The Court of Appeal recently rejected a legal challenge brought on human rights grounds over a gang injunction obtained by Birmingham City Council. Jonathan Manning and Ayesha Omar explain why.
The Court of Appeal has held that proceedings for a gang injunction under Part 4, Policing and Crime Act 2009 (the “2009 Act”) and an anti-social behaviour injunction under Part 1, Anti-social Behaviour, Crime and Policing Act 2014 (the “2014 Act”) do not involve the determination of a criminal charge and therefore do not engage Articles 6(2) or 6(3) of the European Convention on Human Rights (“ECHR”). Nor does the requirement of a fair trial under Article 6(1) require the criminal standard of proof to be applied.
Section 34, 2009 Act, empowers the court to grant a gang injunction if two conditions are met. The first (s.34(2)) is that the court is “satisfied on the balance of probabilities” that the respondent has engaged in, encouraged or assisted gang-related violence or gang-related drug-dealing activity. The second (s.34(3)) is that the court thinks an injunction necessary for one or both of the statutory “purposes”: i.e. to prevent the respondent from engaging in, or to protect the respondent from, such gang-related activities.
Part 1, 2014 Act replaced the previous statutory schemes for anti-social behaviour orders (“ASBOs”) (Crime and Disorder Act 1998) and for anti-social behaviour injunctions (Housing Act 1996). By s.1, 2014 Act, an injunction may be made if two conditions are met. First (s.1(2)), the court must be “satisfied on the balance of probabilities” that the respondent has engaged (or threatened to engage) in anti-social behaviour (defined (s.2) to include conduct capable of causing nuisance or annoyance (to specified classes of person), or capable of causing housing-related nuisance or annoyance to any person. Secondly (s.1(3)), the court must consider it just and convenient to make the order for the purpose of preventing the respondent from engaging in anti-social behaviour.
J was involved with a gang in Birmingham, known as the “GMG” (Get Money Gang), loyal to the “Johnson Crew”, one of two main organised crime groups in the city.
Birmingham CC (the “authority”), sought injunctions against J and 17 others who were all affiliated with the GMG or a rival gang. The authority had urgent concerns about public safety in the areas of Birmingham where these gangs operated; there had been 22 incidents of serious violence there , including the use of firearms, in the previous six months.
On 15 February, 2016, interim injunctions were granted against J and 16 others on a without notice basis. They were subsequently continued until the hearing of the claim.
J applied for a declaration of incompatibility in the High Court, on the basis that the civil standard of proof specified in each statute was incompatible with the requirements of Art.6, European Convention on Human Rights (“ECHR”) under which, he argued, the criminal standard of proof must be applied. Burton J dismissed the application.
J appealed to the Court of Appeal. He argued that the claims under both Acts, while civil in domestic law, were proceedings in respect of a criminal charge for the purposes of Art.6, so that proof to the criminal standard was required. Alternatively, even if civil under the ECHR, Art.6 still required the criminal standard as a matter of the overall fairness of proceedings.
The Court of Appeal
In Jerome Jones v Birmingham City Council  EWCA Civ 1189 (Sir Brian Leveson P, Underhill and Irwin LJJ) the Court of Appeal dismissed the appeal.
A criminal charge
The test for whether proceedings are in respect of a criminal charge was set out by the European Court of Human Rights (“ECtHR”) in Engel v Netherlands (1979-80) 1 EHRR 647. It held that there were three criteria: (1) the domestic classification; (2) the essential nature of the proceedings (i.e. for ECHR purposes); and (3) the nature and severity of the penalty.
While J accepted that, domestically, the proceedings were civil, he argued that, under Engel limbs 2 and 3, the essential nature of the proceedings was criminal as they involved an emanation of the state seeking to restrict the activities, liberties and freedoms of individuals in order to protect the public, relying on conduct that was necessarily criminal in nature.
Rejecting the argument, the Court held that the conduct required by the 2009 and 2014 Acts did not necessarily involve the commission of crime. Under the 2009 Act, a person could “encourage or assist” the gang activity in non-criminal ways; likewise for the 2014 Act, conduct capable of causing nuisance or annoyance may well not cross the criminal threshold. Indeed, where Parliament intended proof of an offence to be a requirement, express provision had been made: see Part 2 of the 2014 Act.
The line of ECHtR Mafiosi cases, concerning restrictions imposed on suspicion of criminal activity (e.g. Guzzardi v Italy (1981) 3 EHRR 333, as recently confirmed by the Grand Chamber in Tommaso v Italy  ECHR 205 at ) demonstrated that the imposition by the state of highly restrictive measures curtailing liberty to a considerable degree does not, in and of itself, entail that the proceedings should be classified as criminal.
The focus must be on the nature and consequences of the proceedings. “Criminal charge” is an autonomous Convention concept, consisting of “the official notification given to an individual by the competent authority that he had committed a criminal offence” (see Ozturk v Germany (1984) 6 EHRR 409 at ). Thus, conduct which may involve underlying criminality does not necessarily amount to the bringing of a criminal charge, a fortiori where it is or may be conduct less than would justify an allegation of crime. Where the need for what were preventative and not punitive measures arose because of a propensity to commit crime, it was not to the point whether equivalent offences could be established. A distinction must be drawn between preventative measures and those which are punitive or retributive (see also SSHD v MB  UKHL 46,  1 AC 440). The statutory purposes of injunctions under the 2009 and 2014 Acts are expressly preventative/protective; injunctions may only be made for one or both of those purposes.
Civil injunctions have never been considered criminal and are not to be regarded as imposing a penalty. Many civil proceedings require the allegation of what could be used to mount a criminal prosecution without constituting a criminal charge or exacting a penalty: these could range from civil proceedings for damages following a road traffic accident based on what could also be the offence of careless driving to similar proceedings for assault based on an underlying complaint of murder or rape.
The standard of proof
Rejecting the alternative argument, that even if the proceedings were civil for ECHR purposes, Art.6(1) requires a standard of fairness which cannot be met by the civil standard of proof, the Court held that the adoption of the criminal standard of proof by the House of Lords in R (McCann) v Crown Court at Manchester  1 AC 787) where the statute (creating ASBOs) was silent on the standard of proof, was for essentially pragmatic reasons and was not founded on an underlying jurisprudential principle, such as Art.6(1).
The remarks were obiter, in any event, and starting before it and developing thereafter, the law has since moved on. The concept of a flexible civil standard has been the subject of further judicial consideration in the context of care proceedings (see Re D  1 WLR 1499 and Re B (Children)(Care Proceedings: Standard of Proof)  1 AC 11).
The proposition that the criminal standard is necessitated by a proper appreciation of the requirements of fairness under Art.6(1) in cases where an order is sought which would significantly restrict the liberty of the subject, or where the application is based on criminal or quasi-criminal behaviour, was too wide and unjustified. There was no domestic authority, nor any conclusion from the ECtHR to support it and no reason for imputing into Art.6 any such requirement.
• If J were correct, the decisions of the Supreme Court adopting the civil standard of proof in care proceedings would have been wrongly decided.
• The decision of the Supreme Court in Gale v Serious Organised Crime Agency  1 WLR 2760,  UKSC 49 would also be undermined (civil standard of proof in Proceeds of Crime Act 2002 was held compatible with Art.6).
• There were critical differences between the ASBO and the current legislation; the observations in McCann cannot now necessarily be taken to apply in the same way.
• Parliament’s scheme under the 2009 Act was a deliberate response to the decision applying the criminal standard in Birmingham CC v Shafi..