Birmingham City Council v B & Ors

On 31^st July 2007, the claimant, whom I shall call the appellant throughout, commenced proceedings in the Birmingham County Court seeking injunctions, pursuant to section 222 of the Local Government Act 1972, to restrain the eight defendants from entering the Lozells and Newtown areas of Birmingham on the grounds that, in one way or another, they were involved in dealing Class A drugs there. Essentially, the appellant’s claim is for an injunction to prevent a public nuisance within those areas of its city.

On 1^st and 15^th August 2007, interim injunctions to this effect were granted by His Honour Judge McKenna. They were maintained, in slightly different form, by the same judge following a hearing in December 2007. The proceedings were then case-managed by His Honour Judge MacDuff Q.C. (as he then was), because he was dealing with a whole series of similar cases, all commenced by the appellant, against a large number of individual defendants. Many of those proceedings were compromised by agreement between the parties and others were eventually abandoned. I understand that few of them now remain live.

On 10^th January 2008, Judge MacDuff handed down judgment in the first of the remaining cases that came to trial. That was in a case called Birmingham City Council v Shafi and Ellis , case number 7BM 72256. On the facts of that case, he rejected the appellant’s claims for injunctions. The appeal against his decision is due to be heard by the Court of Appeal next month. There is considerable public interest in that appeal. I note, for example, a reference to the original decision in Shafi and Ellis and the forthcoming appeal in an article on gang culture on page 7 of today’s ‘Times’.

Following the decision in Shafi and Ellis , the judge considered the position in the remaining injunction cases, including this one. There was a hearing on 26^th March during which the judge, “indicated to the parties that I was having grave difficulty making up my mind” (paragraph 22 of the judgment of 2^nd April). He handed down judgment on 2^nd April when he concluded that, in respect of the four remaining defendants who had not been deported or sentenced to terms of imprisonment, he should lift the injunctions.

On 22^nd April 2008, the appellant sought permission to appeal that decision. Macur J granted permission to appeal on the basis that it was arguable that the judge was wrong to conclude that he did not have the jurisdiction to grant the injunction. This judgment is, therefore, concerned solely with that appeal, which was heard on Tuesday, 20^th May 2008.

I propose to set out some of the important passages in the judgment of His Honour Judge MacDuff Q.C., of 2^nd April 2008 and then go on to consider whether, by reference to the applicable law and the evidence before him, it can be said that his approach was wrong in principle. If it was, I must then re-exercise the court’s discretion in respect of these injunctions.

Before embarking on that exercise I should make plain that this appeal is now restricted to just three of the original defendants: the first respondent and the second defendant, V B; the second respondent and third defendant, H C; and the third respondent and fourth defendant, I F. My ruling, therefore, only affects those three parties.

The judge attached considerable weight to his own decision in Shafi and Ellis (see paragraphs 10 to 14 of the judgment of 2^nd April 2008). It is necessary, therefore, to consider that case first. According to the judgment of 10^th January 2008 in Shafi and Ellis :

In his judgment in this case, the judge summarised his conclusions in Shafi and Ellis in paragraph 12 as follows:

“…Of more concern was the submission by the local authority that its claim for an injunction was being used to prevent a public nuisance, it being alleged that the activities of the gangs within a particular area of the city amounted to public nuisance which the local authority was entitled to enforce under section 222. However, for the reasons which I gave in judgment, I held that was not available either in the case of Shafi and Ellis . I held I had no jurisdiction to grant an injunction, that interim injunctions should not have been granted in the first place. I noted that there were significant human rights arguments and I discharged the injunction. I held I had not got jurisdiction in support of the criminal law, nor had I jurisdiction in the circumstances of that case, to prevent public nuisance. Thirdly, I held in that case that, in any event, even if I had decided that the jurisdiction was available, I would not have exercised it. Injunctions are discretionary remedies and the evidence against Shafi and Ellis was neither of strength nor extent which would have persuaded me to enjoin them from the activities which I have mentioned: anti-social behaviour, association, entering exclusion zone.”

At paragraph 16 of his judgment of 2^nd April, the judge referred briefly to the Court of Appeal decision in Nottingham City Council v Zain (A Minor) [2001] EWCA (Civ) 1242, [2002] 1 WLR 607. That is the principal authority relied on then and now by the appellant. The judge said that in that case the Court of Appeal had found that the judge below had been wrong to strike out a similar claim to this one as a result of the local authority’s powers under section 222. However, he said, that it was “a decision of academic interest.” This comment echoed the judge’s remark in his judgment in Shafi and Ellis that the decision in Nottingham City Council “has to be treated with some caution,” and similar doubts in paragraph 61 of that same judgment. It demonstrated the judge’s clear concern, reflected throughout his judgment of 2^nd April, as to whether the court did, in fact, have the necessary jurisdiction to grant an injunction under section 222 in the first place. This doubt was an important element of his ultimate decision of 2^nd April because, as he put it,

“One of the huge aspects to go into the balance is the strength of the case and likely final result.”

