A01MA472
Neutral Citation Number: [2015] EWHC B11 (QB) 
IN THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION)
(DISTRICT REGISTRY) 
Civil Justice Centre
Bridge Street West
Manchester

14th January 2015

Before:

MR JUSTICE BLAKE

- - - - - - - - - - - - - - - - - -

B e t w e e n:

CHIEF CONSTABLE OF GREATER MANCHESTER
Applicant

and

SCOTT CALDER
Respondent
- - - - - - - - - - - - - - - - - -

Transcribed by Cater Walsh Reporting Limited
(Official Court Reporters and Audio Transcribers)
1st Floor  Paddington House  New Road   Kidderminster  DY10 1AL
Tel. 01562 60921:  Fax 01562 743235:  info@caterwalsh.co.uk
- - - - - - - - - - - - - - - - - -

MS D’CRUZ appeared on behalf of the Applicant
MR WAGNER appeared on behalf of the Respondent

- - - - - - - - - - - - - - - - - -

JUDGMENT
Wednesday 14th January 2015

MR JUSTICE BLAKE:  
1.	This is an appeal from a decision of his Honour Judge Armitage QC sitting at the Manchester County Court delivered on 17 July 2014.  On that occasion the judge declined to continue an injunction granted without notice on 4 April 2014 by his Honour Judge Platts.  The injunction was sought by the Chief Constable of Greater Manchester police as applicant pursuant to his powers under the Policing and Crime Act 2009 Part 4, and in particular sections 34 to 36.  

2.	The Respondent to this application and to the appeal by the Chief Constable is Scott Calder.  

3.	The background is that on 12 January 2014 the respondent, then aged 23, was in a car with his mother outside a bingo hall in the Harputhy district of Manchester when they were both shot at by unknown assailants.  Three men have subsequently been arrested and charged with attempted murder but the respondent was unable to assist the police with the identity of the assailants or the reasons why he should be targeted for such an assault.  

4.	There was other evidence before the judge; 
(i)	on 17 January the respondent’s brother was kidnapped and assaulted and he has not cooperated with the police in the identification of his assailants; 
(ii)	 on 26 March a man named Leonard Cook was shot in the leg by one of two masked men; 
(iii)	 the respondent has associations with a number of men who have convictions for very serious criminal offences including violence;
(iv)	 the Chief Constable caused a social media website related to the respondent to be accessed and there are scenes of him performing grime music, similar to rap music, that were placed on his website on 4 January and 11 February 2014.   The first such extract was before the attack and the judge accordingly focused upon the second.  Having considered explanations for the words used in that website, the judge was satisfied that the reference to “man dem” was a reference to a gang; accordingly, with the benefit of some assistance in interpreting “argot” and street slang, the judge in this part of his judgment was effectively saying that the respondent was saying, “My man dem are on this,” where, in this context, “this” referred to holding others in a basement and inflicting violence and serious injury on them.  The judge accordingly concluded that this was possible to interpret as an express threat of gang related violence.  
(v)	on 5 April 2014, that is the day after the without notice application but before the order resulting from such application could be served, the respondent was arrested on suspicion of being in possession of an offensive weapon, namely a Lucozade bottle containing industrial strength ammonia;
(vi)	on 6 April when he answered his bail on that charge, a knife was found concealed and he told the officers that he was carrying it for his own protection having been shot;
(vii)	there was hearsay intelligence from a variety of anonymous sources that was consistent with suspicion of gang-related rivalry about drugs.  Having regard to its nature and the reliability assessment, the judge did not rely on this evidence further save as the basis for reasonable suspicion to justify further investigations.

5.	Section 34(1) of the Policing and Crime Act 2009 states that a court may grant an injunction against a respondent aged 14 or over if two conditions are met.  The first condition is identified in section 34(2) and that is that the court is satisfied on the balance of probabilities that the respondent has engaged in or has encouraged or assisted gang-related violence.  The second condition is that the court thinks it is necessary to grant the injunction for specified purposes.  

