Letter from Vernon Coaker MP, Minister
of State, Home Office to the Chair of the Committee, dated 23
March 2009
POLICING AND
CRIME BILL
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.
HOME OFFICE RESPONSE TO JOINT COMMITTEE ON
HUMAN RIGHTS POLICING AND CRIME BILL—GANGS INJUNCTIONS
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.
| 
