COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
His Honour Judge Macduff QC
Claim no 7BM72256
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE MOORE-BICK
| BIRMINGHAM CITY COUNCIL
|- and -
Maya Sikand (instructed by McGrath & Co) for the First Respondent
Ramby de Mello and Mr Tony Muman(instructed by McGrath & Co) for the Second Respondent
Hearing dates: 24 and 25 June 2008
Crown Copyright ©
Sir Anthony Clarke MR and Lord Justice Rix:
"The court ordered that the Defendant shall not (whether by himself or by instructing, encouraging or allowing any other person)
1) be in any public place in the City of Birmingham with any of the following people: Courtney Jones, Courtney Moore, Junior Hollingshead, John Shafi, Nelson Junior Nelson, Kristopher Boyd-Clarke, Tristan Miles, Sheldon Wint, Junior Cadogan, Hassan Ali;
2) enter that part of the City of Birmingham shown on the attached plan and delineated in red;
3) assault, harass, intimidate or attempt to do any of the same to any person lawfully present in the City of Birmingham"
The plan attached showed a considerable part of the city. Because TE lives within what would otherwise have been part of the excluded area it was necessary to remove from the exclusion a small area which would enable him to go to and from his home. It meant however that he could not go into most of the area around his home. A power of arrest under section 27 of the Police and Justice Act 2006 was attached to the whole of the order quoted above.
The council's case
"The defendant has repeatedly behaved in a manner which is criminal and tortious, and which, in particular, constitutes a public nuisance and amounts to deliberate and flagrant breaches of the criminal law."
The facts found
"All these intelligence logs are categorised A1 or B1. On fourteen occasions Shafi has been seen in the company of known members of BMW. Often he and his companions (some of whom had previous convictions) were reported to be wearing green bandanas. Usually the group consisted of only four or five persons, sometimes fewer. On one occasion, one of his companions was found in possession of an imitation firearm; on another, there was a report that a knife had been seen, although none was found when the group was searched. On another occasion, Shafi was removed from a West Midlands bus for disorderly behaviour; on another occasion he had suffered a stab wound to his leg, believed to have been inflicted by a member of a rival gang. At least three of these incidents occurred outside what is now the area from which he is excluded by interim order. On none of these fourteen occasions was Shafi himself seen to be engaged in criminal conduct although there was an element of suspicion in two instances (where, for example, he was wearing a top garment with its hood up in hot weather). On no occasion was he in possession of any knife or offensive weapon, nor any other incriminating object."
MS had two previous convictions, one for having in his possession an article which had a blade or was sharply pointed. At the time DS Borg made his statement there were three outstanding prosecutions pending against him but the judge records at  that by the time of the trial they had all been discontinued.
"He associates with other people (usually in a small group) who, according to good police intelligence, are members of the BMW gang. On two occasions, the person he was with had possession of a weapon (not a firearm). On another two occasions, he was in the vicinity of a recent disturbance, giving rise to the possible inference that he had been involved. When stopped, he had been less than cooperative with the police. On another occasion he was in a group of youths who were misbehaving in a public place. He had four previous convictions, three of which were for possession of offensive weapons. With one exception these go back to 2003. The most recent conviction was for having in his possession a bladed knife in the Birmingham city centre on 9 November 2006."
"Take 6 April 2007 as an example. On that date the Defendant Tyrone Ellis was seen by police officers in Corporation Street following a disturbance in the nearby Bull Ring Shopping Centre. It may be that, on the balance of probabilities I might just conclude that he had participated in the disturbance. However, I certainly could not be sure, and thus the evidence in respect of that particular day is of no value at all."
We return below to the correct approach to the standard of proof.
"First and foremost, there is no evidence to show that the Defendants or either of them have behaved in the past in a way which would justify making such an order. It may be that in some of the other cases, where the Defendants are members of the senior echelons and the evidence can establish frequent participation in gang violence (for example) an order would be justified."
At  and  the judge made some observations about the detail of the orders which are not directly relevant to the issues in this appeal.
The legal principles
"111(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
222(1) Where a local authority consider it expedient for the promotion of the interests of the inhabitants of their area –
(a) they may prosecute or defend or appear in any legal proceedings and, in the case of any civil proceedings, may institute them in their own name, …"
37(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."
Taking the language of section 222 at its widest, therefore, it might be thought that the only remaining question for the judge was whether it was just and convenient to grant the injunction sought. However, the authorities show that it is not as simple as that because it has long been recognised that the court's power to grant relief by way of injunction is to be exercised only in support of some legal or equitable right. This gives rise to special considerations in cases where the interests of the public as a whole, or at any rate a section of the public, are affected or where rights enjoyed by the public are infringed. It is likely to be in cases of that kind that the local authority will wish to take action for the benefit of those who live within its area.
