Birmingham City Council has had a setback in its use of injunctions to curb serious gang-driven criminal and anti-social behaviour.

Though section 222 of the Local Government Act 1972 enables local authorities to institute civil proceedings in their own name, where they ‘consider it expedient for the promotion or protection of the interests of the inhabitants of their area’, the Court of Appeal on 30 October 2008 decided that the anti-social behaviour order (ASBO) legislation was more fit for the particular purpose. The case in question was Birmingham City Council v Shafi and anor [2008] EWCA Civ 1186 (Sir Anthony Clarke, Master of the Rolls and Lord Justice Rix, with Lord Justice Moore-Bick dissenting on one aspect).

The Court of Appeal noted features of the ASBO regime in section 1 of the Crime and Disorder Act 1998. In particular, this 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 – that is, one that has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household. But the applicant must also show that such an order is necessary to protect relevant persons from further anti-social acts by that person. And, following the leading decision of the House of Lords in R (McCann) v Crown Court at Manchester [2002] UKHL 39, though the proceedings are civil and hearsay evidence is admissible, nevertheless the criminal standard of proof applies to the substantive elements of the application.

Unfortunately for the council the Court of Appeal considered that, given the detailed statutory scheme in the ASBO legislation, with various defendant safeguards, ‘the court should not indulge in parallel creativity by the extension of common law principles’. The right course was for the court to decline to grant an injunction and to leave the council to its remedy in the magistrates’ court if it can establish it. The court also upheld the decision of the judge at first instance that there was no evidence to justify making the order since this was ‘very thin on the facts’. The court did say that it did not wish to minimise in any way the problems identified by the council. However, it considered that though there may be exceptional cases justifying an injunction, this was not one of them.

The outcome is clearly a disappointment for the council, which is apparently seeking leave to appeal to the House of Lords. However, the principle of a specific statutory code taking precedence over more general powers is well established, and was a key ingredient of many of the local authority legal challenges in the 1990s, such as interest rate swaps. And all three judges agreed that it would have been wrong to grant an injunction in the circumstances (Moore-Bick LJ dissenting only on one narrow aspect).

In mid-January, the Home Office indicated that home secretary Jacqui Smith ‘has long supported local injunctions and intends to legislate to give police and local authorities the powers to seek them against gang members to tackle gang crime’. So the Court of Appeal may not be the last word.

A resigning matterMarry in haste, so they say, and repent at leisure. The same might also be said about resignation. A Birmingham City Council employee who later tried to reverse his resignation unfortunately found his employment had been terminated. And, on 27 October 2008, Mr Justice Silber in the Employment Appeal Tribunal (EAT) upheld the Council’s decision (see Ali v Birmingham City Council).

On 25 April 2007 the claimant had handed his resignation to his manager, Miss Espeut, in light of ‘personal circumstances’. Having taken advice from human resources, Miss Espeut offered the claimant a cooling-off period to reconsider his decision, but he reaffirmed his decision to resign. He was then left alone for two periods of 20 and then 10 minutes before he asked Miss Espeut to return and confirmed that he wished to resign with immediate effect. Miss Espeut told him that she would accept his decision. It was then agreed that he would take the next two days as annual leave.

On the evening of Sunday 29 April 2007 the claimant sent an email to Miss Espeut which she did not see until she returned to work the next day. In the email the claimant said he was ‘extremely sorry’ for tendering his resignation since he ‘wasn’t thinking straight’ and knew what he had done ‘was wrong and very irresponsible’. He said he was ‘extremely stressed out, due to some personal circumstances’ and asked to be given a chance to put things right. However, unaware of the email, the council’s director of HR wrote to the claimant on 3 May 2007 confirming that the claimant’s resignation had been accepted with effect from 30 April 2007.

The claimant claimed unfair dismissal, but the Employment Tribunal held it had no jurisdiction to entertain the claim as the employee had resigned. In the EAT he contended, among other things, that there was in fact ‘no real resignation’ – that the council had failed to provide him with a reasonable opportunity to reflect and that it had failed adequately to investigate the circumstances of his resignation. He also claimed that the tribunal had also failed to conclude that the claimant had rescinded his resignation before it had been accepted.

