Birmingham City Council v Harun Mansoor Sharif
| Jurisdiction | England & Wales |
| Judge | McKenna |
| Judgment Date | 23 May 2019 |
| Neutral Citation | [2019] EWHC 1268 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C90BM249 |
| Date | 23 May 2019 |
Neutral Citation Number: [2019] EWHC 1268 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
HIS HONOUR JUDGE McKenna
(sitting as a Deputy High Court Judge)
Case No: C90BM249
Jonathan Manning Counsel (instructed by Kate Charlton, City Solicitor, Legal & Democratic Services) for the Applicant
R de Mello Counsel (instructed by McGrath & Co.) for the 16 th Respondent
Hearing date: 8 th May 2019
APPROVED JUDGMENT
HHJ
Introduction
On 3 rd October 2016, His Honour Judge Worster, sitting as a Deputy Judge of the High Court granted to Birmingham City Council (‘The Applicant’) an injunction against persons unknown (‘the Injunction’) pursuant to section 37(1) of the Senior Courts Act 1981, section 1 of the Localism Act 2011, section 222 of the Local Government Act 1972 and section 130 of the Highways Act 1980.
The Judge attached a power of arrest to the Injunction pursuant to section 27 of the Police and Justice Act 2006.
The Injunction came into force on 24 th October 2016 and is due to expire at midnight on the 24 th October 2019.
The Injunction and power of arrest were designed to tackle the problem of car cruising within the City of Birmingham. It is one of a number of orders made in similar terms which have been granted by various Judges in this Court to various local authorities all of which have been designed to tackle the widespread problem of car cruising in the West Midlands.
The Committal Application
The Applicant alleges that on 16 th September 2018 Harun Mansoor Sharif, the 16 th Respondent, breached the terms of the Injunction by participating in a car cruise within the area covered by the injunction causing danger and/or nuisance to other road users by racing his black Audi A5 motor car registration number RF63HBJ against another vehicle at excessive speed and dangerously. He was arrested and brought before the Court. On the 27 th September 2018 the Applicant served a committal notice dated 27 th September 2018 and supporting documents on the 16 th Respondent.
The Application to discharge
By an application notice dated 31 st January 2019, the 16 th Respondent seeks to have the Injunction discharged on the basis, it is said, that it was plainly wrong to have granted it and/or on the ground that there was an error of principle in the reasoning which led to its grant.
The application is supported by a witness statement dated the 3rd May 2019 from the 16th Respondent's solicitor, Mr Robinson. For the sake of completeness, I record that the 16th Respondent has also filed a statement denying knowingly breaching the terms of the Injunction and he also relies on a further statement from Isaac Braich, a surveyor, which exhibits photographs of signage relating to the Injunction. Neither of those witness statements are relevant to the application to discharge the Injunction.
The Injunction
Paragraph 1 of the Injunction provides as follows:
“1. All persons are forbidden from participating in a street-cruise within the Claimant's local government area (known as the City of Birmingham) the boundaries of which are delineated in blue on a map attached to this Order at Schedule 1.”
The terms “street cruise” and “participating in a street-cruise” are defined in Schedule 2 of the order which is in these terms:
“ Street-Cruise”
1. “Street-Cruise” means a congregation of the drivers of 2 or more motor-vehicles (including motor-cycles) on the public highway or at any place to which the public have access within the Claimant's local government area (Known as the City of Birmingham) as shown delineated in blue on the map at Schedule 1, at which any person, whether or not a driver or rider, performs any of the activities set out at para.2 below, so as, by such conduct, to cause any of the following:
(i) excessive noise;
(ii) danger to other road users (including pedestrians);
(iii) damage or the risk of damage to private property;
(iv) litter;
(v) any nuisance to another person not participating in the street-cruise.
2. The activities referred to at para.1, above, are:
(i) driving or riding at excessive speed, or otherwise dangerously;
(ii) driving or riding in convoy;
(iii) racing against other motor-vehicles;
(iv) performing stunts in or on motor-vehicles;
(v) sounding horns or playing radios;
(vi) dropping litter;
(vii) supplying or using illegal drugs;
(viii) urinating in public;
(ix) shouting or swearing at, or abusing, threatening or otherwise intimidating another person;
(x) obstruction of any other road-user.
“Participating in a Street-Cruise”
3. A person participates in a street-cruise whether or not he is the driver or rider of, or passenger in or on, a motor-vehicle, if he is present and performs or encourages any other person to perform any activity, to which “paras. 1–2” above apply, and the term “participating in a street-cruise” shall be interpreted accordingly.
Paragraph 5 of the Injunction provides:
“Any person served with a copy of this Order may apply to the Court to vary or discharge it, on 48 hours written notice to the Claimant”
Service of the Injunction was effected by placing notices in newspapers, online and in prominent locations throughout the City of Birmingham.
Statutory Background
Section 1 of the Localism Act 2011 confers a power on the Local Authority to do anything that individuals, with full capacity, generally may do, in anyway whatever and unlimited by the existence of any other power of the authority which to any extent overlaps the general power.
Section 222 of the Local Government Act 1972 confers power upon a local authority to prosecute, defend or appear in legal proceedings, and to institute civil proceedings in its own name, where the Authority considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area.
Section 111 of the Local Government Act 1972 confers a power upon a Local Authority to do anything which is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions.
By Section 130(1) and (2) of the Highways Act 1980, it is the duty of the highway authority (in this case, the Applicant) to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it. In addition, any council may assert and protect the rights of the public to the use and enjoyment of any highway in their own area for which they are not the highway authority (including any roadside waste which forms part of it).
It is also the duty of the Highway Authority to prevent, so far as possible, the stopping up or obstruction of the highways for which they are the highway authority and any other highways if in their opinion the stopping up or obstruction of that highway would be prejudicial to the interests of that area.
In the performance of their functions under section 130(1) to (3) a council may institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient (see section 130(5)).
Public Spaces Protection Orders
Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’) introduced new powers for community protection including the Public Spaces Protection Order (‘PSPO’).
PSPOs replaced designated public space orders, gaiting orders and dog control orders.
The 2014 Act contains the following material provisions:
“59 Power to make orders
(1) A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.
(2) The first condition is that—
(a) activities carried on in a public place within the authority's area have had a detrimental effect on the quality of life of those in the locality, or
(b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.
(3) The second condition is that the effect, or likely effect, of the activities—
(a) is, or is likely to be, of a persistent or continuing nature,
(b) is, or is likely to be, such as to make the activities unreasonable, and
(c) justifies the restrictions imposed by the notice.
(4) A public spaces protection order is an order that identifies the public place referred to in subsection (2) (“the restricted area”) and—
(a) prohibits specified things being done in the restricted area,
(b) requires specified things to be done by persons carrying on specified activities in that area, or
(c) does both of those things.
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—
(a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or
(b) to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.
(6) A prohibition or requirement may be framed—
(a) so as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;
(b) so as to apply at all times, or only at specified times, or at all times except those specified;
(c) so as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.
(7) A public spaces protection order must—
(a) identify the activities referred to in subsection (2);
(b) explain the effect of section 63 (where it applies) and section 67;
(c) specify the period for which the...
To continue reading
Request your trial
-
Birmingham City Council v Mr Shakeel Afsar
...Civ 1186 [2009] 1 WLR 1961 [36], [45] and [59]. A similar argument was advanced by Mr de Mello in Birmingham City Council v Sharif [2019] EWHC 1268 (QB) and rejected by HHJ McKenna (sitting as a Deputy High Court Judge). I share the view expressed by Judge McKenna at [27] that the argumen......