Gang injunctions, ASBOs and the closest fit

May 23, 2013

The Court of Appeal handed down an important ruling recently on applications for gang injunctions. Jonathan Manning and Sarah Salmon explain the judgment.

In Birmingham City Council v James [2013] EWCA Civ 552 the Court of Appeal has held that, on an application for a gang injunction, it is not necessary to prove that the defendant’s acts were done with the intention of promoting gang-related violence; nor was it necessary for the court to ask itself whether an ASBO would provide an appropriate alternative remedy.

In future cases, the Court of Appeal should not be invited to trawl through the legislation providing different remedies in some quest for the “closest fit”.

Background

Section 34 of the Policing and Crime Act 2009 (the “2009 Act”) – introduced following the Court of Appeal’s decision in Birmingham CC v Shafi [2008] EWCA civ 1186; [2009] H.L.R. 25 – provides that a court may grant an injunction if two conditions are met:

(i) that the court is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence (s.34(2));

(ii) that the court thinks it is necessary to grant the injunction to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence and/or to protect the respondent from gang-related violence: s.34(3).

A gang injunction may prohibit the respondent from doing, and/or require the respondent to do, anything described in the injunction: s.34(4). Gang-related violence is defined within the statutory provisions as “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 three 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;

An injunction may not include a prohibition or requirement that will have effect for more than two years from the grant of the injunction, and the court may order the applicant and the respondent to attend a review hearing (or hearings) on a specified date (or dates) to consider whether the injunction should be varied or discharged. A review hearing must be held if any prohibition or requirement is to have effect for more than one year: ss.36(2)-(5).

The court may attach a power of arrest in relation to any prohibition in the injunction, or any requirement in the injunction, other than one which has the effect of requiring the respondent to participate in particular activities (s.36(6)).

The authority’s application

The appellant had been involved for many years with gangs in Birmingham loyal to the “Johnson Crew”. On 4 January, 2012, the authority applied for a gang injunction against him in response to increasing concerns about public safety following an incident on 29 December, 2011, when a lone gunman had fired a machine gun in the street at the appellant and an associate, as they attempted to enter a friend’s house. Both men were shot several times and were seriously injured.

On 5 January 2012, an interim injunction was made against the appellant on a without notice basis which was subsequently continued until trial. On 19 October, 2012, HHJ Worster granted a final injunction with power of arrest. In relation to the first condition of s.34, the judge found that one incident satisfied the statutory criteria, namely that on 7 August, 2011, at the Handsworth Carnival in in Handsworth Park, the appellant with a group of around 30 other men, all wearing items of blue clothing (blue being the colour of the Johnson Crew) was seen walking across the park by police officers.

Handsworth Park is within the territory of the main rival gang, Burger Bar gang, and there were other groups of youths present affiliated to the Burger Bar gang. A gun was fired during the incident, albeit not by someone within the appellant’s group, which caused members of the public to break into panic and run.

The judge found as a fact that: the size of the group, its obvious allegiance to the Johnson Crew and the deliberate route through Burger Bar territory all demonstrated that this was a premeditated visit intended to be a show of force and a threat of gang-related violence. The judge found that an order was necessary to prevent the appellant from engaging in or encouraging or assisting in gang-related violence and to protect him from such violence. The terms of the injunction, including an exclusion zone that incorporated his mother’s home, were necessary and proportionate.

The appellant appealed to the Court of Appeal contending, inter alia, that (a) the acts to which section 34(2) refers all require ‘mens rea’, i.e. an intention to promote gang-related violence or recklessness as to whether it would be promoted, and that there was no evidence that the appellant deliberately encouraged violence at the carnival; (b) the judge was wrong to hold that it was necessary to grant an injunction, because an alternative remedy which was a “closer fit” was available i.e. an Anti-Social Behaviour Order (“ASBO”) under the Crime and Disorder Act 1998; (c) an injunction imposing restrictions on the appellant contrary to his wishes in order to protect him from gang-related violence would infringe his right to respect for his private life and offend against the principle of personal autonomy; and, (d) the exclusion zone incorporating the appellant’s mother’s home placed limits on the appellant’s freedom of movement which were too restrictive.

The Court of Appeal

The Court of Appeal dismissed the appeal. The judge was entitled to find that the actions of the group at the carnival constituted a threat of gang-related violence and the statement of defiance which those actions represented was made by all those involved acting as a body. The appellant, as one member of that group, was actively and deliberately engaged in gang-related violence together with all the others.

It was unhelpful to introduce the concept of mens rea into section 34(2). Although the section was clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it was possible that in some cases it could apply to certain kinds of conduct which could be said to amount to inadvertent encouragement.

The ASBO and gang injunction regimes were directed at two very different social problems. It cannot have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. In principle, it was right that where a defendant’s conduct falls within both pieces of legislation the authority would be entitled to make an application under whichever it considered the more convenient or appropriate but, in any event, the court was unable to accept that an application under s.34 was inappropriate in this case.

At first instance, the court can, of course, hear submissions on behalf of a defendant as to whether a less draconian order would be appropriate and the judge may direct that an application may be made either to a different court or for a different remedy from that which is claimed. On such an application, the judge may exercise his powers under s.1B, Crime and Disorder Act 1998, to make an ASBO in the course of principal county court proceedings. There is no “closest fit” principle, however, which cuts down the court’s statutory powers to make pre-emptive orders and the Court of Appeal in future should not be asked to trawl through the various statutory regimes to find the closest fit.

This was not a case where an injunction was sought solely to protect the appellant. The court left open the question of whether or not such an injunction would be appropriate. The judge was entitled, on the evidence before him, to impose the terms he did including the exclusion zone. The court would not interfere with the judge’s decision unless it was clear that he proceeded on a clearly inappropriate basis or that his decision was for some other reason plainly wrong. There were no grounds for criticising the terms of the order made.

Jonathan Manning and Sarah Salmon are barristers at Arden Chambers. They appeared for Birmingham City Council in this case.