England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DISTRICT REGISTRY
SITTING AT PRESTON
(HIS HONOUR JUDGE BUTLER)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 July 2015

1. LORD JUSTICE CHRISTOPHER CLARKE: This is a renewed application for permission to appeal from the order of His Honour Judge Butler sitting as a Deputy High Court Judge made on 26 February 2015 by which he refused to discharge the interim injunction granted under section 40 of the Policing and Crime Act 2009 on the application of the Chief Constable of the Lancashire Constabulary.
2. An injunction had been granted ex parte on 3 September 2014 by District Judge Green and continued by him on 16 September. That injunction was varied by Judge Butler. Permission to appeal was refused on paper by Jackson LJ.
3. The first question is whether the judge was arguably in error in finding that there was sufficient probative evidence against the Appellant, Joshua Murray, to conclude that he had engaged in or encouraged or assisted gang related violence. The application was an interlocutory one so that the threshold question was whether there was a realistic prospect of establishing that the Appellant had been so engaged or had so acted.
4. The gang was said to be called, at any rate latterly, the Deepdale gang. The judge was satisfied that there was sufficient evidence that there was a group that used the Deepdale name and that the Appellant was a member of it. Mr Marcus has submitted that there was wholly insufficient evidence to conclude that the Appellant was a member of such a gang or that there was any realistic prospect of establishing that.
5. The information which was said to show that the Appellant was a member of such a gang was contained principally in police intelligence reports. These reports are graded in particular ways. Firstly, there is a grading for source evaluation.
6. We are concerned with grade B, which is defined as follows:

"Mostly reliable. Information has been received from this source in the past and in the majority of instances has proved to be reliable. This could be the majority of law enforcement and other prosecuting agencies."

7. Then an example is given:

"Information received from police officers, covert human intelligence sources and agencies, e.g. the United Kingdom Immigration Service."

8. There are then gradings for information/intelligence evaluation. Grade 2 is described as follows:

"The information is known personally by the source, but not to the person reporting."

9. Then it is said:

"Information under this grading will be believed to be true by the source, although it is not personally known by the person recording the information. The information is provided second hand."

10. Then an example is given:

"A CHIS giving information which they know of first hand to the person recording the information."

11. Then Grade 3 is described as follows:

"The information is not known personally to the source, but can be corroborated by other information."

12. The explanation then given is as follows:

"Information given may have been received by a source from a third party. Its reliability has been corroborated by other information, e.g. CCTV or other force systems."

13. Then an example is given:

"A CHIS has been told that Michael Brown has been seen driving a car, registration number ABC 123. The PNC checks that Michael Brown is the registered keeper of car registration number ABC 123."

14. Then there is a category 4, with which we are most concerned. Under that category, the description is "the information cannot be judged." The explanatory phrase that follows is as follows:

"The reliability of this information cannot be judged or corroborated. Information with this grading must be treated with caution."

