Grime Rap ‘Gangbo’ appeal fails in High Court – Diarmuid Laffan
19 January 2015
Photo credit: guardian.co.uk
Chief Constable of Greater Manchester v Calder [2015] EWHC B11 – Read judgment
Adam Wagner represented Scott Calder in this case. He is not the writer of this post.
The Greater Manchester Police (‘GMP’) have been unsuccessful in an attempt to obtain an Injunction to Prevent Gang-Related Violence (‘IPGV’ or ‘Gangbo‘) against Scott Calder. The application was based on police intelligence and the lyrics of Mr Calder’s YouTube Grime Rap videos. On 14 January 2015, Mr Justice Blake dismissed the GMP’s appeal to the High Court, and in doing so laid out guidance on the purpose and ambit of the IPGV legislation, which is currently being substantially amended by Parliament.
The below is based on the Judge’s ex tempore judgment (i.e. given at the hearing). We will post the full judgment when it is available.
Gang Injunctions
Gang injunctions were introduced in early 2011, giving police and local authorities new powers to deal with gang-related violence. They are court-issued orders prohibiting gang members from participating in certain activities, for example being in particular places at night or associating with particular people.
s.34 of the Policing and Crime Act 2009 allows a court to grant an IPGV where it is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, ‘gang-related violence’ and the court thinks the injunction is necessary to prevent the Respondent from engaging in gang related violence, or to protect the respondent therefrom.
Key to the section is the concept of ‘gang related violence’. This is defined in s.34(5) as violence which occurs in the course of, or is otherwise related to the activities of a group which “(1) Consists of at least 3 people, (2) Uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group; and (3) Is associated with a particular area”.
This definition was added to during the course of the legislative process, following concern expressed by the Joint Committee on Human Rights that the section’s lack of a definition for ‘gang’ would result in a “potentially wide application in the future beyond the category of people currently envisaged to be covered and the broad discretion which it gives to those seeking applications and the courts as to how [gang related violence] is interpreted”.
The section grants the court a wide discretion as to the mandatory and/or prohibitory conditions which it can attach to an IPGV. For example, the order sought against Scott Calder would have excluded him from large areas of Manchester, subjected him to a curfew, and required him to refrain from meeting various people in public places, including some of his brothers.
The judgment under appeal
On 17 July 2014, an application by the Greater Manchester Police (‘GMP’) for an injunction to prevent gang-related violence (‘IPGV’, also known as a ‘Gangbo’) under s.34 of the Policing and Crime Act 2009 (‘the Act’), was refused in the Manchester County Court on the basis that the group to which the respondent Scott Calder was said to belong, could not be identified by ‘others’ as a gang within the meaning of s.34(5) (click for 1st instance judgment (PDF)). A joint expert on Grime music was instructed by the court in order to interpret the lyrics to Mr Calder’s rap videos.
The injunction was sought on the basis that Scott Calder was a member of a gang – which could be identified by others within the meaning of s.34(5)(b) – as a ‘family which runs a drug-dealing network’. In support of its application, the GMP presented evidence that the respondent had been shot at in circumstances which he declined to explain, and had threatened reprisals in the grime rap videos he uploaded onto YouTube. It also submitted “intelligence evidence” in support of its claims about the Calder family.
His Honour Judge Armitage concluded that the applicant’s posited criterion would not allow “others”, which he took to mean members of the public a distinct from the police, to identify the respondent’s associates as a gang. Even on the GMP’s evidence, the family did not use classic gang signifiers such as colours, or have any established territorial presence, so members of the public would not be able to identify them as a gang. In making this finding the judge took comfort from paragraph 2.2 of the statutory guidance issued on IPCVs, which states “Gang injunctions are intended to be used against members of violent street gangs.”
The High Court appeal
The GMP appealed to the High Court. It argued that the word ‘others’ in s.34(5)(b) should be interpreted in a strictly literal fashion, such that a relevant group would be a gang within the section’s meaning if any two or more people could identify them with reference to any given characteristic. It also argued that the judge erred in finding that the “others” who identify the gang must be members of the public, as opposed to the police who through their investigative activities may have specialised knowledge of a group’s illicit activities.
On 14 January 2015, Mr Justice Blake – sitting in the High Court in Manchester – dismissed the GMP’s appeal, which focused on the interpretation of s.34(5). He did so on the following bases:
First, the Statutory Guidance – notably paragraphs 2.1, 2.2, 2.7 and 7.2.3 – contained references to “street” gangs and the associated gang lifestyle. This shows that the target of the section was the specific phenomenon of urban street gangs, as opposed to organised criminals more generally. The Judge also held that “parliament concluded that some form of identity known to the public or section of the public is necessary. It is not sufficient that there is a threat of violence by more than one person if there is no common characteristic between them that enables other to identify them as such”.
Secondly, the ejusdem generis principle of statutory interpretation – which holds that where a section contains a general category preceded by a list of specific examples, the category should be interpreted as restricted to things of the same kind as the examples – meant that the ‘some other characteristic’ catch-all in s.34(5) could only contain things which are like ‘names, emblems and colours’ or, in other words, consciously adopted outward signifiers of gang membership. Thus, the Judge held that it was “not in my judgment sufficient that a police officer piecing together pieces of information is able to draft a connection between members of the gang is there’re is not some connection that would allow others more generally to make the identification”.
Thirdly, s.50 of the Serious Crime Bill, which is currently before Parliament, creates a new ‘injunction to prevent gang-related violence and drug-dealing activity’. This appears to be an attempt to broaden the gang-injunction power in response to the judgment at first instance, and it does away with the list of examples in s.34(5)(b), and simply requires that a ‘gang’ have any characteristic which allows its members to be identified as a group. The Judge accepted that the formulation of a new power which covers drug-dealers who do not outwardly manifest their gang allegiance, as well as the paradigmatic examples of street-gangs, indicates that s.34(5)(b) as presently framed is only intended to cover the latter.
Finally, the judge rejected Mr Calder’s argument that the criminal standard of proof was required in gang injunction cases, the civil standard (balance of probabilities) having been specifically stated in the legislation. However, he finessed that with the following warning: “As this very judgment indicates there is flexibility in applying the civil standard and conclusions should not be lightly reached, applying the civil standard on conjecture and suspicion and particularly in relation to hearsay”. In this case, the Judge below had not found, even on the balance of probabilities, that the gang existed in the form alleged. So even the proposed legislation would not have assisted the GMP.
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I suspect the date given of 14 January 2014 is meant to be 2015.