As to the evidence against the defendants and, more particularly, the evidence as to the benefits wrought by the granting of the injunctions in this case last August, the judge set out in his judgment in some detail the evidence of Mr. Scarrott, the commander of Thornhill Road Command Unit and the policeman responsible for the resolving the epidemic of drug dealing in this part of Birmingham. The judge set out in his judgment the evidence at paragraphs 17 to 25, 28 to 29 and 31 to 37 of Mr. Scarrott’s statement, which expounded upon the beneficial effects of the injunctions granted last year. It is perhaps necessary for me simply to repeat for these purposes paragraphs 31 to 37 which read as follows:

“31.

I believe that if the interim injunctions are discharged it would reinforce the belief that the authorities are ultimately powerless against these individuals.

32.

Not only would the Defendants return to the Villa Road but a message would be conveyed to all other street dealers that Villa Road is once again the epicentre of the supply of Class A drugs.

33.

I have great fears of the damage that any discharge of the interim injunctions could have on community tensions. I have seen from the evaluation report into the Lozells disturbances of 2005 how rivalry between gangs of drug dealers from different communities can be the ‘flare up’ for serious disorder. There is also a need for a communities to have trust in the criminal justice agencies to make their area safe.

35.

The witnesses that have provided the police with statements to support the application have all expressed a fear of being identified. If the Defendants return to Lozells there would be a real risk that witnesses could be identified and seriously harmed simply for having the courage to do something positive to improve their area.

36.

If the Defendants were to return to the area, the community’s feelings of resentment, animosity towards the authorities and disappointment could lead to them taking matters into their own hands and the possibility of disorder breaking out.

37.

On behalf of West Midlands Police, Birmingham City Council and the Lozells community, I would ask the court not to discharge the interim injunctions as I believe to do so would have catastrophic consequences.”

This was powerful evidence in favour of the continuation of the injunctions and the judge acknowledged it as such. Indeed, in paragraph 36 of his judgment he said this:

“I do not underestimate that evidence at all and it would be not only an unfeeling judge but an unfeeling human being who would not consider that those objectives are laudable and objectives to be achieved if possible. If Section 222 could be used in the summary and arbitrary way that some might wish and like, then of course the injunctions should be retained, particularly having in mind, as I have, that, at least until it is tested, the Claimant’s evidence of drug dealing and the involvement of these Defendants appears to be strong. So it was Mr. Scarrott’s statements which caused me concern and made me feel perhaps to continue the injunctions for a short while longer until the Court of Appeal could make a decision would probably be appropriate, having regard to balance of justice principles.”

However, ultimately, the judge decided not to do that. This seems to be because the injunction proceedings now related to four out of the eight Defendants only (paragraph 37 of his judgment) and because a covert police operation, known as ‘Operation Clean’, meant, he said, that some of the drug dealing witnessed by locals was, in fact, done by undercover policemen. Thus the judge appeared to conclude that the evidence of Mr. Scarrott was perhaps less compelling than it otherwise would have been and that the removal of the eight men from the area had made “a contribution” to the improvements in the area but not more (paragraph 38 of the judgment).

In summary, therefore, it seems to me that, because of the judge’s doubt as to whether he did have the necessary jurisdiction, which doubt he traced back to his own analysis in Shafi and Ellis , and his view that the factual evidence was not as compelling as might first be thought, he concluded that he should discharge the injunction.

The decision of the Court of Appeal in Nottingham City Council v Zain deals head-on with the law in this area. The City Council sought an injunction against the Defendant under section 222(1) to prevent him from entering a particular estate to sell drugs. The claim was struck out and the local authority appealed. The Court of Appeal allowed the appeal.

Schiemann LJ said:

“2.

In my judgment, the root question is whether a local authority has the power to bring proceedings claiming such relief, rather than whether the court has jurisdiction to grant such an application. The judge held that an authority had no such power…

13.

