Gang injunctions – dubbed ‘Gangbos’ – came into force in February 2011 under the Policing and Crime Act 2009, writers Brigid Baillie. They are designed to stop ‘gang related violence’ which is defined under section 34 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.’
If the court finds there is gang related violence then it must go on to consider whether an injunction is necessary to prevent an individual engaging in gang related violence or to protect him/her from gang related violence. They are often applied for when there is ‘intelligence’ based evidence, but where that evidence is not of a sufficiently high standard to justify a criminal prosecution.
New and untested
Despite the relevant law having now been in force for a couple of years relatively few of these injunctions have been applied for. Statistics given to the Crime and Courts Committee last week revealed 100 gang injunctions have been granted so far since 2011 (although the figures weren’t clear on whether this included interim gang injunction figures). Birmingham, Liverpool, Manchester, Sheffield, some of the London boroughs, and this week Essex, seem to be the only authorities applying for them. The worrying aspect is that, certainly in this region, very few have been contested. The injunctions sought in Manchester have all been contested and some are now going through the appeal process. Until any such appeals have been heard we have very little guidance on aspects such as the meaning of ‘gang related violence’, and the appropriate length and terms of orders.
New style ASBOs
Situations in which authorities can seek gang injunctions arise where they can prove at least one instance of the respondent having either engaged in, encouraged or assisted in gang related violence. This can be either by proven criminal activity that is gang related or evidence to believe the respondent has participated in gang-related violence. Examples could include involvement in a shooting, affrays and threats as long as they are seen to be gang related.
Gangbos are in many ways similar to ASBOs; they are civil orders, but in contrast to ASBOs, breaching them is a contempt of court, punishable by up to two years custody. Unlike ASBOs which can be of indefinite duration, the maximum length for a Gangbo is two years (renewable); there is however no minimum length.
There has to be a consultation process before an on notice hearing but our experience suggests that in many instances without notice orders are granted, usually with a power of arrest, and before there has been any consultation.
The standard of proof for the making of an injunction is on a balance of probabilities and intelligence from the police is often used as ‘evidence’ for the injunction. In challenging the making of an injunction the source of this intelligence will need to be investigated although the police will be resistant to this.
The Gang injunctions themselves may contain both prohibitions and positive requirements. Positive requirements can be vague (such as attending ‘mentoring schemes’) but the thinking behind this is to get individuals away from gangs and into work or education.
But there is nothing to suggest that Gangbos are part of a wider programme which goes beyond quasi criminal penalties. The end result is likely to be imprisonment for conduct which does not necessarily amount to a criminal offence and zero rehabilitation, or other alternative focus, for Gangbo respondents.
The prohibitions in Gangbos tend to be non-association clauses and the imposition of exclusion zones and can include non-association via Facebook, Twitter and other social media. This means that individuals will often be kept out of areas in which they have grown up and in which members of their families live. They will also have to stay away from friends they have gone to school with and grown up with. These are obvious interferences with Articles 8 (right to private and family life) and 11 (freedom of association). Both Article 8 and 11 are qualified rights but any interference must be necessary and proportionate and this is something we will all need to be alive to.
Breaches are common, often arising from associating with named individuals, and carry up to two years’ imprisonment, as they are classified as contempt of court. Often for a first breach a suspended sentence will be given but after that it is usually an immediate custodial sentence. Any breach has to be proven to the criminal standard.
Long term futility
Whilst no community wants gang related violence, many of these Gangbo applications we have encountered to date have been made against a wide group of individuals, many of whom have few or no criminal convictions and the ‘evidence’, being intelligence, can be difficult to challenge. The imposition of custodial sentences for associating with others can not only be seen as harsh but is almost inevitable given the terms of the orders.
Challenging these applications is the only way we will eventually get guidance about what is and what is not reasonable and proportionate in gang injunctions, but it may also help to underline the long term futility of these measures, which seem dependent on the use of the stick – without any carrots.
Brigid Baillie is a criminal barrister at Garden Court North Chambers in Manchester and was previously a solicitor and partner at a criminal firm in Manchester before being called to the bar in 2007. She has been involved, both as instructing solicitor and subsequently as counsel, in murder, drug importation, serious sex offences and terrorism trials. She has a particular interest in defendants with mental health issues and also in cases involving the restriction of civil liberties and human rights.