ASBOs for all!

Birmingham City Council v (1) Shafi (2) Ellis [2008] EWCA Civ 1186

This is a complicated case, focusing much more on local government law than on housing law per se, but there are some significant implications for housing lawyers. We’ve already had one request to blog this case and I hope you’ll see why.

Section 222(1)(a) of the Local Government Act 1972 confers on local authorities in England and Wales the right and power to “prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings… [to] institute them in their own name.” One of the effects of this is to allow a local authority to seek injunctive relief in circumstances where, prior to 1972, the Attorney General had exclusive jurisidiction to do so. In practice, the Attorney (and local authorities) tend to use that power in two distinct categories:

(a) to seek an injunction in aid of the criminal law;

(b) to prevent a public nuisance.

See, by way of example, Stoke-on-Trent City Council v B&Q Retail [1984] 1 AC 754 (an injunction in aid of the criminal law to prevent unlawful Sunday trading) and Nottingham City Council v Zain [2001] EWCA Civ 1248; [2002] 1 WLR 607 (an injunction to prevent a public nuisance caused by an alleged drug dealer).

During summer 2007, Birmingham City Council, together with the West Midlands Police and West Midlands Probation service, launched a concerted legal campaign against what they contended were dangerous criminal gangs operating in their area. They sought ASBOs against those alleged gang members who were under 18 and s.222 injunctions against those who were over 18. The orders were broadly similar in all cases in that they sought to prevent the defendants from entering large parts of Birmingham; meeting certain named individuals or carrying out acts of violence. Sometimes (as in this case) additional clauses were sought so as to prohibit the wearing of clothing of a certain colour (said to be the colour of the gang) or being in any group larger than two.

At trial, HHJ Macduff QC (as he was then, now Macduff J) accepted the broad thrust of the council’s case on the facts. He found that there were such gangs operating in Birmigham and that they had engaged in violent, criminal activity. He found that both defendants were members of one such gang, although he did not find that the defendants themselves had acted in a criminal or violent manner.

He rejected the applications for the injunctions. He found that there was a complete code to deal with anti-social behaviour and that code was contained in the Crime and Disorder Act 1998. He found that the availability of the ASBO as a remedy meant that he no longer had jurisdiction to make an injunction under s.222. If he was wrong about that, he went on to hold that, before he would make any injunction, he would require it to be proved, to the criminal standard of proof, that the individual defendants had themselves acted in a criminal or violent manner. He granted the council permission to appeal on all points.

The Court of Appeal dismissed the appeal. The Judge had been wrong to see the question as one of jurisdiction. However, he had been right to focus on the availability of the ASBO as an alternative remedy. Parliamant had, in enacting the Crime and Disorder Act 1998, created a self-contained code for dealing with ASB. It contained checks and balances and had a detailed body of case law. The common-law powers of the local authority, through the vehicle of s.222, should not be used, save in exceptional cases. It would be wrong in principle (save in exceptional cases) for a court to grant an injunction where the subject matter of the complaint or the terms sought could be adequately dealt with by an ASBO.

The Court of Appeal then divided (Rix LJ and Clarke MR for the majority, Moore-Bick LJ in the minority) on the standard of proof to be applied in those exceptional cases where an injunction might be appropriate. The majority thought that the Judge was right to require a criminal standard of proof, by analogy with the ASBO regime. The minority felt that this would introduce uncertainty into the law dealing with all injunctions as it was impossible to categorise local authority injunctions against criminal or nuisance behaviour as a discrete category of injunction.

There is a general point here for housing lawyers. Why does this logic not hold good for ASBIs under ss153A-E? They have the same characteristics as s.222 injunctions. If s.222 is not to be used where an ASBO might be available, why should an ASBI be any different? If an ASBI is to be used then, if an ASBO would have been available, surely, as a minimum, the standard of proof should be the criminal standard.

Birmingham have indicated that they intend to petition the House of Lords.

Posted in ASB, FLW case note, Housing law - All and tagged , , . RSS feed for this post and comments.

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J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

8 Comments

  1. JS
    Posted 03/11/2008 at 8:33 pm | link to comment

    The reasoning I doubt can be properly extended to ASBIs for the following reasons:

    1 Moat Housing Ltd-v- Hartless where the CA expressly suggested that where housing related anti social behaviour was at issue ASBIs were generally more appropriate than ASBOS

    2 The conduct in the Birmingham case was not housing related within the meaning of Section 153 . As S222 Local Government Act 1972 is in effect the equivalent of an AG relator action – the sole purpose it seems of Birmingham seeking to use S222 injunctions to restrain a breach of the criminal law was to circumvent the requirement to prove the conduct required for an ASBO to the requisite criminal standard of proof. The use of this jurisdiction has always been properly limited .

  2. J
    Posted 04/11/2008 at 9:57 am | link to comment

    @JS – I suspect that you’re right, but it is certainly possible to read extracts from the case as suggesting that the ASBI is caught by the same criticism. Certainly, defence counsel will argue the point.

    I’m less convinced about your point (2). The power of the AG to seek injunctions is unlimited, subject only to control by Parliament. The old cases make clear that, if the AG seeks an injunction, there is a presumption in favour of granting it.

    Birmingham also, of course, put their case on both limbs of the s.222 jurisdiction. It was said to be in order to assist the criminal law but also to prevent a public nuisance. One can well understand why there might be policy arguments about a higher standard of proof in the former case, but why in the latter? Why should a public nuisance be required to be proved to the criminal standard? How does that impact on the ability to seek a qua timet injunction?

  3. Rosaleen Kilbane
    Posted 04/12/2008 at 2:03 pm | link to comment

    BCC have petitioned the Lords for leave to appeal.

  4. Posted 04/12/2008 at 8:23 pm | link to comment

    @Rosaleen Kilbane: I’m not entirely surprised.

    • chief
      Posted 12/05/2009 at 8:04 am | link to comment

      They did petition the Lords, but it didn’t get them anywhere. Leave was refused in February. Months ago I know, but I’m on a roll checking these all out.

  5. M
    Posted 13/01/2009 at 12:18 pm | link to comment

    BBC News reported this morning Home Secretary Jacqui Smith shall propose legislation in the forthcoming policing bill giving police and councils powers to seek injunctions against gang members.

    “The legislation is expected to allow councils to seek banning orders on a lower standard of evidence than required for Anti-social Behaviour Orders.”

    http://news.bbc.co.uk/1/hi/uk/7825314.stm

  6. Jon
    Posted 19/05/2009 at 4:43 pm | link to comment

    The problem I have, working for an LA with no housing stock, is that having served a s11A ASB Act closure order I can’t now get an injunction to prevent the residents moving into a house across the street, which seems to defeat the purpose of the closure order.

    Perhaps Jacqui Smith (but given the state of politics today it probably wont be her much longer!)could also propose an amendment to the ASB act to allow for injunctions in circumstances were an 2 year ASBO isn’t necessary but short term relief is.

  7. J
    Posted 19/05/2009 at 10:38 pm | link to comment

    Well – there are ways around the decision in Shafi – you can still seek a s.222 injunction if you can show that an ASBO wasn’t available. Given that you seem to want relief on a quia timet basis, surely that is sufficient to rule out an ASBO?

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