Westminster City Council was under a duty to comply with the public sector equality duty (PSED) when it applied for an anti-social behaviour injunction against individuals gathering in a square in London, the Central London County Court has ruled following a preliminary hearing.
An interim injunction has been in force in Maida Hill Square since January 2021 and includes a ban on "disorderly behaviour" such as shouting, playing loud music, using foul language or verbal abuse, and prohibits the consumption of alcohol.
Anyone suspected by police to have breached the interim injunction is liable to arrest under section 4 of the Anti-social Behaviour, Crime and Policing Act 2014 and section 27 of the Police and Justice Act 2006.
However, lawyers for Ernest Theophile, who plays dominoes at the square, argue that the injunction is likely to be indirectly discriminatory because the majority of people who congregate in the square are (and are known to the council to be) Afro-Caribbean.
Mr Theophile argued that the council had a duty to comply with the PSED, which requires local authorities to have due regard to eliminating discrimination, advancing equality of opportunity and fostering good community relations when they exercise their functions.
Westminster City Council denied they were required to consider equality issues when they applied for the injunction.
Her Honour Judge Baucher concluded: “I find that the terms of the 2010 Act [the Equality Act 2010] are clear and the PSED applies to the exercise of “all” of the claimant’s functions. Further that an application for an injunction under the 2014 Act is any event a public function.
“In making an application for an injunction pursuant to s1 of the 2014 Act the claimant was required to have regard to the PSED.”
Mr Theophile, who moved to Maida Hill from Dominica as a child, said that it is a part of his culture to spend time playing dominoes and backgammon with other West Indian men in his community.
He said: "Lots of people who I know at the square have mental health difficulties and are socially isolated, but they know that when they come to the square, they can relax by sitting on the benches and chatting to other people. It keeps us healthy."
Despite the community being important to him, he has avoided the square because he did not want to be arrested, "and I certainly did not want to risk going to prison".
Mr Theophile's solicitor, Anne McMurdie of Birnberg Pierce, said: "There has been a complete failure by Westminster City Council to recognise and comply with the equalities obligations owed to the West Indian community. Instead, the council rushed to draconian measures by seeking an injunction backed up by a power of arrest, which could have seen my client sent to prison."
At a hearing fixed for June Mr Theophile will ask the court to dismiss the council's injunction application on the basis that it had failed to have due regard to its equalities obligations.
A spokesperson for Westminster City Council said: "This is the first time that we have been asked to apply equalities law when applying for an injunction which is why we had previously not sought one.
"We maintain and continue to believe that our actions have always been in the best interests of local residents who have been plagued by anti-social behaviour and criminality.
"Over the past few months we have had more than 200 complaints about activities taking place near people's homes and businesses.”
It added: "However, the council is reviewing its approach to this case with the new administration looking to find a solution that works for the whole community."
The hearing on the injunction itself is due to take place in around late August or early September. The judgment is expected to be handed down in mid-September.