Jones v Birmingham City Council [2018] EWCA Civ 1189

Jones v Birmingham City Council [2018] EWCA Civ 1189 was an appeal to the Court of Appeal (Civil Division) in which the appellant challenged the compatibility of injunctions under Part 4 of the Policing and Crime Act 2009 and Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 with Article 6 of the European Convention on Human Rights. The appeal was dismissed.

Birmingham City Council had obtained an interim injunction against Mr Jones and others pursuant to section 34 of the 2009 Act and section 1 of the 2014 Act. Following a contested hearing, His Honour Judge Wall granted a final injunction on 13 July 2017, to continue until July 2019 with a review, prohibiting Mr Jones from using or threatening violence, entering a defined area of central Birmingham (with limited exceptions for hospital attendance), associating with ten named individuals, possessing controlled drugs or psychoactive substances without prescription, and participating in music videos relating to the Johnson Crew, Burger Bar Gang or affiliated gangs. Powers of arrest were attached to the first four prohibitions.

The underlying factual context was gang-related violence in Birmingham involving the Guns and Money Gang, to which Mr Jones was alleged to belong, and rival groups. The court recounted the history of intense gang rivalry dating from the 1990s, including the murder of Leticia Shakespeare and Charlene Ellis in 2003. A police officer’s statement described more than eleven firearm discharges and four further reported shootings in the preceding six months. The legislation had been enacted in part to reverse the effect of Birmingham City Council v Shafi [2008] EWCA Civ 1186, in which the Court of Appeal had held that applications for injunctions to prevent gang activity should generally be refused in favour of Anti-Social Behaviour Orders under the Crime and Disorder Act 1998.

Section 34 of the 2009 Act (as amended by the Serious Crime Act 2015) permits a court to grant an injunction if satisfied on the balance of probabilities that the respondent has engaged in or encouraged or assisted gang-related violence or drug-dealing activity, and if it considers the injunction necessary to prevent such conduct or to protect the respondent from it. Section 1 of the 2014 Act permits an injunction if satisfied on the balance of probabilities that the respondent has engaged or threatens to engage in anti-social behaviour, and if it is just and convenient to grant it to prevent such behaviour. Anti-social behaviour is defined in section 2 to include conduct causing harassment, alarm or distress or capable of causing nuisance or annoyance.

Mr Jones appealed against the order of Mr Justice Burton, who had agreed with the earlier analysis of Kerr J in Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB) and held that the proceedings did not involve the determination of a criminal charge and did not require the criminal standard of proof. The grounds of appeal were that the proceedings were in respect of a criminal charge within the meaning of Article 6 of the ECHR, attracting the protections of Article 6(2) and (3), or alternatively that the fair trial requirements of Article 6(1) required proof beyond reasonable doubt rather than on the balance of probabilities.

Mr Stark for Mr Jones accepted that the domestic classification of the proceedings was civil. He argued, however, that section 34 required proof that the individual had engaged in, assisted or encouraged criminal conduct, using language mirroring that in criminal legislation concerning secondary liability. He distinguished the line of authorities concerning Italian measures against Mafiosi, including Guzzardi v Italy (1981) 3 EHRR 333 and Raimondo v Italy (1994) 18 EHRR 237, on the basis that those cases concerned preventive measures based on suspicion rather than proof of criminal conduct. He relied on Matyjek v Poland (Application No 38184/03) as showing that lustration proceedings, though classified as civil, constituted the determination of a criminal charge because they involved serious sanctions, namely dismissal from public office and a ten-year bar from public functions. He submitted that the gang injunctions had a punitive effect, severely restricting freedom of movement, with terms modelled on community punishment orders that would be found in community rehabilitation orders imposed following conviction.

