Legislative Scrutiny: Policing and Crime Bill - Human Rights Joint Committee Contents

Letter from Vernon Coaker MP, Minister of State, Home Office to the Chair of the Committee, dated 23 March 2009


  Thank you for your letter of 9 March 2009 outlining some questions the committee has raised in relation to the human rights compatibility of the gangs injunctions provisions within the Policing and Crime Bill.

  As before, I am grateful to the committee for examining the Bill and welcome your queries. Having carefully considered the issues, I attach our response to your questions which I hope are helpful to the committee.

  If, upon further examination of the Bill, the committee have any additional questions or concerns, please do not hesitate to contact me and we will of course consider any further issues raised carefully.


1.  Why is the existing civil and criminal law inadequate to protect society from, and to prosecute, gang-related violence?

  There are a number of civil and criminal law tools which can, and are used, to deal with gang-related violence and the Government is very clear that these civil injunctions are not being introduced as an alternative to prosecuting gang-related violence, when such prosecutions are available. However, the granting of injunctions in Birmingham prior to the Court of Appeal decision in Shafi and Ellis showed in some cases an acceptance by local authorities and courts that there was a need for immediate injunctive relief in cases which involved gang-related violence. The injunctions provided a flexible, preventive tool which was able to provide immediate relief from a particular problem without criminalising young people. It was particularly important to the community in Birmingham that these injunctions were flexible and could be granted for a short period of time (there being no minimum term) and that any breach did not result in a criminal record. Some mothers of gang members even gave evidence in support of an injunction as this did not involve the criminal justice system in any way.

  Evidence from the use of these injunctions in Birmingham showed that incidents of serious gang-related crime fell (Col 590, PBC, 26.02.09). Examples of success include: In Handsworth/Lozells/Newtown, the level of robberies in the four months prior to the injunctions averaged 55 per month compared with 33 per month while injunctions were in place. After injunctions were removed this rose again to 48. In Aston/Nechells, there was an average of 11 firearms incidents in the four months preceding the orders compared with 4 for the period the orders were in place. After the court judgment, this figure rose to 9 in March. In the city centre, firearms usage dropped from 8 in July 2007 to 1 in September 2007. Again, after inunctions were removed, there was then a rise leading to a peak of 9 incidents in May 2008. The Government believes it is important that these injunctions are available and that it is equally important, once an individual has been identified as being involved in the particular problem, that the opportunity provided by the injunctions is taken to engage positively with respondents to tackle their offending behaviour and draw them away from gang activity.

2.  Why has the Government chosen to use the civil law to tackle what will frequently be criminal behaviour?

  Where prosecution is possible, the use of criminal law to deal with gang-related violence will always be the preferred option. These injunctions will be aimed at those against whom, for a variety of reasons, criminal proceedings have not been brought. It may be that there is some evidence of criminal behaviour, but that either the investigation is still on-going or that the CPS has not yet decided whether to charge an individual or that a decision not to charge has been taken. In all these circumstances, although the criminal justice system is the preferred option, the Government recognises that injunctions can offer the immediate relief required as well as the opportunity to offer an escape route from further violent behaviour. We know that some gangs are sophisticated in their criminal behaviour, they are practised in destroying all evidence that could implicate them, and that they systematically intimidate witnesses. The civil justice system complements the criminal justice system as it can be an effective driver for change or prevention rather than delivering punishment, the responsibility for which lies within the criminal justice system. For all of these reasons we believe that an injunction provides a first step to reducing gang behaviour while evidence of criminality is sought.

3.  Why has the Government opted not to require those seeking the injunction to explain why criminal prosecution, in an individual case, is impossible?

  The Government's stance is that these injunctions would not normally be sought against individuals where the evidence was such that the criminal justice system was already engaged. However, having carefully considered the issue we do not believe that it is advisable to make it a pre-requisite that the CPS explain why it is impossible to charge the individual in question before an injunction is sought. The police may be at the initial stages of an investigation, leaving it uncertain when CPS charging advice will be sought; the CPS may have considered the matter but have requested further investigation before taking a decision; the CPS may have decided not to charge an individual at a particular time but review that decision at a later stage. All of these are likely to be regular scenarios. This is because of the time police investigations and charging decisions can take. We do not feel that we can properly wait until these processes have been completed in every case as this would result in an on-going risk to the public in the interim. The ability to obtain immediate injunctive relief is essential given the very real risk that gang offenders pose to the community.

  The Government is clear that these injunctions should not be used to shortcut the criminal justice process and its safeguards, when this process is available. For that reason, the guidance will make it clear that the criminal justice system should always be used where possible. This guidance is statutory and therefore all applicants must have regard to it. This is clearly then something the Courts will consider when deciding whether to grant an injunction or not.

  The need to be able to respond immediately can be illustrated by a hypothetical example of an individual from a particular gang who has been shot at and seriously injured. A full criminal investigation is launched and community mediation services are deployed. Credible intelligence is received to warn that specific members of the opposing gang are planning a reprisal shooting. The gang members identified are well known to the police and there is previous evidence of gang membership and their links to gang violence. In order to try to prevent a reprisal shooting and to give breathing space for both the criminal investigation and for community intervention and mediation, the police could apply for a without notice injunction to prevent those thought to be planning the reprisal shooting from visiting certain areas or associating with each other.

4.  In order to give protection to individual rights and to provide legal certainty, why is there not an exhaustive list of the prohibitions or requirements that may be granted?

  The Government considers that one of the significant benefits of these injunctions will be their flexibility. We believe that making the suggested list of prohibitions and restrictions exhaustive would tie the courts' hands leaving them unable to respond appropriately to particular gang problems in particular areas. The Government cannot be certain that the ways in which gang violence is perpetrated will remain the same, such that this should be pre-established in the provisions.

  For example, there has recently been an increase in the use of dogs to intimidate and injure rival gang members and other members of the community. The Government has therefore included a prohibition in the injunction about being in a public place with an animal. If this trend had emerged in 2010 rather than over 2008-09, it would not have been within the injunction and gang injunctions would have risked not being able to tackle this behaviour.

5.  Please provide examples of the types of circumstances in which it is envisaged that an injunction will be necessary to protect a respondent from himself

  The reason for this provision is that experience shows that victims in gang violence quickly become perpetrators and vice versa, particularly in retaliation attacks. In most cases, gang violence occurs between rival gang members—a person subject to an injunction would be a known gang member who had committed, encouraged or assisted gang violence. This provision focuses on the fact that in some cases a gang member is known to be putting themselves at risk of a reprisal attack.

  A real case example is as follows: a young man was known to be the target of a gang attack. He was warned of this, yet he insisted on continuing to enter the area in which he was going to be attacked. In this scenario, the Government wants to prevent the gang-related violence. This is not just because of the individual respondent, who was both at risk of committing and being the victim of violence in the event of a confrontation, but also the risk to innocent bystanders and of further tit-for-tat violence. The Government therefore feels that it is necessary to have this option available. In reality, the injunction is most often likely to be needed both to prevent the respondent from engaging/ assisting/ facilitating gang-related violence and from being a victim of such violence.

6.  Why does the Government consider it to be necessary and proportionate to permit injunctions of indefinite duration? Has it considered setting out, on the face of the Bill, the maximum duration of an individual injunction? If so, why was this rejected?

  The Government considered this issue carefully and concluded that it may be necessary for certain respondents to be subject to injunctions of indefinite duration. This is because it may not be possible, at the time of granting the full injunction, to assess in any accurate sense how the behaviour of the respondent may change or develop. To safeguard the individual's rights in these cases the Government has expressly provided that an application to discharge or vary the injunction can be made by either party and also that the court can set review hearings.

  If there was to be a maximum duration of, for example five years, the Government would be concerned that this could encourage injunctions to be sought and granted for five years without due consideration given to whether the individual circumstances merit this. On the other hand, the Government would also be concerned that, if information came to light towards the end of the five years suggesting that the respondent should still be subject to certain prohibitions or requirements, this would not be possible. Neither situation is desirable.

  For these reasons, the Government has decided not to include a maximum duration on the face of the Bill and is satisfied that leaving the question of duration to the courts is both preferable and reasonable, thereby ensuring that applicants and courts consider in each case what duration is really warranted.

7.  Does the Government propose to introduce amendments setting out the definition of "gang" in the Bill?

  This is a difficult issue on which the Government has reflected very carefully and concluded that it does not intend to define a "gang" in the Bill. The reason for this is that gangs vary from city to city, the behaviours that they engage in are not uniform nationally and change over time. We do not want to undermine the flexibility of injunctions by prescribing the definition of a gang which may not include all persons we wish to include and may inadvertently capture organisations or persons we do not. Moreover, the Government considers that "gang" is a well-understood word—albeit one that is difficult to define—and, as the legislation does not intend it to mean anything different from what is meant in everyday language, it is justifiable and sensible on normal principles of statutory construction for the legislation to operate without a definition.

  We will develop this complex issue further in the guidance to applicants, including a comprehensive list of examples of the types of groups which we do wish to cover with these injunctions (violent street gangs) and those we do not wish to cover (eg rowdy football supporters). We are doing this to help ensure that these injunctions are not used inappropriately. The Government is considering whether to lay guidance before Parliament before it comes into force.

8.  Why does the Government consider that the criminal fairness guarantees of an enhanced civil standard are not appropriate, given the criminal nature of the underlying allegations, the breadth of the requirements/restrictions that may be imposed and the indefinite duration of the proposed injunctions?

  The Government considers that since the injunction is a civil order, granted in the civil courts, breach of which is a civil contempt of court, the only appropriate burden of proof to be applied is the civil balance of probabilities. The Government is satisfied that civil court procedure adequately safeguards individuals' ECHR Article 6 rights.

  The mere fact that some criminal activity is alleged to have taken place is not enough to put this injunction into the arena of the criminal justice system. Civil courts are well versed in using injunctions to deal with allegations involving criminal or quasi-criminal behaviour eg housing disputes and domestic violence. The Government is aware of the need to ensure that there are adequate safeguards, bearing in mind the nature of the requirements and prohibitions and the duration of the injunctions. It is for these reasons that, in addition to the right to appeal, express provision has been made allowing applications to discharge or vary the injunction to be made by either party as well as enabling the courts to set review hearings.

9.  Is the Government hoping to use the new gang-related injunctions to avoid applicants having to prove their case to an enhanced civil standard, as required by McCann in relation to applications for antisocial behaviour orders?

  The Government has carefully considered both the case of McCann and the subsequent House of Lords case of Re B in which it was clarified that there is only one civil standard of proof. Since it is not a criminal offence to breach an injunction, the Government is content that the situation is distinguished from that of ASBOs. The Government is quite clear that these injunctions are not the tool to be used for anti-social behaviour and therefore is satisfied that any overlap with ASBOs is minimal.

  Of course, should there be proof to the criminal standard of criminal activities, the Government would expect criminal proceedings to be considered. However, as stated above in the answer to question 8, since these are civil injunctions granted in civil courts, breach of which is a civil contempt of court, the Government is content that the balance of probabilities is the appropriate burden of proof.

10.  What type(s) of evidence does the Government anticipate will be relied on by applicants for gang injunctions? Please explain in relation to applications for both interim and full injunctions

  The Government envisages that a wide variety of evidence may be relied upon by applicants; this may include direct evidence from witnesses, hearsay evidence from community members and/or police officers, documentary evidence, expert evidence, evidence contained in the statement of case and any other evidence admissible in the civil courts (CPR Parts 32 and 33 and the Civil Evidence Act 1995). The Government does not consider that this will vary significantly for interim injunctions.

11.  Does the Government envisage that there will be circumstances in which sensitive information may be relied on in support of the application for an injunction, which would not be disclosed to the respondent? If so, why does it consider such a procedure to be necessary and how will it ensure a fair procedure for the respondent?

