Birmingham City Council v James and Another: CA 17 May 2013

The appellant challenged an injunction under the 2009 Act excluding him from parts of Birmingham. He said that it prevented him visiting his mother.
Held: The appeal failed. Moore-Bick LJ said: ‘It was for the judge to decide on the basis of the evidence before him whether in order to prevent the appellant from engaging in gang-related violence it was necessary to exclude him from the Newtown area of Birmingham altogether or whether he could be allowed to go there from time to time, and if so, subject to what restrictions. There was plenty of evidence to support the conclusion that the gang of which the appellant was a leading member had its base in the Newtown area and that for a time its leading members, including the appellant, used to meet at his mother’s house.’
Jackson LJ said that there was no ‘closest fit’ principle: ‘The courts . . now have at their disposal three different pre-emptive orders for dealing with violent or anti-social behaviour. Defence counsel can, of course, invite the first instance court to impose a less draconian order than that which is sought by the applicant. The judge will then exercise his or her discretion to make whatever order seems most appropriate in the circumstances, provided that the statutory conditions are satisfied. The judge may direct that an application may be made either to a different court or for a different remedy from that which is claimed. On such an application, the judge may exercise his powers under s. 1B of the 1998 Act (which enables an ASBO to be made in the course of ongoing county court proceedings). There is, however, no ‘closest fit’ principle which cuts down the court’s statutory powers to make pre-emptive orders. ‘
Maurice Kay VP, Moore-Bick, Jackson LJJ
[2013] EWCA Civ 552, (2013) 177 JP 425, [2014] 1 WLR 23, [2013] WLR(D) 185
Bailii, WLRD
Policing and Crime Act 2009 34
England and Wales
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedSamaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
CitedSwindon Borough Council v Redpath CA 11-Sep-2009
The defendant appealed against the issuing of an anti-social behaviour order for ‘housing-related conduct’ where the conduct alleged had no connection with council tenants or property.
Held: The appeal failed. ‘Housing-related’ meant ‘directly . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509308