England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION, PRESTON DISTRICT REGISTRY
His Honour Judge Butler (sitting as a Deputy High Court Judge)
A00PR769

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/11/2015

Lord Justice McCombe:

1. This is an appeal, brought with permission granted by Christopher Clarke LJ on 29 July 2015, against part of an order of 26 February 2015, made by HH Judge Butler (sitting as a Deputy Judge of the High Court) by which the judge declined to discharge or vary (more than minimally) an interim injunction under the Policing and Crime Act 2009, the 2009 Act granted by DJ Rouine, first at a hearing without notice on 3 September 2014 and subsequently on a return date on 16 September 2014.
2. Section 34 of the 2009 Act (as in force at the time the interim injunctions were granted) empowers the court to grant an injunction imposing prohibitions designed to prevent the commission of "gang-related violence". The section provides as follows:

"34. Injunctions to prevent gang-related violence

(1) A court may grant an injunction under this section if 2 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, gang-related violence.

(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;

(b) to protect the respondent from gang-related violence.

(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) In this section "gang-related violence" means 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 3 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."

Pursuant to section 35, orders made under section 34 may include the following:

"35(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.

35(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."

By section 36(6) a power of arrest may be attached to any order; the subsection is in these terms:

"36(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. "

The consequences of a power of arrest so imposed are set out in section 43 as follows:

"43. Arrest without warrant

(1) This section applies if a power of arrest is attached to a provision of an injunction under this Part.

(2) A constable may arrest without warrant a person whom the constable has reasonable cause to suspect to be in breach of the provision.

(3) If a constable arrests a person under subsection (2), the constable must inform the person who applied for the injunction.

(4) A person arrested under subsection (2) must be brought before a relevant judge within the period of 24 hours beginning with the time of the arrest.

(5) If the matter is not disposed of when the person is brought before the judge, the judge may remand the person.

(6) In calculating when the period of 24 hours mentioned in subsection (4) ends, Christmas Day, Good Friday and any Sunday are to be disregarded. ..."

