COMMON LAW METHOD QUESTION
Read the following extracts and then answer the questions below:
Birmingham City Council v Mr Shakeel Afsar, Ms Rosina Afsar, Mr Amir Ahmed,
Persons Unknown seeking to express opinions about the teaching at Anderton Park
Primary School, John William Allman
High Court of Justice Queen’s Bench Division Birmingham District Registry
[2019] EWHC 3217 (QB), 2019 WL 06313131
HISTORY
- From about mid-March 2019, there have been frequent and regular protests or
demonstrations outside or near the School about the teaching, or what was said to be the
teaching, of LGBT issues at the School. Abusive messages have also been posted on social
media and online. The protests have continued for some 7 months. - I shall address some of the detail of the protests later, but it is appropriate to mention now
some of their most extreme manifestations. Speakers at street protests outside or near the
School have alleged that it is pursuing “a paedophile agenda”, and teaching children how to
masturbate. Leaflets have alleged that the School is providing “LGBT sexual education”.
Videos have accused the School of bringing in gay teachers to teach children about anal sex,
and allowing convicted paedophiles into the school. The Council maintains that all of this is
utterly false. It has called evidence to make good that assertion. There is no evidence to the
contrary. None of the defendants who are represented before me has challenged these
aspects of the Council’s case, which I find are clearly proved. The defendants’ case is that
they are not responsible for these extreme and untrue characterisations of the School’s
behaviour. - The focus of the claim is not, however, on the content of the protests. The Council has not
sought, and is not seeking, to restrict what the protestors say in the street. On 29 May 2019
the Council issued a Part 8 claim form seeking injunctions to restrict the way these protests
were carried on. The Council’s case was that the protests involved nuisance and disruption. It
also complained of what it said was unacceptable abuse of teachers on social media. It relied
on the provisions of the Local Government Act 1972 , the Highways Act 1980 , the Localism
Act 2011 and the Anti-Social Behaviour, Crime and Policing Act 2014 . The Council sued four
defendants: three individuals – Shakeel Afsar, his sister Rosina, and Amir Ahmed – and
“Persons Unknown”. Ms Afsar is the mother of two children both of whom were at the School
at the time. Mr Afsar is the brother of Ms Afsar. Mr Ahmed is a member of the local community.
Neither Mr Afsar nor Mr Ahmed is a parent.
LB166 Page 4 of 7 © The University of Law Limited 2019-2020 - On 31 May 2019, the Council applied for an immediate injunction pending trial.
- The court’s interpretation of a statute must be informed by its context. But the legislative
history does not provide any indication that Parliament intended to restrict the scope of what
could and could not be regarded as anti-social behaviour, by excluding “protest”. If it had so
intended, it might in principle have incorporated limitations into the definition of that term. But
it is hard to see how that could have been done. It is not possible to infer that Parliament
intended to exclude from the scope of ss 1-5 of the 2014 Act any utterance falling within Article
10(1), or any combination falling within Article 11(1). That would deprive the statute of much
of the effect which on any view it was intended to have. A great deal of anti-social behaviour
(including several of the illustrative examples given in the Explanatory Notes) consists of
spoken words and public assemblies; such conduct may well represent an unwarranted
interference with the rights of others, in particular those under Article 8. The freedom to speak
offensively, though important, is not an unqualified right. It is not feasible to read in any
narrower limitation, to exclude “protest”. That is a protean term, with no fixed meaning, and
protest in not in and of itself legitimate. Mr de Mello has offered no wording that would give
effect to the implied intention he asserts. - The short answer is that there is no need for any such wording. It is not arguable that to
give the statute its ordinary meaning would allow the Court to grant injunctions that wrongfully
interfere with Convention rights. The HRA , passed sixteen years before the 2014 Act,
prohibits the Court from doing so. The HRA is a key aspect of the legal context in which
Parliament passed the 2014 Act. In my judgment, there is no reason to doubt that in passing
this legislation Parliament intended to confer power to seek and to grant injunctions to prohibit
anti-social utterances and assemblies of all kinds, in any case where it is shown that this is
necessary and proportionate in pursuit of one of the legitimate aims identified in Articles 10(2)
and 11(2). The safeguards for the human rights of protestors lie in the Court’s statutory duty
