Landmark Chambers


Landmark decision on the compatibility of “Gangbos” with Article 6 of the Human Rights Act

DATE: 15 Jul 2015

In response to the limits of ASBOs and injunctions under s222 of the Local Government Act, Parliament passed new legislation which enabled a court, on the application of, amongst others, the Chief Constable, to make an injunction against a person where two conditions were met: first, that the court was satisfied “on the balance of probabilities” that the respondent has engaged in, has encouraged or assisted gang-related violence or gang-related drug-dealing activity; second, that the court thinks it necessary to grant the injunction for either or both of the following purposes: to prevent the respondent from engaging in the gang-related activity described in condition 1, or to protect him from that activity.  See s34 of the Policing and Crime Act 2009. 

The Chief Constable of Lancashire brought an application for injunctions against a number of respondents.  In their defence, they raised the allegation that s34 and the scheme under Part 4 of the 2009 Act involved the determination of a criminal charge within the meaning of Article 6(3) of  the European Convention on Human Rights because condition (1) involved the allegation of the commission of a criminal offence and was as such analgous to a charge within the autonomous meaning of Article 6; the nature of the restrictions which could be imposed were similar to those which could be imposed e.g. under community penalty orders as a punishment following conviction; and finally that the restrictions were in these cases and could generally be very severe.  It was argued that accordingly: the civil standard was a breach of their right to a fair hearing under Article 6(1) and that the admissibility of hearsay evidence was incompatible with their rights under Article 6(3) to require the attendance of witnesses and cross-examine them.  A declaration of incompatibility was sought. 

The Secretary of State was notified of the application and the matter was transferred to the High Court.  Samantha Broadfoot appeared for the Secretary of State.  Following a contested hearing before Mr Justice Tim Kerr, the Judge held: (1) that gang injunctions did not involve the determination of a criminal charge; (2) that the fact that the applications were to be determined as civil proceedings did not infringe the respondents’ right to a fair trial; (3) that the rules on hearsay were capable of being operated in such a way so as to ensure that the standards of fairness were maintained, in accordance with the nature and gravity of the conduct alleged and the impact of an order on the individual. 

Permission to appeal was granted on points (1) and (2).