Before a council can obtain an injunction against gang-related activity, how sure must the judge be that the conduct occurred? Parliament specified the balance of probabilities. Mr Jones argued that the gravity of the allegation and the restrictions an injunction could impose required proof beyond reasonable doubt. The Supreme Court examined whether the right to a fair hearing required that higher standard.
The issue
The appeal asked whether article 6(1) of the European Convention on Human Rights, given effect by the Human Rights Act 1998, requires proof beyond reasonable doubt before a court may grant an injunction under section 34 of the Policing and Crime Act 2009 or section 1 of the Anti-social Behaviour, Crime and Policing Act 2014. Both statutes state that the court must be satisfied on the balance of probabilities that the respondent has engaged in or encouraged gang-related violence or drug-dealing, or has engaged or threatens to engage in anti-social behaviour. It was common ground that the proceedings are civil, both in domestic law and under the Convention. The appellant accepted that the provisions could not be read down under section 3 of the 1998 Act and sought only a declaration of incompatibility under section 4.
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Background and the proceedings
Parliament introduced the gang-injunction regime after earlier litigation exposed limits on using general local authority powers to prevent gang violence. Unlike the earlier anti-social behaviour order legislation, the two Acts before the Supreme Court expressly identified the standard of proof.
Birmingham City Council applied for injunctions against Mr Jones and others in 2016. A judge found on the balance of probabilities that Mr Jones had been involved in gang-related drug dealing. The resulting injunction restricted where he could go and whom he could associate with. The judge did not need to decide the alternative application under the 2014 Act. Permission to challenge the particular terms of the injunction was refused. The appeal concerned the compatibility of the legislation itself.
Article 6(1) and the standard of proof
Article 6(1) guarantees a fair hearing in the determination of civil rights and obligations but lays down no rule about the standard of proof. Strasbourg authority, including decisions in García Ruiz, Dombo Beheer and Saliba, shows that the European Court examines whether national proceedings as a whole were fair and treats rules of evidence as primarily matters for national law. Contracting states have greater latitude in civil cases than in criminal cases. Equality of arms and a proper examination of the evidence are required, but the cases provide no support for insisting on the criminal standard here. United Kingdom courts should not anticipate a substantial development of Convention rights going beyond existing Strasbourg jurisprudence, because a state cannot itself apply to Strasbourg to correct an over-extension.
The decision in McCann
The appellant relied on R (McCann) v Crown Court at Manchester, in which the House of Lords directed magistrates to apply the criminal standard to anti-social behaviour orders under the Crime and Disorder Act 1998. That Act did not specify a standard. Lord Lloyd-Jones explained that the direction was a pragmatic response to the then-current idea of a heightened civil standard thought to be virtually indistinguishable from the criminal standard, adopted to give magistrates a straightforward test. It was not a holding that article 6(1) required the criminal standard, and Lord Steyn’s starting point was that the civil standard applied in principle. Later authority, including Re B (Children), has established that there is only one civil standard: the balance of probabilities. The inherent improbability of an event may call for more cogent evidence, but the seriousness of an allegation or of its consequences does not itself raise the standard. McCann is therefore not authority for the proposition advanced, and any contrary reasoning in it is wrong. Nothing in the opinions indicates that article 6 was treated as requiring the criminal standard; that argument had not been made.
Parliament’s choice and the safeguards
Unlike the 1998 Act, the 2009 and 2014 Acts expressly require the civil standard. The courts therefore cannot impose the criminal standard as a matter of common-law fairness. Parliament chose the civil standard deliberately after Shafi in order to tackle gang violence. The primary purpose is preventative and protective: an injunction may be granted only if necessary to prevent the respondent engaging in or encouraging gang-related violence or drug-dealing, or to protect him from it, or, under the 2014 Act, if just and convenient for the purpose of preventing anti-social behaviour. Statutory guidance explains the longer-term aims of breaking gang culture and encouraging positive activities. Safeguards include limits on what may be prohibited or required, duties to avoid conflict with work, education and religious beliefs so far as practicable, a maximum duration of two years under the 2009 Act, consultation requirements, provision for review, variation and discharge, and the fact that breach is civil contempt rather than a criminal offence. The 2014 Act contains comparable protections, including supervision of requirements and a shorter maximum period where the respondent is under 18. These features secure a fair hearing.
Lord Lloyd-Jones, with whom Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agreed, held that article 6(1) does not require the criminal standard for either threshold condition and that the statutory schemes conform with the requirements of a fair hearing.
Verdict: The Supreme Court unanimously dismissed the appeal. It held that article 6(1) does not require proof beyond reasonable doubt of the conditions in section 34(2) of the 2009 Act or section 1 of the 2014 Act, and that the schemes are compatible with the right to a fair hearing. No declaration of incompatibility was made.
Source: Jones v Birmingham City Council and another [2023] UKSC 27
