Birmingham City Council v Shafi & Anor

Where a local authority seeks a civil injunction which is substantially identical to an anti-social behaviour order, the court should ordinarily decline relief and leave the authority to use the statutory procedure. Parliament’s detailed scheme, including its safeguards, should not be displaced by parallel development of general injunction principles.

An injunction remains legally available in an exceptional case. If such substantially identical relief must be considered, the majority held that past anti-social conduct must be proved to the criminal standard, while necessity remains an evaluative judgment. The ordinary civil standard continues to apply where the relief is materially different.

Birmingham City Council obtained interim injunctions under section 222 of the Local Government Act 1972 against two young adults alleged to belong to a Birmingham gang. The orders restricted association, excluded them from a substantial area of the city and prohibited assault, harassment and intimidation. Powers of arrest were attached.

Following trial, His Honour Judge Macduff QC dismissed the claims and discharged the injunctions. He held that the court lacked jurisdiction and, alternatively, that the evidence and the exercise of discretion did not justify relief. The council appealed.

The central issues were whether the court could grant injunctions in aid of the criminal law or to prevent public nuisance when substantially identical anti-social behaviour orders were available, how its discretion should be exercised, and what standard of proof applied.

1. Appeal dismissed. The court possessed jurisdiction to grant an injunction, but the judge reached the correct result by refusing relief. Section 222 of the Local Government Act 1972 confers procedural capacity upon a local authority to institute proceedings in protection of public rights. It does not create a substantive right or enlarge the court’s injunction jurisdiction.

2. Where Parliament has created a detailed statutory procedure for controlling anti-social behaviour, the court should not develop a parallel common-law regime producing substantially identical orders without the statutory safeguards. Save perhaps in exceptional circumstances, a local authority seeking relief identical or almost identical to an anti-social behaviour order should apply to the magistrates’ court under the Crime and Disorder Act 1998. In those circumstances it will ordinarily be neither just nor convenient to grant an injunction under section 37 of the Supreme Court Act 1981.

3. That approach applies whether the injunction is characterised as supporting the criminal law or preventing public nuisance. The power to attach an arrest power under section 27 of the Police and Justice Act 2006 does not expand section 222 jurisdiction or displace the statutory anti-social behaviour scheme.

4. Sir Anthony Clarke MR and Rix LJ held that, if a court exceptionally considers an injunction which is essentially an anti-social behaviour order, it should adopt the approach in R (McCann) v Crown Court at Manchester [2002] UKHL 39. The court must be sure that the defendant committed the alleged anti-social acts. Whether an order is necessary to prevent further acts is an evaluative judgment. This narrow conclusion does not alter the balance-of-probabilities standard ordinarily applicable to civil proceedings or to injunctions materially different from an anti-social behaviour order.

5. Moore-Bick LJ agreed with dismissal of the appeal but disagreed on proof. He considered that an injunction remained an ordinary civil proceeding in which relevant facts were provable on the balance of probabilities. In his view the exceptional criminal standard established for statutory anti-social behaviour orders should not be extended to injunction proceedings.

6. The case was not exceptional. The evidence against these respondents was thin, and the trial judge was entitled to find that their past conduct did not justify the orders. He was also entitled to conclude, whatever the standard of proof, that the injunctions were neither necessary nor appropriate.

1. Court of Appeal (Civil Division): The council’s appeal was dismissed. The court disagreed with the ruling that jurisdiction was absent but upheld the refusal of injunctions as a proper exercise of discretion.

2. Birmingham County Court: His Honour Judge Macduff QC dismissed the claims and discharged the interim injunctions by order dated 10 January 2008. He held that jurisdiction was absent and that, alternatively, the evidence and discretion did not justify the orders.