15. The example that is given is of anonymous information received from members of the public that a crime has occurred, but it is not possible to corroborate.
16. Category 4 would appear to include information which has been received by a known source from a third party which has not been corroborated as well as, as the example shows, information from an anonymous source.
17. Reliance was placed by the Chief Constable on three incidents. The first incident derives from a report on 3 June 2013 where seven individuals were reported as having on 28 May 2013 attempted to rob a man in Preston. One of them assaulted him and another threw a bike at him.
18. Then on or around 31 May 2013 the man who had had a bike thrown at him was on Moor Park with his girlfriend when they spotted the group. His girlfriend rang the police and they attended along with the helicopter. The group ran off, but Newsham (he was one of the seven) was arrested.
19. This intelligence was classified as B4. So it comes from a source characterised as mostly reliable who, it would appear, did not witness the incident personally and there was no other corroboration. In that sense, the reliability of the intelligence could not be judged or corroborated.
20. That, Mr Marcus submits, shows that the court cannot treat it as a basis for any finding that the Appellant had engaged in gang related violence. If the police cannot reach a judgment on the information, how, he asks, can the court properly do so?
21. As to that, it seems to me that the question is whether the court could hold that there was a realistic prospect of showing that the information was probably true when it is third hand hearsay from a mostly reliable source.
22. I say third hand because the information derives from X, who must have informed the mostly reliable source who in turn informed the police. The police may be thought unlikely to have misreported what their mostly reliable source said to them. Since the source is mostly reliable, his identity must have been known to the police and it could be thought he is unlikely to have misreported what he had been told by X. X is unknown, but in circumstances where the source himself has mostly been reliable, it must be because he has in the past been a purveyor of reliable information.
23. It seems to me, therefore, that the court is not disentitled to place any reliance on the information reported and that the judge was entitled to hold that there was sufficient information to decide on an interlocutory basis that there was a realistic prospect of the Appellant being a gang member who had engaged in violence.
24. The details of the incident reported involved seven individuals of whom at least five are said to be gang members and four appear frequently in many of the other intelligence reports. This incident alone would suffice to afford a basis for deciding that there was a realistic prospect of establishing that the Appellant was engaged in gang violence.
25. The second matter was a report on 21 September 2013 with a B4 classification of an incident on 20 September 2013 when a man called Ashley Tunstall and an associate assaulted the Appellant and a man called Jack Newsham as part of what is described as the Plungington/Avondale dispute. That is a reference to the dispute between two gangs, Plungington, as the police originally called the Deepdale gang, and the Avondale gang.
26. This report was followed by a further report of 1 October 2013 classed as B3 to the effect that three individuals assaulted the Appellant and left him with a broken arm. The corroboration referred is to the effect that the Appellant, when arrested for possession of a firearm with intent to cause fear of violence, came into custody with an arm in a blue cast.
27. In addition, Police Constable Hague's witness statement records at paragraph 20 that intelligence:

"Suggests that on 20th September 2013 Joshua Murray was assaulted, pistol whipped and had his arm broken in a retaliation attack after a rival dealer, Owen Whitesmith, was taxed of money and a push bike by three members of the gang."

28. He goes on to say:

"Two reported police incidents also corroborate the intelligence around the retaliation attack on Murray."

29. The source of the intelligence in paragraph 20 is not revealed, nor is any classification given to it. Nor, so far as I am aware, were the police command and control logs, to which he referred in paragraph 20, put before the court.
30. In those circumstances, Mr Marcus submits that no reliance can be placed on this information. Whilst I accept the criticisms that can be made of this evidence, it seems to me nevertheless evidence on which the judge was entitled to place some reliance and which he was not bound wholly to ignore.
31. There was, therefore, evidence of another incident which afforded a realistic prospect of establishing that the Appellant was a gang member and engaged in gang violence, in this case robbery. Being the recipient of retaliation is capable of providing evidence of participation in gang activity, at least insofar as there is reason to suppose that the injury inflicted was in retaliation for such activity.
32. The third incident is a report on 8 May 2014 that the Appellant and John Kershaw together with a black male had within the last two days been involved in an altercation with a rival who was taking refuge at a Spar shop in Plungington and who was refusing to come out.
33. This was classified as B3, that is to say information not known personally to the source but corroborated by other information. The corroboration in fact relates to John Kershaw, but is corroborative nonetheless of the incident. However, the intelligence could be said to be B4 so far as the Appellant is concerned. This was, as it seems to me, a third incident on which the court could place some reliance.
34. It was originally said that there was insufficient evidence of a gang as defined in section 34(5) of the Act when there was no evidence that the gang of which the Appellant was alleged to be part described themselves as the Deepdale gang other than in a anonymised telephone call in June 2014 and when there was no evidence that they were known by that name by others.
35. As to that, the evidence of the police was that there was a gang operating in the Plungington area who police officers knew as the Plungy Boys until intelligence provided them with the street name used by the gang, which was the Deepdale gang.
36. The report on 9 June 2014, classified as B2, described six individuals, including the Appellant, who referred to themselves as the Deepdale Gangsters and who continually hung around on Charnock Street, which they referred to as the strip.
37. As to the second point, section 34(5) of the Act provides as follows:

"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."

