Harun Mansoor Sharif v Birmingham City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Bean,Sir Terence Etherton,Lord Justice Holroyde
Judgment Date10 November 2020
Neutral Citation[2020] EWCA Civ 1488
Docket NumberCase No: A2/2019/1560
Date10 November 2020

[2020] EWCA Civ 1488

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

HIS HONOUR JUDGE McKENNA (sitting as a judge of the High Court)

C90BM249

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE MASTER OF THE ROLLS

Lord Justice Bean

and

Lord Justice Holroyde

Case No: A2/2019/1560

Between:
Harun Mansoor Sharif
Appellant
and
Birmingham City Council
Respondent

Mr Ramby de Mello (instructed by McGrath & Co, Birmingham) for the Appellant

Jonathan Manning and Iulia Saran (instructed by Legal & Democratic Services, Birmingham City Council) for the Respondent

Hearing date: 3 November 2020

Approved Judgment

Lord Justice Bean
1

Street cruising, or car cruising, is a term used to describe a form of anti-social behaviour which has apparently become a widespread problem in the West Midlands in particular. By a claim issued on 6 th September 2016 against “Persons Unknown” Birmingham City Council sought an injunction pursuant to s 222 of the Local Government Act 1972 to prohibit street cruising throughout their local authority area. On 3 rd October 2016 His Honour Judge Worster, sitting as a deputy judge of the Queen's Bench Division, granted the injunction for a period of three years. On 24 th May 2019 His Honour Judge McKenna, also sitting as a Deputy High Court judge, refused an application by the present appellant Harun Mansoor Sharif to discharge the injunction. The question on this appeal from Judge McKenna's decision is whether the injunction was properly granted, given what is said to be the alternative remedy available to the Council of itself making a public spaces protection order (“PSPO”) under Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014.

2

Two witness statements of Mr David Bird of Birmingham's Housing Department were in evidence before Judge Worster and Judge McKenna. They provided powerful evidence that street cruising was a widespread problem and that the Council's attempts to deal with it by means short of an injunction had been unsuccessful.

3

Street cruising is not a statutory term. It was defined in a schedule to Judge Worster's order as follows:-

“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.”

A power of arrest, pursuant to s 27 of the Police and Justice Act 2006, was attached to the injunction in relation to anyone participating in a street cruise as the driver or rider of, or passenger in, a vehicle to which paragraphs 1 and 2 applied.

4

The injunction came into force on 24 th October 2016 and was to continue for three years. We are informed that it was renewed until 1 st September 2022 by His Honour Judge Rawlings on 22 nd October 2019.

5

Paragraph 5 of Judge Worster's order provided that any person served with a copy of the order could apply to the court to vary or discharge it on 48 hours' written notice to the Council. Schedule 3 to the order provided for service of the injunction to be effected by placing notices in newspapers, online and in prominent locations throughout Birmingham.

6

On 27 th September 2018 the Council served a notice of application to commit for contempt of court on Mr Sharif. The application alleged that on 16 th September 2018 he had breached the terms of the injunction by participating in a street 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 RF63 HBJ against another vehicle dangerously and at an excessive speed. He was arrested and brought before the court.

7

He applied to have the injunction discharged on the basis that it was plainly wrong to have granted it and that there was an error of principle in the reasoning which led to its grant. Mr de Mello, who appeared for him below as well as before us, relied on the decision of this court in Birmingham City Council v Shafi [2009] 1 WLR 1961(“ Shafi”). In that case, as he put it, the Court of Appeal concluded that where a local authority sought an injunction on terms that were identical or almost identical to the terms that could have been sought on an application for an anti-social behaviour order (“ASBO”), which latter order was Parliament's preferred remedy for the type of conduct complained of and incorporated safeguards for defendants not available under the civil injunction regime, then while the Court retained jurisdiction to grant an injunction, it would not, as a matter of discretion, grant one save in exceptional circumstances.

8

As in the case of Shafi, the argument runs, Parliament has provided a remedy and a specific procedure in the form of the PSPO to combat the very type of behaviour complained about and, therefore, the Courts should give effect to Parliament's intention and only in very rare circumstances would it be appropriate for the Court to grant injunctive relief. It was pointed out that Gateshead Metropolitan Borough Council had apparently sought to deal with street cruising by making a PSPO for their area.

9

In further support of his argument, it was submitted on behalf of Mr Sharif that the sanctions under the Contempt of Court Act 1981, namely an unlimited fine and/or imprisonment for up to two years, are far more onerous than the sanctions provided for in respect of breaches of PSPOs pursuant to the 2014 Act, a result that Parliament could not have intended, and equally, it was said, that Parliament in the PSPO regime expressly provided that a person would not be guilty of an offence if there was a reasonable excuse, a safeguard lacking in respect of committal proceedings.

10

Judge McKenna dismissed the application to discharge the injunction. The essence of his judgment can be found in paragraphs 27–30 and 32–33:-

27. To my mind, the 16 th Respondent [Mr Sharif]'s reliance on the decision in Shafi is entirely misplaced. PSPOs are not a specific statutory remedy designed or introduced by Parliament to tackle the specific problem of car cruising. They replace, as I have already indicated, public space orders, restricting problem drinking, gating orders and dog control orders and give local authorities a general power to tackle activities that may cause a detrimental effect to quality of life of those living in their localities. The fact that Gateshead MBC may have made use of that power to deal with similar issues to those in respect of which the injunction was sought is neither here or there.

28. Moreover, as Counsel for the Applicant submitted in respect of the argument based on the case of Shafi, here the choice is not between two different types of Court orders but between a remedy which requires a judicial decision and is, therefore, made by an independent and impartial tribunal on the one hand and on the other, the PSPO which the local authority makes for itself.

29. In those circumstances it does not seem to me that an intention should be imputed to Parliament that a public authority should be obliged to make PSPOs which are orders made without recourse to the Courts and still less that the Courts should in the exercise of their discretion decline to deal with an application on the basis that the local authority should have made an order itself without coming to Court. That would be a very surprising result – even more so when it is remembered that in the Shafi case the ‘ASBO’ regime provided specific safeguards which were lacking in the alternative approach and which made it more difficult for a local authority to obtain an ‘ASBO’.

30. Moreover, Shafi has not been followed in other cases. It was expressly distinguished and indeed held to be irrelevant by the Court of Appeal in Swindon Borough Council v Redpath [2009] EWCA Civ 943 where the Court held that there was no reason why a local authority should not use the ‘ASBI’ regime instead of the ‘ASBO’ regime and in respect of which a civil standard of proof would be applied. Likewise, in Birmingham City Council v James [2013] EWCA Civ 552, the Court of Appeal held there was no doctrine requiring one statutory remedy to be used in preference to another.

32. In short, it is clear from the decisions in Redpath and James that there has never been a doctrine requiring an authority to apply for the remedy representing the closest fit to the mischief aimed at and, in any event, the alternative remedy contended for on the...

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1 cases
  • London Borough of Barking and Dagenham v Persons Unknown
    • United Kingdom
    • Queen's Bench Division
    • 12 May 2021
    ...seeking to support the grant of the injunctions on this basis. 70 I should perhaps here mention Sharif v Birmingham City Council [2020] EWCA Civ 1488 (see further [177]–[180] below). It is clear from the Court of Appeal's decision that the local authority had not made its application for a......

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