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Jones v Birmingham City Council

Jones v Birmingham City Council

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Case Copied 19 July 2023 51 min read

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Trinity Term
[2023] UKSC 27
On appeal from: [2018] EWCA Civ 1189

JUDGMENT

Jones (Appellant) v Birmingham City Council and another (Respondents)

before

Lord Reed, President
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Lady Rose
Lord Richards

JUDGMENT GIVEN ON
19 July 2023

Heard on 30 and 31 January 2023

Appellant
Helen Mountfield KC
James Stark
(Instructed by Community Law Partnership)

Respondent – Birmingham City Council
Jonathan Manning
Charlotte Crocombe
(Instructed by Birmingham City Council)

Respondent – Secretary of State for the Home Department
Samantha Broadfoot KC
Yaaser Vanderman
(Instructed by Government Legal Department)

LORD LLOYD-JONES (with whom Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agree):

This appeal concerns the power of the courts on the application of public authorities to grant injunctions to prevent gang-related violence and drug-dealing activity pursuant to section 34 of the Policing and Crime Act 2009 (“the 2009 Act”) and to grant injunctions pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). More specifically it concerns the question whether article 6(1) of the European Convention on Human Rights (“ECHR”), as given effect within the United Kingdom by the Human Rights Act 1998 (“HRA 1998”), requires the criminal standard of proof (ie proof beyond a reasonable doubt) to be satisfied in respect of:
1. Proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act; and
1. Proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act.

Section 34(2) of the 2009 Act and section 1(2) of the 2014 Act provide expressly that the court must be satisfied that these respective conditions are met on the balance of probabilities (ie to the civil standard). Furthermore, it is now established that such applications under the 2009 Act and the 2014 Act are civil proceedings, both as a matter of domestic law and for the purposes of the ECHR. Nevertheless, it is submitted on behalf of the appellant that the right to a fair hearing under article 6(1) of the ECHR requires the application of the criminal standard of proof in proceedings brought by public authorities to obtain injunctive relief under these provisions, because of the potentially significant effects upon a person’s right to respect for his family life, private life and home, and upon that person’s rights of freedom of association and expression. In the light of the express statutory provisions, it is accepted on behalf of the appellant that the only basis on which the appeal can succeed is by establishing that article 6(1) of the ECHR as given effect by the HRA 1998 requires the application of the criminal standard of proof in such circumstances. It is further accepted on behalf of the appellant that this is not a case where it is possible to read down the statutory provisions pursuant to section 3 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] UKSC 27
Decision Date

CaseChat Overview and Summary

This appeal concerns the power of the courts on the application of public authorities to grant injunctions to prevent gang-related violence and drug-dealing activity pursuant to section 34 of the Policing and Crime Act 2009 and to grant injunctions pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014. The appeal concerns the question whether article 6(1) of the European Convention on Human Rights, as given effect within the United Kingdom by the Human Rights Act 1998, requires the criminal standard of proof to be satisfied in respect of: proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act; and proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act. Section 34(2) of the 2009 Act and section 1(2) of the 2014 Act provide expressly that the court must be satisfied that these respective conditions are met on the balance of probabilities. It is established that such applications under the 2009 Act and the 2014 Act are civil proceedings, both as a matter of domestic law and for the purposes of the ECHR. The appellant argues that the right to a fair hearing under article 6(1) of the ECHR requires the application of the criminal standard of proof in proceedings brought by public authorities to obtain injunctive relief under these provisions because of the potentially significant effects upon a person’s right to respect for his family life, private life and home, and upon that person’s rights of freedom of association and expression. The Supreme Court considered that the Strasbourg authorities to which they had been referred provide 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. It was not the function of the domestic court to undertake a substantial development of Convention rights. Rather, it was intended that the rights enforced domestically under the HRA 1998 and those enforced in Strasbourg should, in general, correspond. In the case of the 2009 Act and the 2014 Act, Parliament has expressly provided that the standard of proof applicable to the proof of condition 1 shall be the civil standard. The Supreme Court concluded that Article 6(1) of the ECHR does not require the criminal standard of proof to be satisfied in respect of (a) proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act or (b) proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act. It considered that under Part 4 of the 2009 Act and Part 1 of the 2014 Act Parliament had devised statutory schemes which conform with the requirements of a fair hearing under article 6 of the ECHR. The appeal was dismissed.

Orders