Civil Injunction obtained by local authority for the purpose of preventing gang-related violence not incompatible with Article 6 ECHR

Jonathan Scrine

In Jones v Birmingham City Council and another [2018], the Court of Appeal dismissed an appeal by Mr Jones contending that a civil injunction granted against him and other alleged members of a gang were incompatible with his rights under Article 6 of the European Convention on Human Rights (ECHR).

Mr Jones was involved with a gang in Birmingham which often engaged in violent turf wars with rival gangs. Following concerns for public safety after several incidents of serious violence, Birmingham City Council obtained an interim injunction against Mr Jones under section 34 of the Policing and Crime Act 2009 (PCA 2009), section 51 of the Serious Crime Act 2015 (SCA 2015) and section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014) in order to prevent gang-related drug dealing activity and gang-related violence. The legislation provided a civil remedy by way of injunction to prevent such behaviour which consequently required the civil standard of proof (on a balance of probabilities) rather than the higher criminal standard (beyond reasonable doubt).

The Appellants argued that because the civil injunction was brought in respect of criminal charges, it therefore engaged his rights under Article 6(1), (2) and (3) of the ECHR (right to a fair, and public hearing, presumption of innocence, and minimum rights of people charged with an offence) or, alternatively, that Article 6(1) required proof to be at the criminal standard.

The Court considered the following:

• Whether the injunction constituted a “criminal charge” for the purposes of Article 6: the Court considered the classification of the injunction under UK law; the essential nature of the injunction; and the nature and severity of consequences that could flow from the injunction and concluded the injunction did not necessarily constitute bringing a criminal charge for the purposes of Article 6(1). Conduct which might involve a degree of underlying criminality did not necessarily amount to the bringing of a criminal charge. The Court agreed with the respondent’s argument that the provisions in the relevant legislation were specifically designed to ensure that they provide for civil, preventative (rather than punitive) measures and that the pre-conditions do not necessarily involve crime.
• Whether or not the “balance of probability” standard of proof is compatible with Article 6: it was held that the requirement that the court address the issues on the balance of probabilities is not a breach of Article 6. Fairness under Article 6(1) did not require the application of the criminal standard to applications for orders significantly limiting the liberty of the subject or in which the basis of the application relates to criminal behaviour or behaviour that is akin to criminal behaviour.

This judgement provides clarification on the scope of Article 6 of the ECHR in relation to quasi-criminal interim remedies and will be of particular interest to local authorities seeking to use civil injunctions under the ASBCPA 2014 to tackle anti-social behaviour.

Jones v Birmingham City Council and another [2018]

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