6.	The judge was satisfied that the three measures which had been the subject of the order of the judge on 4th April were justified as necessary and proportionate and preventative measures and met the second condition contained in section 34(3) of the Act.  He, however, declined to order the continuation of that relief because he was not satisfied that whatever the respondent may have encouraged was gang-related violence within the meaning of the statute.  

7.	Section 34(5) is in the following terms; 
“In this section ‘gang-related violence’ means violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that – 

(a) consists of at least three people,

(b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and 

(c) is associated with a particular area.”

8.	The essential question at the heart of this appeal is whether there was any other characteristic that enables the members of the gang to be identified as others as a group.  The judge concluded that the mere fact that police officers with access to intelligence material were able to identify links between the respondent and others, some of whom were related to him, and to enable them to conclude that they formed a gang engaged in drug related activity was not sufficient to bring the case within the statutory scheme.  

9.	He said the following at paragraphs 40 through to 43 of his judgment:  

“40. In my judgment, the most significant impediment to the application is the definition of gang-related violence.  The whole thrust of the legislation is the suppression of violence perpetrated by a group which can be identified by others as a group.  

“41. Section 34(5)(b) provides three specific examples of identifying features: name, emblem or colour.  When the legislation was promoted and passed, as DC Wrench observes, gangs tended to have some or all of those recognisable features.  The applicant does not argue that any group of which the respondent is a member has any of those features.  Instead, counsel for the Chief Constable argued that it had another recognisable ‘characteristic’ which enables its members to be identified as a group.  That characteristic is that the group is a family which runs a drug dealing network.

“42. Mr Wagner, counsel for Mr Calder, argues that the evidence might show that the group is an OCG (I interpolate that means organised crime group) but that is not externally recognisable by those who do not know the family, its membership and its activities.  

“43.  My judgment is that whether the characteristic relied upon by the applicant is within section 34(5)(b) depends on who is included within ‘others’ and what steps are legitimate/required for the purpose of identification.  I am not persuaded, even on the balance of probabilities, that the characteristic relied upon by the applicant would enable a member of the public, unfamiliar with the drug trafficking scene locally or more widely, to identify any of the group as a group associated with a particular area of Greater Manchester, or any area.  However, if ‘others’ include police constables, they might be able to identify members of the group.  DC Wrench would fall squarely into that category assuming without finding for present purposes that the intelligence available to him is accurate.  Similarly, a locally based constable might be able to identify members on the basis of where they were seen and what they were doing.  In my judgment, such specialised knowledge is not within section 34(5)(b).  The whole thrust of section 34(5) is to deal with readily identifiable bodies of people who terrorise the streets.  I find support for that in a sentence in paragraph 2.2 of the guidance: 

	‘Gang injunctions are intended to be used against members 	of violent street gangs’.”  

10.	The appellant contends that the reasoning at paragraph 43 of the judgment was an error and that the natural meaning of “others” is any two people outside the group or gang in question whether or not they are police officers and in her written and oral submissions she says that it could include police officers with the requisite knowledge of the circumstances.  In developing that argument, Ms D’Cruz says that specialised knowledge might be necessary to understand the significance of a name of a gang that may not be known to members of the public generally and, therefore, the other characteristic of familial associations on which the Chief Constable relied was equally capable of being a characteristic within the statutory scheme.  She further submits that the Code of Practice does not take the matter any further forward.  

11.	The terms of the 2009 Act, its policy and purpose is indicated both in its drafting history and the Code of Guidance issued pursuant to section 47 of the Act at the time it was brought into force.  Together, this indicates that Parliament concluded that some form of identity known to the public or a section of it was necessary.  It is not sufficient that there is a threat of violence by more than one person.  Such a grouping might be loosely described as a gang if there is no common characteristic between them that enables others to identify them as such. 
 
12.	As to the drafting history, the court has been informed that the particular provision in section 34(5) was inserted during the passage of the Bill in response to concerns that the original definition may have been too wide.  By way of postscript in terms of drafting history, Mr Wagner, appearing again for the Respondent, points out that there is now going through Parliament the Serious Crime Bill, clause 50 of which appears to be precisely being enacted for the purpose of giving a wider definition dealing with the interface between the street gang definitions contained in the 2009 Act and wider antisocial behaviour and violence by other forms of gangs and organised criminals. 

