Jones (appellant) v Birmingham City Council and another (respondent) [2023] UKSC 27

The judgment was issued on the 19th of July 2023, and the hearing and proceedings were conducted in the UK Supreme Court on the 30th – 31st of January 2023.

Background:

The proceedings’ background concerns an interim injunction against the appellant, Mr Jones, preventing him from entering large parts of central Birmingham and engaging in gang-related violence and other related activities. The Birmingham City Council, following an investigation by the West Midlands Police, applied to the Birmingham County Court in 2017 for injunctions against Mr Jones and seventeen other persons who were said to be members of gangs causing issues of gang-related violence. Pursuant to powers granted under section 34 of the Policing and Crime Act 2009 and Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, injunctions were granted by the court. Judge Wall was satisfied on the balance of probabilities that the conditions for the grant of injunctive relief were fulfilled. Mr Jones sought a declaration that applying the civil standard of proof – namely, the balance of probabilities – to the conditions for the grant of injunctions for gang-related and anti-social behaviour was incompatible with Article 6 of the European Convention of Human Rights; the criminal standard of proof is required for such cases. Following successive appeals, the case was heard in the UK Supreme Court, where Lord Lloyd-Jones, with whom the panel unanimously agreed, dismissed the appeal.     

Proceedings:

Mr Jones initially applied for the injunction case to be transferred to the High Court, seeking the declaration of incompatibility with Article 6 ECHR, which guarantees the right to a fair trial, on the basis that it flows from Article 6 that the criminal standard of proof is to be satisfied in such cases. Burton J ruled against this argument, concluding that the proceedings did not relate to a criminal charge and that there is no requirement for the criminal standard of proof to be applied. Judge Wall in the Birmingham County Court passed the conditions of the 2009 and 2014 Acts on this basis. These conditions require proof that the person in question engaged in, encouraged or assisted gang-related violence or drug-dealing activity regarding the 2009 Act and engaged or threatened to engage in anti-social behaviour concerning the 2014 Act. Having been satisfied with the civil standard that Mr Jones engaged in such conduct, the court issued the injunction against him. Mr Jones subsequently appealed the High Court decision to the Civil Division of the Court of Appeal. The Court of Appeal concurred with the High Court that the proceedings do not relate to a criminal charge, and the use of the civil standard of proof for injunction applications for gang-related and anti-social behaviour is compatible with Article 6 ECHR. This decision was appealed to the UK Supreme Court. 

Judgment:

Since the appellant conceded that the proceedings do not relate to a criminal charge following the Court of Appeals’ decision, the Supreme Court had to rule on two key issues. First, whether the decision by the House of Lords in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 that the criminal standard of proof is to be applied for proceedings relating to the issuance of anti-social behaviour orders under the Crime and Disorder Act 1998 should be followed in the present case and applied to assessments of the conditions under the 2009 and 2014 Acts. Second, whether Article 6(1) of the ECHR, as made effective by the Human Rights Act 1998, requires that a criminal standard of proof be applied to decisions relating to injunctions under the 2009 and 2014 Acts. 

As regards the first issue, Lord Lloyd-Jones took careful measures to distinguish and decline to follow McCann. As Lloyd-Jones identified, Lord Steyn in McCann considered that applying a criminal standard of proof was a pragmatic way to make the task of a magistrate more straightforward by avoiding the confusion surrounding the law in relation to a ‘heightened civil standard’ of proof that was “virtually indistinguishable” from the criminal standard. Such confusion was pervasive when this case was heard. However, this was far from an acceptance that the criminal standard of proof should be applied in such cases, as this direction was taken for pragmatic reasons; the law has since evolved to establish only two standards of proof in domestic law, ruling out any slated enhanced civil standard. Therefore, given that only civil and criminal standards exist, there is no longer any need to adopt a criminal standard for such cases on pragmatic grounds. Additionally, Lloyd-Jones pointed out that Parliament expressly legislated for the inclusion of the civil standard in the 2009 and 2014 Acts, unlike the relevant legislation in McCann, and that there was “no room” for the court to decide a criminal standard should be applied as a matter of common law fairness. This enabled Lloyd-Jones to conclude that McCann does not support Mr Jones’ arguments that the conditions of the 2009 and 2014 Acts must be proved beyond a reasonable doubt; proof on the balance of probabilities is sufficient. 

In response to the second issue, Lloyd-Jones rejected the appellant’s arguments that Article 6 ECHR nevertheless required the application of the criminal standard of proof. Article 6(1) is the pertinent provision, which sets out the entitlement of a fair trial before an impartial and independent body with respect to both criminal and civil proceedings. Following extensive consideration of the relevant case law from the European Court of Human Rights, Lloyd-Jones surmised that such matters as the admissibility of evidence, competence of witnesses, and, importantly, the standard of proof applicable in a given case, are matters for national law to determine insofar as they are consistent with the requirements of fairness. As such, Lloyd-Jones concluded that there is no authority to suggest that Article 6(1) requires the application of a criminal standard of proof to decisions in relation to the grant of injunctive relief as in the present case. In other words, when deciding whether to grant an injunction under the 2009 and 2014 Acts, it is consistent with Article 6(1) for the national court to decide whether the conduct of the person in question satisfies the stated factual criteria according to the civil standard of proof. 

The appeal was therefore dismissed.

Commentary:

The decision of the Supreme Court confirms that no heightened civil standard of proof equivalent to a criminal standard exists under UK law. In cases relating to civil proceedings, such as those for the grant of injunctive relief in relation to gang-related and anti-social behaviour, it is clear that the conditions need only be proved on the balance of probabilities. The seriousness of the allegations made or the consequences to the person concerned, if the allegations are upheld, is irrelevant to the standard of proof applicable in such cases. Decision-makers and judges therefore have more certainty that they will not need to be satisfied to any degree beyond the normal civil standard with respect to civil proceedings. However, it is important to highlight that the civil standard will still place an onerous burden on councils applying to courts for civil remedies; as Lloyd-Jones took steps to emphasise, where events are more unlikely by their nature, the evidence supporting the occurrence of this event will have to be more cogent. Therefore, while it is clear that civil proceedings will not involve any criminal standard or enhanced civil standard of proof, the burden remains on the applicant to produce enough evidence to tip the balance of probabilities in their favour.

By Solomon Mayers