Birmingham City Council v Sharif

The availability of a Public Spaces Protection Order does not create a general rule requiring a local authority to use that remedy instead of seeking a civil injunction. The court retains jurisdiction to grant an injunction where the statutory conditions for relief are satisfied and the remedy is justified and proportionate. The fact that breach of an injunction may attract more serious sanctions than breach of a Public Spaces Protection Order is not, by itself, a reason to refuse relief. The court must distinguish between a judicial remedy and an order made by the local authority itself. There is no general “closest fit” principle requiring the authority to select the remedy most closely corresponding to the mischief.

Birmingham City Council obtained an injunction against persons unknown to prevent car cruising in Birmingham. The injunction was granted under statutory powers including section 37(1) of the Senior Courts Act 1981, section 1 of the Localism Act 2011, section 222 of the Local Government Act 1972 and section 130 of the Highways Act 1980. It included a power of arrest.

The 16th respondent, who faced a committal application for an alleged breach, applied to discharge the injunction. He argued that the council should have used the Public Spaces Protection Order regime under Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014, relying principally on Birmingham City Council v Shafi [2009] 1 WLR 1961. The central issue was whether the existence of that statutory remedy restricted the court’s discretion to grant the injunction.

1. The application to discharge the injunction was dismissed. The committal application was directed to be listed for hearing.

2. The reliance on Birmingham City Council v Shafi [2009] 1 WLR 1961 was misplaced. Public Spaces Protection Orders are general local-authority powers dealing with activities having a detrimental effect on quality of life. They are not a specific statutory remedy introduced to address car cruising. The fact that another authority had used that power for similar conduct did not determine the proper remedy in this case.

3. The relevant choice was not between two equivalent court orders. A civil injunction required a judicial decision by an independent and impartial tribunal. A Public Spaces Protection Order was made by the local authority itself. It would therefore be surprising to infer that Parliament intended a public authority to be required to make its own order rather than seek judicial relief.

4. The approach in Swindon Borough Council v Redpath [2009] EWCA Civ 943 and Birmingham City Council v James [2013] EWCA Civ 552 confirmed that there was no doctrine requiring an authority to use the statutory remedy representing the closest fit to the alleged mischief. Where the statutory conditions for a pre-emptive order are met, the court may select the remedy it considers appropriate.

5. There was no general principle that an injunction should be granted only in exceptional circumstances merely because an alternative statutory remedy existed, or because breach of the injunction could carry more serious sanctions. The court could grant the injunction if it considered that course justified and proportionate. The evidence of unsuccessful attempts by the West Midlands Police to address car cruising provided ample support for the conclusion that the injunction was appropriate.