohibition order is necessary to protect persons from further anti-social acts raised a question which was a matter for evaluation and assessment. He then expressed his conclusion (para 83):
“But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard”.
The test under the 2009 Act and the 2014 Act
“ … the broad legislative purpose of the 2009 Act was an avowed attack on the operation, ethos and culture of gangs and the need to break them up, and that purpose could not be achieved without measures which would have a major impact on the life of persons against whom such injunctions were granted.”
“By imposing a range of prohibitions and requirements on the respondent, a gang injunction aims:
· to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence or gang-related drug dealing activity; and/or
· to protect the respondent from gang-related violence or gang-related drug dealing activity.
Over the medium and longer term, gang injunctions aim to break down violent gang culture, prevent the violent behaviour of gang members from escalating and engage gang members in positive activities to help them leave the gang. Gang injunctions can also be used to help protect people, in particular children, from being drawn further into more serious activity.”
“… Part 4 [of the 2009 Act] represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the [Crime and Disorder Act 1998] was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34 of the 2009 Act, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Shafi’s case about the appropriate standard of proof in proceedings for an injunction of the kind that the council was seeking.” (See also Leveson P in the Court of Appeal in the present proceedings at para 57.)
The adoption of the civil standard was a deliberate step which Parliament considered was justified by the mischief which had to be addressed.
(1) The preventative and protective purpose of the legislation is incorporated in the requirement in section 34(3) that an injunction can be granted only if the court considers it necessary to grant an injunction for either or both of the specified purposes: to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity or to protect him from the same.
(2) The measures in section 35 may only be imposed insofar as they are necessary to meet either or both of these objectives. Restrictions apply to the measures which can be imposed (section 35(4)-(5)). There are consultation requirements (sections 38, 39). There are detailed provisions for the review, variation and discharge of injunctions (section 42(2)).
(3) An injunction may not include a prohibition or requirement that has effect after the end of the period of two years beginning with the day on which the injunction is granted (section 36(2)).
(4) In the case of a respondent aged 14 to 17 years, the Statutory Guidance indicates that a gang injunction should normally be part of a multi-agency approach (Statutory Guidance, para 3.2).
(5) Breach of a gang injunction is not a criminal offence, does not result in a criminal record but is a civil contempt of court.
(1) Injunctions made under the 2014 Act must specify a person or organisation in charge of supervising compliance with the requirements of the injunction (section 3(1)).
(2) Before including a requirement, the court must receive evidence about its suitability and enforceability from the person or organisation supervising compliance with the injunction (section 3(2)).
(3) Save in the case of a without notice application, consultation is mandatory under the 2014 Act, if the respondent will be aged under 18 when the application is made. The individual or agency applying for an injunction must, before doing so, consult with the local youth offending team. In all cases the applicant must inform any other body or individual the applicant thinks appropriate of the application. In the case of without-notice applications, these consultation and information requirements must be complied with before the date of the first on-notice hearing. The same requirements apply to applications to vary or discharge an injunction (section 14(1-3)).
(4) The court considering ordering an injunction must consider the compatibility of each requirement under the injunction with the other requirements (section 3(3)).
(5) Although it is possible to make an application for an injunction under the 2014 Act without notice to the respondent, if an application is made without notice the court must either (a) adjourn the proceedings and grant an interim injunction (see section 7), or (b) adjourn the proceedings without granting an interim injunction, or (c) dismiss the application (section 6 (1-2)). An interim injunction made at a hearing of which the respondent was not given notice may not have the effect of requiring the respondent to participate in particular activities (section 7(3)).
(6) An injunction must specify the period for which it has effect or state that it has effect until further order. In the case of an injunction granted before the respondent has reached the age of 18, a period must be specified and it must be no more than 12 months (section 1(6)).
(7) The power to exclude persons from their homes in cases of violence or risk of harm is restricted and only applies where the respondent is aged 18 or over (section 13 (1)).
(1) Article 6(1) of the ECHR, as given effect by the HRA 1998, does not require the criminal standard of proof (ie proof beyond a reasonable doubt) to be satisfied in respect of (a) proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act or (b) proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act;
(2) Under Part 4 of the 2009 Act and Part 1 of the 2014 Act Parliament has devised statutory schemes which conform with the requirements of a fair hearing under article 6 of the ECHR.