ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Mr Justice Burton
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE UNDERHILL
LORD JUSTICE IRWIN
| JEROME JONES
|- and -
|BIRMINGHAM CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Manning and Ayesha Omar (instructed by City Solicitor, Birmingham City Council) for the Respondent
Samantha Broadfoot Q.C. and Yaaser Vanderman (instructed by Government Legal Department) for the Secretary of State
Hearing dates : 24-25 April 2018
Crown Copyright ©
Sir Brian Leveson P :
The Background to these Proceedings
"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."
"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 intimate 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 covers a not insubstantial part of the centre of Birmingham. Further, the court ordered that a power of arrest under s. 36(6) of the 2009 Act (as amended) applied to paragraphs 1-4 of the order and that it should continue until 4.00 pm on 12 July 2019 with a review on 21 June 2018.
"(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 the unlawful production, supply, importation or exportation of a controlled drug.
"Production", "supply" and "controlled drug" here have the meanings given by section 37(1) of the Misuse of Drugs Act 1971."
"(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 s. 8(2)."
"(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.…"
"it is true that the consequences for respondents against whom injunctions are granted may be grave and may include, for example, curfews, a ban from specific locations and other substantial interferences with their lives including a positive requirement to undertake particular activities."
A Criminal Charge
"On a true analysis, the order for Mr Guzzardi's compulsory residence was not a punishment for a specific offence but a preventive measure taken on the strength of indications of a propensity to crime…. According to the Commission, it must follow from this that for the purposes of sub-paragraph (a) [of Article 5(1)] did not constitute detention after conviction by a competent court.
In the court's opinion, comparison of Article 5(1)(a) with Articles 6(2) and 7(1) shows that for Convention purposes there cannot be a 'condemnation' (in the English text conviction) unless it has been established in accordance with the law that there has been an offence – either criminal or if appropriate disciplinary. Moreover, to use conviction for a preventive or security measure would be consonant neither with the principle of narrow interpretation to be observed in this area … nor with the fact that the word implies a finding of guilt."
"It is the Court's established jurisprudence that the second and third criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as 'criminal' from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the 'criminal' sphere."
"None the less, the classification of proceedings under national law is one of three relevant considerations ("the three factors") to which the ECtHR always has regard when deciding whether or not article 6(2) is engaged. The second is the essential nature of the proceedings and the third is the type and severity of the consequence that may flow from the proceedings, usually described by the ECtHR as "the penalty that the applicant risked incurring". These three factors, and some of the jurisprudence in which they feature, were identified by Kerr LCJ in Walsh v Director of the Assets Recovery Agency  NICA 6,  NI 383, at para 20, where he observed that they tend to blend into each other."
"Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order. I would reject AF's contrary submission. This reflects the approach of the English courts up to now: A v Secretary of State for the Home Department  EWCA Civ 1502,  QB 335 para. 57."
The Standard of Proof
"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).
"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 were made."
"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."
"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 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."
"The views on standard of proof expressed in Briggs-Price by members of the House were obiter but the application of the common ground in the views of Lord Phillips, Lord Brown and Lord Mance leads to the following conclusion. The commission by the appellants in the present case of criminal conduct from which the property that they held was derived had to be established according to the civil and not the criminal standard of proof. For the reasons that I have given that remains my conclusion. It is a conclusion which, prior to Geerings, appeared to be firmly founded on the decision of the Privy Council in McIntosh v Lord Advocate  UKPC D1;  1 AC 1078. In my view that foundation is unshaken.
i) although both can be made in order to prevent specific future conduct, injunctions under s. 34 can also be made to protect the individual himself from gang-related activity;
ii) injunctions under the 2009 Act can only be imposed for a maximum of two years and require review;
iii) under the 2009 and 2014 Acts an injunction can include mandatory rehabilitative requirements whereas an ASBO could only contain prohibitions;
iv) breach of a gang or Part 1 injunction is not a criminal offence and the consequences are different.
"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, 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 Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking."
Lord Justice Underhill :
Lord Justice Irwin :