England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre The Priory Courts, 33, Bull Street, Birmingham B4 6DS
		22/06/2018

HHJ WORSTER :

1. On 3 October 2016 I granted an application in proceedings issued by Birmingham City Council for an injunction prohibiting "street cruising" in its local government area; see [2016] EWHC [2389] (QB). The main provision of the order provided that:

(1) All persons are forbidden from participating in a street cruise within the Claimant's local government area (known as the City of Birmingham) the boundaries of which are delineated in black on a map attached …

(2) It is also forbidden for anyone to promote, organize or publicise in any manner, any street cruise within the … [said] area.

A "street cruise" and "participation in a street cruise" were defined in detail in Schedule 2 of that order. The order was limited in duration to 3 years, and a power of arrest was granted pursuant to section 27 of the Police and Justice Act 2006

2. On 30 April 2018 I heard an application to add North Warwickshire Borough Council ("NWBC") as a 2^nd Claimant to proceedings, to amend the Particulars of Claim, and to vary the order I made in 2016 (in effect) to extend it to cover the NWBC's area on the same terms. By a Judgment handed down today I refused that application. The reasons for that refusal are explained in that Judgment, but the essential point was that if an injunction in relation to NWBC's area was to be granted, it should be done in fresh proceedings, rather than by the process of amendment and variation.
3. Prior to handing down that judgment, I circulated a draft, in which I indicated that if fresh proceedings were issued by NWBC, I would be minded to grant an injunction to cover NWBC's area. That view was based upon my consideration of the evidence filed in support of the variation of the Birmingham order. As a result of that indication, NWBC have issued fresh proceedings which have been listed today for hearing relying upon the same evidence (with some additions). As I observed in the course of the Birmingham judgment, the underlying merits of NWBC's case for an injunction to restrain street cruising in its area are strong, and I intend to grant NWBC the injunction it seeks.
4. The purpose of this judgment is to outline the relevant statutory provisions, the safeguards which the courts have built in to orders of this sort, the evidence I have considered, and the findings I make. It is important that there is a record of those matters in a case like this, because the order is made without hearing argument or evidence from those who may be subject to it. The terms of the order make provision for anyone subsequently effected by the order to apply to discharge or vary it, and this judgment forms the starting point for any subsequent reconsideration of the propriety of granting the order.
5. Firstly the jurisdiction to make an injunction of this sort. The basis for the claim is set out in the opening paragraphs of the Particulars of Claim. In summary, NWBC is a local authority within the meaning of section 270(1) of the Local Government Act 1972 and section 8(1) of the Localism Act 2011. It is also a local highways authority within the meaning of section 1(2) of the Highways Act 1980, and a responsible authority within the meaning of section 5(1) of the Crime and Disorder Act 1998.
6. An authority falling within these definitions has certain statutory powers. The first of relevance is section 222(1) of the 1972 Act, which provides that:

(1) Where a local authority consider it expedient for the promotion or protection 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 civil proceedings, may institute them in their own name, and

(b) they may, in their own name, make representations in the interests of the inhabitants at any public inquiry held by or on behalf of any Minister or public body under any enactment.

7. The power is one which is to be exercised by reference to the interests of the inhabitants of the local authority's area. The application of the section was considered by the Court of Appeal in Birmingham City Council v Shafi [2008] EWCA Civ 1186. The Court of Appeal concluded that the court did have jurisdiction to grant injunctive relief to restrain gang members from breaches of the criminal law or from causing a public nuisance, but considered it would be wrong in principle to do so because the conduct complained of could be restrained by the grant of an Anti-Social Behaviour Order; see in particular paragraphs [44]-[45] and [59]-[60].
8. That objection in Shafi does not prevent an order being made in this sort of case, for the simple reason that it is far from clear whether an ASBO (or its statutory successor under the 2014 Act) would be available. HHJ Oliver-Jones QC came to that conclusion when he granted Birmingham a car cruising injunction in earlier proceedings brought in 2010. At paragraph 15 he distinguished Shafi on the facts. That approach was approved and adopted by HHJ Owen QC when he granted similar orders in favour of the four Black Country authorities in 2014, and Solihull MBC in August 2016. I expressly agreed with and followed that approach when granting the Birmingham order in October 2016.
9. The second provision of relevance is section 130 of the Highways Act 1980. Section 130 is headed "Protection of public rights" and provides that:

(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.

