The burden of proof in anti-social behaviour injunctions

Jones v Birmingham City Council and another [2023] UKSC 27

The Supreme Court decision in the case of Jones v Birmingham City Council and another [2023] UKSC 27 has confirmed that the relevant standard of proof when considering anti-social behaviour injunctions is the civil standard, that the court is satisfied that it is appropriate to grant the injunction on the balance of probabilities.

In the words of Sir Brian Leveson “gang-related violence and the resulting public disorder have become a scourge which affects many cities. It may flow from drug-dealing but is not unusually accompanied by the discharge of firearms or other acts of extreme violence directed at members of other gangs such that entirely innocent members of the public can become caught up in the cross fire.”

Background

Lord Lloyd-Jones in the case of Jones v Birmingham City Council and another [2023] UKSC 27 referred to Sir Brian Leveson’s comments when setting out the background of the case concerning a gang known as the “Guns and Money Gang” (“GMG”) who were known to be active perpetrators of gang violence in Birmingham dating back to the 1990’s. Following investigations by the West Midlands Police, proceedings were successfully commenced against Jones and 17 others who were members of the GMG, or rival gangs, seeking injunctive relief under S34 of the Policing and Crime Act 2009 (“the 2009 Act) or, in the alternative, pursuant to the S1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).

S34 of the 2009 Act provides that:

1. A court may grant an injunction under this section against a respondent aged 14 or over if the first and second conditions are met.
2. The first conditions is that the court is satisfied that on the balance of probabilities, that the respondent has engaged in or has encouraged or assisted –
   1. Gang-related violence; or
   2. Gang-related drug dealing activity.
3. The second condition is that the court thinks it necessary to grant the injunction for either or both of the following purposes –
   1. To prevent the respondent from engaging in, or encouraging or assisting, gang-related violence or gang related drug-dealing activity;
   2. To protect the respondent from gang-related violence or gang related drug dealing activity.

S1 of the 2014 Act provides that:

1. A court may grant an injunction under this section against a person aged 10 or over (“the respondent”) if two conditions are met.
2. The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour.
3. The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.

Jones applied for his injunction to be transferred to the High Court so that he could seek a declaration under S4 of the Human Rights Act 1998 (“the 1998 Act”) that S34(2) of the 2009 Act and S1(2) of the 2014 Act were incompatible with article 6 of the European Convention on Human Rights (“ECHR”) as they applied the civil standard of proof, on the balance of probabilities, as opposed to the criminal standard of proof, beyond all reasonable doubt.

Article 6 of the ECHR provides that:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

At the High Court, Burton J held that the proceedings did not relate to a criminal charge and the application of the criminal standard of proof did not need to be applied.

At the hearing of the substantive injunction application, Judge Wall applied the civil standard of proof and granted the injunctions sought.

Jones appealed the High Court decision to the Court of Appeal who found that the original High Court decision was correct.

The case before the Supreme Court was Jones’ appeal against the decision of the Court of Appeal. Jones had previously argued that the injunction proceedings against him constituted a criminal charge, However, it was now accepted that was not the case and therefore the primary issue before the Supreme Court was whether the criminal standard of proof needed to be applied to S34(2) of the 2009 Act and S1(2) of the 2014 Act in order to satisfy the requirement of Article 6(1) of the ECHR for a fair hearing.

Judgment

The Supreme Court found that the European Court of Human Rights case law did not suggest that in order to have a fair hearing the criminal standard of proof needed to be applied.

The Supreme Court also found that Parliament had expressly provided within the 2009 Act and the 2014 Act that the civil standard of proof was the appropriate test when seeking an order and therefore “there is no room for the courts to decide that as a matter of common law fairness the criminal standard should be applied”.

Opinion

The Supreme Court’s decision is a positive one for those tasked with responding to, and seeking to prevent, gang-related anti-social behaviour as the civil standard of proof is a lower threshold to meet that the criminal standard of proof.

The Supreme Court also endorsed Parliament’s decision to adopt the civil standard of proof “which parliament considered was justified by the mischief which had to be addressed”.