38. It was at one stage said that "others" did not include the police. Reliance was placed on the as yet unreported decision of Blake J in the Chief Constable of Greater Manchester v Scott Calder [2015] EWHC B11. However, as Mr Marcus accepted, that does not appear to be what Blake J decided. In any event, that was not a case about a gang with a name, but a gang whose defining characteristic was said to be that its members had familial links with each other, which links were appreciated by police with access to intelligence material.
39. The aim must be to identify some characteristic, name, emblem, colour or something else which identifies the gang so that if you see someone wearing the emblem or colour or saying that he is a Deepdale Gangster, you know the gang of which he is a member.
40. Evidence that the gang referred to themselves publicly as the Deepdale Gangsters is, in my view, enough. The gang would thereby be identifying to others, including in particular the members of any rival gang and the people who made reports to the police, that they are a gang with that name.
41. As I have said, the intelligence report of 9 June is to the effect that a number of individuals, including the Appellant, referred to themselves as the Deepdale Gangsters. They were plainly known as such by the source of that report. Further, the whole tenor of Mr Hague's witness statement is that a group calling themselves the Deepdale Gangsters were known within the community as such.
42. Lastly, it is said that the order made by the learned judge was disproportionate in that it went further than was necessary or appropriate to restrain the Appellant having regard to the extent of the involvement that he was shown to have had or possibly to have had in relation to the activities of the gang. Here it seems to me that Mr Marcus, for whose submissions I am grateful, is on stronger ground.
43. The judge took account of the fact that he had found that there was a realistic prospect of establishing that the Appellant was a member of the gang and considered the activities of the gang as a whole in deciding what was the appropriate course to take.
44. However, it seems to me well arguable that that was not an appropriate course to take in that individuals may have different levels of involvement in the activities of the gang and it could be said the Appellant's involvement, if such it was, in the activities of the gang was at a low level such as not to justify some of the prohibitions which were the subject of the order.
45. Those to which these submissions were directed were item 1, which was a curfew from 2200 hours to 0600 hours. It is pointed out that none of the matters in which the Appellant is shown to have been involved by the intelligence occurred at night.
46. Item 2 prohibited the Appellant from remaining in the area outlined in blue, save that he could travel to and from his home address by two separate routes. The submission is that that was a disproportionate restriction having regard to the extent of involvement of this Appellant that the intelligence had shown.
47. Item 4 precluded him from being inside a vehicle in the company of two other males with certain exceptions. It is pointed out that none of the matters in which the Appellant is on the intelligence shown to have had involvement involved his being inside a vehicle.
48. Item 5 precluded him from possessing a snap bag. Item 8 precluded him from being in any public place with more than one mobile phone or phone SIM card. These two latter provisions in the order are directed to prohibiting activity connected with drug dealing. It is pointed out that the intelligence relating to this Appellant did not link him with such activity and that such activity is not of itself violent. The intelligence does not appear to have linked this Appellant with violent activity connected with the supply of drugs.
49. In my view, there is a realistic prospect of persuading the full court that the restrictions to which I have referred were disproportionate. The matter is, of course, to a considerable extent one for the discretion of the learned judge, but in my view, it is arguable that these restrictions went further than could properly be justified.
50. Lastly, it is submitted that the judge erred in law in attaching a power of arrest to provisions 1, 2, 4, 5 and 8 of the amended injunction. The judge dealt with this matter very shortly. It is not wholly apparent which was the basis on which he thought it was necessary or appropriate to attach such a power of arrest. It seems to me arguable that such a power was inappropriate in relation to those provisions.
51. In any event, the question as to whether or not there should be a power of arrest ought to be considered with the whole question as to whether the items in the order of which complaint is made were a disproportionate use of the jurisdiction.
52. Accordingly, for those reasons, I decline to grant permission to appeal on grounds 1 and 2 of the amended grounds of appeal, but I shall grant permission on grounds 3 and 4.