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


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 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 citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 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 evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court 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: