Jones v Birmingham City Council and another

The Supreme Court considered whether article 6(1) ECHR, as incorporated by the Human Rights Act 1998, requires the criminal standard of proof (beyond reasonable doubt) to be applied to civil applications by public authorities for injunctions under section 34(2) of the Policing and Crime Act 2009 (gang-related violence and drug-dealing) and section 1(2) of the Anti-social Behaviour, Crime and Policing Act 2014 (anti-social behaviour). The court held that those statutory provisions expressly require proof on the balance of probabilities and that article 6(1) does not compel the application of the criminal standard in such cases.

The court analysed Strasbourg jurisprudence and domestic authority (including McCann) and concluded that there is a single civil standard of proof (balance of probabilities) and no separate heightened civil standard that legally equates to the criminal standard. Where Parliament has expressly prescribed the civil standard, the courts must apply it; Parliament has also built procedural safeguards into the 2009 and 2014 schemes which, read in the round, secure a fair hearing under article 6(1).

This appeal arose out of civil proceedings brought by Birmingham City Council under section 34 of the Policing and Crime Act 2009, with an alternative case under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, seeking injunctions against individuals alleged to be involved in gang-related violence and drug dealing. Interim and final injunctions were granted in the county court against the appellant, Mr Jerome Jones. The appellant sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 on the ground that article 6(1) ECHR requires proof beyond reasonable doubt of the factual threshold conditions in those statutory provisions.

The procedural history was: interim injunctions in Birmingham County Court (15 February 2016); transfer of the appellant's HRA section 4 preliminary issue to the High Court (27 May 2016); Burton J’s consideration of the preliminary human rights issue (October 2016); trial before HH Judge Carmel Wall resulting in a final injunction (12–13 July 2017); an appeal to the Court of Appeal which upheld the civil standard (judgment reported at [2019] QB 521); and leave to appeal to the Supreme Court granted on 30 March 2022.

The court framed the central issues as (i) whether article 6(1) requires the criminal standard of proof in respect of the first condition in section 34(2) 2009 Act and section 1(2) 2014 Act; (ii) whether McCann requires the criminal standard and, if so, whether that authority binds the Supreme Court. The Supreme Court reviewed Strasbourg authority and domestic precedent. It concluded that Strasbourg has not standardised national rules of evidence and assesses fairness by the proceedings as a whole; that there is only one civil standard of proof at domestic law (balance of probabilities); and that McCann did not establish a legal rule that the criminal standard must apply in such civil injunction proceedings. The court further emphasised Parliament’s deliberate choice of the civil standard in the 2009 and 2014 Acts and the procedural safeguards in those schemes (consultation requirements, limited durations, review mechanisms, restrictions on exclusions from home, supervision arrangements for requirements, and the fact that breach is contempt rather than a criminal offence).

Accordingly, the court dismissed the appeal: article 6(1) does not require proof beyond reasonable doubt of the statutory threshold conditions in section 34(2) of the 2009 Act or section 1(2) of the 2014 Act, and the statutory schemes conform with the requirements of a fair hearing under article 6.

The appeal is dismissed. The court held that article 6(1) ECHR does not require the criminal standard of proof to be applied to the threshold conditions in section 34(2) of the Policing and Crime Act 2009 or section 1(2) of the Anti-social Behaviour, Crime and Policing Act 2014. Parliament had expressly prescribed the civil standard (balance of probabilities) and embedded procedural safeguards; Strasbourg jurisprudence does not compel a different rule and McCann does not establish a binding rule requiring the criminal standard in such civil injunction proceedings.

County Court (interim injunctions granted 15 February 2016); transfer to High Court for section 4 HRA preliminary issue (27 May 2016); preliminary hearing before Burton J (11 October 2016); trial before HH Judge Carmel Wall (judgment 12–13 July 2017; final injunction granted); Court of Appeal (appeal heard 24–25 April 2018; judgment delivered 23 May 2018, reported at [2019] QB 521) upholding the civil standard; permission to appeal to the Supreme Court granted 30 March 2022; Supreme Court judgment dismissing the appeal 19 July 2023. (On appeal from: [2018] EWCA Civ 1189.)