Boys, toys and injunctions
Earlier this month a group of local authorities in the Black Country obtained a ground-breaking injunction banning car-cruising. Joseph Giret QC and Anya Newman explain what was involved.
On 1 December 2014, HHJ Owen QC sitting as a High Court judge in Birmingham granted an injunction prohibiting an activity known as car cruising across the entire Black Country region. Dispensing as it did with personal service, it tore up the original template for this type of injunction and, responding to the unique circumstances that the four Black Country Metropolitan and City Borough councils were facing, permitted a more sensitive and workable solution to the real problem presented to the business and local community at large by so called car cruising.
Car cruising; a historical perspective
Car cruising is not a new phenomenon. It was described and defined thus in 2010, by HHJ Oliver-Jones QC when granting an injunction sought by the Birmingham City Council against Persons Unknown, prohibiting car cruising, this same definition being adopted by HHJ Owen QC who said “I gratefully adopt the learned judge’s definition which is on all fours with the description given by the witnesses [in this case] at paragraph 3 of his judgement, as follows:
“..‘Car Cruises’ are.....in essence, events [which] attract the drivers of cars, including what are colloquially known as ‘Boy Racers’, who show-off to crowds of ‘car cruise’ supporters by racing their cars and performing driving stunts and time trials. The vehicles that are used include high performance cars and cars which have been modified in terms of their power. The activities in which drivers engage are noisy, dangerous and illegal, obstructing highways and the premises bordering them, damaging property and putting spectators or other road users at risk of injury or worse. They attract those to whom such anti social behaviour is an excuse, if they need one, for other types of anti social behaviour including the harassment and intimidation of law abiding citizens, the threatening and abuse of those who challenge them and the activities in which they are not engaging , the use of foul language and misuse of drugs. By its very nature, those attending car-cruising events, whether as drivers, passengers or spectators will vary from day-to-day and event-to-event. However, the total number of attendees will regularly run to several hundred people. They are attracted by advertising on the Internet and in magazines, as well as word of mouth”.
However, it has not just sprung up out of the blue. Machines have always found people who wish to explore their limits, whether on sea, lakes or on land: rallying, circuit racing, or indeed street racing such as you still find in the famous TT events on the Isle of Man. The desire to show off and compete, machine against machine, is as compelling as it is historic.
There is in America, a so called media franchise, which includes a series of action films principally featuring illegal street racing. The first film, “The Fast and Furious” was screened in 2001, and a seventh is planned for 2015. No matter that the participants are law breakers racing on the highways, just as so called car cruisers do, it is entertainment and justified therefore.
One year earlier however, the very thing that the film was feting, was the subject of a report which appeared in The Independent newspaper written by journalist Ian Burrell, Home Affairs correspondent, on 21 March 2000: he said
“Police are becoming increasingly concerned at the popularity of “car cruising” where thousands of testosterone fuelled young men gather each weekend on industrial estate car parks to “burn out”, “handbrake” and “doughnut” their high-powered vehicles. The trend....has rapidly expanded across Britain in recent months.....John Sootheran of Max Power magazine, the bible of the boy racer said the cruising scene had become “huge”. He said “Its the race scene of the millennium, Its underground, its illegal – and thats half the attraction”.
Wikipedia gives an up to date definition [as at 7 December 2014] and description of the cruises advising “the final destination of the cruise is often kept secret; it is known only to the convoy leaders in an attempt to keep the cruise unknown to the police, until there are a large enough numbers of people at the cruise to make it difficult to disperse”.
The last reference then supplies a telling insight into how all and any attempts “to head a cruise off at the pass”, so to speak [it may well be that this very phrase, my own, has already been put into the mouths of the American cops by the screenwriters in the Fact and Furious films, but not having seen any of them I can’t say for sure] and any attempts to prevent them are doomed to fail using ‘simple’ and the usual law enforcement measures.
