Supreme Court to hear gang injunction challenge
On 30-31 January 2023, the Supreme Court will hear an appeal on whether Part 4 of the Policing and Crime Act 2009 is incompatible with Article 6 of the European Convention on Human Rights. Part 4 of the 2009 Act allows, amongst other things, the grant of so-called “gang injunctions” against those found, on the balance of probabilities, to have engaged in gang-related violence or gang-related drug dealing activity.
The Supreme Court’s decision is likely to be relevant to local authorities, police forces, anti-social behaviour specialists and social housing providers alike.
In 2016, HHJ McKenna granted an interim injunction without notice preventing Mr Jones from entering a large part of central Birmingham, save for exceptional circumstances, on account of his alleged involvement in gang-related activities (and in particular, of involvement with the ‘Get Money Gang’). The interim injunction was continued by Judge Worster. The order was the subject of an appeal to the High Court on the grounds that it was incompatible with the ECHR. Burton J held that the proceedings were not in respect of a criminal charge and did not require the criminal standard of proof.
In 2017, before the Court of Appeal could hear the challenge from the decision of Burton J, Judge Wall found, on the balance of probabilities, that the Appellant was affiliated with the Get Money Gang, and that he had engaged in or assisted with gang-related drug dealing. She granted a gang injunction with a power of arrest. That order prohibited Mr Jones from entering into a large part of central Birmingham. The specific issues of law (upon which basis Judge Wall proceeded) were subsequently ventilated before the Court of Appeal.
The Court of Appeal dismissed the Appeal. Sir Brian Leveson P’s judgment concluded:
“59. 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. In my judgment, the legislation does not trigger the bringing of a criminal charge for the purposes of Article 6 of the ECHR and neither is the requirement that the court address the issues on the balance of probability a breach of Article 6.”
THE SUPREME COURT
The Supreme Court granted permission to appeal on the following grounds:
- Following McCann v Crown Court at Manchester  UKHL 39, the appropriate standard of proof in proceedings brought on the basis of allegations of fact that a person has been engaging, assisting or encouraging criminal conduct for the purposes of imposing serious restrictions on their freedom of movement, association and expression requires proof to the criminal standard to be fair under Article 6(1) ECHR, even if the proceedings are civil proceedings; and,
- Alternatively, fairness requires the conduct to be proven to the criminal standard.
The appeal is due to be heard on 30-31 January 2023.
The Supreme Court’s decision, which is to be expected later this year, is likely to be important for police forces, local authorities and social housing providers alike in informing how to formulate effective legal responses to gang-related behaviour across the country. Given the nature of the challenge, the case is also likely to be of wider relevance to public law and local government practitioners.
The Public Law team at Cornerstone Barristers has extensive experience of applications under Part 4 of the Policing and Crime Act 2009. Kuljit Bhogal, Andrew Lane, Sarah Salmon and Jack Barber have all recently been instructed on applications for gang injunctions against numerous individual respondents. Please contact the clerks at Cornerstone Barristers should you require expertise in this area.
The Court of Appeal’s Judgment is available online:  EWCA Civ 1189