Birmingham City Council v Sharif

On 3^rd October 2016, His Honour Judge Worster, sitting as a Deputy Judge of the High Court granted to Birmingham City Council (‘The Applicant’) an injunction against persons unknown (‘the Injunction’) pursuant to section 37(1) of the Senior Courts Act 1981, section 1 of the Localism Act 2011, section 222 of the Local Government Act 1972 and section 130 of the Highways Act 1980.

The Judge attached a power of arrest to the Injunction pursuant to section 27 of the Police and Justice Act 2006.

The Injunction came into force on 24^th October 2016 and is due to expire at midnight on the 24^th October 2019.

The Injunction and power of arrest were designed to tackle the problem of car cruising within the City of Birmingham. It is one of a number of orders made in similar terms which have been granted by various Judges in this Court to various local authorities all of which have been designed to tackle the widespread problem of car cruising in the West Midlands.

The Applicant alleges that on 16^th September 2018 Harun Mansoor Sharif, the 16^th Respondent, breached the terms of the Injunction by participating in a car cruise within the area covered by the injunction causing danger and/or nuisance to other road users by racing his black Audi A5 motor car registration number RF63HBJ against another vehicle at excessive speed and dangerously. He was arrested and brought before the Court. On the 27^th September 2018 the Applicant served a committal notice dated 27^th September 2018 and supporting documents on the 16^th Respondent.

By an application notice dated 31^st January 2019, the 16^th Respondent seeks to have the Injunction discharged on the basis, it is said, that it was plainly wrong to have granted it and/or on the ground that there was an error of principle in the reasoning which led to its grant.

The application is supported by a witness statement dated the 3rd May 2019 from the 16th Respondent’s solicitor, Mr Robinson. For the sake of completeness, I record that the 16th Respondent has also filed a statement denying knowingly breaching the terms of the Injunction and he also relies on a further statement from Isaac Braich, a surveyor, which exhibits photographs of signage relating to the Injunction. Neither of those witness statements are relevant to the application to discharge the Injunction.

Paragraph 1 of the Injunction provides as follows:

All persons are forbidden from participating in a street-cruise within the Claimant’s local government area (known as the City of Birmingham) the boundaries of which are delineated in blue on a map attached to this Order at Schedule 1.”

The terms “street cruise” and “participating in a street-cruise” are defined in Schedule 2 of the order which is in these terms:

“Street-Cruise”

1.

“Street-Cruise” means a congregation of the drivers of 2 or more motorvehicles (including motor-cycles) on the public highway or at any place to which the public have access within the Claimant’s local government area (Known as the City of Birmingham) as shown delineated in blue on the map at Schedule 1, at which any person, whether or not a driver or rider, performs any of the activities set out at para.2 below, so as, by such conduct, to cause any of the following:

(i)

excessive noise;

(ii)

danger to other road users (including pedestrians);

(iii)

damage or the risk of damage to private property; (iv) litter;

(v)

any nuisance to another person not participating in the street-cruise.

2.

The activities referred to at para.1, above, are:

(i)

driving or riding at excessive speed, or otherwise dangerously;

(ii)

driving or riding in convoy;

(iii)

racing against other motor-vehicles;

(iv)

performing stunts in or on motor-vehicles;

(v)

sounding horns or playing radios;

(vi)

dropping litter;

(vii)

supplying or using illegal drugs;

(viii)

urinating in public;

(ix)

shouting or swearing at, or abusing, threatening or otherwise intimidating another person;

(x)

obstruction of any other road-user.

“Participating in a Street-Cruise”

Paragraph 5 of the Injunction provides:

“Any person served with a copy of this Order may apply to the Court to vary or discharge it, on 48 hours written notice to the Claimant”

Service of the Injunction was effected by placing notices in newspapers, online and in prominent locations throughout the City of Birmingham.

Localism Act 2011

Section 111 of the Local Government Act 1972 confers a power upon a Local Authority to do anything which is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions.

By Section 130(1) and (2) of the Highways Act 1980, it is the duty of the highway authority (in this case, the Applicant) to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it. In addition, any council may assert and protect the rights of the public to the use and enjoyment of any highway in their own area for which they are not the highway authority (including any roadside waste which forms part of it).

It is also the duty of the Highway Authority to prevent, so far as possible, the stopping up or obstruction of the highways for which they are the highway authority and any other highways if in their opinion the stopping up or obstruction of that highway would be prejudicial to the interests of that area.

In the performance of their functions under section 130(1) to (3) a council may institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient (see section 130(5)).

Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the 2014

PSPOs replaced designated public space orders, gaiting orders and dog control orders.

The 2014 Act contains the following material provisions:

“59 Power to make orders

(1)

A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.

(2)

The first condition is that—

(a)

activities carried on in a public place within the authority's area have had a detrimental effect on the quality of life of those in the locality, or

(b)

it is likely that activities will be carried on in a public place within that area and that they will have such an effect.

Before a PSPO may be made, there are various consultation requirements that have to be complied with pursuant to section 72 and there are also restrictions on the orders that may be made in respect of highways as appears in sections 64 and 65.

As can be seen, breach of a PSPO, without reasonable excuse, is a criminal offence, punishable by a fixed penalty notice (of up to £100 or a fine on summary conviction, not exceeding level 3 currently up to £1000) – (see section 67 of the ‘2016 Act’).

The thrust of the argument put forward on behalf of the 16^th Respondent is that the Judge was plainly wrong to have granted the Injunction and/or there was an error in principle in the Judge’s reasoning. In doing so he relies on the decision of the Court of Appeal in Birmingham City Council – v – Shafi and another [2009] I WLR 1961. In that case the Court of Appeal concluded that where a Local Authority sought an Injunction on terms that were identical or almost identical to the terms that could have been sought on an application for an Anti-Social Behaviour Order (‘ASBO’) which latter order was Parliament’s preferred remedy for the type of conduct complained of and incorporated safeguards for defendants not available under the Civil Injunction regime, then while the Court retained jurisdiction to grant an Injunction, it would not, as a matter of discretion grant an Injunction save in exceptional circumstances.

As the Court put it at paragraph 45:

“We recognise that there is a general principle that, where a claimant in a civil action has two available rights or remedies, he is in general entitled to choose which to rely upon. However, the principle to which we have referred is an exception to that general principle and applies in the kind of case contemplated by Hoffmann J, of which this seems to us to be an example. We recognise that it may be said that in Chief Constable of Leicestershire v M Hoffmann J was considering what he regarded as an unprincipled extension of the common law in a field in which Parliament had already legislated and that in this case the jurisdiction to grant an injunction in aid of the criminal law (and indeed to restrain a public nuisance) is already established. However, it seems to us that the thought which underlies Hoffmann J's principle applies here. Parliament has recently legislated to restrain antisocial behaviour in a particular way and subject to particular safeguards. In our view the court should have that fact well in mind in deciding how to exercise its discretion whether or not to grant an injunction in a particular case.”

As in the case of Shafi, the argument runs, Parliament has provided a remedy and a specific procedure in the form of the PSPO to combat the very type of behaviour complained about and, therefore, the Courts should give effect to Parliament’s intention and only in very rare circumstances would it be appropriate for the Court to grant Injunctive relief.

Exhibited to Mr Robinson’s witness statement are examples of PSPOs made by Gateshead MBC, one of which at least was designed to address issues similar to those sought to be addressed by the Injunction.

In further support of his argument, it was submitted on behalf of the 16th Respondent that the sanctions under the Contempt of Court Act 1981, namely an unlimited fine and/or imprisonment for up to two years, are far more onerous than the sanctions provided for in respect of breaches of PSPOs pursuant to the 2014 Act, a result that Parliament could not have intended, and equally, it was said, that Parliament in the PSPO regime expressly provided that a person would not be guilty of an offence if there was a reasonable excuse, a safeguard lacking in respect of committal proceedings.

To my mind, the 16^th Respondent’s reliance on the decision in Shafi is entirely misplaced. PSPOs are not a specific statutory remedy designed or introduced by Parliament to tackle the specific problem of car cruising. They replace, as I have already indicated, public space orders, restricting problem drinking, gating orders and dog control orders and give local authorities a general power to tackle activities that may cause a detrimental effect to quality of life of those living in their localities. The fact that Gateshead MBC may have made use of that power to deal with similar issues to those in respect of which the Injunction was sought is neither here or there.

Moreover, as Counsel for the Applicant submitted in respect of the argument based on the case of Shafi, here the choice is not between two different types of Court orders but between a remedy which requires a judicial decision and is, therefore, made by an independent and impartial tribunal on the one hand and on the other, the PSPO which the local authority makes for itself.

In those circumstances it does not seem to me that an intention should be imputed to Parliament that a public authority should be obliged to make PSPOs which are orders made without recourse to the Courts and still less that the Courts should in the exercise of their discretion decline to deal with an application on the basis that the local authority should have made an order itself without coming to Court. That would be a very surprising result – even more so when it is remembered that in the Shafi case the ‘ASBO’ regime provided specific safeguards which were lacking in the alternative approach and which made it more difficult for a local authority to obtain an ‘ASBO’.

