Birmingham City Council v Gavin James The SEcretary of State for the Home Department (Intervener)

JurisdictionEngland & Wales
JudgeLord Justice Moore-Bick,Lord Justice Jackson,Lord Justice Maurice Kay
Judgment Date17 May 2013
Neutral Citation[2013] EWCA Civ 552
Docket NumberCase No: B2/2012/3144
CourtCourt of Appeal (Civil Division)
Date17 May 2013

[2013] EWCA Civ 552

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BIRMINGHAM COUNTY COURT

His Honour Judge Worster

2BM01021

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

(Vice-President of the Court of Appeal, Civil Division)

Lord Justice Moore-Bick

and

Lord Justice Jackson

Case No: B2/2012/3144

Between:
Birmingham City Council
Claimant/Respondent
and
Gavin James
Defendant/Appellant

and

The SEcretary of State for the Home Department
Intervener

Mr. Ramby de Mello and Mr. Trevor Browne (instructed by Shelter (West Midlands)) for the appellant

Mr. Jonathan Manning and Miss Sarah Salmon (instructed by Birmingham City Council) for the respondent

Mr. Duncan Atkinson (instructed by the Treasury Solicitor) for the intervener

Lord Justice Moore-Bick
1

This is an appeal against an order made by His Honour Judge Worster granting the respondent, Birmingham City Council (“the Council”), an injunction under section 34 of the Policing and Crime Act 2009 against the appellant, Gavin James. The injunction prohibits the appellant from entering a prescribed area of the city (save for certain limited purposes) and from associating with 19 named persons or gathering with them in any public place within the city. It also requires him to engage, and to maintain engagement, with The Centre for Conflict Transformation in relation to the drawing up of a programme of activities for him to undertake. A power of arrest has been attached to the order.

2

For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. In some cases gang members wear clothing of a distinctive type or colour as a mark of membership. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

3

Birmingham suffers from the activities of two main urban street gangs, the ‘Johnson Crew’ and the ‘Burger Bar’, each of which has a number of subsidiary or affiliated gangs. The Johnson Crew is based in the Newtown area of the city, the Burger Bar in the Handsworth area. The Johnson Crew is associated with the colour blue.

4

In the past the Council has attempted to make use of its powers under section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 W.L.R. 1961 this court held that section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The court held that although it is possible in some circumstances to obtain an injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an Anti-Social Behaviour Order (“ASBO”).

5

The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the court's decision in Birmingham City Council v Shafi. Section 34 gives the court power on the application of chief constables or local authorities to grant injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities. It provides as follows:

34 Injunctions to prevent gang-related violence

(1) A court may grant an injunction against a respondent aged 14 or over under this section if 2 conditions are met.

(2) The first condition is that the court is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence.

(3) The second condition is that the court thinks it is necessary to grant the injunction for either or both of the following purposes—

(a) to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence;

(b) to protect the respondent from gang-related violence.

(4) An injunction under this section may (for either or both of those purposes)—

(a) prohibit the respondent from doing anything described in the injunction;

(b) require the respondent to do anything described in the injunction.

(5) In this section “gang-related violence” means 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 3 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

(c) is associated with a particular area.”

6

The appellant grew up in Newtown and his mother still lives there, although he does not. It was the Council's case that he was a senior and influential member of the Johnson Crew or one of the subsidiary gangs affiliated to it. On 17 th April 2011 the appellant had been stabbed in the thigh while waiting for a friend to be released from detention, that attack being carried out by way of some form of gang-related reprisal. On 29 th December 2011 he and one of his associates had been the victims of a gang-related shooting in Aston, in the course of which they were both hit by a number of bullets fired from an automatic weapon. The Council sought to establish that the appellant had been involved in one way or another in gang-related violence on a number of occasions, but in the end the judge was satisfied that he had been engaged in, or had encouraged, gang-related violence on only one occasion when he and a group of about 30 other young men, all wearing some item of blue clothing, had gone to a carnival in Handsworth Park, deep in Burger Bar territory, on 7 th August 2011.

7

The judge referred to the evidence of a number of police officers who were present in Handsworth Park at the relevant time. He recorded that one of them, P.C. Rose, had said that she had seen a large group of black men walking in the park and recognised the appellant among them. She said that the group walked to the centre of the park with the appellant in the middle surrounded by about 30 men, each wearing some sort of blue clothing. Her impression had been that they were protecting the appellant and walking “like a pack”. On the basis of that and other evidence the judge was satisfied that the appellant had been in the park on the afternoon of 7 th August 2011 and that is not now disputed. What is disputed, however, is whether on that occasion he engaged in or encouraged gang-related violence. Mr. Manning for the Council submitted that the presence of the group in the park in the heart of Burger Bar territory itself constituted a threat of gang-related violence.

8

The judge expressed his conclusion in the following terms:

“106. That evidence satisfies me that Mr James was indeed in Handsworth Park on the afternoon of the Carnival on 7 August 2011. I do not accept the evidence from Mr James and his father that he was not there. He had told PC Barton he was going in no uncertain terms. He would not have missed the opportunity. The Carnival was in Burger Bar territory. Mr James was part of a group of men who were affiliated to the Johnson Crew, and a number of the officers speak of there being members of the Burger Bar in the Park, and of the tension there was. The group deliberately walked through the Park. They were not there for the communal activities of a Carnival. The size of the group, its obvious allegiance and the deliberate route through Burger Bar territory demonstrate that this was a premeditated visit…

109. What else could it be but a threat of violence? It is a show of force, extreme bravado, a demonstration that Mr James and his associates are not afraid of the Burger Bar. It is deliberately provocative. It is all those things, but it is also a statement that the group are ready and looking to fight. In the context of one gang marching into the territory of another it is unnecessary for there to be one aggressor and one victim. The one gang is there to attack and/or to provoke and to respond to an attack from the rival gang. Mr James' group presented an aura of menace; that is what he and the others in the group intended and that is how their presence and intent would have been understood by those affiliated to the Burger Bar.”

9

In the event, that was the only occasion on which the judge found that the appellant had engaged in or encouraged gang-related violence, but if that finding is sustainable it was sufficient to satisfy the requirement of section 34(2) and open the way to the grant of an injunction if the judge thought that it was necessary to do so for either of the purposes set out in subsection (3). Having referred to various factors, including the prevalence of gang culture in Birmingham, the concerns of the police and others about the appellant's involvement in it, his powerful personality, which made him a leader rather than a follower, and his previous unwillingness to comply with supervision and court orders, the judge had no difficulty in concluding that it was necessary to grant an injunction both to prevent Mr James from...

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  • Jerome Jones v Birmingham City Council Respondent
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