The law on ‘Gangbos’

Recent changes brought about by section 34 of the Policing and Crime Act 2009 (PCA) now permit the civil courts to make injunctions aimed specifically at preventing (and protecting respondents from) gang-related violence, shifting consideration of a specific criminal activity into the civil arena.

Criticised in the media and dubbed ‘Gangbos’, many mistakenly believe these injunctions to be ‘gang ASBOs’ and it is clear that practitioners and multi-agency frontline workers still appear to be largely unfamiliar with the provisions. Yet in the wake of the unprecedented England riots, believed by many to have been orchestrated by gang members, it is anticipated that this legislation may now receive greater attention.

This article addresses the social and legislative effects of the legislation and includes some of the interpretations of those on the frontline.

Background

Section 34 of the PCA was introduced following a disappointing conclusion for local authorities in the case of Birmingham City Council v Shafi and another [2008] EWCA Civ 1186 [2009] 1 WLR 1961. The council had identified an increase in serious crime and gang culture in the city but recognised that criminal law was not being used as much as it could be as ‘residents are often too frightened to co-operate with the police or give evidence’.

The council used section 222 of the Local Government Act 1972 to overcome this hurdle and obtained 30 interim civil injunctions against alleged gang members in Birmingham, restraining them in a number of ways - such as, preventing them from entering the city and from wearing their gang colours. The trial judge, however, discharged the interim injunctions and the council’s appeal was subsequently dismissed by the Court of Appeal.

The injunctions were seen to be ‘sought in aid of the criminal law’. The Court of Appeal held ‘it would be wrong in principle for the court to exercise its discretion to grant these injunctions because the appropriate course was for the council to apply for ASBOs’. This is legislation specifically enacted to deal with such circumstances and ‘subject to particular safeguards, some of which did not apply to injunctions granted at common law’.

The statistics showed, however, that the use of civil injunctions had a positive effect on curbing violence in Birmingham. ‘In Aston/Nechells, there was an average of 11 firearms incidents in the four months preceding the orders compared with four for the period the orders were in place. After the court judgment, this figure rose to nine; and in Handsworth/Lozells/Newtown, the level of robberies in the four months prior to the injunctions averaged 55 per month compared with 33 per month while the injunctions were in place. After injunctions were removed this rose again to 48’ (1).

The Local Government Act, to an extent, remedied the problem, but the council was left wanting when the Court of Appeal ruled that this was not a legitimate option.

Changes in the law

The new provisions were essentially introduced to circumvent this identified barrier to tackling gang-related violence using the criminal justice system; specifically, that witnesses are often too afraid to speak to the police and victims often decline to make statements.

As of 31 January 2011, section 34 enables the police, or local authority, following consultation with other agencies, to apply with or without notice to a county court or the High Court for a civil ‘injunction to prevent gang-related violence’ against an individual who is aged 18 years and over.

The court may grant such an injunction if two conditions are met. The first is that the court is satisfied on the balance of probabilities that the individual has engaged in, or has encouraged or assisted, gang-related violence (2). The second is that the court thinks it is necessary to grant the injunction to prevent the individual from engaging in, or encouraging or assisting, gang-related violence and/or to protect the individual from gang-related violence (3). Notably, the application can be made using hearsay evidence and police intelligence without the need for any direct evidence, although such evidence would be weighted accordingly.

Once in place, the injunction may prohibit an individual from doing anything described in the order and/or require the individual to do anything described in the order (4). It has no minimum duration, but no condition may last longer than two years (5). The court also has the power to make interim injunctions following with or without notice applications.

The government intends these provisions ‘to break down violent gang culture, prevent the violent behaviour of gang members from escalating and engage gang members in positive activities to help them leave the gang’ (6). Home Office minister James Brokenshire clarified that the government was ‘not expecting huge numbers’ of gang injunctions to be issued (7). They are not aimed at anti-social behaviour or public nuisance, they are very much pitched at preventing higher-level violence and will come at some expense to local authorities.

Effect on gang members

Importantly, gang injunctions will not replace criminal prosecutions; rather they will provide the police with an additional opportunity to intervene and a means to disrupt a gang’s pattern of behaviour. Although the injunctions do not apply to entire gangs, it is hoped that targeting specific individuals will have a knock-on effect on other gang members.

Unlike ASBOs, however, there is no facility to make applications for gang injunctions upon conviction of a criminal offence; applications are made in standalone proceedings and they are a purely civil order. Injunctions enable the police to arrest without warrant (8) a respondent who they have reasonable cause to suspect to be in breach of a condition (9). The court may then subsequently remand a respondent in custody or on bail (10). Breach of an injunction is not a criminal offence but is rather a civil contempt of court, which carries a maximum punishment of two years in custody and/or an unlimited fine (11). Legally aided representation is available as part of the civil legal aid scheme (12), albeit subject to means and merit.

It has been suggested that gang injunctions are a tool which could tackle the problem of gang violence before criminalising young gang members. It is difficult to conceive how an injunction aimed at preventing higher-level violence could pre-empt a criminal record, but the escalation of violence in gangs is dramatic. To stab someone is often a gang initiation and at the beginning of offending history.