(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.

(3) Without prejudice to subsections (1) and (2) above, it is the duty of a council who are a highway authority to prevent, as far as possible, the stopping up or obstruction of—

(a) the highways for which they are the highway authority, and

(b) any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.

(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any roadside waste comprised in a highway for which they are the highway authority.

(5) Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient.

The terms of this duty are defined by reference to the highways for which the authority is the highway authority.

10. By section 6(1) of the 1998 Act:

(1) The responsible authorities for a local government area shall, in accordance with section 5 …and with regulations made under subsection (2), formulate and implement—

(a) a strategy for the reduction of crime and disorder in the area (including anti-social and other behaviour adversely affecting the local environment); and

(b) a strategy for combatting the misuse of drugs, alcohol and other substances in the area; and

(c) a strategy for the reduction of re-offending in the area.

11. Section 1 of the Localism Act 2011 confers a general power on a local authority to do anything that individuals with full capacity can do. In addition, section 37 of the Senior Courts Act 1981 provides that

(1) The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks fit

Those sections provide a proper statutory basis for the court to grant orders of this sort.

12. Secondly the safeguards built in to the order. The application is made against "persons unknown". The courts have recognised that an action may be properly constituted even though the Defendant is not named, and that it may be appropriate to make an order against "persons unknown" in certain circumstances; see Bloomsbury Publishing Group Ltd and Rowling v News Group Newspapers [2003] 1 WLR 1633. What is necessary is that the description used must be sufficiently certain so as to identify those who are included and those who are not. One of the problems that local authorities have faced when attempting to use other statutory powers to control street cruising is the difficulty in identifying Defendants. That is not because there are no "Defendants" - the evidence in this and other similar applications establishes without doubt that "persons unknown" regularly engage in causing this public nuisance. It is because at this stage they cannot be identified.
13. In addition to the need for certainty referred to in Bloomsbury, care needs to be taken to ensure that the order is no wider that is necessary, and that it is proportionate. All those matters involve attention to the definition of "participating in a street cruise", for that defines the "persons" who are caught by the terms of the order. The definition adopted by NWBC in this case is the same as the definition used in the October 2016 Birmingham order. That in turn was the definition used by HHJ Owen QC when he granted the Solihull order. HHJ Owen QC was astute to ensure that the definition was as tight as it could be, and I gratefully adopt his approach to that matter.
14. As in the Solihull and Birmingham cases, the order provides for service by alternative means. These are set out in Schedule 3 to the order, and include (i) placing signs in prominent locations throughout NWBC's area, and in particular in the locations identified as problem areas in the Particulars of Claim, (ii) press releases, and (iii) posting a copy of the order on the Council's website, Facebook page and Twitter account, on selected social media sites, YouTube and on local police Facebook and Twitter accounts. My experience of hearing a number of committal applications in relation to these orders is that the roadside signs are particularly effective. No doubt these can be co-ordinated with and be in like terms to the signs used by the neighbouring local authorities who have injunctions in force (Birmingham and Solihull). There will be a delay in the order coming into effect whilst those steps are completed.
15. For the sake of clarity I should emphasise that whilst paragraph 6 of the order is couched in terms of alternative service, it is not intended to bypass the requirement on any future committal application to prove that the Defendant knew of the order when he or she participated in a street cruise. The essence of committal for breach of a court order such as this is that the Defendant has wilfully disobeyed the Court. If he or she did not know of the court's order, then even if by their conduct they participate in a street cruise, they should not be held to be in contempt. To commit them to prison in such circumstances would be unjust.
16. As I indicated earlier in this judgment the order has a mechanism by which a person served with a copy of it can challenge its propriety. Once again the terms are the same as those used in the Solihull and Birmingham orders:

Any person served with a copy of the Order may apply to the Court to vary or discharge it on 48 hours written notice to the Claimant.