13.	The Code of Guidance issued by the Secretary of State to which local authorities and police officers must have regard when considering whether to make application for an injunction does, in my judgment, give some indication as to the purpose of the legislation as enacted in 2009 and in force today.  

“2.1. What are gang injunctions?  

An injunction to prevent gang-related violence is a civil tool that allows the police or a local authority to apply to a county court (or the High Court) for an injunction against an individual to prevent gang-related violence.  By imposing a range of prohibitions and requirements on the respondent, a gang injunction aims:

•  to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence; and/or -

•  to protect the respondent from gang-related violence.  Over the medium and longer term, gang injunctions aim to break down violent gang culture, prevent the violent behaviour of gang members from escalating and engage gang members in positive activities to help them leave the gang.  

Anyone seeking to apply for an injunction must have evidence that the respondent has engaged in, encouraged or assisted gang-related violence, and will need to be able to prove this on the balance of probabilities at court.  Applicants will also need to convince the court that the gang injunction is necessary to prevent the respondent from being involved in gang-related violence and/or to protect the respondent from such violence.  During the 2009 Act’s passage through Parliament, it was made clear that gang injunctions are only intended to be used to prevent violence related to gangs.  All applications must focus on gang-related violence rather than, for example, acts of anti-social behaviour, acquisitive crime or drug dealing involving gangs.

2.2. What is gang-related violence?

Section 34(5) of the 2009 Act defines gang-related violence as:

‘Violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that:

a) consists of at least 3 people;

b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group; and

c) is associated with a particular area.’

Gang injunctions are intended to be used against members of violent street gangs.  However, setting out what is meant by ‘gang-related violence’ in legislation is a complex task.  The nature and form of gang-related violence varies significantly between areas and is not easily captured by a single definition.  The wording of the definition used in the 2009 Act is therefore intentionally broad and wide-ranging to ensure gang injunctions can be used effectively in response to the different violent gangs encountered in different local areas.

It is important for applicants to have a sound understanding of the gang problem in their local area.  This should be informed by intelligence from the community and local partners.  Applicants may find it difficult to satisfy the court that the respondent has been involved in gang-related violence, and therefore to make a successful application, if they cannot demonstrate an understanding of the local gang problem…..

2.7. How do gang injunctions fit with other measures to tackle gangs? 

Gang injunctions are designed to be used in specific circumstances as part of a broader, strategic response to local gang problems.  This response should include longer term measures to address the local gang problem.  

7.2.3. ‘Gang colours’ and other identifying features: -

The 2009 Act includes in its definition of a gang the necessary condition that the group ‘uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group’.  

These identifiers can also be intimidating to others and provoke violent reactions from rival gangs.  In these circumstances, applicants may wish to seek to prohibit the respondent from wearing particular colours or types of clothing that identify them as a gang member.  To apply successfully for such a prohibition to be included in an injunction without disproportionately infringing the respondent’s civil liberties, the applicant will need to demonstrate that the respondent is a member of a particular gang that is identifiable through a particular colour, item of clothing or other identifier, and that preventing the respondent from wearing this item will help to prevent gang-related violence.”

14.	There are other references in the Code to “street gangs” and “gang lifestyle” and the “need to wean gang members off such behaviour.”  As the passage already cited from the judge’s judgment identifies, it was never suggested by the appellant that the respondent or his associates have a name, emblem or colour that identifies them and, therefore, reliance is placed upon the characteristic of familial association. 

15.	 Where there is uncertainty as to the  meaning of a statutory term and the term to be construed follows a number of other examples, the principle of statutory interpretation known as the ejusdem generis rule may apply, see R v Edmondson [1859] 28 LJMC 213 although there are more modern examples of the application of the principle of construction.  The principle, therefore, suggests that other characteristics that enables its members to be identified by others as a group should share with name, emblem or colour some essential feature as a signifier or means of identification that enables others to identify the gang by reference to them.  