…However, in my judgment, it is within the proper sphere of a local authority’s activities to try and put an end to all public nuisances in its area, provided always that it considers that it is expedient for the promotion or protection of the interests of the inhabitants of its area to do so in a particular case. Certainly my experience over the last forty years tells me that authorities regularly do this and, so far as I know, this has never attracted adverse judicial comment. I consider that an authority would not be acting beyond its powers if it spent time and money in trying to persuade those who are creating a public nuisance to desist. Thus, in my judgment, the county council in Att.-Gen v PYA Quarries Ltd. [1957] 2 QB 169 was not acting beyond its powers in seeking the Attorney-General’s fiat in trying to put a stop to the nuisance, by dust in that case, and thus exposing itself to potential liability in costs. It follows that, provided that an authority considers it expedient for the promotion and protection of the interests of the inhabitants of its area, it can institute proceedings in its own name with a view to putting a stop to a public nuisance.”

Keene LJ said this:

“27.

The position, therefore, is that, where a local authority seeks an injunction in its own name to restrain a use or activity which is a breach of the criminal law but not a public nuisance, it may have to demonstrate that it has some particular responsibility for enforcement of that branch of the law but, where it seeks by injunction to restrain a public nuisance, it may do so in its own name so long as it ‘considers it expedient for the promotion or the protection of the inhabitants’ of its area (section 222(1)). That is so even though it is seeking to prevent a breach of the criminal law, public nuisance being a criminal offence. Its decision that such proceedings are expedient is controlled, as Lord Templeman pointed out in the Stoke-on-Trent City Council case, by the normal judicial review criteria: see [1984] AC 754 to 775 F-H. Whether it can establish that a public nuisance exists will, of course, depend on the facts of the individual case, but its entitlement to seek the injunction in its own name is clear. The court would then have to exercise its discretion, once a public nuisance was established, on the well-known principles applicable to such injunctions.”

For completeness, I should also note that, by the time of the appeal in Nottingham City Council , the Defendant had been sentenced to three years youth custody so that, on the day of the appeal, the local authority no longer had any need to pursue the injunction claim. However, the Court of Appeal went on to deal with the hearing and to hand down judgment, which I note was reserved, because, as Schiemann LJ said at paragraph 6:

“…the point is of general importance, both for this authority and, no doubt, for other authorities. The authority have a problem on this housing estate and wish to exclude various other persons whom they suspect of dealing in drugs there and so wish to know the extent of their powers.”

The only other authority to which I should refer, which also deals with the granting of an injunction to assist a local authority in preventing a public nuisance in similar circumstances to this one, is The Royal Borough of Kensington and Chelsea v Williams and Others [2003] EWHC 1933 (Ch), a decision of Ouseley J. In that case, an injunction was granted against five Defendants preventing them from entering large parts of the borough in question to prevent a public nuisance. Again, the mischief was dealing in Class A drugs. It is clear from his judgment that Nottingham City Council v Zain was cited to Ouseley J, who concluded that the local authority was entitled to seek such an injunction in those circumstances.

In this appeal, the respondents have argued that a factor in Nottingham City Council was that the estate in question was owned by the claimant in that case. I accept that that may well have been a factor in the court’s consideration, but it is fair to observe that no reference to such a point is made in the judgments in the Court of Appeal. Moreover, it did not feature at all in the Kensington and Chelsea case because that was concerned with a large exclusion zone that covered a major part of the relevant London borough.

Accordingly, it seems to me that, as things presently stand, the law is clear. A local authority is entitled to seek from the courts an injunction under section 222 of the Local Government Act 1972 to assist in preventing a public nuisance, specifically drug dealing. Of course, whether or not such an injunction would be granted by the courts will always depend on the facts of the case in question and the usual balancing exercise. It is also right to say that, following the CPR, questions of proportionality and the overriding objective will also be highly relevant. But there can be no doubt that the jurisdiction to grant such an injunction under section 222 in an appropriate case is well established and reflected in the decision of the Court of Appeal in Nottingham City Council . That decision was binding on Judge MacDuff, just as it is binding on me.

This is important because, as I have already said, in both Shafi and Ellis and this case, Judge MacDuff appeared to doubt the existence of any such jurisdiction. Indeed, in this appeal, the second and third respondents both go as far as to say that the judge, they say rightly, concluded that there was no jurisdiction to grant an injunction in these circumstances at all. I do not believe that the judge necessarily reached such a definitive view but the fact that the submission is made at all shows the extent to which Judge MacDuff queried the court’s jurisdiction to grant an injunction in these circumstances. In the light of Nottingham City Council v Zain, I am bound, therefore, to conclude that the judge erred in principle in doubting the existence of this jurisdiction. In addition, I do not believe that the judge was right to describe Nottingham City Council as a decision merely “of academic interest” or one that “had to be considered with caution”. On the contrary, the Court of Appeal went on to deal with the appeal and to reserve and hand down their judgment subsequently, despite the fact that the defendant was by then in prison, not because it was “of academic interest” but because they regarded it as a matter of general importance to both the local authority in that case and to other local authorities.

