Sharif v Birmingham City Council Court of Appeal, Sir Terence Etherton MR, Bean and Holroyde LJJ [2020] EWCA Civ 1488, 10 November 2020
The Court of Appeal has held that an injunction obtained by Birmingham City Council to restrain street-cruising was lawful and that the authority had not been obliged to make a public spaces protection order.
Jonathan Manning and Iulia Saran of 4-5 Gray’s Inn Square appeared for Birmingham City Council.
In 2016, the authority obtained an injunction under s.222, Local Government Act 1972 prohibiting car-cruising activities including racing, driving at excessive speed and performing stunts on public roads and other areas to which the public have access within the city of Birmingham. In 2018, it applied to commit the Appellant to prison for breach of that injunction.
The Appellant then applied to discharge the injunction on the grounds that the Court had been wrong to grant it because Parliament had provided a specific remedy for this kind of activity: i.e. public spaces protection orders (“PSPOs”) (Ch.2, Pt 4, Anti-social Behaviour, Crime and Policing Act 2014) that authorities themselves make following an administrative process. He relied on Birmingham City Council v Shafi [2009] 1 WLR 1961 (“Shafi”), where the Court of Appeal held that the authority ought to have applied for ASBOs rather than a s.222 injunction.
The High Court dismissed the application and upheld the injunction.
The Appellant appealed to the Court of Appeal. He argued that, applying Shafi, the authority ought to have made a PSPO as that procedure provided additional safeguards for defendants, i.e: the requirement for public consultation and a lower maximum penalty (a fine) on prosecution for breach than that available on committal for breach of an injunction. In the alternative, he argued that the criminal law provided an adequate remedy - on conviction for a driving offence, a Criminal Behaviour Order (“CBO”) (s.22, 2014 Act) could be obtained.
The Court of Appeal dismissed the appeal. Shafi was of no assistance. Its ratio was that the authority had been wrong to apply for a s.222 injunction rather than an ASBO because (i) the terms of the injunction sought were “identical or almost identical” to those obtainable in an ASBO; (ii) the criminal law was not ineffective (breach of an ASBO was punishable with imprisonment); and (iii) it was unfair to circumvent the criminal standard of proof required on an application for an ASBO.
It had been for those reasons that the court in Shafi had departed from Stoke on Trent CC v B&Q Retail Ltd [1984] AC 754 and City of London Corporation v Bovis Construction Limited [1992] 3 All ER 697 (where the criminal penalties were insufficient to deter the defendants from breaking the law), which had laid down the general principles that an injunction in support of the criminal law or to restrain a public nuisance was available where the court could infer that the defendant's unlawful operations would continue unless and until effectively restrained by the law and that nothing short of an injunction would be effective to restrain them.
The Appellant’s argument, that an injunction should not have been made when the sanctions for breach of a PSPO are so much less severe, turned B&Q on its head. The authority’s evidence indicated that a PSPO might well be ineffective. There may also be difficulties about what constitutes a “public space”; how large it can be; and whether a PSPO can properly cover the activities of those who organise or advertise cruises.
The Court also rejected as unrealistic the argument that the criminal law and CBO procedure provided an adequate remedy. Even assuming that a CBO would be appropriate, it could only be made if a person was prosecuted and convicted of an offence. The purpose of the injunction was to prevent future nuisances, not to impose penalties for past ones.
The Courts below were well entitled to conclude that car-cruising in the Birmingham area would continue unless and until effectively restrained by the law and that nothing short of an injunction would be effective to restrain them. This was a classic case for the grant of an injunction.
COMMENT
This is the latest in a line of cases, including Swindon BC v Redpath [2009] EWCA Civ 943, Mayor of London v Hall [2010] EWCA Civ 817; Birmingham CC v James [2013] EWCA Civ 552 and Birmingham CC v Afsar [2019] EWHC 3217 (QB), in which the Court of Appeal has distinguished or not followed Shafi which now appears to be something of a dead letter given (a) the restrictive interpretation of its ratio applied by the Court in this case and (b) the repeal of the ASBO regime.
The Court also repeated the comment in James (per Jackson LJ at [31]) that there is no generally applicable doctrine requiring an authority to apply for the remedy comprising the “closest fit” (however that might be ascertained) to the mischief complained of.
Thus, while it may be possible to make a PSPO covering car-cruising, it is not the only option. The Court adverted to the possibility, in relation to large areas and where highways are concerned, that PSPOs may present complications, not least in terms of the consultation requirements and the provisions of ss.64-65, 2014 Act (roads for which the authority is not responsible).
The court did not express views on the general issue of injunctions against persons unknown, which has recently been considered by the Courts in such cases as in Ineos Upstream Limited v Persons Unknown [2019] 4 WLR 100 and Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2802, other than to observe that those cases related to different types of injunction.