3. I have been informed by Counsel that Section 34 of the 2009 Act has, with effect from 1^st June 2015,^[1] been amended by Section 51 Serious Crime Act 2015 to extend the scope of such injunctions to gang related drug dealing activity and to amend the definition of a gang under Section 34(5) of the Act. Those amendments are, however, not relevant to this appeal.
4. The alleged gang-related violence in this case is conduct involving two gangs said to be active in the City of Preston, to one of which the present appellant is said to belong. The application for orders under the Act was initiated by the respondent, the Chief Constable of Lancashire Constabulary, on 19 August 2014 against seven individuals, including the present appellant (who was the fourth respondent to the application). Those individuals were alleged to be members of a gang called the "Deepdale Gang" or "Deepdale Gangsters", operating in the area to the north of the City, near the famous home ground of Preston North End FC. Their rivals were said to be a gang called the "Avenham Gang", whose operations were said to be largely centred in more southerly areas of the city, but who had (it was said) come into violent clashes with the Deepdale group.
5. In one sense, it was not difficult for the respondent to establish an urgent need to do all that might reasonably be required to prevent the violence spoken of in the evidence. On 23 August 2014, a mere four days after these proceedings were initiated, the Fifth Respondent, a man called Jon Jo Highton, was murdered (we were told with an implement such as a meat cleaver or machete) in what was alleged to be a revenge attack said to have been made by members of the Avenham Gang. A number of those responsible were convicted of his murder, after a trial before Goss J and a jury in the Crown Court at Preston, in the earlier part of this year.
6. It is not necessary, in this judgment, to set out the detail contained in the witness statements of the police officers before the judges below. It suffices to say that the primary witness statement alleged that the seven respondents to the application were members of a gang involved in the illegal drugs trade, using firearms and other weapons to control and intimidate gang rivals and others who might stand in their way. It was said that the appellant was a member of this gang and the statements identified three specific incidents, which occurred between 3 June 2013 and 8 May 2014 and in which the appellant was said to have been a participant, with others of the "gang", in a violent robbery, an attack on a rival (leading to the appellant himself being "pistol whipped" and having his arm broken) and an incident with one other "gang" member involving a man seeking refuge from him in a convenience store. The appellant and his brother were said by the police to be linked closely to two other respondents and to gang violence and drug dealing in the relevant area.
7. In his short witness statement made for the purposes of the discharge application before Judge Butler, the appellant denied any involvement with any gang; he said he did not know of any gang called the Deepdale Gangsters. He said he knew the other respondents to the application, but only because they had all grown up together in the same area. He denied the police version of the incidents in question.
8. The original order was made by DJ Rouine in September 2014. Judge Butler issued a renewal of his own. It imposed a night-time curfew upon the respondents covering the whole of the City of Preston and a narrower exclusion zone covering the Deepdale Area, but including in the appellant's case, certain limited exceptions to take into account the fact that he lived near to the edge of that area and just within it. The order also imposed injunctions restraining, and being carried in a motor vehicle with more than two other men (with certain exceptions). The order (in its final form) also included other prohibitions which are not challenged on this appeal: a restraint against association with other alleged gang members (save for the appellant's brother), against using violence and against engaging in abusive, threatening or intimidating conduct.
9. By the order under appeal, the Judge declined to discharge the September orders varied them in part.
10. The appellant sought permission to appeal from the judge's order complaining that the evidence adduced, largely derived from police intelligence (scored by them in the well-known national categories of reliability), was insufficiently cogent to found the grant even of an interim injunction and that the orders sought against the appellant were far too wide, in that they restrained activity of a nature far beyond that evidenced by the activities in which the appellant personally was alleged to have been engaged.
11. On oral application for permission to appeal, Christopher Clarke LJ refused permission on grounds 1 and 2 of the grounds, relating to the quality of the evidence, but granted permission on grounds 3 and 4, relating to the extent of the orders made against the appellant and against the power of arrest (added to the orders under section 36(6) of the Act).
12. The present appeal came before this court on 25 September 2015. We were initially informed in the papers delivered prior to the hearing of the appeal that a final hearing of the substantive application for final injunctions was to be heard over a period of 5 days commencing on 30 September or 1 October 2015. This seemed to render the appeal largely academic. However, when the appeal was opened, by Mr Stark for the appellant, we were told that that final hearing had been adjourned, save for dealing with two preliminary matters, a public interest immunity application and an application by the appellant that the judge assigned to the case should recuse himself from determining it. It was said that the substantive hearing may now not be listed until March 2016 – a matter which gave us both, I think, some concern.
13. We were not referred at the hearing to a judgment of Kerr J of 14 July 2015 made in this case. That judgment was only drawn to our attention on 5 October 2015 when a copy of it was delivered with additional submissions on behalf of the appellant. The judgment was given on the trial of a preliminary issue which had been directed by Turner J on 15 December 2014. The issue was whether the provisions of part 4 of the 2009 Act were compatible with article 6 of the European Convention on Human Rights. As Kerr J put it, he was required to determine whether the present proceedings under the Act amount to "the determination of … any charge against" the respondents to them. In his judgment of 14 July 2015, he decided that the proceedings were not in respect of a criminal charge and that the relevant provisions were not incompatible with the Convention. We are told that the judge gave permission to appeal and that the resultant appeal is to be heard on 23/24 February 2016.
14. In his additional written submissions, Mr Stark relies upon certain observations of Kerr J in the course of the July judgment. To those submissions, Mr Cohen has responded. I will consider the points arising later in this judgment.
15. The principal argument raised by Mr Stark for the appellant in his careful original submissions, made both orally and in writing, is that the learned judges below were wrong to have imposed injunctions upon the appellant based upon gang activity outside the range of the specific activities alleged against him personally or going beyond what the evidence showed was arguably the nature of his participation in the gang's business to date.
16. Mr Stark also makes detailed criticism of some of the individual aspects of the orders (to which I shall return). However, to my mind, many of these points also turn upon the main submission that such orders could not properly go beyond prohibiting conduct of type in which the appellant was said to have indulged to date. He also argues that the power of arrest was unnecessary and disproportionate in the context of this case. The arrest power, he submits, should not be imposed automatically in cases such as this and that was, in effect, what the judges below did in this case.
17. Mr Stark argues that the powers under this Act should be applied in the same manner as those enabling courts to impose other public protection measures, such as anti-social behaviour orders ("ASBOs"), anti-social behaviour injunctions ("ASBIs") and football banning orders, under other legislation. He says that the powers under those Acts are directed to the restraint of activities for which the individual respondent is shown to have been responsible, without reference to the past or anticipated behaviour of others. Mr Stark submits that, apart from the reference to "gangs", the legislation here is constructed in much the same way as the enactments governing those other powers and is focused upon what is necessary to prevent "the respondent" and not others engaging in the offending behaviour. The argument was supported by Mr Stark by reference to certain provisions of the statutory guidance issued by the Secretary of State under section 47 of the Act. In particular, we were referred to paragraph 7 of that guidance where the following is to be found:

"7. Drafting the terms of the proposed injunction

Applicants may apply for any reasonable prohibition or requirement, provided that it does not:^[2]

- conflict with the respondent's religious beliefs; or

- interfere with the times, if any, at which the respondent normally works or attends any educational establishment.

