Jones v Birmingham City Council  EWCA Civ 1189 (23 May 2018)
The Court of Appeal has upheld a ‘gang injunction’ restricting the actions and movement of 18 members of a Birmingham gang. One of the men affected, Jerome Jones, unsuccessfully challenged the injunction, arguing that the proceedings by which it was made properly required proof to the criminal standard, and that the application of the civil standard violated his right to a fair trial under Article 6 ECHR.
The appellant was said to be a member of the Guns and Money Gang (GMG), affiliated with Birmingham’s notorious Johnson Crew. Named after Johnson’s café, the gang’s erstwhile fast-food hangout, the Johnson Crew have been engaged in often violent turf war with the rival Burger Bar Boys since the 1980s. They both attempt to lay claim to various areas of the city, particularly between Handsworth and Aston.
The violent climate was brought to the nation’s attention with the tragic murder of Charlene Ellis and Letisha Shakespeare, two innocent teenage students gunned down in Aston while leaving a party in the early hours of 2 January 2003. Four associates of the Burgers, imprisoned for the murders, had apparently intended to target a Johnson member as revenge for the earlier execution-style killing of Burger Bar Boy Yohanne Martin. While this particularly bloody period gained attention for claiming the lives of a number of gang members and mere bystanders, the violence has not abated. A Birmingham police officer in the proceedings gave evidence of ongoing gang violence, with innocent members of the public at risk of being caught up in crossfire .
For many years, Birmingham City Council (‘the City’) has sought to use various powers to disrupt and discourage gang-related behaviour, including injunctions against named people said to be involved in violence. By injunction, individuals can be prevented from entering certain areas, or from doing things associated with gang violence.
However, the City’s attempts to use injunctions were stymied following Birmingham City Council v Shafi  EWCA Civ 1186. The Court of Appeal held that the City could only use s.222 of the Local Government Act 1972 to obtain an injunction against a gang member in exceptional circumstances. Instead, the Anti-Social Behaviour Order (ASBO) regime should be used — which meant that a gang injunction would only be granted if the Council could prove to the criminal standard that it was needed.
This higher standard would make obtaining an injunction much more difficult. Where the civil standard applies, the party seeking an injunction must show that the conditions are satisfied on the balance of probabilities, i.e. more likely than not. However, the criminal standard of proof is much higher – often referred to as ‘beyond reasonable doubt’ or being ‘sure’.
New powers of injunction and a new standard of proof
Section 34 of the Policing and Crime Act 2009 came in to force in January 2011. As amended by s.51 Serious Crime Act 2015, this provision empowers the court to grant an injunction where it is satisfied on the balance of probabilities that the respondent has engaged in, encouraged or assisted gang-related violence or gang-related drug-dealing activity (s.34(2)) and when an injunction is necessary for either or both of the statutory purposes: to prevent the respondent from engaging in gang-related violence or drug-dealing activities or to protect him or her from those same things (s.34(3)).
Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 replaced the previous ASBO regimes and provided a power to grant injunctions where the court is satisfied – again on the balance of probabilities — that the respondent has engaged or threatens to engage in anti-social behaviour (s.1), which includes conduct capable of causing harassment, alarm, distress, nuisance or annoyance (s.2).
Jerome Jones’s injunction
The injunction which the appellant challenged prevented him from using threatening violence, from entering a very large part of Birmingham, from contacting 10 named people, from possessing any controlled drugs and from participating in any gang-affiliated music videos. A power of arrest applied to the first four of those restrictions. Initially granted as an interim injunction, a final order was granted on 13 July 2017 after more than 80 witnesses from the Home Office and the police gave evidence at Birmingham Crown Court.
The parties’ arguments
The challenge turned on Article 6: the right to a fair trial, which provides that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’ (Art. 6(1)). In criminal trials, Art. 6(2) provides for the presumption of innocence and Art. 6(3) provides additional procedural protections for the accused.
In the Court of Appeal, Jones first argued that the injunctions were granted by proceedings ‘in respect of a criminal charge’ . Therefore, he argued, the criminal aspects of Article 6 took effect, including that a higher standard of proof must be satisfied before they could be granted.
