Birmingham City Council v James & Anor

A gang injunction may be granted where the statutory conditions are satisfied. Deliberately joining a coordinated and provocative gang incursion into rival territory may constitute active engagement in a threat of gang-related violence.

The availability of another pre-emptive remedy, such as an anti-social behaviour order, does not create a “closest fit” principle which restricts the court’s statutory power. The judge must select an appropriate order by exercising the discretion conferred by the applicable legislation. An appellate court should respect that assessment unless the judge made an error of principle or the decision was plainly wrong.

Birmingham City Council obtained an injunction against Gavin James under section 34 of the Policing and Crime Act 2009. The county court found that he had participated in a deliberately provocative gang incursion into rival territory and that an injunction was necessary both to prevent further gang-related violence and to protect him.

Mr James appealed. He disputed that the incident constituted engagement in gang-related violence. He also argued that an anti-social behaviour order was a more appropriate and less disadvantageous remedy, and that restrictions intended to protect him infringed his personal autonomy and rights under article 8 of the European Convention on Human Rights. He further challenged restrictions affecting visits to his mother.

The central issues were whether the statutory conditions for a gang injunction were satisfied, whether the availability of overlapping remedies restricted the court’s power, and whether the terms imposed were lawful exercises of discretion.

1. Disposition. The appeal was dismissed unanimously. Moore-Bick LJ gave the principal judgment. Jackson LJ agreed and added reasoning concerning overlapping statutory remedies. Maurice Kay LJ agreed with both judgments.
2. The county judge was entitled to find that the appellant had actively and deliberately engaged in gang-related violence. A coordinated group of about 30 gang members, visibly identified by a shared colour, deliberately walked through rival territory in a provocative show of defiance and readiness to use force. The group’s conduct constituted a threat of violence. Every participant acting as part of that body was engaged in the threat; the appellant was not merely passively present.
3. It was unnecessary to define every mental element capable of satisfying section 34(2) of the Policing and Crime Act 2009. Although the provision is primarily directed at deliberate participation in or encouragement of gang-related violence, unusual conduct might amount to inadvertent encouragement. That boundary did not arise for decision.
4. The existence of a possible anti-social behaviour order did not make the gang injunction inappropriate. Part 4 of the Policing and Crime Act 2009 was Parliament’s specific response to gang-related violence. Once section 34(2) was satisfied, the relevant inquiry was whether the restriction was necessary for a purpose in section 34(3), not whether an anti-social behaviour order would provide an adequate alternative.
5. Jackson LJ held that there is no “closest fit” principle limiting the statutory power to make a pre-emptive order. Where the conditions for more than one statutory remedy are satisfied, the respondent may invite the judge to impose a less draconian order. The judge may make the order most appropriate in the circumstances and may direct an application for another remedy. The decisions in Samaroo and Shafi did not establish a contrary rule. The conclusion was supported by Swindon Borough Council v Redpath [2009] EWCA Civ 943.
6. The injunction was not granted solely for the appellant’s protection. It was also necessary to prevent him from engaging in, encouraging or assisting gang-related violence. The restrictions on entering the area where his mother lived, and the requirement to engage with a conflict-transformation programme, served the statutory purposes and were not shown to be disproportionate.
7. An appellate court may interfere with such an exercise of discretion only where the judge proceeded on a clearly inappropriate basis, made an error of principle or reached a plainly wrong decision. No such error was established.

1. Court of Appeal (Civil Division): The court dismissed the appeal unanimously and upheld the gang injunction granted under section 34 of the Policing and Crime Act 2009.
2. Birmingham County Court: His Honour Judge Worster granted Birmingham City Council an injunction against Gavin James. It imposed exclusion, non-association and engagement requirements and carried a power of arrest.