Birmingham City Council v Mr Shakeel Afsar

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Warby
Judgment Date18 June 2019
Neutral Citation[2019] EWHC 1560 (QB)
Date18 June 2019
Docket NumberCase No: F90BM116

[2019] EWHC 1560 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Warby

Case No: F90BM116

Between:
Birmingham City Council
Claimant
and
(1) Mr Shakeel Afsar
(2) Ms Rosina Afsar
(3) Mr Amir Ahmed
(4) Persons Unknown
Defendants

Jonathan Manning (instructed by Birmingham City Council) for the Claimant

John Randall QC and James Dixon (instructed by Safaaz Solicitors) for the First to Third Defendants

Hearing date: 10 June 2019

Judgment Approved by the court for handing down

(subject to editorial corrections)

If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.

Mr Justice Warby
1

This case is about a protest which has been carried on outside a primary school, Anderton Park School (the “School”), against aspects of the teaching at the School. The case involves a conflict between a number of important civil rights, some of them fundamental human rights. The case will have to go to trial. This judgment follows an interim, pre-trial hearing on Monday 10 June 2019. At that hearing I gave directions for the case to be tried before the end of July. I then heard an application by the first to third defendants, for the discharge of injunctions that had been granted at a hearing without notice on 31 May 2019, and an application by the claimant to continue those injunctions until after judgment at the trial.

2

At the end of the hearing, I announced my decision. I granted the defendants' application for discharge of the existing injunctions, with costs, on the grounds of failures to comply with the duty of full and frank disclosure owed by those who seek injunctions without giving notice to other parties. But I upheld the claimant's application, and granted fresh interim injunctions, so that protection remains in place pending trial, with costs. I did so on the basis that the claimant was likely to succeed at trial in showing that restraint on the way the protests were being conducted was justified. I said that my reasons would follow. These are those reasons.

The factual background: outline

3

The protest involves parents of pupils at the school, relatives of theirs, and other individuals opposed to some of the ways the school is teaching its pupils. It began on or about 18 March 2019, and has been going on for a number of weeks, attracting a degree of publicity. The focus of the protest has been the teaching of matters relating to sexual behaviour, sexuality, and gender. The named defendants and, it would appear, a significant proportion of the protestors are of the Muslim faith, advocating what some have described as the “conservative values” of their community.

4

At the end of May, Birmingham City Council applied to Court for an injunction to restrain aspects of this protest. There were four named defendants. The first three were individuals, Shakeel Afsar, Rosina Afsar and Amir Ahmed. The fourth defendant was “Persons Unknown”, a category designed to cover persons interested in protesting at or near the school. The application was prompted by what the Council saw as an escalation in the protests, particularly in the last week of the first half of term. It was made without notice to any of the defendants. It was heard on the last day of the half-term break, Friday 31 May 2019, in the Interim Applications Court in London, by Moulder J, DBE. The Judge granted orders against all of the defendants.

5

In summary, the injunctions against the named defendants contain (1) an exclusion zone order, prohibiting entry into an area around the School (2) a prohibition on conduct which harasses, alarms or causes distress to others (3) a ban on approaching staff of the school or witnesses in the case (4) & (5) prohibitions on the use of social media to offend or abuse teachers, and (6) a ban on otherwise engaging in or encouraging others to protest within the exclusion zone. The precise terms of the injunction granted against the second defendant are set out in Appendix A to this judgment. It contains exceptions reflecting the status of the second defendant as the mother of two children at the School. The orders against the first defendant (brother of the second defendant) and the third defendant (an organiser of the protests) were in the same terms, but without those exceptions. They did contain the exception allowing access to the mosque. These Orders were made pursuant to the Local Government Act 1972 (s 222), and the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) (s 7).