In deciding upon which prohibitions and requirements to include, it is good practice for applicants to consider the following:

- Does the evidence show that the prohibitions and requirements are necessary to prevent gang-related violence or protect the respondent from gang-related violence?

- Are they targeted at the needs and behaviour of this particular respondent?

- Are they enforceable?

- Are they clear, concise and easy for the respondent and partners to understand?

- Do they have any implications for the respondent's human rights?

- Will they have the effect of protecting and reassuring the public?

A draft of the proposed gang injunction terms must be included in the N16A application form, which should include all proposed prohibitions and requirements, their duration and any powers of arrest to be attached. Applicants will need to be prepared for the court to examine each prohibition and requirement, and will need to be able to justify how each of these is necessary to prevent the respondent from engaging in, encouraging or assisting gang-related violence or to protect the respondent from such violence."

18. Mr Stark took us to two cases under the ASBI and ASBO jurisdiction in which this court (in its civil and criminal divisions respectively) has pointed out the need to frame the order only in terms as are "necessary" in the circumstances of the case and only as is justified by the evidence. The references were to Manchester City Council v Lee [2004] 1 WLR 349 and R v Boness & others [2006] 1 Cr App R(S) 690. In the Lee case (at [38]) Mummery LJ said this:

"38. Careful consideration needs to be given by the court in each case to the scope of the injunction which is justified by the evidence. In the exercise of its discretion the court must ensure that the injunction granted is framed in terms appropriate and proportionate to the facts of the case. Thus, if the judge finds that there is a risk of significant harm to a particular person or persons it would usually be appropriate for the injunction to identify that person or those persons, so that the respondent knows the circumstances in which he might be in breach of the injunction, and liable for contempt of court if he caused a nuisance or annoyance to them in the future. "

In Boness, Hooper LJ (at [28] and [29]) said,

"28. We turn to the requirement that an order can only be made if it is necessary to protect persons in any place in England and Wales from further anti-social acts by the offender. Following a finding that the offender has acted in an anti-social manner (whether or not the act constitutes a criminal offence), the test for making an order prohibiting the offender from doing something is one of necessity. Each separate order prohibiting a person from doing a specified thing must be necessary to protect persons from further anti-social acts by him. Any order should therefore be tailor-made for the individual offender, not designed on a word processor for use in every case. The court must ask itself when considering any specific order prohibiting the offender from doing something, 'Is this order necessary to protect persons in any place in England and Wales from further anti-social acts by him?'"

29. The purpose of an ASBO is not to punish an offender (see Lonergan, para.[10]). This principle follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him. The use of an ASBO to punish an offender is thus unlawful."

19. We were also taken to this court's decision in Birmingham City Council v James [2014] 1 WLR 23, a case involving the powers conferred under the present Act relating to gang violence. In that case, the principal issue was whether the Council should have applied for an ASBO since that would have been the more appropriate remedy and would have been less disadvantageous to the appellant because, under the relevant statute, proof was required to the criminal standard, rather than to the lesser civil standard that applies under the 2009 Act. With respect, I found nothing in that case which assisted in the resolution of the current arguments.
20. Finally, Mr Stark referred us to another case concerning ASBOs in support of his submission that, in particular when considering interim orders, the court should apply the principle that, "The more intrusive the order the more the court will require proof that it is necessary that it should be made, and made in the particular form sought…": Moat Housing Group-South Ltd. v Harris & anor. [2006] QB 606 at [61] per Brooke LJ, citing Kennedy LJ in R(M) v Secretary of State [2004] 1 WLR 2298 at [39].
21. As mentioned above, we have now had the additional arguments presented in the light of the judgment of Kerr J in July of this year. Mr Stark has referred us to three passages in the judgment in particular. They appear at paragraphs 58(3), 84-85 and 100 and are as follows.

(1)

"58... (3) Thirdly, and most importantly, the purpose of an injunction granted under section 34 cannot lawfully be punitive (see section 34(3)(a) and (b)). The second condition is that the judge must consider the injunction "necessary" for either or both of the purposes there set out, neither of which is punitive in character. This is not mere semantics. It means that if a judge granted an injunction which, on a fair reading of the judgment and reasoning, was in substance a punishment, that injunction would be unlawfully granted and liable to be discharged or overturned on appeal."

