Jones v Birmingham City Council

Statutory injunction proceedings directed to preventing gang-related violence, drug dealing or anti-social behaviour are civil and preventive, even where the alleged conduct may be criminal and the injunction may restrict liberty significantly.

The proceedings do not therefore determine a criminal charge for Article 6 purposes. Where Parliament prescribes the balance of probabilities, Article 6(1) does not impose a general requirement to use the criminal standard. Serious allegations may require cogent evidence, but this concerns the quality of evidence, not a different civil standard.

Birmingham City Council obtained injunctions against Jerome Jones and others under the gang-related injunction provisions and the anti-social behaviour injunction provisions. The orders restricted association, movement, violence, drug possession and gang-related activity.

Jones challenged the statutory schemes as incompatible with Article 6 of the ECHR, arguing that the proceedings determined a criminal charge or, alternatively, required proof beyond reasonable doubt. Burton J, considering the challenge on appeal from the county court proceedings, adopted Kerr J’s reasoning in Chief Constable of Lancashire v Wilson and held that the proceedings were civil and that the balance of probabilities applied. The issue before the Court of Appeal was whether that conclusion was correct.

1. Appeal dismissed. Leveson P gave the leading judgment, with Underhill and Irwin LJJ agreeing.
2. The autonomous Article 6 question was governed by the three factors identified in Engel v Netherlands: domestic classification, the essential nature of the proceedings, and the nature and severity of the consequence or penalty. The factors are related and may blend together. The approach was explained domestically in Gale v Serious Organised Crime Agency and Walsh v Director of the Assets Recovery Agency.
3. Applying those factors, injunctions under Part 4 of the Policing and Crime Act 2009 and Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 were preventive, not punitive. The underlying conduct might involve criminality, but that did not itself create a criminal charge. Nor did the restrictive effect of an injunction or the seriousness of its possible consequences alter its preventive character. The approach was consistent with Ozturk v Germany, the Guzzardi line of authorities, Tommaso v Italy and Secretary of State for the Home Department v MB. Matyjek v Poland was distinguishable because it concerned a substantive sanction for dishonest conduct.
4. Article 6(2) and (3) were therefore not engaged. The statutory use of the balance of probabilities in s 34(2) of the 2009 Act and s 1(2) of the 2014 Act was not contrary to Article 6(1). There was no general principle requiring the criminal standard whenever an order substantially restricted liberty or was based on alleged criminal or quasi-criminal conduct. The different safeguards and purposes of these schemes also distinguished them from the ASBO regime considered in R (McCann) v Crown Court at Manchester.
5. There is one civil standard of proof. Serious allegations or consequences may require stronger or more cogent evidence, but they do not raise the degree of probability required. The authorities on care proceedings, confiscation and proceeds recovery did not support a declaration of incompatibility.

• Court of Appeal (Civil Division): in [2018] EWCA Civ 1189, the appeal was dismissed.
• High Court of Justice, Queen’s Bench Division: Burton J, on an appeal concerning the injunction proceedings, adopted Kerr J’s reasoning in Wilson and held that the proceedings did not determine a criminal charge and did not require the criminal standard of proof.
• Birmingham County Court: interim and subsequent injunctions were made against Jones under the statutory schemes. The merits judgment was subject to a separate appeal.