  The Government anticipates that there may be such circumstances. In these circumstances, the Government considers that current procedures in the civil courts are adequate eg CPR 32.9 allows witness summaries to be relied upon omitting the witness' details (name and address) and CPR 39 allows hearing to be held not in public in certain circumstances. It is envisaged that without notice hearings may more frequently be heard in private in accordance with CPR 39.2 (3)(e). The Government considers that the existing rules do ensure a fair procedure for the respondent, the final decision on these matters resting with the courts.

12.  Why has the Government chosen not to specify for interim injunctions, the purposes for which they may be sought?

  The Government has chosen not to tie the courts' hands by trying to create a list of purposes for which an interim injunction can be sought. The reason is that the Government believes that the courts are best placed, with their considerable experience in granting injunctions and interim injunctions, to determine whether an interim injunction should be granted in the particular circumstances.

13.  Why are interim injunctions not subject to a maximum time limit by which they must be brought before a court for a full hearing, or be automatically discharged?

  This again is an area which the Government has decided is too subjective to be governed by statutory rules. The courts are best placed to determine whether an interim injunction should be granted. At the same time, the court will also be best placed to determine for how long the interim injunction should be grated. The court must be able to tailor the injunctions to the individual respondent. The Government is aware that some evidence may take time to obtain and that some courts are extremely busy and therefore does not wish to set unrealistic time limits. However, setting longer time limits may not encourage less busy courts to list the matter as soon as practicable. Therefore the Government considers that the duration of interim injunctions is a matter that should be left to the courts.

14.  If this is the Government's intention, why has this not been set out on the face of the Bill?

  Please refer to the answer to question 13 above.

15.  Has the Government considered specifying a maximum period by which a review hearing must take place, and if so, why has it rejected this?

  The Government considers that the court is best placed to determine what system of reviews, if any, should be put in place in any particular case. On the same lines as the issue raised in question 6, setting a time limit on reviews of injunctions ties the courts' hands in a way which is inconsistent with the purpose of the flexibility of these injunctions. Setting a time limit could, in some circumstances, encourage a court to grant an injunction for the maximum time allowed without setting reviews. In other circumstances mandatory reviews could overburden busy courts with unnecessary hearings. The Government's strong preference is for all these matters to be set out in guidance, which ensures flexibility. This would enable the court to respond to a gang member who changes their behaviour both in terms of reducing offending and leaving the gang, or where offending behaviour escalates.

16.  Will a respondent always be able to make representations if he wishes, where an application is made to vary the injunction?

  Yes, the respondent will always be able to make representations if he wishes at any such application. The Government is aware of the need for natural justice, fairness and equality of arms principles throughout the injunction process. Clearly the power to vary or discharge an injunction is an important provision and the court will consider all the evidence put before it in order to determine whether the injunction should be varied or discharged.

17.  When will the draft guidance be published?

  It is intended that draft guidance will be published which will form the basis for consultation. After consultation, the Government is considering whether to lay the guidance before Parliament before it enters into force. The draft guidance will be published as soon as possible and, in any event, before the commencement of the legislation.

18.  Do you propose that this Bill will be amended to give effect to your aim of including children and young people?

  No, the Government does not intend to amend the Policing and Crime Bill to cover children and young people explicitly.

19.  Given the existence of other civil orders such as ASBOs, what evidence is there of their inadequacy to deal with gang-related violence by children and young people and why are new orders necessary?

  The Government appreciates the difficulties and sensitivities involved in dealing with gang-related violence by children and young people. It is for this very reason that cross-departmental discussions are being held and will continue, in order to consider very carefully the options available. As stated in our answer to question 1 above, the injunctions used in Birmingham provided a flexible, preventive tool which was able to provide immediate relief from a particular problem without criminalising young people. Also as explained above, in Birmingham, it was particularly important to the community that these injunctions could be granted for a short period of time (there being no minimum term) and that any breach did not result in a criminal record. Some mothers of gang members even gave evidence in support of an injunction as this did not involve the criminal justice system in any way. As indicated above in the response to question 18, the Government does not intend to amend this Bill to cover children and young people explicitly.

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