Chief Constable of Greater Manchester v Scott Calder

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Blake
Judgment Date14 January 2015
Neutral Citation[2015] EWHC B11 QB
Docket NumberA01MA472
Date14 January 2015

[2015] EWHC B11 (QB)

IN THE HIGH COURT OF JUSTICE

(QUEEN'S BENCH DIVISION)

(DISTRICT REGISTRY)

Civil Justice Centre

Bridge Street West

Manchester

Before:

Mr Justice Blake

A01MA472

Between:
Chief Constable of Greater Manchester
Applicant
and
Scott Calder
Respondent

Ms D'Cruz appeared on behalf of the Applicant

Mr Wagner appeared on behalf of the Respondent

Wednesday 14 th January 2015

Mr Justice Blake
1

This is an appeal from a decision of his Honour Judge Armitage QC sitting at the Manchester County Court delivered on 17 July 2014. On that occasion the judge declined to continue an injunction granted without notice on 4 April 2014 by his Honour Judge Platts. The injunction was sought by the Chief Constable of Greater Manchester police as applicant pursuant to his powers under the Policing and Crime Act 2009 Part 4, and in particular sections 34 to 36.

2

The Respondent to this application and to the appeal by the Chief Constable is Scott Calder.

3

The background is that on 12 January 2014 the respondent, then aged 23, was in a car with his mother outside a bingo hall in the Harputhy district of Manchester when they were both shot at by unknown assailants. Three men have subsequently been arrested and charged with attempted murder but the respondent was unable to assist the police with the identity of the assailants or the reasons why he should be targeted for such an assault.

4

There was other evidence before the judge;

(i) on 17 January the respondent's brother was kidnapped and assaulted and he has not cooperated with the police in the identification of his assailants;

(ii) on 26 March a man named Leonard Cook was shot in the leg by one of two masked men;

(iii) the respondent has associations with a number of men who have convictions for very serious criminal offences including violence;

(iv) the Chief Constable caused a social media website related to the respondent to be accessed and there are scenes of him performing grime music, similar to rap music, that were placed on his website on 4 January and 11 February 2014. The first such extract was before the attack and the judge accordingly focused upon the second. Having considered explanations for the words used in that website, the judge was satisfied that the reference to "man dem" was a reference to a gang; accordingly, with the benefit of some assistance in interpreting "argot" and street slang, the judge in this part of his judgment was effectively saying that the respondent was saying, "My man dem are on this," where, in this context, "this" referred to holding others in a basement and inflicting violence and serious injury on them. The judge accordingly concluded that this was possible to interpret as an express threat of gang related violence.

(v) on 5 April 2014, that is the day after the without notice application but before the order resulting from such application could be served, the respondent was arrested on suspicion of being in possession of an offensive weapon, namely a Lucozade bottle containing industrial strength ammonia;

(vi) on 6 April when he answered his bail on that charge, a knife was found concealed and he told the officers that he was carrying it for his own protection having been shot;

(vii) there was hearsay intelligence from a variety of anonymous sources that was consistent with suspicion of gang-related rivalry about drugs. Having regard to its nature and the reliability assessment, the judge did not rely on this evidence further save as the basis for reasonable suspicion to justify further investigations.

5

Section 34(1) of the Policing and Crime Act 2009 states that a court may grant an injunction against a respondent aged 14 or over if two conditions are met. The first condition is identified in section 34(2) and that 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. The second condition is that the court thinks it is necessary to grant the injunction for specified purposes.

6

The judge was satisfied that the three measures which had been the subject of the order of the judge on 4 th April were justified as necessary and proportionate and preventative measures and met the second condition contained in section 34(3) of the Act. He, however, declined to order the continuation of that relief because he was not satisfied that whatever the respondent may have encouraged was gang-related violence within the meaning of the statute.

7

Section 34(5) is in the following terms;

"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 three 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."

8

The essential question at the heart of this appeal is whether there was any other characteristic that enables the members of the gang to be identified as others as a group. The judge concluded that the mere fact that police officers with access to intelligence material were able to identify links between the respondent and others, some of whom were related to him, and to enable them to conclude that they formed a gang engaged in drug related activity was not sufficient to bring the case within the statutory scheme.

9

He said the following at paragraphs 40 through to 43 of his judgment:

"40. In my judgment, the most significant impediment to the application is the definition of gang-related violence. The whole thrust of the legislation is the suppression of violence perpetrated by a group which can be identified by others as a group.

"41. Section 34(5)(b) provides three specific examples of identifying features: name, emblem or colour. When the legislation was promoted and passed, as DC Wrench observes, gangs tended to have some or all of those recognisable features. The applicant does not argue that any group of which the respondent is a member has any of those features. Instead, counsel for the Chief Constable argued that it had another recognisable 'characteristic' which enables its members to be identified as a group. That characteristic is that the group is a family which runs a drug dealing network.

"42. Mr Wagner, counsel for Mr Calder, argues that the evidence might show that the group is an OCG (I interpolate that means organised crime group) but that is not externally recognisable by those who do not know the family, its membership and its activities.

"43. My judgment is that whether the characteristic relied upon by the applicant is within section 34(5)(b) depends on who is included within 'others' and what steps are legitimate/required for the purpose of identification. I am not persuaded, even on the balance of probabilities, that the characteristic relied upon by the applicant would enable a member of the public, unfamiliar with the drug trafficking scene locally or more widely, to identify any of the group as a group associated with a particular area of Greater Manchester, or any area. However, if 'others' include police constables, they might be able to identify members of the group. DC Wrench would fall squarely into that category assuming without finding for present purposes that the intelligence available to him is accurate. Similarly, a locally based constable might be able to identify members on the basis of where they were seen and what they were doing. In my judgment, such specialised knowledge is not within section 34(5)(b). The whole thrust of section 34(5) is to deal with readily identifiable bodies of people who terrorise the streets. I find support for that in a sentence in paragraph 2.2 of the guidance:

'Gang injunctions are intended to be used against members of violent street...

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