Ms Broadfoot QC for the Secretary of State for the Home Department, supported by Mr Manning for Birmingham City Council, submitted that the provisions had been specifically designed as civil preventive measures. The preconditions did not necessarily involve the commission of crime; “engaged in or encouraged or assisted” could encompass non-criminal conduct such as intentionally provoking a rival gang by entering their territory or mocking them on social media. She argued that the Guzzardi line of authorities demonstrated that even highly restrictive measures did not become criminal proceedings, a principle recently confirmed by the Grand Chamber in Tommaso v Italy [2017] ECHR 205. Matyjek v Poland concerned sanctions imposed for lying in lustration proceedings and was clearly at least a sanction for past behaviour, unlike the protective and preventive purposes of gang injunctions. Civil injunctions had never been considered criminal and imposed no penalty. Any terms of an injunction were statutorily confined to those necessary for protective purposes and had to be both necessary and proportionate.

Sir Brian Leveson P, giving the judgment of the court, applied the three-factor test established in Engel v Netherlands (1979-80) 1 EHRR 647, namely the domestic classification, the essential nature of the proceedings, and the nature and severity of the penalty. He emphasised that the three factors tended to blend into each other, as Lord Phillips had observed in Gale v Serious Organised Crime Agency [2011] 1 WLR 2760. The court considered the autonomous concept of a criminal charge as defined in Ozturk v Germany (1984) 6 EHRR 409 and the principle that conduct involving underlying criminality did not necessarily amount to a criminal charge, particularly where the conduct fell short of justifying an allegation of crime.

The President held that the Guzzardi line of cases, confirmed by the Grand Chamber in Tommaso, established that preventive measures based on a propensity to commit crime did not constitute the determination of a criminal charge. The fact that such proceedings were brought by emanations of the state to protect the public did not alter their character. Matyjek v Poland was distinguishable because it concerned what was in substance a criminal allegation of dishonesty leading to a penalty of disqualification. The domestic jurisprudence supported the same conclusion. In Secretary of State for the Home Department v MB [2007] UKHL 46, Lord Bingham had emphasised that Parliament had gone to considerable lengths to avoid crossing the criminal boundary by avoiding any assertion of criminal conduct, basing orders on suspicion, making them preventative rather than punitive, and imposing no more restrictive obligations than necessary.

The court rejected the suggestion that any difference in standard of proof should apply merely because the application was based on suspicion rather than commission of crime. Many civil proceedings required the allegation of what could be criminal conduct without constituting a criminal charge, ranging from damages claims following road traffic accidents based on careless driving to claims for assault based on underlying allegations of murder or rape. These proceedings did not engage Articles 6(2) or (3) of the ECHR and fell squarely within the principles established in the Guzzardi line of authorities.

On the alternative argument concerning the standard of proof, Mr Stark relied on cases identifying enhanced procedural protection as a requirement of fairness, including R v Securities and Futures Authority Ltd ex parte Fleurose [2002] IRLR 297, International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, and R(G) v Governors of X School [2009] PTSR 1291. He sought to translate these into a requirement for the criminal standard of proof. He relied particularly on R (McCann) v Manchester Crown Court [2003] 1 AC 787, in which the House of Lords held that applications for Anti-Social Behaviour Orders, where Parliament was silent on the standard of proof, attracted the criminal standard because of the seriousness of the matters and the implications of proving them, with breach constituting a criminal offence carrying up to five years’ imprisonment. Lord Hope had observed that there were good reasons in the interests of fairness for applying the higher standard when allegations of criminal or quasi-criminal conduct were made which would have serious consequences.

The President held that this argument was too wide and unjustified as a matter of both domestic law and Convention jurisprudence. The flexible standard of proof had been the subject of further judicial analysis following McCann, particularly in care proceedings. In In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 and Secretary of State for the Home Department v Rehman [2001] UKHL 47, the courts had rejected the concept of a flexible standard of probability, clarifying that the civil standard always meant more likely than not, with the only higher degree being the criminal standard. In R(N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, Richards LJ explained that the flexibility lay in the strength or quality of evidence required, not in any adjustment to the degree of probability. In re B (Children)(Care Proceedings: Standard of Proof) [2009] 1 AC 11, Lord Hoffmann stated that there was only one civil standard of proof, namely proof that the fact in issue more probably occurred than not.