The EAT, however, rejected all these submissions. In doing so it did consider the claimant’s submission that he fell within the exception to the general rule that an unambiguous resignation should be treated accordingly (see Sothern v Franks Charlesly & Co [1981] IRLR 278). The EAT rejected the claimant’s contention that the decision had been taken in the heat of the moment and so what would otherwise have been a clear and unambiguous resignation could not be relied upon as having that effect. On the other hand, it took the view that there was ‘a sustained decision by the claimant to resign’ and consequently ‘this was far from being an impulsive decision made and implemented in the heat of the moment’. There was ‘clear evidence’ that Miss Espeut had given the claimant a number of opportunities to reflect but that he was adamant he wished to leave. And since the claimant’s resignation was accepted on 25 April 2007, which he attempted to rescind only on 29 April, this argument also failed.

This case is a reminder to authorities of the wisdom of following proper employment practice and taking appropriate advice when difficult situations like this arise. In the circumstances, the council was found to have acted entirely properly, but other managers in other circumstances might have unwittingly strayed into error. For employees, it is a resonant health warning that resignation is a serious step and it pays to look carefully before you leap.

Judicial biasThe services of the fair-minded and informed observer (FMIO) are much in demand these days as allegations of bias (or its equally toxic colleague, ‘apparent bias’) become more common. Recently, a female FMIO was sent to give a view on allegations of bias made against Lady Cosgrove, a judge of the Inner House of the Scottish Court of Session. But, as the House of Lords held on 22 October 2008 in Helow v Secretary of State for the Home Department and anor [2008] UKHL 62, the observer found no evidence of bias.

The appellant was a Palestinian whose claim for asylum had been rejected. After permission to appeal to the Immigration Appeal Tribunal had been refused, she sought a review of that decision by the Court of Session. Lady Cosgrove, dealing with the matter on the papers in that capacity, affirmed the decision to refuse permission to appeal, giving ‘reasons extending to just over four pages’.

The appellant sought this decision to be held ‘vitiated for apparent bias and want of objective impartiality’. This was because the judge was a member of the International Association of Jewish Lawyers and Jurists and a founder member of a Scottish branch of that association. The allegation of bias arose from the submission that the association (among other things) had ‘a strong commitment to causes and beliefs at odds with the causes and beliefs espoused by the appellant’, since the association is ‘anti-Palestinian... anti-Muslim... antipathetic to the PLO… supportive of Israel [and] supportive of Ariel Sharon’. The appellant’s two arguments were essentially: (1) that the FMIO would think the views advanced by the association were those which she shared as a member; and (2) if the FMIO did distinguish between the association and its members, the FMIO would think that Lady Cosgrove had been influenced by the association of which she was a member.

However, the FMIO was not impressed and neither was the court. The legal test for bias is of course that formulated by Lord Hope (one of the judges in the instant case) in Porter v Magill [2001] UKHL 67. Lord Mance said that the aims of the association were not objectionable and the material relied upon from the association and its quarterly publication, Justice, was ‘selective rather than representative’. Caution was therefore required about drawing from it general conclusions about the association’s character or its significance in relation to a particular member. In addition, any approach which assumes that an association member would have read all or even most of the selected material is highly suspect. Organisation members commonly scan the contents table reading only the occasional item appearing to be of particular interest. And membership of an association ‘connotes no form of approval or endorsement of that which is said or done by the association’s representatives or officers’. Lord Mance pointed out that judges read a great deal of material designed to influence them but which they are ‘trained to analyse and to accept, reject or use as appropriate’. In all the circumstances the House rejected the appeal.

Local Democracy, Economic Development and Construction BillGreater public involvement in the democratic process and more collective strategic cohesion across local and public authorities are two of the key themes of this bill, which was introduced in Parliament on 4 December 2008. A variety of new requirements appear, including those concerning petitions, democratic enhancement, audit of ‘entities’ connected with local authorities, local authority economic assessments, regional strategy, leaders’ boards, economic prosperity boards, combined authorities and multi-area agreements – a feast, in fact, for the senior local authority lawyer who already thought they had everything (at least in the sense of everything in one’s in-tray burning a hole through the desk). The bill can be downloaded from Parliament’s website, and a note I have issued on it can be found at href=http://www.pinsentmasons.com/pdf/BraveNewWorld0109.pdf target="_blank"www.pinsentmasons.com/pdf/BraveNewWorld0109.pd>.

Nicholas Dobson, Pinsent Masons, Leeds