Local Authority Powers

May 20th, 2013 by James Goudie KC

Should Birmingham City Council have been granted an Injunction, with a power of arrest attached, restraining an individual from entering a prescribed area of the City, save for certain limited purposes, and from associating with 19 named persons or gathering with them in any public place within the City, and ordering him to undertake prescribed activities?  That was the issue that went from the Birmingham County Court to the Court of Appeal in Birmingham City Council v James [2013] EWCA Civ 552, in which Judgment was given on 17 May 2013.

The factual background was as follows.  For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

The legal background is as follows. In the past the Council has attempted to make use of its powers under Section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining Injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court of Appeal held that Section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The Court held that although it is possible in some circumstances to obtain an Injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an ASBO.  The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the Court’s decision in Birmingham City Council v Shafi. Section 34 gives the Court power, on the application of chief constables or local authorities, to grant Injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities.

The Court of Appeal upheld the Injunction.

Moore-Bick LJ said:-

“11.       I do not think it helpful to introduce the concept of mens rea into section 34(2). Although the section is clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it is possible that in some, no doubt unusual, cases it could be held to apply to certain kinds of conduct which could be said to amount to inadvertent encouragement. However, the question does not arise in this case and it is neither necessary nor desirable to explore precisely where the boundary lies.  …”

“13.       … Following the decision of this court in Birmingham City Council v Shafi, in which the view was expressed that an ASBO, rather than an injunction in support of the criminal law, was the appropriate means by which to restrain the defendant from taking part in gang-related violence, Parliament enacted Part 4 of the Policing and Crime Act 2009, which makes specific provision for the granting of injunctions for that purpose. There can be no doubt, therefore, that Part 4 represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking. In those circumstances I do not think it can possibly have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. If the condition in subsection (2) is satisfied, it is sufficient that the court consider whether it is necessary to impose a restriction on the respondent’s activities to achieve one or other of the purposes set out in subsection (3). The judge held that if the defendant’s conduct fell within both pieces of legislation the Council could make an application under whichever it considered the more convenient or appropriate. In principle I think that is right, but in any event I am unable to accept that an application under section 34 was inappropriate. …”

Comments are closed.