(2)

"84. I accept the point that these injunctions reach a new level of interference with the lives of respondents against whom they are granted, which includes mandatory orders, and that that is provided for in the legislation with only the civil standard of proof and not the criminal standard of proof as the yardstick for the court's determination in the fact-finding exercise.

85. As against that, respondents have the protection of 34(3) which, as I have said, prevents the court from imposing sanctions that are punitive in character and requires the court only to grant injunctions which in its judgment are necessary to promote one or both of the non-punitive purposes of prevention and protection. On balance, and taking all the above into account, it seems to me that I should accept, and I do accept, the submissions of the Chief Constable and the Secretary of State that use of the civil standard does not violate article 6(1) by making the trial of a section 34 injunction application unfair."

(3)

"100. Finally, I endorse the following proposition in Mr Stark's skeleton argument (subject to the point that the world "guilt" is not apt in a preventative and protective, and not punitive, jurisdiction):

"Injunctions cannot be made simply on the basis of a precautionary measure for the general good for to do so risks guilt by association and the imposition of prohibitions on a person's autonomy and liberty that are not justified by the evidence against them.""

22. Mr Stark also refers us to paragraph 99 of Kerr J's judgment in which the judge says that, "It will be important for the trial judge in this case to follow carefully the guidance of Mummery LJ in Manchester City Council v Lee…" which he had earlier quoted and which I have recited above.
23. From these passages from Kerr J's judgment, Mr Stark advances four points:

(1) that they support his argument that the words of section 34(3) must be construed strictly to address the requirement of preventing violence (as he submits) by the respondent to the application and must not be simply punitive;

(2) that they underline the importance in ensuring that there is a fair trial where the standard of proof is the civil standard;

(3) that care has to be given in each case to the scope of the injunction justified by the evidence; and

(4) that injunctions are not to be made simply as a precautionary measure for the "general good" which would import a measure of "guilt by association".

