Birmingham City Council v Sharif [2019] EWHC 1268 (QB)
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Birmingham City Council v Sharif [2019] EWHC 1268 (QB) concerned an application by Mr Sharif to discharge an injunction prohibiting participation in car cruising; His Honour Judge McKenna, sitting as a Deputy High Court Judge, dismissed the application.
On 3 October 2016, His Honour Judge Worster, sitting as a Deputy High Court Judge, had granted Birmingham City Council an injunction against persons unknown 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 injunction, which came into force on 24 October 2016 and was to expire in October 2019, was designed to tackle car cruising within Birmingham and forbade all persons from participating in a street cruise within the city. A power of arrest was attached under section 27 of the Police and Justice Act 2006. The order defined a street cruise as a congregation of two or more motor vehicles at which specified activities were performed in such a way as to cause excessive noise, danger, property damage, litter or nuisance. The prohibited activities included racing, driving dangerously, driving in convoy, performing stunts, sounding horns, urinating in public and intimidating others. A person participated by being present and performing or encouraging such activity. Service was effected by notices in newspapers, online and in prominent locations.
The council alleged that on 16 September 2018 Mr Sharif breached the injunction by racing his black Audi A5 against another vehicle at excessive speed and dangerously within the injunction area. He was arrested and a committal notice was served on 27 September 2018. On 31 January 2019 Mr Sharif applied to discharge the injunction on the ground that it was plainly wrong to have granted it or involved an error of principle. He argued by reference to Birmingham City Council v Shafi [2009] 1 WLR 1961 that the injunction should not have been granted because Parliament had provided a preferred remedy for the conduct in question, namely the Public Spaces Protection Order regime introduced by Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. Mr Sharif submitted that sections 59 to 68 of the 2014 Act empowered local authorities to make PSPOs prohibiting specified activities in public places if satisfied that activities had or were likely to have a detrimental effect on quality of life. Breach of a PSPO was a criminal offence punishable by a fixed penalty notice of up to £100 or a fine not exceeding level three on the standard scale and the statute provided a reasonable excuse defence. He contended that it was inappropriate for the council to seek an injunction carrying sanctions of up to two years’ imprisonment and an unlimited fine, which were far more onerous than the sanctions for breach of a PSPO, and that the injunction lacked the safeguards Parliament had built into the PSPO regime. He relied on evidence that Gateshead Metropolitan Borough Council had made PSPOs to address similar behaviour.
The judge rejected the argument. He held that PSPOs were not a specific statutory remedy designed to tackle car cruising but were a general power to address activities causing detriment to quality of life, replacing earlier orders relating to problem drinking, gating and dog control. The fact that another local authority had used a PSPO for similar issues was immaterial. The judge distinguished Shafi on the basis that the choice in that case had been between two different court orders, whereas here the choice was between a remedy requiring a judicial decision by an independent and impartial tribunal and a PSPO which the local authority made for itself. He considered it surprising to impute to Parliament an intention that a public authority should be obliged to make PSPOs without recourse to the courts or that the courts should decline jurisdiction on the basis that the authority should have made an order itself. He noted that in Shafi the ASBO regime had provided specific safeguards lacking in the alternative approach and had made it more difficult for the authority to obtain an order, whereas here the position was reversed.
The judge further held that Shafi had not been followed in subsequent cases. He referred to Swindon Borough Council v Redpath [2009] EWCA Civ 943, in which the Court of Appeal had expressly distinguished Shafi and held that there was no reason why a local authority should not use the anti-social behaviour injunction regime instead of the ASBO regime. He also cited Birmingham City Council v James [2013] EWCA Civ 552, in which Jackson LJ held at paragraphs 26 to 29 that there was no doctrine requiring one statutory remedy to be used in preference to another and no closest fit principle cutting down the court’s statutory powers to make pre-emptive orders. Jackson LJ had emphasised that if statutory conditions were satisfied the Court of Appeal would only set aside an injunction in an exceptional case where the judge had erred in principle and that the judge’s exercise of discretion should be respected absent such error. The judge considered that it was clear from Redpath and James that there had never been a doctrine requiring an authority to apply for the remedy representing the closest fit and that in any event the PSPO was not identical or even remotely similar to the injunction regime.
The judge held that there was no general principle that only in exceptional circumstances should a court grant an injunction where an alternative specific statutory remedy was available or that the court should not do so where breach could carry more severe sanctions than breach of a PSPO. He rejected the argument that local authorities could not seek a remedy with more serious consequences in the event of breach or that the court could not grant such a remedy if it considered it justified and proportionate. He noted that the court had before it ample evidence of previous attempts by West Midlands Police to address car cruising which had proved inadequate and had concluded that the injunction was appropriate.
In short, the application to discharge the injunction was dismissed and the committal application was listed for hearing.