Birmingham City Council v Afsar & Ors (Rev 2)

A local authority may seek an injunction under the Anti-social Behaviour, Crime and Policing Act 2014 against protest which constitutes anti-social behaviour. The Act does not impliedly exclude protest, but any restriction must satisfy the Human Rights Act 1998 and the Convention requirements of legality, pressing social need, necessity and proportionality. There is no rigid requirement to use a public space protection order first. Curriculum content is broadly excluded from the education discrimination provisions of the Equality Act 2010. Final orders against persons unknown must be confined to properly joined and served persons. On the facts, street-protest injunctions were justified, but restrictions on online abuse were not.

Birmingham City Council sought final injunctions against parents, a community member, persons unknown and a remote intervener. The claim concerned protests outside Anderton Park Primary School and alleged abuse on social media arising from objections to the School's teaching about equality, family relationships and sexual orientation.

Interim injunctions had previously been granted and modified following an earlier hearing, reported at [2019] EWHC 1569 (QB). After a five-day trial, the central issues were whether the statutory powers permitted the relief, whether the teaching or School's conduct involved unlawful discrimination, whether restrictions were necessary and proportionate, and whether clear orders could be made against the defendants.

The claim succeeded in part. Final injunctions were granted against the first three defendants and a properly defined class of persons unknown in relation to street protests. The social-media abuse injunction was not continued, and no injunction was granted against the fifth defendant.

1. The ordinary meaning of anti-social behaviour in the Anti-social Behaviour, Crime and Policing Act 2014 was wide enough to include protest, assemblies and utterances. Parliament had not created an implied protest exception. The statutory safeguards were supplied by the Human Rights Act 1998, including the requirement that interference with Convention rights be necessary and proportionate.
2. There was no rigid rule requiring a local authority to use a public space protection order or another lesser remedy before seeking an injunction. The Highways Act 1980 also supported proceedings to protect public use of the highway and prevent obstruction.
3. The Equality Act arguments did not defeat the claim. The application concerned anti-social behaviour, public nuisance and highway obstruction, rather than an act within the protected fields of the Equality Act 2010. In any event, the curriculum-content exception in section 89(2) was broad. It covered anything done in connection with curriculum content, including the selection of teaching materials. The statutory provisions concerning the way education was provided were distinct.
4. The parental right under Article 2 of the First Protocol was limited. It did not confer a right to prevent exposure to contrary ideas or to object to the integration of teaching, provided instruction remained objective, critical and pluralistic. The School's teaching was found to be limited, lawful and non-indoctrinating.
5. Applying proportionality, the prolonged, amplified and intimidating protests caused serious interference with the education, private life and home rights of children, staff and residents. Restrictions on location, duration and amplification were necessary. The injunctions did not target the content of the protest or prevent leaflet distribution.
6. The terms harassment, alarm and distress bore their ordinary meanings under the 2014 Act and did not import the statutory test under the Protection from Harassment Act 1997. However, the evidence did not establish a pressing social need to restrain speech in a closed or limited social-media group. Final orders against persons unknown could extend only to persons joined, served and given a proper opportunity to participate, not to an indeterminate transient class.

First-instance trial judgment. The judgment records earlier interim injunction decisions, including [2019] EWHC 1569 (QB), but no appeal is described.