If Mr Stark’s submission were correct, the President reasoned, the decisions of the Supreme Court in relation to care proceedings would all have been wrongly decided. Care proceedings were frequently mounted on the basis of the most serious criminal offences with consequences of loss of parental rights representing the greatest infringement of rights and liberties, yet the balance of probabilities applied. The submission would also undermine Gale v Serious Organised Crime Agency [2011] 1 WLR 2760, in which the Supreme Court held that proof of criminal conduct as a stepping stone to recovery of property obtained through unlawful conduct under the Proceeds of Crime Act 2002 required only the civil standard.

The court identified critical differences between the schemes under the 2009 and 2014 Acts and that analysed in McCann. Injunctions under section 34 could be made to protect the individual himself from gang-related activity. Injunctions under the 2009 Act could only be imposed for a maximum of two years and required review. Under both Acts an injunction could include mandatory rehabilitative requirements, whereas an ASBO could only contain prohibitions. Breach was not a criminal offence and the consequences were different. The preconditions included a rehabilitative or preventive requirement that the court consider the injunction necessary. In Birmingham City Council v James [2014] 1 WLR 23, Moore-Bick LJ had observed that Part 4 represented Parliament’s considered response to gang-related violence following Shafi, and the choice of the civil standard appeared to be a deliberate response.

The President concluded that there was neither domestic authority nor any conclusion from the European Court of Human Rights supporting the proposition that Article 6 required the criminal standard of proof in these circumstances. Parliament was entitled to address the very real social harm inflicted by gangs and anti-social behaviour through this legislation. Built into each legislative scheme were safeguards intended to address the impact on individuals. The legislation did not trigger the bringing of a criminal charge for the purposes of Article 6 and the requirement that the court address the issues on the balance of probability was not a breach of Article 6. Lord Justice Underhill and Lord Justice Irwin agreed.

In short, the Court of Appeal held that injunctions under the 2009 and 2014 Acts do not involve the determination of a criminal charge within Article 6 ECHR and the civil standard of proof does not render such proceedings incompatible with Article 6(1).

Birmingham City Council v Shafi & Ellis [2008] EWCA Civ 1186
Chief Constable of Lancashire v Wilson & Ors [2015] EWHC 2763 (QB)
Tommaso v Italy [2017] ECHR 205
Gale and Gale v Serious Organised Crime Agency [2011] UKSC 49
Walsh v Director of the Assets Recovery Agency [2005] NICA 6; [2005] NI 383
R v Securities and Futures Authority Ltd, Ex p Fleurose [2002] IRLR 297, [2001] EWCA Civ 2015
International Transport Roth GMBH & Ors v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] QB 728, [2002] 3 WLR 344, [2002] 1 CMLR 52, [2002] Eu LR 74, [2002] HRLR 31, [2002] ACD 57
R(G) v Governors of X School [2009] PTSR 1291
Gough v Chief Constable of Derbyshire Constabulary [2002] QB 1213
R (McCann) v Crown Court at Manchester [2003] 1 AC 787
Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, [2002] 1 All ER 122, [2001] 3 WLR 877
Re D [2008] UKHL 33, [2008] 1 WLR 1499, [2008] 4 All ER 992

Briggs-Price [2009] UKHL 19, [2009] 1 AC 1026
Birmingham City Council v James [2014] 1 WLR 23
Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563
B v Chief Constable of Avon & Somerset [2001] 1 WLR 340
A, X & Y [2002] EWCA Civ 1502
McCann [2002] UKHL 39
HM Advocate v McIntosh [2001] UKPC 1, [2003] 1 AC 1078
R (on the application of AN) v Mental Health Review Tribunal [2005] EWCA Civ 1605, [2006] QB 468, [2006] 4 All ER 194, [2006] 1 MHLR 59, 88 BMLR 59
Re B [2008] UKHL 35, [2009] 1 AC 11

Jones (Appellant) v Birmingham City Council and another (Respondents) [2023] UKSC 27