Alleged gangsters go to law on standard of proof

‘To live outside the law, you must be honest,’ sang Bob Dylan. He may have a point. For following successful applications by Birmingham City Council (pictured) for injunctive relief, prohibiting (among other things) violence and intimidation by the appellant, Jerome Jones, and 17 other defendants, who are said to be members of the Guns and Money Gang (GMG) or rival criminal organisations, the appellant punctiliously questioned the lawfulness of the proof standard adopted, all the way to the Supreme Court. The case was Jones (Appellant) v Birmingham City Council and another (Respondents) [2023] UKSC 27, judgment in which was given on 19 July by Lord Lloyd-Jones with whom Lord Reed, president, Lord Hodge, deputy president, Lady Rose and lords Sales, Stephens and Richards agreed.

The context was strikingly outlined by Sir Brian Leveson in the Court of Appeal ([2019] QB 521 at paragraphs 1-2):

‘1. 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 crossfire. Investigation of such incidents is rendered more difficult (if not impossible) by the refusal of those who are injured to assist the police by naming their attackers (whom they will frequently have recognised), either because they fear the potentially violent consequences of doing so or because they prefer to take the law into their own hands and retaliate in like mode. Additionally, members of the public are fearful of being involved in prosecutions because of the risk of intimidation and violence. The result is not only that public safety is seriously affected but also that maintenance of the rule of law is endangered.

‘2. The challenge presented by this type of behaviour… has been felt particularly acutely in various areas of Birmingham where [the GMG] is said to operate’.

The injunctions in question were made under section 34 of the Policing and Crime Act 2009 and in the alternative part 1 of the Anti-social Behaviour, Crime and Policing Act 2014. Section 34 of the 2009 act enables a court to grant an injunction against a respondent aged 14 or over if: (i) ‘the court is satisfied on the balance of probabilities that the respondent has engaged in or encouraged or assisted’ gang-related violence or gang-related drug-dealing activity; and (ii) the court thinks it necessary to grant the injunction (among other things) ‘to prevent the respondent from engaging in, encouraging or assisting gang-related violence or gang-related drug dealing’.

Section 1 of the 2014 act enables a court to grant an injunction if ‘the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour’ and the court considers it just and convenient to grant the injunction for the purpose of preventing from engaging in such behaviour. In R (McCann and others) v Crown Court at Manchester [2002] UKHL 39, the House of Lords indicated that despite the civil standard of proof applicable in civil proceedings, given the seriousness of the matters involved in proceedings for an anti-social behaviour order, pragmatism dictated that in all cases of anti-social behaviour under section 1 of the Crime and Disorder Act 1998 (now repealed by the 2014 act) magistrates should apply the criminal standard of proof.

In the Supreme Court, the appellant questioned whether the Court of Appeal in the instant case had erred in law by declining to follow McCann and failing to apply the criminal standard of proof to injunction applications under the 2009 and 2014 acts. But, if the Court of Appeal had been entitled to depart from McCann, whether it had still erred in law by not satisfying the fairness requirements of Article 6(1) of the European Convention on Human Rights (right to a fair trial) in its refusal to apply the criminal standard of proof when considering whether to make an injunction under either or both statutory provisions.

However, the Supreme Court did not consider that McCann was authority for the proposition that anti-social behaviour under the Crime and Disorder Act 1998 required to be proved to the criminal standard. For (per Lord Lloyd-Jones) the: ‘standard of proof under section 1(1)(a) of the 1998 act was the civil standard of proof on the balance of probabilities and to the extent that any reasoning in the McCann opinions is to the contrary effect it is in my view wrong’. And, regarding both the 2014 and 2009 acts, parliament has expressly provided that the standard of proof applicable to granting gang injunctions in both acts shall be the civil standard. There is therefore ‘no room for the courts to decide that as a matter of common law fairness the criminal standard should be applied’.

As to Article 6 of the ECHR, in civil proceedings governed only by Article 6(1), a wider discretion is afforded to national courts to apply national rules of evidence provided the result is not inconsistent with the essence of the Strasbourg court’s view of fairness. And the Strasbourg authorities before the Supreme Court provided ‘no support for the view that a fair hearing under Article 6(1) requires the application of the criminal standard of proof in circumstances such as those in the present appeal’. Moreover, both the 2009 and 2014 acts had procedural safeguards conforming with Article 6 fairness requirements.

Nicholas Dobson writes on local government, public law and governance