Grime Rap ‘Gangbo’ appeal fails in High Court – Diarmuid Laffan

19 January 2015 by

Photo credit: guardian.co.uk

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.

Sign up to free human rights update s by email, Facebook, Twitter or RSS

Related posts:

1 comment;


  1. I suspect the date given of 14 January 2014 is meant to be 2015.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: