Jerome Jones v Birmingham City Council Respondent
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Irwin,Lord Justice Underhill |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1189 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/4487 |
| Date | 23 May 2018 |
[2018] EWCA Civ 1189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Mr Justice Burton
C00BM271
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Underhill
and
Lord Justice Irwin
Case No: A2/2016/4487
and
James Stark (instructed by The Community Law Partnership Ltd., Birmingham) for the Appellant
Jonathan Manning and Ayesha Omar (instructed by City Solicitor, Birmingham City Council) for the Respondent
Samantha Broadfoot Q.C. and Yaaser Vanderman (instructed by Government Legal Department) for the Secretary of State
Hearing dates: 24–25 April 2018
Judgment Approved
Gang-related violence and the resulting public disorder have become a scourge which affects many cities. It may flow from drug dealing but is not unusually accompanied by the discharge of firearms or other acts of extreme violence directed at members of other gangs such that entirely innocent members of the public can become caught up in the cross fire. Investigation of such incidents is rendered more difficult (if not impossible) by the refusal of those who are injured to assist the police by naming their attackers (whom they will frequently have recognised), either because they fear the potentially violent consequences of doing so or because they prefer to take the law into their own hands and retaliate in like mode. Additionally, members of the public are fearful of being involved in prosecutions because of the risk of intimidation and violence. The result is not only that public safety is seriously affected but also that maintenance of the rule of law is endangered.
The challenge presented by this type of behaviour is not to be underestimated. It has been felt particularly acutely in various areas of Birmingham where a gang known as the ‘Guns and Money Gang’ (“GMG”) is said to operate. The GMG aligns its loyalty with another gang, ‘the Johnson Crew’, which was previously contained within the INCH 1 gang. However, the INCH 1 fractured into the Johnson Crew and ‘the Burger Bar gang’ following an internal dispute, and these two breakaway groups have been intense rivals ever since. This rivalry increased during the 1990s with both groups (and smaller affiliates) claiming postcode areas as ‘their’ territory. An example of the violence that spilled out as a result is the infamous murder, at a New Year's Eve party in January 2003, of Leticia Shakespeare and Charlene Ellis, who were caught in the cross fire of automatic machine gun fire wielded by offenders linked to the Burger Bar Gang targeting members of the Johnson Crew.
In an attempt to address the inability of the criminal justice system to bring the perpetrators of gang-related crime to justice, and anxious to do all that it could to disrupt anti-social behaviour, discourage gang membership and divert youngsters into lawful and more socially worthwhile activity, some ten years ago, Birmingham City Council sought to use s.222 of the Local Government Act 1972 and commenced proceedings for injunctions against named individuals alleged to be involved. In Birmingham City Council v Shafi [2008] EWCA Civ 1186, however, it was held that such an application for the purpose of preventing gang-related activity should be refused by the court in its discretion, save in exceptional cases, because Parliament had intended the authorities to use the regime of Anti-Social Behaviour Orders set out in the Crime and Disorder Act 1998 and that the applicable standard of proof in such cases as would warrant an injunction was the criminal standard so as to achieve parity with the ASBO regime.
Since then, clearly aimed at reversing the effect of Shafi, Part 4 of the Policing and Crime Act 2009 (“the 2009 Act”) introduced a new remedy enabling the county court or the High Court to grant an injunction for the purpose of preventing gang-related violence (including the protection of those involved with it from such further violence). By s. 51 of the Serious Crime Act 2015 (“the 2015 Act”), from 26 May 2016, the statutory purpose now also applies to gang-related drug-dealing activity. Finally, Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) replaced the old scheme for anti-social behaviour orders (in force on 23 March 2015).
This appeal concerns the compatibility of these provisions with Article 6 of the European Convention on Human Rights (“ECHR”). It is contended on behalf of Jerome Jones that the proceedings under this legislation, while civil, are in respect of a criminal charge and therefore attract the provisions of Article 6(1), (2) and (3). Alternatively, the fair trial provisions of Article 6(1) require proof to be at the criminal standard, beyond reasonable doubt, rather than (as the legislation prescribes) on the balance of probabilities.
