Keep it Civil! Jonathan Manning and Charlotte Crocombe to argue in the Supreme Court that gang injunctions should retain the civil standard of proof
Next week, Jonathan Manning and Charlotte Crocombe of 4-5 Gray’s Inn Square will appear in the Supreme Court, instructed by Birmingham City Council, in the case of Jones v Birmingham City Council and Secretary of State for the Home Department. Jonathan and Charlotte will argue that neither Article 6(1) of the ECHR, nor the House of Lords decision in McCann v Crown Court at Manchester  UKHL 39 requires the criminal standard of proof to be applied to applications for gang-injunctions pursuant to Part 4 of the Policing and Crime Act 2009 (“PCA 2009”) or anti-social behaviour injunctions under Part 1 of the Anti-Social Policing and Crime Act 2014 (“ASBPCA 2014”).
The appeal arises out of applications made by Birmingham City Council for injunctions against Mr Jones (“the Appellant”) and other members of the Get Money Gang (“GMG”) and their rivals, the Armed Response gang (“AR”) in 2016/17. At first instance, HH Judge Carmel Wall found on the balance of probabilities that the Appellant was affiliated with the GMG, and that he had engaged in or assisted with gang-related drug dealing. She therefore granted a gang injunction with a power of arrest.
On appeal to the Court of Appeal, the Appellant argued that:
- The proceedings were in respect of a criminal charge, and therefore attracted the criminal standard of proof.
- The civil standard of proof in section 34 PCA 2009 and section 1 ASPCA 2014 did not meet the overriding criterion of fairness as is required by Article 6 ECHR and was thus incompatible.
In dismissing the Appellant’s appeal, the Court of Appeal held:
- A criminal charge was an autonomous concept consisting of ‘the official notification given to an individual by the competent authority that he had committed a criminal offence’. Conduct which may involve underlying criminality can be relied upon in all kinds of proceedings, but where those proceedings do not entail a criminal charge or exact a specific penalty the civil standard of proof remains appropriate.
- There is no principled basis, either in domestic or European law, for asserting that where the court is faced with applications for orders which would significantly restrict the liberty of the subject, or which are founded upon allegations of criminal or quasi-criminal behaviour, the criminal standard is necessitated by a proper appreciation of Article 6(1). That submission was too wide and unjustified.
- There are critical differences between the scheme considered by the House of Lords in McCann and those which are currently in force by virtue of the PCA 2009 and the ASBPCA 2014.
The Appellant has now appealed to the Supreme Court, which granted permission on the following grounds:
- Following McCann, the appropriate standard of proof in proceedings brought on the basis of allegations of fact that a person has been engaging, assisting or encouraging criminal conduct for the purposes of imposing serious restrictions on their freedom of movement, association and expression requires proof to the criminal standard to be fair under Article 6(1) ECHR even if the proceedings are civil proceedings; and,
- Alternatively, fairness requires the conduct to be proven to the criminal standard.
The hearing in the Supreme Court will take place on 30 and 31 January 2023. Jonathan and Charlotte are instructed by Birmingham City Council.