Jones v Birmingham City Council and another

Article 6(1) of the European Convention on Human Rights does not require allegations supporting civil gang-related or anti-social behaviour injunctions to be proved beyond reasonable doubt. Parliament may require proof on the balance of probabilities where the statutory scheme, considered as a whole, provides a fair hearing.

There is one civil standard: whether the fact more probably occurred than not. An event’s inherent improbability may require more cogent evidence, but neither the seriousness of the allegation nor its consequences creates a heightened civil standard. Where legislation expressly prescribes the civil standard, a court cannot substitute the criminal standard on grounds of common law fairness.

Birmingham City Council obtained an injunction against the appellant under Part 4 of the Policing and Crime Act 2009, after the County Court found on the balance of probabilities that he had engaged in gang-related drug-dealing activity. He sought a declaration that the statutory civil standard was incompatible with article 6(1) of the European Convention on Human Rights.

The High Court rejected that preliminary challenge. The Court of Appeal, in a decision reported at [2019] QB 521, held that the proceedings were civil and that the statutory standard was compatible with article 6. The appellant no longer disputed their civil character.

The Supreme Court considered whether article 6 nevertheless required the criminal standard and whether R (McCann) v Crown Court at Manchester [2003] 1 AC 787 compelled that conclusion.

1. Appeal dismissed unanimously. Lord Lloyd-Jones delivered the judgment, with which Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agreed. Article 6(1) did not require proof beyond reasonable doubt of conduct falling within section 34(2) of the Policing and Crime Act 2009 or section 1(1) of the Anti-social Behaviour, Crime and Policing Act 2014.

2. The Strasbourg court assesses the fairness of civil proceedings as a whole. Rules governing evidence, its assessment, and the burden and standard of proof are primarily matters for domestic law. Contracting states have greater latitude in civil proceedings, provided such matters as equality of arms, a proper opportunity to present evidence, judicial assessment and adequate reasons are secured. Existing Strasbourg authority gave no support to imposing the criminal standard here. A domestic court could apply established Convention principles to a novel situation, but could not create a new Convention principle without confidence that Strasbourg would do likewise.

3. There is only one civil standard: proof on the balance of probabilities. Inherent improbability may mean that more cogent evidence is needed before a fact is found more likely than not. The seriousness of an allegation or its consequences does not, by itself, alter the probability of its truth or create a general requirement for stronger evidence. There is no heightened civil standard.

4. R (McCann) v Crown Court at Manchester [2003] 1 AC 787 did not establish that article 6 required the criminal standard for civil anti-social behaviour proceedings. Its adoption of that standard was a pragmatic response to the then-current idea of a heightened civil standard. It was not a legal requirement. To the extent that the opinions suggested that the statutory condition itself legally required criminal proof, that reasoning was wrong.

5. Sections 34(2) of the 2009 Act and 1(2) of the 2014 Act expressly prescribed the balance of probabilities. The courts therefore had no room to substitute the criminal standard as a matter of common law fairness. Parliament deliberately selected the civil standard to address gang-related and anti-social behaviour and coupled it with preventive purposes, judicial necessity assessments, limits on conditions and duration, consultation, supervision, review and discharge mechanisms. Breach of a gang injunction was civil contempt rather than a criminal offence. Viewed in the round, both schemes complied with article 6.

1. United Kingdom Supreme Court: Dismissed the appeal and affirmed that the statutory civil standard was compatible with article 6(1).

2. Court of Appeal: In [2018] EWCA Civ 1189, reported at [2019] QB 521, held that the proceedings did not determine a criminal charge and that proof on the balance of probabilities was compatible with article 6.

3. High Court: Burton J held that the proceedings did not concern a criminal charge and did not require the criminal standard. The preliminary challenge under section 4 of the Human Rights Act 1998 was rejected.

4. County Court: Applying the civil standard, HH Judge Carmel Wall found that the appellant had engaged in gang-related drug-dealing activity and granted an injunction under sections 34–36 of the Policing and Crime Act 2009.