under s 6 of the HRA , and in the procedures of the Court. The Court can be relied on, with or
without the assistance of those representing the defendants to claims for injunctions of this
kind, to keep in mind the importance of freedom of expression and freedom of assembly. It
can be trusted to avoid unwarranted interferences with these (and other) fundamental rights
by insisting on compliance with the well-established principles, that any interference must
correspond to a pressing social need, its necessity must be established by clear and
compelling evidence, and it must not go further than is necessary. - The spelling out, elsewhere in the statute, of the need for other public authorities to have
regard to Articles 10 and 11 is readily explicable as a statutory reminder to those authorities
LB166 Page 5 of 7 © The University of Law Limited 2019-2020
of the need to comply with the Convention when exercising administrative, as opposed to
judicial, powers. Indeed, this aspect of Mr de Mello’s argument tends to undermine his principal
submission. Inherent in the argument is an acceptance that the statute authorises a local
authority to curtail fundamental rights by administrative action; and the Court has,
unsurprisingly, so held. In Dulgheriu v The London Borough of Ealing [2019] EWCA Civ 1490
the Court of Appeal upheld the local authority’s decision to make a PSPO imposing an
exclusion zone around an abortion clinic. It cannot be supposed that Parliament intended to
allow that, but not the grant of an injunction by the Court. - Mr de Mello had an alternative submission: that if the legislation allows the Council scope
to choose between a PSPO or an injunction as the means of combating anti-social behaviour,
it should not be granted an injunction, thereby bypassing the statutory safeguards built into
the PSPO regime. In support of that submission he cited Birmingham City Council v Shafi
[2008] EWCA Civ 1186 [2009] 1 WLR 1961 [36], [45] and [59]. A similar argument was
advanced by Mr de Mello in Birmingham City Council v Sharif [2019] EWHC 1268 (QB) and
rejected by HHJ McKenna (sitting as a Deputy High Court Judge). I share the view expressed
by Judge McKenna at [27] that the argument is entirely misplaced, for the reasons he gave at
[28-33]. In short, Shafi is no authority for the proposition that an injunction under the 2014 Act
cannot or should not be sought or granted if the authority could have imposed a PSPO, or
other lesser remedy: see Redpath v Swindon BC [2009] EWCA Civ 943 [2010] PTSR 904 ,
Birmingham CC v James [2013] EWCA Civ 552 [22], [28], [31]. A local authority’s power to
ask the Court to determine whether an injunction is a necessary and proportionate interference
with Convention rights is not shackled by rigid rules of this kind. Nor can it be argued that the
powers of the Court should not be invoked or exercised, on the grounds that Court procedures
are inferior to the administrative procedures specified in the statute. That is manifestly not the
case. - As for s 130 of the Highways Act 1980 , Mr de Mello submits that it can have no application
to the facts of this case. In support of that submission he cites Ali v Bradford Metropolitan
Borough Council [2010] EWCA Civ 1282 [2012] 1 WLR 161 , where the Court of Appeal upheld
the striking out of a claim for damages for personal injury, based on an alleged breach of the
statutory duty imposed by s 130 . I was unable to follow this line of reasoning. Mr de Mello’s
skeleton argument asserts, in my judgment correctly, that the section is concerned with the
protection of the legal rights of the public at large to use the public highway. That is the basis
of this aspect of the Council’s claim. It maintains that the protests obstruct the highway
adjacent to the School or risk doing so. The fact that a person injured by an obstruction to the
highway cannot sue the Council for damages is not pertinent.
LB166 Page 6 of 7 © The University of Law Limited 2019-2020
Having read the extracts from the judgment above, answer these questions: - The above part of the judgment relies heavily upon how the statutes are to
be interpreted. Give the rules of statutory interpretation. Identify all of those
being used above and demonstrate how you know. - The case involved many considerations of the Human Rights Act 1998.
Explain why the HRA’98 was enacted. Does this judge have to follow
judgments of the European Court of Human Rights? - In paragraph 35 the lawyer Mr de Mello cites a case but the judge is “unable
to follow this line of reasoning.” Did the lawyer apply or distinguish the
case? What did the judge do with the case? Explain how you know. - The Council applied for an injunction in this case, making it a matter of
public law. Explain the difference between public and private law, giving
examples of the types of cases which fit into each category.