| LOCAL GOVERNMENT — Powers — Action by local authority — Local authority claiming injunction to control activities of alleged gang members — Whether entitled to injunctive relief — Local Government Act 1972, s 222
Birmingham City Council v Shafi and another [2008] EWCA Civ 1186; [2008] WLR (D) 341
CA – Sir Anthony Clarke MR, Rix and Moore-Bick LJJ: 30 October 2008
Where a council sought an injunction under s 222 of the Local Government Act 1972 in circumstances in which an anti-social behaviour order (ASBO) would be available, the court should not, save in an exceptional case, grant the injunction but leave the council to seek an ASBO in the magistrates’ court.
The Court of Appeal so held in a reserved judgment, dismissing an appeal by Birmingham City Council from the order of Judge Macduff QC made in the Birmingham County Court and dated 10 January 2008, in which he dismissed the council’s claims for civil injunctions against alleged gang members, Marnie Shafi and Tyrone Ellis.
The council intended to issue more claims with a view to obtaining injunctions against all known adult gang members and to bring an end to their activities within the city. In the case of gang members under the age of 18, the council had sought ASBOs in the magistrates’ court.
SIR ANTHONY CLARKE MR and RIX LJ said that an injunction could only be granted in support of some legal or equitable right. S 222 of the 1972 Act did not give councils substantive powers. It was simply a procedural section which gave them powers formerly vested in the Attorney General to bring proceedings in support of public rights. The council’s case was that an injunction was required in aid of the criminal law, or at least in order to prevent the future commission of criminal offences; alternatively, to avoid future public nuisances. In so far as an injunction was sought to prevent the commission of criminal offences, the essential principles remained those summarised by Bingham LJ in City of London Corpn v Bovis Construction Ltd [1992] 3 All ER 697, 714g-j. There was considerable force in the point that the principles to be applied to injunctions to restrain a public nuisance should be less restrictive. However, the cases had not to date clearly differentiated between the principles to be applied in the two classes of case where the same facts were relied on in support of each. However it was not necessary to take the matter further on the present appeal. The terms of the injunction sought in the present action were typical of, and almost identical to, an ASBO. Parliament had recently legislated to restrain anti-social behaviour in a particular way and subject to particular safeguards. Given the detailed statutory scheme, the appropriate course was for the court to decline to grant an injunction but to leave the council to its remedy in the magistrates’ court if it could establish it. If, exceptionally, the High Court or the county court did find it necessary to consider whether to grant an injunction in circumstances in which the relief was identical or almost identical to an ASBO, it should follow the approach of Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, para 37, and apply the criminal standard of proof. Where the relief sought was not identical or almost identical to an ASBO and where the facts were much more complicated than they were here, subject to argument in a particular case, their Lordships saw no reason why the ordinary civil standard of proof should not apply.
MOORE-BICK LJ, dissenting in part, agreed that the appeal should be dismissed.
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Appearances: Jonathan Manning and Justin Bates (Legal and Democratic Services, Birmingham City Council) for the council; Maya Sikand (McGrath & Co, Birmingham) for the defendant Shafi; Ramby de Mello and Tony Muman (McGrath & Co, Birmingham) for the defendant Ellis.
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