Jones v Birmingham City Council & Anor (Rev1) [2023] UKSC 27

Mr Jones challenged the civil standard of proof applied in gang injunction proceedings under the Policing and Crime Act 2009 and Anti-social Behaviour, Crime and Policing Act 2014. The Supreme Court held that Article 6(1) ECHR does not require the criminal standard of proof in such civil proceedings, dismissing the appeal.

Facts

The appellant, Mr Jerome Jones, was one of several defendants alleged to be members of the Guns and Money Gang (GMG) in Birmingham. Birmingham City Council sought injunctions under section 34 of the Policing and Crime Act 2009 and section 1 of the Anti-social Behaviour, Crime and Policing Act 2014 to prevent gang-related violence and drug-dealing activity. An interim injunction was granted in February 2016, and following a full trial, HH Judge Wall granted a final injunction against Mr Jones in July 2017, finding on the balance of probabilities that he had been involved in gang-related drug-dealing activity.

The injunction prohibited Mr Jones from using violence, entering specified areas of Birmingham, associating with named individuals, possessing controlled drugs, and participating in certain music videos. The order included a power of arrest and was to remain in effect for two years.

Background to Gang-Related Legislation

The legislation arose following serious gang violence in Birmingham involving rival gangs. As the court noted, the violence included incidents such as the murder of two innocent bystanders caught in automatic gunfire between rival gangs. The 2009 Act was designed to address limitations identified in earlier case law regarding the use of injunctions against gang members.

Issues

The principal issues before the Supreme Court were:

1. Whether Article 6(1) of the European Convention on Human Rights requires the criminal standard of proof to be applied to proof of the first condition under section 34 of the 2009 Act and section 1 of the 2014 Act;
2. Whether the Court of Appeal erred in distinguishing and declining to follow the House of Lords decision in R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

Judgment

Lord Lloyd-Jones delivered the sole judgment, with which all other justices agreed. The appeal was dismissed.

Article 6(1) ECHR and Standard of Proof

The Court held that Article 6(1) does not require the application of the criminal standard of proof in civil proceedings such as these. Lord Lloyd-Jones emphasised the Strasbourg court’s approach:

The Strasbourg court has made no attempt to standardise the national rules of evidence applicable in proceedings before the courts of contracting states… On the contrary the Strasbourg court has shown itself reluctant to rule on particular rules of evidence in isolation and more concerned to assess whether the national proceedings considered as a whole were fair as required by article 6(1).

The Court noted that it is not the function of domestic courts to establish new principles of Convention law beyond what the Strasbourg court has determined:

This court cannot be fully confident that the Strasbourg court will in future develop Convention rights under article 6(1) in the manner contended for by the appellant and, accordingly, such a development should not be anticipated by this court.

Analysis of McCann

The Court analysed the House of Lords decision in McCann in detail and concluded that it did not establish that Article 6 requires the criminal standard of proof. Lord Steyn’s approach in McCann was pragmatic rather than based on legal requirement:

Lord Steyn took a pragmatic approach to the question of the standard of proof… The conceptual and practical problems in such an approach, in particular in their application by magistrates, are obvious and they led Lord Steyn to adopt a purely practical solution.

The Court clarified the current state of the law on civil standard of proof:

It is now established that there is only one civil standard of proof at common law and that is proof on the balance of probabilities.

Parliamentary Intent and Procedural Safeguards

The Court noted that Parliament deliberately chose the civil standard of proof in the 2009 Act as a response to the serious social problem of gang violence. Lord Lloyd-Jones observed:

The adoption of the civil standard was a deliberate step which Parliament considered was justified by the mischief which had to be addressed.

The Court identified numerous procedural safeguards built into both Acts that ensure fairness, including time limits on injunctions, review mechanisms, consultation requirements, and the preventative rather than punitive nature of the measures.

Implications

This decision confirms that:

• Civil proceedings for gang injunctions and anti-social behaviour injunctions require proof only on the balance of probabilities;
• The seriousness of consequences from civil proceedings does not, of itself, require application of the criminal standard;
• There is no ‘heightened civil standard’ – there is only one civil standard of proof;
• Parliament’s express provision for the civil standard in the 2009 and 2014 Acts is compatible with Article 6(1) ECHR;
• Courts should not anticipate developments in Strasbourg jurisprudence regarding fair trial requirements.

The decision provides clarity for local authorities and police forces seeking gang injunctions and anti-social behaviour injunctions, confirming that the civil standard of proof applies throughout such proceedings.

Verdict: Appeal dismissed. The Supreme Court held that Article 6(1) ECHR does not require the criminal standard of proof in proceedings for gang injunctions under section 34 of the Policing and Crime Act 2009 or anti-social behaviour injunctions under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014. The statutory provisions requiring proof on the balance of probabilities are compatible with Convention rights.

Source: Jones v Birmingham City Council & Anor (Rev1) [2023] UKSC 27