Both the Birmingham City Council and the Secretary of State for the Home Department (joined because of the issue of compatibility) argue that injunctions granted under this legislation do not entail the determination of a criminal charge and fall within the civil limb of Article 6(1). Further, even if the proceedings do involve the determination of a criminal charge, Article 6 does not mandate a specific standard of proof and the civil standard (with the identified protections) are sufficient. As for the alternative argument, ‘fair trial’ requirements do not require the criminal standard of proof and the legislation is fully compatible with the obligations of the UK pursuant to the ECHR.
The Background to these Proceedings
In the years following the 1990s, this violence has not abated and the social problems in Birmingham therefore remain acute. By way of example, in a statement in support of these proceedings dated 11 February 2016, a police officer reported:
“Over the last 6 months, there have been more than 11 firearm discharges alone and 4 more reported shootings in Birmingham City involving two separate gangs; innocent members of the public have been shot or put at risk. Incidents have occurred in busy areas during the day time. The number of incidents alone is alarming and the local press are reporting heavily on each and every shooting, which in itself is alarming for the public and is spreading fear among the communities.”
In an effort to contain this very disturbing social picture, proceedings were commenced by Birmingham City Council against Mr Jones and 17 other defendants all of whom were said to be members of the GMG or a rival gang. It is alleged that Mr Jones (who is 21 years of age having been born on 1 June 1996) has been an active member of GMG. He is said to have committed acts capable of causing nuisance and annoyance to other people living and working in the area and to have engaged in, encouraged or assisted gang-related violence and drug dealing.
On 15 February 2016, in the Birmingham County Court, ex parte without notice, His Honour Judge McKenna granted an interim injunction against Mr Jones and 16 others pursuant to s. 34 of the 2009 Act and s. 1 of the 2014 Act. It was later continued by Judge Worster. The order was the subject of an appeal to the High Court on the grounds that it was incompatible with the ECHR; that application was combined with a similar application in a case being pursued in Liverpool ( Chief Constable of Merseyside v. Joyce and others) in which identical issues were raised. On 11 October 2016, the matters came before Burton J who was referred to the decision of Kerr J in Chief Constable of Lancashire v Wilson and others [2015] EWHC 2763 (QB) in which the same points had been fully argued and were exhaustively analysed, with Kerr J rejecting the challenge of incompatibility.
Wilson and others was to have been the subject of an appeal but the case was discontinued by the Chief Constable for reasons unconnected to the merits of the legal challenge. Thus, with the same arguments advanced as had been rejected by Kerr J (together with two additional arguments that Burton J said would have supplemented the reasoning of Kerr J), Burton J expressed the view, on the papers, that he would have declined to differ from Kerr J's judgment and, for the reasons he gave, agreed with him. He was prepared to grant leave to appeal. On that basis, the parties agreed that he would so rule. In the event, therefore, he held that the proceedings in this case were not in respect of a criminal charge and did not require the criminal standard of proof.
In the period which has elapsed before this appeal could be heard, the trial of the action came before the county court. It was heard over a period in excess of three weeks by Judge Carmel Wall who, on 12 July 2017, gave an extensive judgment which, transcribed, is some 429 paragraphs in length: she concluded that Mr Jones had been involved in gang related drug dealing. That judgment itself also is to be challenged on appeal but the court was told that time was extended until after resolution of an application for legal aid. There is, as yet, no clarity, as to when the appeal might be determined. In those circumstances, these specific issues of law (upon which basis Judge Wall proceeded) have been ventilated in this appeal.
During the course of the hearing, a copy of the orders made by Judge MacKenna and Judge Wall were made available. They are in slightly different terms but, rather than set out the orders made at the interlocutory hearing, to provide the context within which these legal challenges are being pursued, it is appropriate to set out the order made by on 13 July 2017 by Judge Wall in relation to Mr Jones. Under s. 34–36 of the 2009 Act as...
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