I should add this. Judge MacDuff has considerable experience of cases of this sort and his judgment in Shafi and Ellis makes an eloquent case for the proposition that a section 222 injunction may be something of a blunt instrument, particularly in the light of the other powers open to the appellant under more recent legislation. It also makes a strong case for saying that the decision in Nottingham City Council v Zain should be reconsidered in the light of that recent legislation, or possibly be identified as a case to be confined to its own facts. But, of course, all of that can only be undertaken by the Court of Appeal at the forthcoming hearing. As I have said, for present purposes, I am bound to follow the principles set out in Nottingham City Council v Zain . Thus, in the light of my conclusions on the law, I must consider whether, applying the relevant principles applicable to interim injunctions, I should allow the appeal and reinstate the injunctions pending the time when the Court of Appeal hands down its decision in Shafi and Ellis . I, therefore, turn to that exercise, firstly, by identifying the relevant evidence.

As to the evidence of drug dealing against the defendants generally, the judge said that it “appears to be strong” (see paragraph 36 of his judgment). I respectfully agree with that. The relevant parts of Schedule 1 to the Points of Claim contain a large number of specific allegations against the three respondents in this case. I noted in argument that their defences were much more general.

I have already said that, in my judgment, the evidence on this topic from Mr. Scarrott was very powerful and made an almost overwhelming case for continuing the injunctions, at least until the law was reviewed by the Court of Appeal in Shafi and Ellis . Indeed, that was the very course that the judge said he was going to adopt (see paragraph 36 of his judgment). Why, then, did he change his mind?

First, he referred to the fact that the injunctions were only sought against four, now three, of the Defendants (paragraph 37 of his judgment). It does not seem to me that that makes any significant difference. The case for an injunction against each of the respondents has to be considered separately. It depends on the facts alleged against that individual. It does not ultimately matter whether or not there are now fewer of the defendants at liberty than there were nine months ago.

Accordingly, that leaves the effect of ‘Operation Clean’ which, as set out in paragraph 38 of the judgment, appeared to be the principal reason for the judge’s change of mind. I should say that this aspect of the case causes me some concern. Although it was obviously a matter to which the judge attached considerable weight, there is no evidence before me about that Operation at all. It appears that paragraphs 38 and 39 of the judge’s judgment are based entirely upon what defence counsel submitted to him, as a result of their coincidental involvement in an entirely separate criminal case. The dangers of admitting such material in the first place in a civil action like this, without at least requiring it to be put into a formal statement, are manifold and obvious. It also means that the appellant has been deprived of the opportunity of properly dealing with that evidence. In those circumstances, it seems to me that I should treat this material with considerable caution.

Paragraph 38 of the judgment reads as follows:

“The second thing I was unaware of was the police activity I have been told about now. Counsel who appeared for some of the Defendants told me of a police operation known as ‘Operation Clean’. He knew of ‘Operation Clean’ because he has been instructed in the criminal case, or his solicitors hav,e against some of the Defendants. I have his submissions about it. I am told and have no reason to disbelieve that disclosed on the criminal papers are details of this operation whereby a covert police presence has been inserted into the Lozells area with undercover police officers engaging with drug dealers pretending to buy and sell drugs themselves, thereby creating the evidence which could be put to the Defendants and upon which they could be charged. When this was disclosed by counsel it was clear that Mr. Bates, counsel instructed on behalf of Birmingham City Council, knew nothing of ‘Operation Clean’. Certainly it does not feature in the Claimant’s evidence in this or any of the other cases. That is not surprising because these cases were issued at a time when ‘Operation Clean’ was still in existence, before people had been arrested and charged and at a time when it would have been wholly wrong to disclose that the police were operating in this area in that way. It was, therefore, submitted, on behalf of the Defendants, with some force, that some of the drug dealing witnessed by locals was, in fact, done by undercover police officers. It is also apparent that arrests that have been made have taken men off the streets of themselves and are almost certainly largely responsible for the improvement in the situation to which Mr. Scarratt refers. Reading the statement, one might be excused for thinking that the whole of the improvement in Lozells, increased levels of safety and the heightened feelings of security and the opening of new shops were due to the removal of these eight men from Lozells and perhaps it made its contribution.”