Such a right is probably implied into an order such as this in any event, but it assists if it is expressed on its face.

17. Having considered those safeguards. I turn relatively briefly to consider the evidence relied upon by NWBC. Given the connection between the Birmingham order from 2016 and this application, NWBC have referred to the nature of the problem as found in the Birmingham area. NWBC's area is smaller, but the nature of the problem in NWBC's area and the effects it has on its residents are comparable. I summarised the evidence in the Birmingham case in this way:

The central attraction at these events is people racing cars and motorbikes on the highway. It is an activity which attracts not only those who come with vehicles to take part, but spectators, and some undesirable criminal and other unlawful activity, ranging from drug dealing to dropping litter. The danger the racing creates is all too well known, and is no doubt its attraction for some. The consequences for those who take part, or watch or just get caught up in the events and their aftermath can be terrible. But even without the dangers presented by fast cars and bikes racing each other, the noise and nuisance the activity causes to those who live in the neighbourhood, or wish to use the public highway for lawful purposes are readily apparent.

18. In addition NWBC have filed witness statements setting out the nature and scale of the problem in its own local authority area. In particular there are statements from the Assistant Chief Executive of North Warwickshire BC and from the Police Officers who oversee the North Warwickshire West and North Warwickshire South beats. The Police officers give details of the history of this problem and the incidents they have witnessed and which have been reported to them in recent years. It is apparent from their evidence that the problem of street cruising on the highways in NWBC's area is a significant one. I also have a witness statement from David Bird, an employee of BCC who coordinates its response to street cruising, but who lives in NWBC's area. He has witnessed the problem at first hand. In addition Cllr Reilly's statement emphasises the potential effect these events would have on construction work for HS2.
19. The problem is particularly acute around the border between NWBC's area and Birmingham's. Two major roads – the A446 and the A38 - run along or near that boundary, and the A446 crosses in and out of both areas. The other major roads where the Police have reported problems in NWBC's area is the A5, which is a straight fast road which runs across NWBC's area from one side to the other, and the M6 Toll motorway. One aspect of the problem is that street cruises cross local authority boundaries. One benefit of the granting of this order is that it will remove the potential for doubt as to which part of these roads are caught by an injunction.
20. The evidence I have read and relied upon remains on the Court file. It is available to anyone affected by this order, and if necessary can be reconsidered on any subsequent application to vary or discharge. On the basis of that evidence I find that NWBC have made out its case for the injunction it seeks. Such an order is necessary to control the problem of street cruising, which is not effectively restrained by the use of criminal law sanctions. Whilst the problem is focussed in particular parts of NWBC's area, it is neither practical nor desirable to limit the scope of the injunction. If activity is banned in one area, the risk is that it will be displaced into others, just as the Black Country injunction displaced the problem into other areas where there was no injunction.
21. Whilst an order such as this involves a limitation on the freedoms of those who use the roads and attend these "events", much of the conduct it covers is unlawful of itself, and is tortious. Moreover the injunction is framed so that it only bites when the effect of that conduct crosses a defined threshold. It is plainly a proper use of the statutory powers NWBC have to make the application. The aims of the order are to make the highways safer, to reduce crime and public nuisance, and to protect and promote the interests of its inhabitants. This order is a proportionate interference with the rights of those who engage the various activities which go to make up street cruising.
22. The issues affecting NWBC are part of a wider problem. Mr David Bird (someone with a long-standing and well-informed appreciation of these matters) has given evidence in this application and in others about attempts to co-ordinate the approaches of local authorities, and to encourage central government to legislate for the problem. The popularity of these events amongst some is apparent from the number of people who are arrested and brought to court and made subject of committal orders. The effect street cruising has on residents and law-abiding users of these roads is self-evident. The use of the civil courts provides a remedy of sorts, but there is very considerable force in the points Mr Bird makes.
23. The order will run for 3 years, and may be renewed on application. There will be a review after 18 months. As with the Birmingham injunction, a power of arrest will be attached to the injunction in relation to any person participating in a street cruise who is a driver, rider or passenger in a relevant vehicle; in other words those playing an active role rather than simply spectating.