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Jones v Birmingham City Council & Anor
Factual and Procedural Background
The Local Authority sought injunctions against the Appellant and other alleged gang members under section 34 of the Policing and Crime Act 2009 (“the 2009 Act”) and, in the alternative, Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). Interim orders were granted without notice in February 2016 and later continued. The Appellant applied to transfer part of his case to the High Court to obtain a declaration that section 34(2) of the 2009 Act and section 1(2) of the 2014 Act were incompatible with article 6(1) of the European Convention on Human Rights (“ECHR”).
A High Court judge, after referring to Chief Constable of Lancashire v Wilson, rejected the incompatibility argument but granted permission to appeal. In July 2017 a County Court judge, applying the civil standard of proof, found the Appellant had engaged in gang-related drug-dealing and imposed a detailed injunction with a power of arrest.
The Court of Appeal dismissed the Appellant’s appeal in May 2018, holding that (i) the proceedings were civil, not criminal, for ECHR purposes and (ii) the statutory civil standard of proof was compatible with article 6. The Supreme Court granted leave limited to the proof-standard issue. By the time of the Supreme Court hearing, the Appellant accepted that the proceedings did not involve a “criminal charge” under article 6(1).
Legal Issues Presented
- Whether article 6(1) ECHR requires the criminal standard of proof to be applied to the first statutory condition in section 34(2) of the 2009 Act and section 1(2) of the 2014 Act, notwithstanding Parliament’s direction that the civil standard applies.
- Whether the Court of Appeal erred in distinguishing and declining to follow R (McCann) v Crown Court at Manchester concerning the standard of proof for anti-social behaviour orders.
Arguments of the Parties
Appellant's Arguments
- Article 6(1) guarantees a fair hearing that, given the serious interferences with liberty and private life flowing from the injunctions, obliges the court to impose the criminal standard of proof.
- McCann is binding authority requiring the criminal standard where quasi-criminal findings with serious consequences are at stake; the Court of Appeal was wrong to depart from it.
- The statutory wording cannot be “read down,” so a declaration of incompatibility under section 4 Human Rights Act 1998 is the appropriate remedy.
Local Authority and Secretary of State's Arguments
- The 2009 and 2014 Acts expressly fix the civil standard; courts have no residual discretion to alter it on common-law grounds of fairness.
- Strasbourg jurisprudence shows article 6(1) does not dictate national standards of proof in civil proceedings; fairness is assessed holistically.
- McCann was decided on pragmatic grounds before the law on proof standards was clarified; it is not authority for an ECHR-mandated criminal standard and, in any event, should be departed from if necessary.
- The statutory schemes contain extensive procedural safeguards (consultation duties, review hearings, limited duration, no criminal offence for breach) that satisfy article 6 fairness.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Birmingham City Council v Shafi [2009] 1 WLR 1961 | Courts should prefer ASBOs; criminal standard required for injunctions sought under s.222 LGA 1972. | Explained historic background and Parliament’s decision to legislate in the 2009 Act to reverse the effect of Shafi. |
| R (McCann) v Crown Court at Manchester [2003] 1 AC 787 | Applied criminal standard to ASBO proceedings on pragmatic grounds. | Distinguished; Supreme Court held it does not mandate a criminal standard under article 6(1) and is not binding in the present context. |
| Chief Constable of Lancashire v Wilson [2015] EWHC 2763 | Rejected an earlier article 6 challenge to the civil standard in gang-injunction proceedings. | High Court judge relied on it; mentioned as part of procedural history. |
| In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 | Clarified that inherent improbability is weighed within the single civil standard. | Cited to explain evolution away from a “heightened” civil standard. |
| Re B (Children) [2009] AC 11 | Confirmed only two standards of proof exist: civil and criminal. | Used to show modern abandonment of flexible or heightened civil standard. |
| Dombo Beheer BV v The Netherlands 18 EHRR 213 | Article 6 fairness focuses on the proceedings as a whole and “equality of arms.” | Quoted to illustrate Strasbourg’s holistic approach and reluctance to dictate evidential rules. |
| Saliba v Malta (App 24221/13) [2016] ECHR 1058 | Confirmed Strasbourg’s stance that article 6 does not prescribe national proof standards. | Relied on to show no Strasbourg requirement for the criminal standard in civil cases. |
| Tiemann v France and Germany (Apps 47457/99, 47458/99) | Explicit statement that article 6(1) lays down no rules on burden or standard of proof. | Cited as direct support for the Court’s conclusion that article 6(1) leaves proof standards to domestic law. |
| B v Chief Constable of Avon & Somerset Constabulary [2001] 1 WLR 340 | Observation that “heightened” civil and criminal standards are virtually indistinguishable. | Used to contextualise why earlier courts sometimes defaulted to the criminal standard. |
| Secretary of State for the Home Department v Rehman [2003] 1 AC 153 | Explained that “high civil balance of probabilities” is conceptually flawed; only two standards exist. | Quoted to reinforce the modern position on proof standards. |
| Birmingham City Council v James [2014] 1 WLR 23 | Noted Parliament’s deliberate choice of the civil standard to combat gang violence. | Cited to show legislative purpose behind the 2009 scheme. |
Court's Reasoning and Analysis
Judge Lloyd-Jones, delivering the unanimous judgment, proceeded as follows:
- Observed that section 34(2) 2009 Act and section 1(2) 2014 Act expressly require proof “on the balance of probabilities.”
- Reviewed Strasbourg jurisprudence and concluded that article 6(1) does not set any uniform burden or standard of proof in civil proceedings; fairness is evaluated holistically.
- Highlighted domestic authority establishing a single civil standard and rejecting the concept of a heightened civil standard.
- Undertook a detailed analysis of McCann, determining that its use of the criminal standard was a pragmatic choice, not a Convention requirement, and that subsequent legal developments had overtaken its reasoning.
- Emphasised that Parliament deliberately selected the civil standard to address serious, hard-to-prosecute gang violence and incorporated numerous procedural safeguards (limited duration, consultation duties, review mechanisms, non-criminal contempt regime).
- Concluded that, given these safeguards and the preventive/protective purpose of the injunctions, application of the civil standard strikes a fair balance between public protection and individual rights, satisfying article 6(1).
- Accordingly, there is no basis for a declaration of incompatibility under section 4 Human Rights Act 1998.
Holding and Implications
The Supreme Court dismissed the appeal.
Immediate Effect: The injunction regime under the 2009 and 2014 Acts continues to operate on the balance-of-probabilities standard.
Broader Implications: The judgment confirms that article 6(1) ECHR does not, of itself, elevate the standard of proof in domestic civil proceedings, even where the consequences are grave. It also limits the precedential force of McCann, clarifying that its approach to proof was context-specific and pragmatic rather than constitutionally compelled.
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