Chief Constable of Lancashire v Wilson & Ors

Proceedings for a gang-related injunction under Part 4 of the Policing and Crime Act 2009 do not ordinarily involve the determination of a criminal charge. The conduct relied on may be criminal, but need not be. The statutory purposes are prevention and protection, not punishment.

The express use of the civil standard of proof does not, by itself, make the hearing unfair under article 6. Fairness instead requires procedural protection commensurate with the gravity of the possible consequences. Hearsay evidence is not inherently incompatible with a fair hearing, since the court may require witnesses to attend, manage the proceedings and attach little or no weight to hearsay. The scope of any injunction must be evidence-based and proportionate.

The Chief Constable sought final gang-related injunctions against six respondents under Part 4 of the Policing and Crime Act 2009. Interim injunctions were already in force. The respondents challenged the statutory scheme and its application under article 6 of the Convention.

The principal issues were whether the proceedings involved the determination of a criminal charge; whether the statutory civil standard of proof was compatible with a fair hearing; and whether the admissibility of hearsay evidence infringed article 6. The court also considered the need for safeguards when injunctions imposed substantial restrictions or positive requirements.

1. Criminal charge. Proceedings under section 34 of the Policing and Crime Act 2009 were civil proceedings and did not involve the determination of a criminal charge for article 6 purposes. Although the alleged conduct would often be criminal, it was not necessarily or inevitably so. The decisive feature was that an injunction had to be necessary for prevention or protection and could not lawfully be punitive (paras [58]-[60]).
2. Standard of proof. The statute made a conscious choice of the balance of probabilities. The reasoning in R (McCann) v Manchester Crown Court did not require the criminal standard here, because that case concerned legislation silent on the standard and the former heightened civil standard. The civil standard did not, of itself, make the hearing unfair under article 6 (paras [72]-[77]).
3. Procedural protection. Where an order may impose serious restrictions, the civil limb of article 6 requires protection commensurate with the gravity of the consequences. Relevant safeguards included the statutory duration and review provisions, limits on requirements, consideration of article 8, and provisions protecting religious observance, work and education. The court must ensure that any requirement serves prevention or protection and is not retributive (paras [77]-[85]).
4. Hearsay. The admissibility of hearsay under the Civil Evidence Act 1995 did not itself infringe article 6. The court could direct available witnesses to attend, use case-management measures, and adjust the weight of hearsay. In an appropriate case its weight might be nil or negligible (paras [86]-[92]).
5. The human-rights challenge and application for a declaration of incompatibility under section 4 of the Human Rights Act 1998 were rejected. The factual merits were not determined at this hearing. The proceedings were to be transferred to the County Court for trial and determination whether the interim injunctions should be made final or the applications dismissed (paras [93]-[99]). The court endorsed the principle that injunctions cannot be imposed merely as a precautionary measure for the general good or on the basis of guilt by association (para [100]).

The judgment itself records that an earlier application by two respondents to discharge the interim injunctions had been dismissed by His Honour Judge Butler on 26 February 2015. Permission to appeal was refused on the papers by Jackson LJ on 15 May 2015, with an oral renewal pending. The present judgment did not determine the factual merits and transferred the applications to the County Court.