Anya Newman explains the unusual aspects of this application:
Just under a year ago I was approached by a solicitor who had a problem: his local authority along with three others, together known as ‘The Black Country’ were experiencing the full effect of car cruising and its associated issues. Car cruising, for those fortunate enough not to have encountered it is a phenomenon in which usually hundreds but possibly thousands of people with, largely, modified cars, meet at public locations up and down the country to show off their vehicles, race each other, perform stunts and generally pretend that they are Vin Diesel in their very own Hollywood Blockbuster. The car cruises take place on public roads at the same time that everyone else is trying to use them. It doesn’t take much to imagine the effects of such an activity: road traffic collisions, injuries, intimidated residents, noise pollution, littering, drug usage, graffiti, road blockages, the list goes on and on.
The Black Country local authorities were interested in seeking a High Court injunction in order to try to prevent these car cruises from causing their residents further misery. They came to me because I had obtained one of these in the past but the Black Country injunction contained several unusual challenges.
Displacement: The local authorities were concerned that their areas were bound together by several dual carriageways. These, they found were prime targets for the cruisers who could use them to race side by side. In addition, these arteries provided ready made getaway routes so that if the police arrived at the scene of a cruise, it could easily be moved to another part of the Black Country. Indeed the authorities had evidence of cars registered in Birmingham and beyond travelling to cruise in their arears. Therefore to solve this problem the local authorities wanted a Black Country-wide injunction, in other words a High Court injunction on a scale never before attempted.
Enforcement: The previous car cruising injunctions had had a good deterrent effect however, the Black Country authorities wished to be able to actively enforce their injunction. In the past, the injunctions have required local authorities to serve individual car cruisers and make a record of their names on a list which can be interrogated when future cruisers were stopped, if someone who has already been served with the injunction was caught for a second time then a committal application could be brought.
As one can imagine, this caused problems. Not least because there were potentially hundreds of people to serve and the police did not necessarily have the resources to undertake large-scale ‘service’ operations but also because this approach relies on accurate information being given to the police, something which was not always the case. Finally there is the unattractive proposition that this service mechanism gives the cruisers ‘one free cruise’, not something which any local authority wanted to allow! With this in mind, the Black Country authorities wanted to dispense with personal service, a safeguard which was considered crucial in what is considered a signal case in car cruising injunctions, Birmingham City Council v Persons Unknown [2010].
Arrest: Finally, the Black Country authorities wished to give the police the power to be able to arrest cruisers on the spot, thus giving the injunction real teeth.
Add to the above requirements the fact that there were over 100 witnesses and allegations dating back many years and all in all, it was a tall order. However, this is how it was achieved…
Joseph Giret QC describes how he first approached this unique application:
As someone with experience of driving fast and furiously, on race tracks I hasten to add, and as a classic car admirer, the attraction to cruisers of showing off is not lost on me. I was initially then in theory entirely sympathetic to people who simply wished, or so I erroneously assumed before reading, to show off.
My first and immediate concern on being told what type of instructions and goal I had been retained to assist in delivering was the human rights dimension and whether what was being sought was a proportionate response.
Sad person that I must be, I wasn’t aware of the “Fast and Furious” series of films and hadn’t certainly been aware of the phenomenon of car cruising. That said it took one read through of the Particulars of Claim to comprehend the awful severity of the consequences of the cruising; to businesses, residents and not least, the authorities themselves with a sadly measurably depreciating asset on their hands; there has been a decreasing appeal to businesses and house buyers of moving into any of the affected areas [Wolverhampton, Dudley, Sandwell, and Walsall]. This consequence was not fanciful, and had been supported by the available evidence. In terms of a dire forecast for the future well being of the Black Country, car cruisers it would appear were doing their utmost to destroy any optimism let alone future aspirations of most law abiding people, and to make it as miserable as possible for any present ones.
There were originally 107 witness statements from affected parties, and by the time of the full application another 30.
The depth of feeling and anger that cruising generated across the Black Country was immense; as was a feeling of helplessness and gloom that everyone who had been exposed to the antics of car cruisers had felt, not least the councils concerned and the police forces working with them through local policing units.
The problems, sought to be addressed hitherto by ad hoc responses to individual “hotspots” by obtaining injunctive relief, confined to one “hotspot” at a time, would not go away.
Any injunctive remedy was bound to fail if approached on this ad hoc basis, and was therefore no remedy at all, a toothless device in effect.
Laughing no doubt at the police attempts to solve the problem, the solution by displacing to another “hotspot” must have been at least as funny to the participants as the illegal road races themselves, or so it would arguably appear.