His alternative argument was that even if the injunctions were granted by civil proceedings, his rights under Article 6, and the overriding criterion of fairness therein, required that the criminal standard be applied .
The City and the Home Secretary (intervening) argued that gang injunctions did not engage the criminal limbs of Article 6, but that even if they did involve the determination of a ‘criminal charge’, the criminal standard of proof was not required: the civil standard and appropriate safeguards was enough. In respect of the second ground, they again countered that Article 6 did not mandate the criminal standard and that the legislative scheme was compatible with the UK’s human rights obligations.
Ground 1: Proceedings in respect of a criminal charge
Was the injunction granted ‘in respect of a criminal charge?’ Domestically speaking, the injunction was clearly made under civil law. However, this is only one aspect of the three part-test set out in Engel v Netherlands 1 EHRR 647 which requires the court to assess:
- The domestic classification
- The essential nature of the proceedings
- The nature and severity of the penalty.
The appellant accepted that under (1), the proceedings were civil. However,
to provide the context for the remaining heads, [he] identified the proceedings as involving emanations of the state seeking to restrict the activities, liberties and freedoms of individuals in order to protect the public. That, he argued, was the pursuit of a criminal charge. 
He sought to argue that the requirement for underpinning criminal behaviour (gang violence or drug dealing) per s.34 of the 2009 Act demonstrated the criminal nature of the proceedings .
With regard to the third Engel limb, the appellant argued that the injunction is in reality punitive in its effect, and had similarities with community orders which can follow criminal conviction .
The Court of Appeal dismissed this ground, finding that the Strasbourg case law required the court to focus on the nature and consequences of the proceedings. The basis for gang injunctions is preventative, not simply punitive. Further, they do not involve an assertion of a criminal offence in name or form . The case law distinguished criminal allegations from actions based on a ‘foundation of suspicion’ (see Secretary of State for the Home Department v MB  1 AC 440) .
However, even if their basis transcended mere suspicion, this did not render them criminal proceedings. Actions such as damages for injury in a road traffic accident could be based on a parallel criminal offence without altering the nature of the civil action . Having so decided, the court did not have to determine whether the civil standard could properly be applied to cases within the criminal limb of Art.6.
Ground 2: Fairness requires criminal standard of proof
The appellant’s second ground was that even if the proceedings were not criminal in nature (per Engel), the balance of probabilities test violated the fair trial requirements of Art.6.
Again, the appellant emphasised the criminal context in which the application for an injunction arose, and highlighted its effect on his individual liberty. The court rejected the notion that Art. 6 requires the criminal standard to be applied simply because an application is based on criminal or quasi-criminal behaviour or where its grant would result in restriction of individual liberty. The was no support for this ‘wide-ranging proposition´ in the case law. [51, 58].
In concluding the judgment of the court, Sir Brian Leveson drew attention to the safeguards in the gang injunction powers. Such orders can be made to prevent behaviour but also to protect the individual himself, can only be imposed for a maximum of two years and require review, and (unlike ASBOs) can include mandatory rehabilitative requirements.
Parliament was entitled to address the very real social harm which gangs and other anti-social behaviour have been inflicting on society in the way in which this legislation seeks to do. Built in to each legislative scheme are safeguards intended to address the impact on individuals. 
A side note on Birmingham gangs and Article 6
Surprisingly, this is not the first time that Midland gang violence and Article 6 ECHR have coincided.
The criminal prosecution of those involved in the murder of Charlene Ellis and Letisha Shakespeare was the first in English courts to use evidence from an anonymous witness, such was the notoriety of the gangs and the fear of repercussions. Three of the convicted men appealed, alleging that the admission of his oral evidence at trial had breached their right to a fair trial, including the right to examine a witness against them. The Court of Appeal dismissed the appeal by the alleged members of the Burger Bar Boys, and their application to Strasbourg was declared inadmissible.
Jo Moore is a barrister at One Crown Office Row.