Burden of proof

The Home Office’s respect website tells us that ‘using powers under section 222 Local Government Act 1972, local authorities can apply to civil courts for injunctions to restrain anti-social behaviour that constitutes a public nuisance’.

The site further confirms that while granting ASBOs requires the criminal standard of proof (‘beyond reasonable doubt’), courts need be satisfied only to the civil standard (‘more likely than not’) to grant an injunction.

So most of us thought. But when Birmingham Council tried to use section 222 to protect the public from Marnie Shafi and Tyrone Ellis’s gang last December, the county court refused to grant injunctions on merely the civil standard of proof.

Now, the Appeal Court has agreed with the Birmingham judge. Their lordships ruled that ‘where a council seeks an injunction in circumstances in which an ASBO would be available, the court should not, save perhaps in an exceptional case, grant an injunction’.

Birmingham, pioneers of section 222 injunctions to curb anti-social and gang behaviour, is now petitioning the House of Lords for permission to appeal this judgment. The consequences for social landlords are not yet clear.

Their lordships appear to have ruled that if an ASBO can be applied for, then it should be preferred over an injunction. But it is unclear whether ‘injunction’ includes Housing Act 1996 injunctions.

And it is equally unclear whether there is now any order to counter anti-social behaviour - ASBO or injunction - which will be granted on anything less than direct evidence and the criminal standard of proof.

peter.marcus@ardenchambers.com

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