During the hearing itself, I was tempted, so to be sure of getting across to the learned judge that the measures sought were proportionate, and moreover “just and convenient”, to make reference to either (a) the “Peace for our time” speech of Neville Chamberlain where his waved piece of paper was supposed to be Britain’s solution to the prospect of war with Germany [the Munich agreement], rather like an injunction, the agreement turning out to be of no value whatsoever, or (b) the Hans Brinker tale of the little Dutch boy who plugged a dike with his finger; each or either could be a worthwhile analogy I thought; however the judge needed very little persuading whether the ‘coverage’ issue or the ‘service’ issue had been properly raised, telling me I was knocking at an open door, so I thought it best to stop talking and close the door behind me, sadly not referring to either in the event.
How the application was tackled:
The Naughty List
Anya and I firstly drew up a list of categories of nuisance, our so called ‘naughty list’, which accurately represented the gravamen of the nuisances, as follows:
- Criminal offences;
- Impact on police resources;
- Impact on residents;
- Danger to children;
- Environmental impact;
- Economic loss;
- Impact on A+E and Hospital resources.
It seemed important to us at the time we were preparing for the application, that we needed to convey the real gravamen as set out in the list of eight nuisances above, as it went to the issue of proportionality. Moreover whether granting the injunction on a “quia timet” basis so as to include, not only actual “hotspots”, but potential “hotspots” as well [see above Anya’s “displacement issue”], by making the defined area the entirety of the Black Country was “just and convenient”. [Redland Bricks Ltd v Morris [1970] A.C. 652 [per Lord Upjohn]
Dealing with 137 statements
The logistics of presenting 137 witness statements, each representing evidence of one of the four claimant boroughs, and then to present with absolute clarity for the judge, within each borough’s evidence, which of the eight identified nuisances were being addressed was challenging, not least as some witness gave evidence of several of these nuisances, yet it had to be presented to the judge issue by issue for simplicity's sake.
So we arranged the materials into nine separate bundles in the end, to fairly demonstrate at a glance which issue and which area was being dealt with and where to find the supporting evidence; not easy but we found a great solution; a solution which worked and surprised us, or at least me by how effective it was, and easy to use.
We also supplied four statements, that in effect defined the evidence underpinning the entire application and which we called the ‘overarching executive summaries’. The purpose of these was in reality to supply all that the learned judge needed to read; they came from one of the involved Police Inspectors, a leader from one Anti Social Behaviour Team, a leader from one council’s Community Safety Team and Development Officer, and our instructing solicitor Adam Sheen, and they each undertook to represent the views of all of the respective boroughs. We served hearsay notices to accompany each as a belt and braces assurance to the judge that they were, each of them, competent witnesses when deposing to other people’s points of view.
Emphasising the gravity of the cruises
To equate the antics of car cruisers to typical “Fast and Furious” type activity, characterising it as simple “boy racing”, does the general public, the authorities and the police services a disservice.
We felt we needed to get away from this generalised and token description by emphasising the real gravity of offending.
HHJ Owen-Jones QC in his summary got it exactly right, which is why the learned judge in our case simply deferred to it; the civil and criminal wrongs committed tell only a fraction of the story, as the reality is assuredly that the legacy of these events, as evidenced in the many witness statements, is nasty, costly, and frankly disgraceful, since it affected everyone from the healthy to the elderly, the child to the uniformed officers who all felt helpless to allay the concerns of both affected residents and big businesses. These businesses, including Johnson Controls, were on occasion unable to have deliveries made because of the sometimes shocking verbal and physical attacks on its drivers.
What amazed us was the depth and breadth of the concerns, not least extending into the area of the welfare of young children whose teachers were reporting a drop in performance as a result of the loss of sleep.
I would have really valued a forensic accountant’s overarching assessment of the losses to the general public and businesses over the relevant period that this application was concerned with 2013 to 2014. The true cost is something that would amaze most people, myself included, and including the participants, though I suspect they might take real pleasure in seeing this, given the comment referred to above by the then editor of the magazine Max Power, whereas most others I would I suspect be sad that so much money, better spent on hospitals, schools and regeneration of industry to create jobs, had been expended on this vainglorious pursuit. However, this was not with a view to presenting it as evidence, simply abatement of my own curiosity.
