Birmingham City Council v Mr Shakeel Afsar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 26 November 2019 |
| Neutral Citation | [2019] EWHC 3217 (QB) |
| Date | 26 November 2019 |
| Docket Number | Case No: F90BM116 |
| Court | Queen's Bench Division |
[2019] EWHC 3217 (QB)
Mr Justice Warby
Case No: F90BM116
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Civil Justice Centre, The Priory Courts
33 Bull Street, Birmingham B4 6DS
Jonathan Manning and Clara Zang (instructed by Birmingham City Council) for the Claimant
Ramby de Mello and Tony Muman (instructed by JM Wilson Solicitors) for the First to Third Defendants
Paul Diamond and Thomas Green (public access barristers) for the Fifth Defendant
The Fourth Defendants did not appear and were not represented
Hearing dates: 14–18 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I. INTRODUCTION
This is a claim for injunctions to restrict street protests about a school, and to prohibit online abuse of teachers at that school (“the School”). The School is Anderton Park Infant and Junior School in Birmingham, a maintained school which teaches children between the ages of 4 and 11. It is a large school with approximately 700 children on the roll, half girls and half boys. The majority of the children are of British Pakistani heritage, though there is a sub-set of Romanian children. The claim is brought by Birmingham City Council (“the Council”). It arises from objections raised to aspects of the teaching at the School, and seeks to curtail some of the ways in which those objections have been expressed. At the centre of the case is the School's teaching, or what has been said to be its teaching, of “LGBT issues”. That is a rather broad-brush label to which I shall have to come back, because clarity and precision matter in this case. But let me adopt it for the time being. In broad terms, the question for decision is what if any restrictions should be placed on what can be done and said by parents and others who wish to criticise the School's behaviour in relation to the teaching of LGBT issues.
II. THE HISTORY IN OUTLINE
From about mid-March 2019, there have been frequent and regular protests or demonstrations outside or near the School about the teaching, or what was said to be the teaching, of LGBT issues at the School. Abusive messages have also been posted on social media and online. The protests have continued for some 7 months.
I shall address some of the detail of the protests later, but it is appropriate to mention now some of their most extreme manifestations. Speakers at street protests outside or near the School have alleged that it is pursuing “a paedophile agenda”, and teaching children how to masturbate. Leaflets have alleged that the School is providing “LGBT sexual education”. Videos have accused the School of bringing in gay teachers to teach children about anal sex, and allowing convicted paedophiles into the school. The Council maintains that all of this is utterly false. It has called evidence to make good that assertion. There is no evidence to the contrary. None of the defendants who are represented before me has challenged these aspects of the Council's case, which I find are clearly proved. The defendants' case is that they are not responsible for these extreme and untrue characterisations of the School's behaviour.
The focus of the claim is not, however, on the content of the protests. The Council has not sought, and is not seeking, to restrict what the protestors say in the street. On 29 May 2019 the Council issued a Part 8 claim form seeking injunctions to restrict the way these protests were carried on. The Council's case was that the protests involved nuisance and disruption. It also complained of what it said was unacceptable abuse of teachers on social media. It relied on the provisions of the Local Government Act 1972, the Highways Act 1980, the Localism Act 2011 and the Anti-Social Behaviour, Crime and Policing Act 2014. The Council sued four defendants: three individuals — Shakeel Afsar, his sister Rosina, and Amir Ahmed — and “Persons Unknown”. Ms Afsar is the mother of two children both of whom were at the School at the time. Mr Afsar is the brother of Ms Afsar. Mr Ahmed is a member of the local community. Neither Mr Afsar nor Mr Ahmed is a parent.
On 31 May 2019, the Council applied for an immediate injunction pending trial. The application was made in London, without notice to the defendants. Moulder J granted the injunctions sought. These had five main aspects. The orders prohibited (1) entry into a designated area around the School (“the Exclusion Zone”); (2) conduct which harasses, alarms or causes distress to others; (3) approaching staff of the school or witnesses in the case; (4) & (5) the use of social media to offend or abuse teachers, and (6) otherwise engaging in or encouraging others to protest within the Exclusion Zone against the “teaching of equalities” at the School.
