As prefigured on this Blog here, Keehan J has handed down a public Judgment explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.
The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.
Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.
The facts of this Birmingham case centred on a particularly vulnerable 17 year old [AB]. Originally Birmingham City Council had sought to keep her safe by obtaining a Secure Accommodation Order. However, as Andrew Pack has pointed out, this is arguably a strategy of locking up the victim
To seek orders in wardship to protect a named young person (who is the subject of proceedings) from undesirable associations is relatively common and was done here
However, the Court also went on to make what appear to be extraordinary injunctions – which the Court stated that they were modelled on ASBOs and Sexual Offences Prevention Orders and Risk of Sexual Harm Orders forbidding the Defendants from:
- approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station
- causing, permitting or allowing AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.
These Orders appear to be for a period of nine months. Ingeniously they seek to cover some possible Article 8 arguments by not covering existing relationships but the Orders would still represent a drastic curtailment of their freedom of association.
Only two of the ten Defendants were represented. It is unclear whether they would be entitled to legal aid. The judgment states that no party sought to argue about the terms of the injunctions which is highly surprising.
Very detailed reasoning is given for naming the Defendants (covering a quarter of the whole Judgment). Much of this is conventional and is not analysed here beyond commenting that the decision to allow the press to name the men involved does increase the importance of these proceedings for the ten men concerned.
No precedent is cited for an order under the inherent jurisdiction which prohibits contact with a whole class of persons (females under the age of 18) as opposed to a particular ward of Court. Instead the Court relies on the wording of a Practice Direction, namely FPR 2010 PD12D which states that, “the court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute.”
The Judgment asserts that the applicable standard of proof that applies is the civil one pursuant to Re B  UKSC 33. Nothing is said about rules of evidence. Hearings under the inherent jurisdiction are normally summary in nature but other equivalent civil injunctive relief (e.g. ASBOs) would at least have involved the service of Civil Evidence Act Notices.
It is striking that Keehan J states that the injunctions he has made are based on those that would normally be made under the Sexual Offences Act 2003 such as a Sexual Offences Prevention Order or a Risk of Sexual Harm Order (ROSHO). This begs the question as to why these Orders were not applied for.
Given the serious nature of the problem faced by many Police Forces and Local Authorities, others may be tempted to apply for similar injunctions under the inherent jurisdiction. However, whilst being able to rely on the Judgment of Keehan J for comfort, they will find that it provides virtually nothing by way of legal rationale. In particular, a number of questions are raised which are not dealt with in this Judgment:
- It is surprising that Keehan J has found that these powers are vested in the High Court. It implies that Parliament acted in ignorance of this when it passed the Sex Offenders Act 2003 (and its predecessor, the Crime and Disorder Act 1998) as the power to make equivalent injunctions were already part of the inherent jurisdiction- without the necessity for a person to have been convicted of any sexual offence or proving two or more qualifying acts. Indeed it appears to have been unaware of the existence of this power when they enacted the Anti-Social Behaviour, Crime and Policing Act 2014 ;
- The Court of Appeal, when dealing with a previous attempt by Birmingham City Council to use the civil jurisdiction to prevent crime (Birmingham City Council v Shafi & Ellis  EWCA 1186) had concluded that the existence of other civil remedies would appear normally to be grounds for a Court to refuse to exercise its discretion to make an injunction;
- Parliament reversed the decision in Shafi by enacting the provisions of Part 4 of the Policing and Crime Act 2009 which created a statutory scheme to apply for and obtain injunctions to prevent gang related violence. When this was considered by the Court of Appeal in Birmingham City Council v James  EWCA 552 they just decided that in circumstances where conduct is covered by a series of statutory schemes, there is no principle that the “closest fit” should be adopted – albeit that the Judge could still exercise his discretion to direct that a different application should be made;
- Keehan J just asserted that the civil standard of proof applies but he does not address the case law which has developed concerning ASBOs (e.g. R (on the application of Cleveland Police) v Haggas  EWHC 3231;  1 WLR 2512 which emphasised that whilst these are civil proceedings, because of the seriousness of the matters to be proved and the implications of the resulting Orders, the criminal standard of proof or something virtually indistinguishable from it should be used;
- There is also the question of the applicability of rules of evidence. The advantage of a SOPO or SOSHO is that there are now well established principles and procedures – including the necessity for the service of Civil Evidence Act Notices where appropriate and the prior service of a properly drafted proposed minute of the injunction. It is unclear whether the same restrictions would apply using the inherent jurisdiction (whose procedures are generally described as summary);
- The Court of Appeal in R v Smith  EWCA 1772 cautioned about the need for Orders to be precise, proportionate and not oppressive. It noted that that most offences relating to children are committed only when the child is under the age of 16 (save where an individual stands in a position of trust), restrictions should relate to those under 16 and not under 18. This would tend to militate against such orders covering girls who are over 16 (Keehan has made orders covering young women up to 18);
- There is extensive evaluation in Keehan J’s judgment of the Human Rights considerations involved in publicising the names of the men but none when considering the substance of the injunctions. There can be little doubt that the Orders represent a major interference with private life (Article 8) and freedom of Association (Article 11). One could imagine circumstances in which the same could be justified but the Birmingham case raises questions as to whether the injunctions are proportionate and – more importantly – in accordance with the law. At the very least, the legal foundation of such injunctions is obscure and calls into question whether it meets the requirements for legal certainty provided for in Article 7. If it turns out that these injunctions do not have a proper legal basis, they may end up bringing the use of the inherent jurisdiction into disrepute.
- Jackson LJ in James (above) raises the question whether injunction proceedings like this may blur the line between criminal and civil proceedings and engage Articles 6.2 and 6.3. This is not addressed in this Judgment either
There is no doubt that Birmingham City Council were seeking to address a serious problem with these proceedings. However, the fact that those representing the Respondents appear to have put up no real resistance and that the Judgment is otherwise almost devoid of reasoning would tend to call into question how much of a useful precedent the judgment of Keehan J will be for Local Authorities facing the same dilemma.
It is likely that Local Authorities may be more tempted to use the provisions of the Anti-Social Behaviour, Crime and Policing Act 2014) which are about to come into force which create Sexual Harm Prevention Orders and Sexual Risk Orders. The promised Home Office Guidance on these provisions are awaited.
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