Sharif v Birmingham City Council

A local authority may seek an injunction under section 222 of the Local Government Act 1972 although an administrative remedy, such as a public spaces protection order, is available. There is no general rule requiring selection of the statutory remedy which most closely fits the mischief.

An injunction in aid of the criminal law remains an exceptional remedy. It may be granted where unlawful conduct is likely to continue and nothing short of an injunction will restrain it effectively. The availability of a less severe statutory sanction does not prevent the court from granting proportionate injunctive relief.

The exceptional restriction identified in Shafi applies where the injunction substantially duplicates a specifically designed judicial remedy and circumvents its safeguards. It does not govern materially different administrative remedies.

Birmingham City Council obtained a three-year injunction under section 222 of the Local Government Act 1972 against persons unknown participating in street cruising. The evidence described widespread dangerous and nuisance-causing conduct which earlier measures had failed to control. Harun Mansoor Sharif later faced committal proceedings for allegedly participating in a prohibited street cruise.

Mr Sharif applied to discharge the injunction. His Honour Judge McKenna, sitting as a judge of the High Court, refused that application in [2019] EWHC 1268 (QB). He held that the Council was not required to make a public spaces protection order under Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 instead of seeking judicial relief.

The central issue on appeal was whether the availability of a public spaces protection order, or alternatively a criminal behaviour order following prosecution, made the section 222 injunction inappropriate.

1. Appeal dismissed. The judges below were entitled to conclude that street cruising would continue unless effectively restrained and that nothing short of an injunction would be effective. The case was a classic one for injunctive relief under section 222 of the Local Government Act 1972.

2. The ratio of Birmingham City Council v Shafi [2008] EWCA Civ 1186 was confined to materially different circumstances. The injunction there was identical or almost identical to an anti-social behaviour order, the criminal remedy was effective, and using an injunction would have circumvented the criminal standard of proof. A public spaces protection order is instead an administrative order made by the local authority itself. It does not duplicate the judicial remedy sought here or provide an equivalent response.

3. There is no doctrine requiring a public authority to select the statutory remedy which provides the closest fit to the mischief. Parliament did not repeal or amend section 222 when creating public spaces protection orders. Nor did the lighter sanctions for breach of such an order show an intention to exclude an injunction. The evidence indicated that a non-arrestable offence carrying only a financial penalty might be ineffective against the conduct concerned.

4. The proposed alternative of prosecuting individual motorists and seeking criminal behaviour orders was also rejected. Such an order could arise only after an individual prosecution and conviction. That delayed, individualised process did not fulfil the injunction's preventive purpose of restraining future public nuisances.

5. It was unnecessary to decide whether section 130 of the Highways Act 1980 supplied another route to the same result. The validity of granting and serving this kind of injunction against persons unknown had not been raised below and was not decided. That issue may require consideration in a future case.

Lord Justice Holroyde and Sir Terence Etherton, Master of the Rolls, agreed with Lord Justice Bean.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and upheld the refusal to discharge the injunction: [2020] EWCA Civ 1488.
2. High Court: His Honour Judge McKenna refused Mr Sharif's application to discharge the injunction, holding that the availability of a public spaces protection order did not make injunctive relief inappropriate: [2019] EWHC 1268 (QB).
3. High Court: His Honour Judge Worster had granted the section 222 injunction against persons unknown for three years. It was subsequently renewed until 1 September 2022 by His Honour Judge Rawlings.