Birmingham City Council has pioneered the use of injunctions to tackle gang culture – but how does that fit in with ASBO legislation. Nicholas Dobson explains
Gang culture is a social plague, and a non-stop nightmare for those living in its shadow. So, what’s to be done about it?
Birmingham City Council, as part of the city’s Community Safety Partnership (CSP) says it has pioneered the use of injunctions to control the behaviour of those who jeopardise community safety. And, so far, it seems Birmingham County Court has granted around 30 interim orders.
These were made under Section 222 of the Local Government Act 1972, which allows local authorities to bring legal proceedings where they ‘consider it expedient for the promotion or protection of the interests of the inhabitants of their area’.
So far, so good. But how does that line up with anti-social behaviour order (ASBO) legislation in the Crime and Disorder Act 1998 (CDA)? That was what the Court of Appeal had to grapple with when the issue landed before it on 30 October 2008.
Section 1 of the CDA enables an application for an ASBO to be made by local and other relevant authorities, if it appears to the authority that a person aged 10 or over has acted in an anti-social manner, ie, one which has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household.
But an order must also be necessary to protect local inhabitants and others from further anti-social acts by that person.
Injunctions are always discretionary. For, under Section 37(1) of the Supreme Court Act 1981, the High Court can grant one where it thinks it is ‘just and convenient to do so’.
But on the other hand, the Court of Appeal pointed out that the ASBO regime in the CDA, together with other provisions, gives defendants a number of safeguards. Among these are consultation requirements, the fact that the behaviour must have occurred no more than six months from the complaint, and a right of appeal by the defendant to the Crown Court. So, weighing it all up and given the ‘detailed statutory scheme’, the Court of Appeal took the view that it shouldn’t ‘indulge in parallel creativity’, and that, apart from an exceptional case, it would not be ‘just and convenient’ to grant an injunction under the Supreme Court Act.
The majority of the Court of Appeal – Lord Justice Moore-Bick dissenting – decided that where, exceptionally, the court did find it necessary to consider an injunction in these particular circumstances, the standard of proof should be the same as for an ASBO, ie, the criminal standard. This, though, was not to undermine the general principle that the civil standard of proof would usually be ‘on the balance of probabilities’, more likely than not. The court also saw no reason to interfere with the decision of the court below that there was, in any event, no evidence to justify making an order.
So where does this leave Birmingham? Disappointed – but seeking leave to appeal to the House of Lords. For, according to Cllr Ayoub Khan, cabinet member for local services and community safety, the court’s decision ‘will limit the use of civil law to protect people from gang violence and anti-social behaviour’.
But, while Suzette Davenport, assistant West Midlands chief constable also expressed disappointment, she said the police remained committed to working with partner agencies to reduce gang-related violence, and they would continue to apply for ASBOs to curb criminal behaviour and keep neighbourhoods safer.
In the Court of Appeal, the council had faced two essential difficulties. First, as the court pointed out, the case against the individuals in question ‘was very thin on the facts’. And second was the existence within the CDA of a statutory scheme with safeguards to suit the circumstance.
But while the court did indicate its sympathy for the council, and didn’t ‘wish to minimise in any way the problems identified’, equally, it pointed out that there was no reason why an ASBO shouldn’t be made against those whom the evidence was sufficient, ‘which must be true in many cases’. The court also left open the possibility of exceptional cases where an injunction would be appropriate. But, unfortunately for the council, the Court of Appeal didn’t think that this was one.
Nicholas Dobson is a partner at Pinsent Masons
Birmingham City Council, as part of the city’s Community Safety Partnership (CSP) says it has pioneered the use of injunctions to control the behaviour of those who jeopardise community safety. And, so far, it seems Birmingham County Court has granted around 30 interim orders.
These were made under Section 222 of the Local Government Act 1972, which allows local authorities to bring legal proceedings where they ‘consider it expedient for the promotion or protection of the interests of the inhabitants of their area’.
So far, so good. But how does that line up with anti-social behaviour order (ASBO) legislation in the Crime and Disorder Act 1998 (CDA)? That was what the Court of Appeal had to grapple with when the issue landed before it on 30 October 2008.
Section 1 of the CDA enables an application for an ASBO to be made by local and other relevant authorities, if it appears to the authority that a person aged 10 or over has acted in an anti-social manner, ie, one which has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household.
But an order must also be necessary to protect local inhabitants and others from further anti-social acts by that person.
Injunctions are always discretionary. For, under Section 37(1) of the Supreme Court Act 1981, the High Court can grant one where it thinks it is ‘just and convenient to do so’.
But on the other hand, the Court of Appeal pointed out that the ASBO regime in the CDA, together with other provisions, gives defendants a number of safeguards. Among these are consultation requirements, the fact that the behaviour must have occurred no more than six months from the complaint, and a right of appeal by the defendant to the Crown Court. So, weighing it all up and given the ‘detailed statutory scheme’, the Court of Appeal took the view that it shouldn’t ‘indulge in parallel creativity’, and that, apart from an exceptional case, it would not be ‘just and convenient’ to grant an injunction under the Supreme Court Act.
The majority of the Court of Appeal – Lord Justice Moore-Bick dissenting – decided that where, exceptionally, the court did find it necessary to consider an injunction in these particular circumstances, the standard of proof should be the same as for an ASBO, ie, the criminal standard. This, though, was not to undermine the general principle that the civil standard of proof would usually be ‘on the balance of probabilities’, more likely than not. The court also saw no reason to interfere with the decision of the court below that there was, in any event, no evidence to justify making an order.
So where does this leave Birmingham? Disappointed – but seeking leave to appeal to the House of Lords. For, according to Cllr Ayoub Khan, cabinet member for local services and community safety, the court’s decision ‘will limit the use of civil law to protect people from gang violence and anti-social behaviour’.
But, while Suzette Davenport, assistant West Midlands chief constable also expressed disappointment, she said the police remained committed to working with partner agencies to reduce gang-related violence, and they would continue to apply for ASBOs to curb criminal behaviour and keep neighbourhoods safer.
In the Court of Appeal, the council had faced two essential difficulties. First, as the court pointed out, the case against the individuals in question ‘was very thin on the facts’. And second was the existence within the CDA of a statutory scheme with safeguards to suit the circumstance.
But while the court did indicate its sympathy for the council, and didn’t ‘wish to minimise in any way the problems identified’, equally, it pointed out that there was no reason why an ASBO shouldn’t be made against those whom the evidence was sufficient, ‘which must be true in many cases’. The court also left open the possibility of exceptional cases where an injunction would be appropriate. But, unfortunately for the council, the Court of Appeal didn’t think that this was one.
Nicholas Dobson is a partner at Pinsent Masons