On 4 June 2019, on the application of the Council, Moulder J enlarged the Exclusion Zone. The injunctions had exceptions to allow Mrs Afsar to take her children to and from the School, and to allow all the first three defendants to attend a mosque within the Zone. Persons Unknown were subject to injunctions of types (2) and (4).
On Monday 10 June 2019, there was a hearing in Birmingham to decide whether there should be injunctions pending the trial of the action. I heard applications from both sides. I set aside the existing injunctions on the grounds of material non-disclosure by the Council at the hearings before Moulder J; but I granted fresh interim injunctions pending the trial. These were in terms similar to, but in some ways different from, the original injunctions. I gave my reasons in a judgment handed down on 18 June 2019: [2019] EWHC 1569 (QB) (“the Interim Judgment”).
Annexes A and B to the Interim Judgment set out the terms of the original injunctions. The modifications I made at the hearing on 10 June are identified and explained in paragraph [72] of the Interim Judgment. Appendix I to this judgment sets out the terms of the interim injunctions I granted against the second defendant. Appendix II is “Map 1”, showing the Exclusion Zone. Similar orders, but with fewer exceptions, were made against the first and third defendants, and Persons Unknown were subjected to an order in the terms of paragraphs 4 and 5 of Appendix I.
I gave directions for the case to proceed to trial, modifying the procedure under Part 8 by agreement of the parties. On 3 July 2019, the first to third defendants served Defences in which they raised (among others) issues of discrimination. They alleged treatment amounting to indirect discrimination on ethnic and/or religious grounds, contrary to the Equality Act 2010 (“the EA”). On 24 August 2019, the defendants served their witness statements. On 13 September 2019, by order of HHJ Worster, a fifth defendant was added to the case. This was John William Allman, from Okehampton in Devon. He had applied to be joined with a view to raising freedom of expression arguments in opposition to those aspects of the injunctions that restrict statements on social media. Mr Allman contends that he is a person affected by these aspects of the injunctions. HHJ Worster directed him to serve a witness statement setting out his case in relation to the relief that affected him, and on 20 September 2019, he did so. On 23 September 2019, the Council served a Reply to the Defences of the first three defendants. On 27 September 2019, the Council served its evidence in reply.
On Monday 7 October 2019, I held a pre-trial review. I gave the first three defendants permission to amend their defences to allege direct discrimination, contrary to the EA; I gave the parties permission to adduce certain expert evidence; and I gave other directions about evidence. I declined Mr Allman's application to be appointed under CPR 19 as a representative defendant, on behalf of “Persons Unknown”. Later, I declined his application for a costs-capping order or protective costs order.
This judgment follows the trial, held in Birmingham over five days commencing on 14 October 2019, at which the first to third defendants and Mr Allman were all represented by Counsel, put oral and written evidence before the court, and advanced legal submissions.
III. ISSUES
As is common ground, the claim and the defences to it engage important civil rights, including fundamental human rights. I have been provided with more than ample legal material. The legislation, case law and policy guidance provided to me filled no fewer than five lever arch files. However, the main issues arising from the written statements of case, Mr Allman's witness statement, and the arguments of Counsel, can be quite shortly summarised in this way:-
(1) Is the Council's claim in accordance with the law; or are the defendants right to submit that the legislation relied on cannot lawfully be used as the basis for injunctions of the kinds that are sought (“the Construction Issues”)?
(2) Does the Council's claim pursue one or more legitimate aims; or does the relevant teaching and/or the School's conduct in respect of it, amount to unlawful discrimination on grounds of ethnicity and/or religion, contrary to the EA, against which it is legitimate to protest, so that it would be wrong to grant any such injunctions (“the Discrimination Issues”)?
(3) If the claim is in accordance with the law and pursues legitimate aims, is it in all the circumstances, having due regard to all the rights engaged, necessary in a democratic society to grant injunctions to restrain protest...
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