Badge of honour

With inner-city knife and gun crime on the rise, gang affiliation has become a well-documented explanation for the tragic loss of young lives. The public debate in this area mirrors that of anti-social behaviour more generally. So it is worth bearing in mind the 2006 research carried out by the Policy Research Bureau and crime reduction charity Nacro, which famously discovered many parents and some professionals believed anti-social behaviour orders (ASBOs) functioned as more as a 'badge of honour' than a deterrent.

On 31 January, part 4 of the Policing and Crime Act 2009 came into force providing local authorities, the chief officer for a police area or the chief constable of the British Transport Police with the power to apply for an injunction against people aged 18 or over to prevent gang-related violence.

This is a civil injunction available in the county court to which a power of arrest may be attached. It is not an alien concept; it is akin to injunctions pursuant to the Housing Act 1996 (as amended) sections 153A-E without the need, inter alia, to fulfil the requirement that the behaviour be directly or indirectly related to housing management functions.

Essentially, a court may grant a gang injunction if it is satisfied, on the balance of probabilities, that a person has engaged in, or has encouraged or assisted, gang-related violence, and that it is necessary to prevent the person from engaging, encouraging or assisting in such violence, or to protect him.

The legislator has defined gang-related violence to be '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' (section 34(5)). The definition for 'gang-related violence' has deliberately been drafted broadly to 'ensure gang injunctions can be used effectively in response to the different violent gangs encountered in different local areas'.

Injunctions v ASBOs

Much like ASBOs, what is considered by the court is whether a person has engaged in the defined conduct and whether the order is necessary. An important distinction, however, is gang injunctions only require the civil standard of proof of 'balance of probabilities' rather than 'beyond reasonable doubt' which is the standard for the first limb of the test in applications for ASBOs.

Despite the government seemingly making it clear that if there is enough evidence and it is in the public interest then a person should be prosecuted under the criminal law for gang-related violence, this appears to be a wholly unsustainable ideal. The gang injunction will be a 'quicker fix': a lower standard of proof makes it attractive to the police, local authorities and, possibly, the CPS which are included in the statutory guidance as a partner that should be consulted.

A further important distinction is gang injunctions can include terms requiring the respondent to do something; both ASBOs and ASBIs must be drafted in prohibitory terms. Section 35(3) of the 2009 Act provides that the injunction may require a person to, among other things, 'participate in particular activities between particular times on particular days'. Past criticism of ASBOs and ASBIs has focused on their inability to tackle the cause of the behaviour involved.

By requiring a person to do something, for example attend counselling, anger management courses or mediation with rival gang members, the gang injunction is seeking to address the issues behind the conduct rather than limiting the injunction to prohibited behaviour within a certain area. This could also mean it will not be as 'easy' to breach; for example, an agency will know when a pre-arranged appointment is missed rather than relying on the public or the police observing the defendant doing something prohibited by the injunction.

Measuring success

Perhaps the most important aspect in considering whether or not the gang injunction will achieve its aims is how they are enforced. It appears this is something often missed when discussing how successful anti-social behaviour remedies have been. For an injunction to be successful, the relevant partners need to be aware of the terms and share relevant information, so when there is a breach the applicant can deal with it appropriately.

Breach of injunction is contempt of court, which attracts the criminal standard of proof. The court may impose an unlimited fine or imprison the defendant for up to two years which can be suspended on conditions. Breach of an injunction tends to result in the defendant being committed to prison for up to two years. Effective? It places the defendant in an environment which it is hoped he shall not wish to experience again, therefore preventing any further behaviour and providing respite to the community.

This is where the gang injunction could potentially fail '“ defendants may not consider it so much of a hardship to be detained at Her Majesty's pleasure for several months. Once released, they could be welcomed back into their gang environment without question. Conversely, breach of an ASBO is contempt of court but also a criminal offence.

Breach proceedings are brought by the CPS in the criminal courts, where the courts have their usual range of sentences available often involving contact with the probation service to try and prevent behaviour in the future. These types of sentences are not available to the civil courts and, therefore, the cause of behaviour can often be unaddressed.

The guidance notes that the fact breach does not lead to a criminal conviction is advantageous for two reasons. First, relatives and close friends may come forward to give evidence if they are aware it will not result in the defendant having a criminal record, and, second, it avoids negative future impacts associated with criminal records. The latter makes some sort of sense although injunctions will be registered on the Police National Computer and therefore can be disclosed in certain circumstances. The former is more of a pipedream.

Despite recognising the need for the incorporation of terms within an injunction to address the cause of gang-related violence, a trick appears to have been missed when enforcement was considered. It was perhaps time to look at enforcement proceedings as a whole in the county courts and whether sentencing powers could be increased when certain behaviour required addressing.

However, it would be open to the court at any breach proceedings to amend the injunction to place more stringent requirements on a defendant to address his behaviour and conceivably it is this route that could lead to the teeth needed in such injunctions so they work to address a pressing social problem.

Like anything, it is difficult to predict whether the gang injunction has teeth in its bite. Nonetheless, it seems that the ability of gang injunctions to address the possible causes of gang-related behaviour by employing positive terms may be more effective in dealing with gang issues in a way not previously possible with existing ASBIs and ASBOs. This must provide the gang injunction with the potential to be more than a glamorous accessory to unacceptable behaviour.