The injunctions are not without their potential difficulties; one drawback is that ‘gangs in London are very fluid and chaotic - individuals may move in and out and between gangs fairly rapidly’ (13); non-association and geographical restriction may simply prompt an individual to switch over to an affiliated gang. It is also not unheard of for gangs to change their gang colours leaving a prohibition not to wear a specific colour worthless.

Furthermore, much of the gang culture is often played out on the internet. A condition such as not to appear in videos inciting violence could prove difficult to enforce with internet access freely available and a colossal number of websites to police. The police and local councils would largely be reliant on information from local communities, or even rival gang members. Yet those who have questioned the police’s capability of enforcing the injunctions generally are wide of the mark. Monitoring specific gang individuals is already operational and a small number of injunctions are unlikely to prove difficult to enforce in this respect.

The breach rate for ASBOs has been significant; ‘rising from under 40% in 2003 to 56% by the end of 2009 (with 41% being breached more than once)’ (14) and the fear is that Gangbos will follow suit. However, whereas ASBOs are only prohibitive in nature, the Gangbo offers a combination of prohibition with the incentive of compulsory support to change, a concept which may soon become commonplace following government plans to introduce crime prevention orders (15) - an order with the same blueprint as a Gangbo but targeting anti-social behaviour.

Over-18s only

Currently, injunctions may be granted for those aged 18 years and over. Yet given 6-10% of 10 to 19-year-olds believe they are in a gang (16), it is not surprising that there are plans to roll the legislation out to 14 to 17-year-olds (17) and a pilot is due to take place later this year. Despite this move, police officers and those who work with young offenders believe that 14 years old may not be young enough, if the hope is to prevent gang-related violence and to catch young people before they become too entrenched in gang culture.

A 2008 Home Office report monitoring data from the tackling gangs action programme found the average age of first conviction for young gang members was 14 years old, also raising the question of whether the injunctions have been pitched correctly.

Human rights implications

Civil liberties groups have labelled the introduction of the Gangbo as a ‘very perverse position indeed’ for a ‘government that promised to restore civil liberties,’ (18) particularly because it can restrict movement, associations (potentially with family members), and clothing based on hearsay evidence on the balance of probabilities.

Yet the order is not without any safeguards. The respondent is able to make an application to vary or discharge the order once in place (19); there is a right of appeal (20); and any breach must be proved to the criminal standard of proof (21).

Some have displayed concern over racial profiling that may follow the injunctions; however, the Equalities Impact Assessment published alongside the legislation will help ensure that any differentials can be accounted for and justified. Regarding applications, there will undoubtedly be a correlation between race and geographical location and the focus of applications is likely to be dictated by a gang’s make-up, for example, in Liverpool 93% of gang members are white, whereas in London 86% are black (22).

Means to exit the lifestyle

Any concerns that these injunctions will make it more difficult for young people to get out of the gang lifestyle are not necessarily made out; breaching an order will not result in a criminal record (23). Moreover, positive conditions can be attached to the order, such as mentoring and job preparedness courses, to in fact assist individuals. A mediator working with gang members in Birmingham believes the measures could really save lives; ‘when we talk about diverting them away, sometimes people have to be made to do that. At the moment there is no real way of doing that.’ (24) Gangbos facilitate engagement without necessitating a criminal record. They take the pressure off and the responsibility away from gang members by offering them a ‘get out’.

Impact on gang-related violence

Criminal charges against gang members are notoriously difficult to prove, leaving gang members with a sense of immunity and no legal action being taken at all. Arguably, the new provisions fill a gap. Where there is evidence of violence, or a threat of violence but insufficient evidence to prosecute, the injunctions provide an alternative (or additional) action.

Furthermore, ‘without notice’ applications could enable immediate action to try to pre-empt violence from occurring, particularly at ‘periods of high tension, where lethal reprisal is most likely’ (25), or for example, where intelligence from social networking sites indicates imminent large-scale violence organised by a few individuals. There is currently no other formal means of targeting individuals in this way.

Gang injunctions also serve as a risk management tool for the police and can be used in relation to more established criminals, for example, gang members who are due to be released from prison and are at risk from rival gangs.

Knowledge

The first gang injunction was granted in Southwark in February 2011 soon after the commencement of the legislation. It was reported that the respondent had to represent himself at court because ‘none of the solicitors knew about the new injunctions’ (26), highlighting a knowledge gap and a potential difficulty with civil legal aid practitioners dealing with a specific criminal activity.

Remarkably, the existence of the new powers also appears not to have been effectively cascaded to frontline multi-agency workers who are set to be involved in the making of the application and consultation process, which is likely to frustrate their success.

Conclusion

Section 34 has now reopened the pathway to using civil remedies ‘in aid of the criminal law’. Gangbos alone are unlikely to solve gang-related violence, but they are set to fill a pre-existing gap in the law by addressing the problem posed by those who use fear to immunise themselves from prosecution. They have the potential to restore the confidence of local communities in the fight against gang culture and to reassure victims and witnesses to play their part. Injunctions could become an asset to the police and local authorities to disrupt the behaviour of carefully selected individuals and as a safety net to criminal proceedings. It would seem, however, that even earlier intervention would be of benefit before young people become too entrenched in the gang lifestyle.

Louise Whitehead is associate prosecutor for the Thames Valley Crown Prosecution Service