Supreme Court grants permission in challenge to Gang Injunction regime

The Supreme Court has granted permission to appeal the Court of Appeal’s decision in Jones v Birmingham City Council and Secretary of State for the Home Department [2018] EWCA Civ 1189, involving the compatibility of the gang injunction regime with Article 6 ECHR.

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 Wilson, the Court of Appeal dismissed the appeal: there was no breach of Article 6 ECHR. Sir Brian Leveson, with whom Underhill LJ and Irwin LJ agreed, gave the judgment.

First, the proceedings were not in respect of a criminal charge for the purposes of Article 6(2) ECHR. A line of Strasbourg cases starting with Guzzardi v Italy [1980] ECHR 5 emphasised that preventative, as opposed to punitive, measures would not fall within Article 6(2) ECHR. This was regardless of whether involvement in a crime was being alleged.

Second, Article 6(1) ECHR – applying to civil proceedings – did not require the criminal standard notwithstanding the significant restrictions on the liberty of the subject. This was the case given: (1) the safeguards built into the legislation; and, (2) the lack of domestic and Strasbourg authority supporting the contrary position. R (McCann) v Manchester Crown Court [2003] 1 AC 787 (HL) could be distinguished in a number of ways.   

A copy of the Court of Appeal’s judgment can be found here.

The Appellant subsequently sought permission to appeal from the Supreme Court on the bases that:

1. Following R (McCann) v Manchester Crown Court, the appropriate standard of proof in proceedings brought on the basis of allegations of fact that a person has been engaging, assisting or encouraging criminal conduct for the purposes of imposing serious restrictions on their freedom of movement, association and expression requires proof to the criminal standard to be fair under Article 6(1) ECHR even if the proceedings are civil proceedings; and,
2. Alternatively, fairness requires the conduct to be proven to the criminal standard.

The Supreme Court has granted permission to appeal on these bases.

Samantha Broadfoot QC and Yaaser Vanderman represent the Secretary of State.