Moreover, Shafi has not been followed in other cases. It was expressly distinguished and indeed held to be irrelevant by the Court of Appeal in Swindon Borough Council – v – Redpath [2009] EWCA Civ 943 where the Court held that there was no reason why a local authority should not use the ‘ASBI’ regime instead of the ‘ASBO’ regime and in respect of which a civil standard of proof would be applied. Likewise, in Birmingham City Council – v – James [2013] EWCA Civ 552, the Court of Appeal held there was no doctrine requiring one statutory remedy to be used in preference to another.

As Jackson LJ put it at paragraphs 26 to 29 in his judgment:

“26.

In Shafi the Birmingham City Council applied to the county court for injunctions under s. 222 of the Local Government Act 1972 to restrain alleged gang members from entering the city centre. The county court dismissed that application and the Court of Appeal upheld that decision. The Court of Appeal held that, although the county court had jurisdiction to grant the order sought, it was right not to do so; the proper course was for the council to seek an ASBO in the magistrates' court. A significant feature of Shafi was that IRGVs were not then available: see paragraphs 4 and 5 above in the judgment of Moore-Bick LJ. Section 222 of the 1972 Act did not give councils any substantive powers. It was simply a procedural section which gave them powers (formerly vested only in the Attorney General) to apply for injunctions: see the judgment of Sir Anthony Clarke MR and Rix LJ at [24]. The council was seeking to make novel use of a general power. Since a tailor-made remedy had been provided by Parliament, namely an application for an ASBO, it was inappropriate to proceed under s. 222.

27.

In the county court Mr de Mello submitted that the judge should dismiss the council's application for an IRGV because the law provided for a lesser and more appropriate remedy, namely an ASBO. The judge rejected that argument, both as a matter of principle and because an IRGV was the "closest fit" in the circumstances of this case. By his third ground of appeal Mr de Mello seeks to revive that same argument in this court.

28.

In my view, although Mr de Mello presents his case attractively, the third ground of appeal is misconceived. The courts referred to in paragraph 22 above now have at their disposal three different pre-emptive orders for dealing with violent or anti-social behaviour. Defence counsel can, of course, invite the first instance court to impose a less draconian order than that which is sought by the applicant. The judge will then exercise his or her discretion to make whatever order seems most appropriate in the circumstances, provided that the statutory conditions are satisfied. The judge may direct that an application may be made either to a different court or for a different remedy from that which is claimed. On such an application, the judge may exercise his powers under s. 1B of the 1998 Act (which enables an ASBO to be made in the course of ongoing county court proceedings). There is, however, no "closest fit" principle which cuts down the court's statutory powers to make pre-emptive orders. Such a principle cannot be derived from either Samaroo or Shafi.

29.

In the present case the conditions set out in s. 34 of the 2009 Act are satisfied. Therefore, the court has the power to make an IRGV. It is not a legitimate ground upon which to attack the judge's exercise of discretion that an ASBO (or in different circumstances an ASBI) is the "closest fit". If the statutory conditions are satisfied, the Court of Appeal will only set aside an IRGV in an exceptional case where the judge has erred in the exercise of his or her discretion. The judge in the county court is well familiar with local conditions. He or she knows what gangs (if any) are operating and where. Absent any error of principle, the judge's exercise of discretion should be respected. “

In short, it is clear from the decisions in Redpath and James that there has never been a doctrine requiring an authority to apply for the remedy representing the closest fit to the mischief aimed at and, in any event, the alternative remedy contended for on the 16th Respondent’s behalf, namely the PSPO, is not identical or even remotely similar.

There is no general principle that only in exceptional circumstances should a Court grant an Injunction where an alternative, specific statutory remedy is available or the Court should not do so where breach can carry more severe sanctions than breach of a PSPO nor is there any basis for the argument that local authorities cannot seek a remedy with more serious consequences in the event of a breach or that the Court cannot grant such a remedy if it considers it justified and proportionate so to do. In this case, the Court had ample evidence of the previous attempts made by the West Midlands Police to address car cruising and to the effect that those attempts have proved inadequate and therefore to conclude that the granting of the injunction was appropriate.

It follows in my judgment that the application should be dismissed and the committal application should be listed for hearing.

I trust that the parties will be able to agree an order that reflects the substance of this order including costs.

Finally, I would like to acknowledge the assistance provided by both counsel in this case.