Business Against Crime schemes, Pubwatch and public law challenges

Referee iStock 000006306507XSmall 146x219The High Court has dismissed a challenge to the role of a local authority in supporting a Business Against Crime scheme. In so doing, writes Philip Kolvin QC, it has strengthened the ability of local authorities to prevent crime in their areas, without exposing themselves to public law challenges.

In R (Mawusi) v Cambridge City Council (D1), Cambridge Constabulary (D2) and Cambridge Business Against Crime (D3), the claimant challenged decisions of the latter organisation to ban him from certain premises, and claimed that the council, which worked with, helped to fund and supported the organisation, should be joined.

The scheme claimed that it was not a body exercising public functions and so should not be judicially reviewed, while the council stated that its involvement did not make the scheme an agent of the council, or give it the role of decision-maker in such a way that public law principles were engaged.

The High Court agreed. Langstaff J gave extended reasons for his decision to refuse permission for the judicial review to proceed:

“Close cooperation between the first and third defendants on the one hand, and the second defendant on the other does not mean that either D1 or D3 is the agent of the police, or vice versa. The fact that the police may be expected to advise individuals or corporate bodies, and the latter might be expected to cooperate with the police in the maintenance of public safety and reduction of crime does not, and cannot mean that the individuals and corporations concerned are exercising public functions in doing so. The decisions which members of D3 make are in their own self interest, and within their private law powers. They need no special power to make those decisions. Accordingly, the close contact between...and the support given by each of D1, D2 and D3 to the other does not even arguably have the consequence that the exclusion notice scheme operated by D3 is amenable to public law. The reasoning of HHJ Mackie QC in R (Boyle) v Haverhill Pub Watch and (1) the Chief Constable of Suffolk Constabulary (2) JD wetherspoon Plc [2009] EWHC2441 (Admin) especially at paras 52 to 56 is compelling in this case just as in that, the decision subject to the application so far as it relates to the CAMBAC scheme and its operation has “…no sufficient public element flavour or character to bring it within the purview of public law…”

D1 on the evidence, holds no personal data on the Claimant relevant to the CAMBAC scheme, has provided none to CAMBAC or its members nor CCTV images. And C in any event has an alternative remedy which is suitable to restrain the misuse of confidential information.

The challenge to D1 funding the CAMBAC scheme is too general: there can be no complaint about a City Council supporting a scheme with the object of reducing or preventing crime. In essence, the real complaint is not about the support of such a scheme, but the support thereby of aspects of the scheme which the Claimant seeks to challenge. This is, therefore, no more than a complaint about the publication of the Claimant’s name and details to ensure that a ban on his entering the Pub and some of commercial premises in Cambridge is maintained. It is unarguable other than that this decision was intended to reduce or prevent further crime. Disclosure to that end is proportionate (in circumstances such as the present) to any supposed interference with Article 8 rights, and is permitted by Section 17 and 115 of the Crime and Disorder Act 1998.

Neither D1 nor D2 made the decision of 26th March 2013 which is complained of. The earlier, allegedly continuing, decision to fund/support D3 gives rise to no relief for the reasons given above as to the true nature of the complaint.

There is no evidence that D2 has provided personal or sensitive data to D3 as alleged, at least since 27th February 2009. This contention in D2’s AOS is not answered by the Claimant’s response paragraph 2 (e): that is unspecific, and gives no particulars of the “close involvement”.

Insofar as the claim relates to the circulation of the information which should not have been disclosed, there is an alternative remedy.”

The case underlines that it is possible for licensing authorities to work with, or even support, organisations such as Pubwatch or Business Against Crime Schemes, without finding themselves pulled into public law challenges. This will be of comfort to licensing authorities who wish to promote such laudable projects without opening up frontiers of legal challenge.

Philip Kolvin QC is a barrister at Cornerstone Barristers. He can be contacted on 020 7242 4986 or This email address is being protected from spambots. You need JavaScript enabled to view it..