Injunctions in aid of the criminal law
"The right to invoke the assistance of the civil court in aid of the criminal law is a comparatively modern development. Where Parliament imposes a penalty for an offence, Parliament must consider the penalty is adequate and Parliament can increase the penalty if it proves to be inadequate. It follows that a local authority should be reluctant to seek and the court should be reluctant to grant an injunction which if disobeyed may involve the infringer in sanctions far more onerous than the penalty imposed for the offence. In Gouriet v Union of Post Office Workers  AC 435 Lord Wilberforce said at p 481, that the right to invoke the assistance of the civil courts in aid of the criminal courts is "an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty … or to cases of emergency …" In my view there must certainly be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area."
"It was said that the council should not have taken civil proceedings until criminal proceedings had failed to persuade the appellants to obey the law. As a general rule a local authority should try the effect of criminal proceedings before seeking the assistance of the civil courts. But the council were entitled to take the view that the appellants would not be deterred by a maximum fine which was substantially less than the profits which could be made from illegal Sunday trading. Delay while this was proved would have encouraged widespread breaches of the law by other traders, resentful of the continued activities of the appellants."
"The guiding principles must I think be: (1) that the jurisdiction is to be invoked and exercised exceptionally and with great caution: see the authorities already cited; (2) that there must certainly be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area: see Stoke on Trent Council v B&Q … [at] 776 and Wychavon DC v Midland Enterprises (Special Events) Ltd (1986) 86 LGR 83 at 87; (3) that the essential foundation for the exercise of the court's discretion to grant an injunction is not that the offender is deliberately and flagrantly flouting the law but the need to draw the inference that the defendant's unlawful operations will continue unless and until effectively restrained by the law and that nothing short of an injunction will be effective to restrain them: see Wychavon … at 89."
"I am in no doubt that these questions must be answered in favour of the local authority. The conduct which the local authority seek to restrain is conduct which would have been actionable (if not at the suit of the local authority) in the absence of any statute. Even if the conduct were not criminal, it would probably be unlawful. The contrast with the planning and Sunday trading cases is obvious. I see no reason for the court pedantically to insist on proof of deliberate and fragrant breaches of the criminal law when, as here, there is clear evidence of persistent and serious conduct which may well amount to contravention of the criminal law and which may, at this interlocutory stage, be regarded as showing a public and private nuisance. It is quite plain that the service of the notice and the threat of prosecution have proved quite ineffective to protect the residents."
"The application of those principles means that if the court is satisfied that nothing short of an injunction will be effective to restrain a defendant's unlawful operations it may grant an injunction even though he has not yet been subjected to the maximum penalty available under the criminal law."
"criminal proceedings are likely to prove ineffective to achieve the public interest purposes for which the legislation in question has been enacted".
"If they have good grounds for thinking that in any given case compliance with the law will not be secured by prosecution, they are entitled to apply for an injunction. Counsel for the defendant criticised the council for threatening to seek a quia timet injunction even before any threatened breach of the law had occurred and when therefore no prosecution was possible. In a proper case I do not consider that that is a ground for criticism but for commendation. It must be an eminently sensible and convenient manner of proceeding."
"However, it is within the proper sphere of a local authority's activities to try and put an end to all public nuisances in its area provided always that it considers that it is expedient for the promotion or protection of the interests of the inhabitants of its area to do so in a particular case. Certainly my experience over the last 40 years tells me that authorities regularly do this and so far as I know this had never attracted adverse judicial comment. I consider that an authority would not be acting beyond its powers if it spent time and money trying to persuade those who were creating a public nuisance to desist. Thus in my judgment, the county council in Attorney General v PYA Quarries Ltd  2 QB 169 was not acting beyond its powers in seeking the Attorney General's fiat in trying to put a stop to the nuisance by dust in that case and thus exposing itself to potential liability in costs. It follows that, provided that an authority considers it expedient for the promotion and protection of the interests of the inhabitants of its area, it can institute proceedings in its own name with a view to putting a stop to a public nuisance."
For this purpose he accepted Romer LJ's description of a public nuisance in the PYA Quarries case (at page 184) as a "nuisance … which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects".
"Where there is evidence of a public nuisance, it was historically always the case that the Attorney General could seek an injunction to restrain the nuisance and, before the passing of the Local Government Act 1972, a local authority could sue so long as it obtained the Attorney General's fiat."
He then said that the effect of section 222(1) was to allow the local authority to sue in its own name without needing the consent of the Attorney General. At the end of  he said that, once it was established that a public nuisance was established, which was of course a question of fact, the court would have to exercise its discretion on the basis of the "well-known principles applicable to such injunctions". We suspect that he would have said the same if the local authority was alleging not the fact of a public nuisance but the threat of one.
The ASBO legislation
"The recent and detailed interventions of Parliament in this field suggest that the court should not indulge in parallel creativity by the extension of general common law principles."
That principle was applied in the context of animal cruelty in Hein; see per Waller LJ at [66-70]. See also per Clarke LJ at .
"(1) An application 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 10 or over, namely -
(a) that the person has acted …. in an anti-social manner, that is to say, in a manner that has 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 relevant persons from further anti-social acts by him."
"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 way, 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 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)."
Lord Hope reached the same conclusions at  to . So too did Lord Hutton at  and  and Lord Hobhouse and Lord Scott at  and  respectively.
Jurisdiction and discretion
Lord Justice Moore-Bick :