In essence, it seems to me that the judge believed that the effect of Mr. Scarrott’s evidence had been significantly diluted by what he was told by defence counsel about ‘Operation Clean’. For myself, I do not entirely understand that. It seems to me that the fact that the injunctions went hand in hand with a police operation of a different sort, but in the same area, was unsurprising. Moreover, even if some of the drug dealing which the witnesses saw concerned undercover officers, there was no evidence at all to say that it was a significant amount, and no evidence either that the injunctions granted last August and varied in December were anything other than a significant factor in the clear improvements in the Lozells and Newtown areas, as set out in the unchallenged evidence of Mr Scarrott.

I should deal with two other matters relating to the factual evidence. First, all three respondents made the point that there is no evidence that, since the injunctions were lifted on 2^nd April, there has been a huge increase in drug dealing or criminal activity in the areas concerned. They argue that this shows that, on the balance of convenience, the present position (i.e. no injunctions), should be maintained until trial. There is some force in this point, although I consider that it has been over-stated. After all, over the last nine months, there has only been a period of three weeks, from 2^nd April to 22^nd April, during which the injunctions have not been in force or an appeal pending against their discharge has not been in existence, and during that time the evidence is clear that the amount of drug dealing and crime in this area has fallen sharply. Overall, therefore, that must be a point in favour of the appellants, not the respondents.

The second point concerns the width of the injunctions sought and the size of the exclusion zone. There is no doubt that the original injunctions and the original zone were wide and led to complaints by the three respondents. In my judgment, those complaints were justified and I would certainly have thought twice about reinstating the injunctions that were in the terms which Judge MacDuff had to consider back on 26^th March and 2^nd April 2008. However, for the purposes of this appeal, on behalf of the appellant, Mr. Manning has made clear that: (a) the appellants do not presently seek the reinstatement of any injunctions or orders other than the maintenance of the exclusion zone relating to these three respondents; and (b) that exclusion zone has itself been re-drawn and reduced, in part to meet specific complaints raised by these three respondents in their statements.

Dealing with each Defendant in turn:

I consider that the judge was wrong in principle to doubt his jurisdiction to grant an injunction in these circumstances in the light of the Court of Appeal decision in Nottingham City Council v Zain . It was on that ground that Macur J granted permission to appeal. Further, I consider that the judge was right to contemplate, at paragraph 36, the continuance of these injunctions until the Court of Appeal decides Shafi and Ellis and was wrong to be deflected from that course simply by what he was told by counsel and his speculation about the effect of ‘Operation Clean’ (paragraph 38). I, therefore, consider that I should exercise the court’s discretion afresh in accordance with the test in American Zyanamid v Ethicon [1975] AC 396 as explained in the commentary at Volume 2 of the White Book 2008, in particular, at paragraphs 15-2 to 15-16.

Plainly, there is a serious issue to be tried in this case. In addition, I think it beyond argument that damages would be an adequate remedy for the three respondents (and the appellant would be in a position to pay such damages) if it turns out that the injunctions have been wrongly granted. On the other hand, if the injunction is refused and it turns out that it should have been granted, damages would not be an adequate remedy for the appellant and the respondents would not, in any event, be in a position to pay them.

As to the balance of convenience, more properly called the balance of the risk of doing an injustice, I have to consider the strength of the parties’ respective cases and the desirability of preserving the status quo. I have concluded that, much like the judge before me, there is a powerful case for continuing these injunctions until the decision of the Court of Appeal is provided in Shafi and Ellis when the state of the law in this area will be reviewed. That conclusion, importantly, is strengthened by a development that was not in existence at the time that the matter was before the judge, namely the much more limited nature of the injunctions now sought by the appellant and, in particular, the fact that the exclusion zone has been reduced so as to meet all but one of the specific complaints made by the three respondents in their witness statements.

I do not consider that the exercise of ‘Operation Clean’ should lead me to alter or modify that view. Indeed, I think it would be wrong in principle if I allowed it so to do. Moreover:

Accordingly, by reference to the American Zyanamid test, I grant the more limited injunctions sought by the appellant. I make plain that those will remain in force only until the review hearing in this case, planned to take place after the Court of Appeal’s decision in Shafi and Ellis . To that extent only, this appeal is allowed. It is, I consider, the proportionate response to the evidence before me, some of which, as I have said, was not before the judge below.

Finally, I should say that I reject the respondents’ submission, trailed in oral argument, that I should somehow link this case to the appeal in Shafi and Ellis . There would simply be no point in doing that, since the Court of Appeal’s decision in that case will be taken into account, and have a direct effect upon the judge case-managing these proceedings, at the next review hearing. Moreover, given that the respondents are publicly funded, it would, I consider, be a wholly unnecessary waste of public resources to make any such order.