Dispensing with Personal Service
The ‘service’ issue was not something that bothered me as much as Anya, who felt it was ‘big ask’ of the court given the position in Birmingham City Council v Persons Unknown. I was confident we would get the order.
I felt that the imperative was to address the reality that the police were dealing with law breakers and that it would be difficult enough expecting the police to obtain accurate names and addresses for personal service, let alone being able to later identify at any one car cruise any person who had been served with the injunction for the purposes of commencing contempt proceedings; it was quite simply unrealistic, and would defeat the whole purpose of the injunction. Anya in fact had a more down to earth take on this stating that it was a charter, had personal service not been dispensed with, for all cruisers to have at least “one free ride”, which was a great and lovely point to make. Clearly Anya has worked hard for everything she has achieved in life, as indeed have all us who work in this profession, and her loathing of anyone getting “something for free”, a free car cruise even, is entirely understandable, so we rightly I think made this point in our skeleton argument.
Compliance with any concept of fairness let alone human rights and Article 6 rights [to a fair trial] involved persuading the court not only as to the above but also that it would be virtually impossible for someone to claim lack of knowledge of the existence of this injunction. This was then our next task.
Article 6 addressed
Our solution was to present it as being analogous to a CPR Part 55 trespass scenario and build on it. In the end, we dispensed with the use of ‘stakes in the ground’ or the like, instead devising a host of “steps” that we would implement before the injunction, though granted, would be effective, and not before. Once the steps, twenty six in all, had been taken, then it was made to be part of the order that a witness statement should be supplied to the court confirming their implementation. The 26 “steps” involved a number of different broadcasting methods, ranging from [and only by way of examples] media use including You Tube, Facebook etc, to leaflets being supplied with newspapers, projections of the message onto the adjacent walls of present “hotspot” locations and displaying a notice on a van to be driven around.
Obtaining a Black Country Wide Order
Ultimately this was a case of providing the court with evidence, clearly presented, which demonstrated that car cruises really were ‘moving’ around the area. This was done in two main ways: firstly by reference to one of the detailed, overarching witness statements which illustrated several incidents that had been set out within the body of the main witness statements; and secondly by presenting to the court a large map [1;60,000] with ten clearly marked ‘hotspot’ areas on it. The latter made it easy for the court to see the network of roads linking up the hotspots and therefore to recognise how easy it would be for the cruises to move through the Black Country area. One seemingly simple task, that of convincing HHJ Owen QC that the cruisers would likely use social media on their mobile phones to inform each other of the changing locations, appeared to be more difficult than envisaged, embracing as it does all that goes with the use of smart phones. However it appears that this was an accepted part of the modern age in communications that the court needed to factor into its relevant considerations. In addition the argument was run, that there was really no reason to protect residents in hotspot areas but leave vulnerable those residents who lived further down the road who had not yet had to deal with the full force of the cruises. Once these guiding and cardinal submissions had been made, and then coupling them to the other ‘displacement’ arguments run [see above], the order was granted protecting the whole area.
Power of Arrest
Similarly to the scale of the injunction, obtaining the power of arrest followed swiftly once the evidence had been drawn together for the court. The Judge acknowledged that the psychological harm caused to locals by the cruises came well within the definition required. The Injunction Order now has a mirror power of arrest for those who are driving or being carried in the offending vehicles.
In conclusion
It was not the law which was problematic, though we presented authorities to the court and plainly had to make the running in our Particulars of Claim and skeleton arguments as to jurisdictional matters. This application was mostly about clear presentation, and being undaunted by the terms of previous car cruising Injunctions, arguing instead that as the world evolves and changes necessitating alterations to the approaches of the court and the finding of relevant solutions for changed times, here was a situation which made unique demands of the courts equitable jurisdiction to grant injunctive relief in a unique but relevant, and proportionate way [Mercedes-Benz AG-v- Leiduck [1966] 1 A.C.284].
Joseph Giret QC and Anya Newman are barristers at St Ives Chambers, Birmingham, and acted for the councils involved in obtaining the injunction.