6

The terms of the injunction granted against Persons Unknown are set out in Appendix B. They reflect paragraphs 5 and 6 of the orders against the named defendants, with the addition of a prohibition on “engaging” in protest. These orders were made pursuant to the Local Government Act 1972 (s 222), Highways Act 1980 (s 130), and the Localism Act 2011 (s 1). This injunction order had a Schedule containing provisions as to service. Service was to be effected by placing signs informing people of the Order and the area in which it has effect “in prominent locations along the boundary” of the exclusion zone, at the School entrances, in a newspaper, on the Council's website, Facebook page, Twitter account and other social media.

7

The injunctions were served on the named defendants on Monday 3 June 2019. I have no evidence of this, but I take it that the signs and other notices in respect of the Persons Unknown injunction were put up, posted, published or circulated the same day, 3 June. The following day, Tuesday 4 June 2019, the Council applied for and obtained an extension of the exclusion zone, at a hearing before Moulder J which was again conducted without notice to any of the defendants.

8

All the orders were expressed to “continue until the hearing of the claim unless previously varied or discharged by further Order of the Court”. But each order provided that it should “in any event, be reconsidered at a further hearing at 10.30 am on 10 June 2019 at the Birmingham Civil & Family Justice Centre, Priory Law Courts, 33 Bull Street, Birmingham B4 6DS.”

9

At that hearing, before me, Mr Manning on behalf of the Council applied to continue the injunction until trial. Mr Randall QC appeared with Mr Dixon for the first three defendants, to resist that application and to seek the discharge of the order granted by Moulder J, on the grounds of material non-disclosure. These applications gave rise to three main issues for decision: (1) Should the existing order be discharged? (2) Regardless of the answer to that question, what if any injunction should be granted pending the trial of the claim? (3) What directions are required in order to ensure that the case is resolved swiftly, expeditiously and fairly?

10

A fourth issue arose for my consideration: what if any injunction should be put in place for the future against Persons Unknown? I was bound to address that issue as a matter of principle, despite the fact that nobody appeared at the hearing to identify themselves as the, or a, fourth defendant, or a representative of any Person Unknown.

The legal context

Substantive law

11

Section 1 of the 2014 Act allows the Court to grant a final injunction if (a) the court is satisfied, on the balance of probabilities, that the defendant has engaged or threatens to engage in anti-social behaviour and (b) considers it just and convenient to grant the injunction for the purpose of preventing the defendant from engaging in anti-social behaviour. Section 7 allows the court to grant an interim injunction pending a final hearing if it “thinks it just to do so”. This power is available on a without-notice application (s.7(1), (3)-(4)). Anti-social behaviour is defined by s 2(1), to encompass conduct “that has caused, or is likely to cause, harassment, alarm or distress to any person”, or is “capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises.”

12

These provisions, like those of any statute, must be interpreted and applied in conformity with the Convention, and other statutory provisions. The rights to protest, to associate with others for that purpose, and to express one's religious views, are all aspects of the fundamental human rights protected by the Convention and the Human Rights Act 1998 (“ HRA”). They are rights safeguarded by Articles 9, 10 and 11 of the Convention. Article 2 of the First Protocol (“A2P1”) is also relevant, or at least arguably so, insofar as it requires the state to respect the right of parents to ensure that education and teaching is in conformity with their own religious and philosophical convictions. There would seem to be an overlap here with the right to respect for one's private and family life, protected by Article 8.

13

On the other side of the argument lie the right to education, the right to impart and receive information and opinions with which others may disagree, and the right to respect for one's private life: articles 8 and 10 of the Convention, and A2P1. The court must act compatibly with these rights: s 6 HRA. Also relevant are the civil rights of citizens to be free from threatening behaviour, unwarranted harassment, or conduct that unjustifiably causes alarm or distress. These are protected by Article 8 and by domestic law, including the statutory provisions I have cited above.

14

These competing rights are engaged in the context of a dispute over issues of social, political, and educational policy. But I repeat what I said at the hearing: it is no part of my role, at this stage of the case, to decide any question about the rights and wrongs of the views expressed by the protestors. Not only is this not the trial, it does not seem to me to be an appropriate legal vehicle...

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