Supreme Court finds Gang Injunctions compatible with ECHR

In Jones v Birmingham CC and Secretary of State for the Home Department [2023] UKSC 27, the Supreme Court has dismissed an appeal in which it was argued that the regime of Gang Injunctions breached Article 6 ECHR (right to a fair trial).

In response to the problem of gang-related violence, drug-dealing, and disorder, Part 4 of the Policing and Crime Act 2009 was enacted followed by Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (which replaced the old ASBO regime). These regimes enabled certain public bodies to seek injunctions against gang members to prevent these activities.

In 2016, Birmingham City Council (the “Council”) sought these injunctions against members of the Guns and Money Gang, the Johnson Crew and the Burger Bar Gang. The individuals against whom the injunctions were sought challenged them on the basis that they breached their Article 6 ECHR right to a fair trial. This was because in order to obtain the injunctions, s34(2) of the 2009 Act only required the Council to prove that the individuals had engaged in, encouraged or assisted “gang-related violence” or “gang-related drug-dealing activity” on the balance of probabilities. It was argued that this was incompatible with Article 6 ECHR: on the basis that such activity would almost always amount to criminal behaviour, and given the serious restrictions on liberty resulting from the injunctions, Article 6 ECHR required that these activities be proved to the criminal standard of proof.

Agreeing with the judgment of Burton J in the High Court in this case and the judgment of Kerr J in Chief Constable of Lancashire v Wilson [2015] EWHC 2763, the Court of Appeal dismissed the appeal: there was no breach of Article 6 ECHR.

The Supreme Court has dismissed the appeal against the Court of Appeal’s judgment. It considered that the Strasbourg case law provided no support for the view that a fair hearing under Article 6(1) ECHR required the criminal standard of proof to prove gang-related conduct. And there was no sign that the ECtHR’s case law was likely to develop in this way. The legislative regime provided sufficient safeguards to ensure a fair trial. Nor did the Supreme Court consider that R (McCann) v Crown Court at Manchester [2003] 1 AC 787 – a case about the old ASBO regime – called for the criminal standard of proof to be used. To the extent that any reasoning in McCann suggested the criminal standard of proof was required it was wrong.

A copy of the judgment can be found here.

Samantha Broadfoot KC and Yaaser Vanderman acted for the Secretary of State.

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