24. Having considered Mr Stark's points, made up to and including the hearing and thereafter, with respect to him, I do not agree with his principal submission. It seems to me that the violence attributed to the gangs in this case could scarcely have been more serious. It appears to have been a matter of serendipity which gang member committed or participated in which gang action. There was good evidence that may in the end establish that the respondents were, to use a well-worn phrase, "in it together" in the operation of the gang's activities.
25. Once it was established, to a sufficient extent on an interim application (and the contrary is not arguable on this appeal in the light of the refusal of permission to appeal on the evidential grounds) that there is a "serious question to be tried" as to whether the appellant was a member of the gang responsible for the violence outlined in the evidence, then the judge was entitled to decline to discharge orders restraining the appellant from engaging in conduct, attributable to the gang as a whole, which hitherto is shown to have been contributory to the violence which is the subject of the proceedings.
26. It was expressly common ground before the judge, and was not in issue before us, that the threshold issue for the court at the interim application stage was whether the applicant had shown that there was "a serious question to be tried" to the effect that that the statutory criteria were satisfied and that, thereafter, the court's discretion arose as to what (if any) order under the Act was appropriate: c.f. American Cyanamid Company v Ethikon Ltd. [1975] AC 396 and see the judgment below at [30].
27. Under section 40 of the Act, it is provided that if the court adjourns a hearing convened on notice to the respondent, the court may grant an interim injunction if it thinks that it is "just and convenient" to do so: section 40(2). On an application without notice, the court may grant an interim injunction if it thinks that it is "necessary" to do so.
28. As I have said, it was common ground in this case that the question for the judge was whether there was "a serious question to be tried" and that was no doubt a convenient approach. However, it may be necessary to consider in due course whether the Cyanamid test provides a suitable yardstick in cases of this type, which are very different in nature to the type of dispute that arises more frequently in the civil courts and to which the Cyanamid case was addressed. However, the point is not in issue before us and I say no more about that for present purposes.
29. However, once the "threshold" for the grant of an interim injunction is crossed, obviously, the judge cannot simply impose, or continue unthinkingly, any injunction, without careful consideration of whether the orders applied for "fit the bill". He must apply his mind conscientiously to the statutory question of whether the precise injunctions are suitable in the particular case, having regard to the ultimate question of whether or not they will be shown to be "necessary" when the case reaches its final hearing. The orders must not be punitive and must be confined by the relevant necessity in the case of each respondent. To this extent, I accept on a limited basis some of the points which Mr Stark seeks to derive from the recent judgment of Kerr J.
30. The judge must obviously also consider the proportionality of the individual orders sought and must not be tempted to act merely upon a police "template" of types of order sought and/or granted in other cases – a trend that is sometimes apparent, for example, in the Criminal Division of this court in relation to Sexual Offences Prevention Orders made under the Sexual Offences Act 2003. Equally, he must have regard to the length of time that the orders may be in place before the final hearing.
31. In my judgment, in the present case, the judges below were amply justified in concluding that an exercise of the power to grant interim injunctions was appropriate on the materials before them and at the particular time when they each had to consider the applications. They were not confined to restraining particular conduct attributed to the appellant in the past. I consider that once one appreciates that it is gang related violence that is targeted by the Act, it is clear that the court is entitled to consider the conduct attributed to the gang as a whole and to impose such orders as it considers appropriate in the case of each alleged gang member. While the court may take the view that it is a matter of chance which aspect of the gang's activities is conducted by which member, it should also take care to consider whether any particular individual might be more appropriately restrained to a lesser extent than others on the facts of a particular case. It may be also that stringent orders that are appropriate at one stage of the pre-trial proceedings have to be varied to some extent as time passes and a trial has still not taken place.
32. In this case, it seems clear that Judge Butler took a similar view to that which I have formed with regard to Mr Stark's principal submission, which I have rejected, and he proceeded to consider the arguments raised as to the precise ambit of the individual orders. I consider that there is no basis upon which we should interfere with the exercise of his discretion on the individual provisions.
33. For my part, I accept the arguments presented by Mr Cohen to us justifying the particular injunctions comprised in the order under appeal which were attacked by Mr Stark. I found, as they were advanced at the hearing, that many of Mr Stark's arguments about the individual orders must fall with my rejection of his main submission, for the reasons already given. It is not, therefore, necessary to say a great deal more about the individual aspects of the order which are under attack by Mr Stark. However, I will set out shortly my views on those points.
34. Mr Stark challenged the need for a curfew on the basis that it was "city wide" and that no evidence implicated the appellant in night-time activity. I accept Mr Cohen's submission that there was evidence of such activity by the gang and that, at least at the time when the case was before the judge, he was entitled to continue the restraint on all the alleged gang members in this way. As for the exclusion zone, this had been drawn by reference to the points within the Deepdale area in which the gang's alleged activity had occurred. The order made allowance for this appellant's own personal circumstances^[3]. As for the restraints on carrying drugs paraphernalia and multiple mobile telephones, it seems to me that the judge was fully entitled to take note of such use by the gang of the classic hallmarks of the illegal drugs trade and to restrain this appellant as an alleged gang member appropriately. The same can be said as to the restraint on being carried with other men in motor vehicles.
35. In my view, on the evidence before him, the learned judge was quite entitled to exercise his discretion in imposing/continuing a power of arrest in this case. This type of gang related violence would require the police to be able to act promptly and in prevention of continuation of the conduct that had clearly plagued this city for some time. The remedy of committal is little comfort and inadequate to meet the evil at which the Act is directed in the very serious type of case that this is alleged to be. This is not to say that in less serious cases the power of arrest should invariably be included in orders of this type. Moreover, it seems to me that the judge in this case may not have concentrated sufficiently (at least in the reasons he gave) upon the distinctly separate question of whether the power of arrest should be included. To that extent, and with respect to the care that the judge obviously gave to his judgment, I think his judgment was deficient.
36. However, in my view, in this case, I would not allow the appeal against the imposition of the arrest power because the inclusion of that power seems to have been amply justified on the evidence in respect of the alleged "gang" as a whole. Further, there was evidence before the judge that this appellant may already have been in breach of the orders, even by the time of the discharge application.
37. For all these reasons, I would dismiss this appeal.

Lord Justice Elias:

38. I agree.

Addendum:

39. A draft order as agreed between Counsel has been submitted which deals with the footnote in paragraph 34 of the judgment.

Note 1   Paragraph 3 Serious Crime Act 2015 (Commencement No. 1) Regulations 2015.    [Back]

Note 2   Section 35(5) of the Policing and Crime Act 2009.    [Back]

Note 3   With regard to this order, concern arose before us as to the use of the words “remaining in the area bounded by…”, which Mr Cohen said was the “ghost” of some drafting done at an earlier hearing before DJ Rouine. All were agreed that this drafting was not of the best and, for my part, I would ask counsel to submit to us an appropriate re-draft for consideration.     [Back]