16.	It is, therefore, in my judgment, not sufficient that a police officer piecing together the available information is able to draw the conclusion of a link between members of the gang if indeed there is no common characteristic of the sort identified in the section that would enable others generally to be able to make that identification.  This is because the Act is not directed even at violence by groups of people generally but only at specific groups who identify themselves to others that they are a gang and that identification is either the source of threat or reprisals.  I accept that it is possible that a gang composed of family members might communicate to others that they have a cohesive characteristic of common family membership and they might indeed be known as a family gang but it is not sufficient if the group in question is an assortment of individuals who happen to have familial relationships if that is not an important badge of identification communicated to others and explains how others see them.  The others who would normally be of relevance in applying the statutory test are those who might be intimidated by the gang in question or who might retaliate against them though “others” does not need further definition or explanation.

17.	I further accept that the existence of a characteristic can be proved by the evidence of police officers and for that purpose they must clearly be able to give their evidence of their experience and use their local and expert knowledge.  However, for reasons already explained, it is not sufficient for the police to say they have identified links if those links do not amount to a signifier or characteristic that results in others responding to this street identity.

18.	Accordingly, the judge was right to conclude, as he did in the sections of his judgment quoted, although for myself this does not entirely depend upon the meaning of the word “others” in isolation to the rest of that section. 

19.	 Ms D’Cruz, nevertheless, submitted that there was evidence to suggest that links based on family association were known to others.  This evidence was apparently in the form partly of a diagram of familial association between the respondent and others composed, it seems, on the basis of the Manchester police policy guidelines and the working definition of who was an organised crime group and supported by the police assessment informed by the intelligence material that others were responding to this group by way of retribution.  

20.	The high point of this submission seems to me the judge’s observations at paragraph 20 and 21 of the judgment where he said this: 
 
“20. My conclusion is that the intelligence material is sufficient to raise a reasonable suspicion that the respondent is a member of a group of people centred on other members of his close family which, it is suspected, takes part in serious criminal activity.  It is their sole identifying characteristic, a point to which I will return.

“21. The general purport of the intelligence is that the shootings and kidnappings are connected with inter-gang rivalry concerned with drugs and that the respondent is under some pressure to revenge the attack of 12th January and demonstrate that his family are not to be trifled with.  Leaving aside the gang-related element of such intelligence, there is a clear inference that certain groups probably are involved in serious and organised criminal activity related to drug trafficking, resulting in street violence.”

21.	In my judgment, those observations are not the same as finding that a gang with the characteristics required by section 35 exists.  I note that the organised criminal group guidance is not intended to reflect the statutory tests with particularity and familial connection short of a common identifying characteristic is too vague to meet the test.  Therefore, whatever suspicions there might have been based upon the intelligence material in any event did not amount to findings of fact on the civil balance of probabilities.  

22.	The respondent by an amended respondent’s notice submits that the judge should have applied in practice the criminal standard.  I granted leave for the point to be argued albeit by way of a late notice but I am unpersuaded by it.  The respondent does so on the basis of the decision of the House of Lords in McCann [2002] UKHL 39 per Lord Steyn at paragraph 35.  In the antisocial behaviour order legislation there being considered, Parliament had not spelled out the standard of proof to be applied.  Mr Wagner draws comfort from the current guidance issued by the CPS in connection with serious crime prevention orders and points out that despite the fact that that legislation refers to a civil standard, the guidance by reference to McCann suggests that a criminal standard should be adopted.  

23.	In my judgment, judges concerned with this legislation should apply the statutory test and the civil balance identified in that test as to whether the jurisdictional threshold is made out.  As this very judgment indicates, there is flexibility in applying the civil standard and conclusions should not be lightly reached applying that standard on the basis of conjecture, possible inference or suspicion and particular care must be taken when assigning weight to hearsay evidence.  However, if the evidence meets the civil threshold, that is sufficient as Parliament has made clear.

24.	By way of a final observation, it is to be observed that although argument in the case of Birmingham City Council v James [2013] EWCA Civ 552, [2014] 1 WLR 23, was not precisely the same as that addressed by Mr Wagner, similar conclusions on this point  seem to have been reached by the Court of Appeal at paragraphs 13 and 31.  However, for the reasons given earlier in this judgment, this appeal is dismissed.