These orders are dealt with in the criminal courts for youths but a civil standard of proof is used for the order to occur.
Partner and Head of Litigation, Moira MacFarlane has been working on a complex application recently and has reflected on the position:
There are several issues with the application of these by the police. Here are just a few current thoughts:-
I’m spending my afternoon pondering why a police officer is suggesting they are an expert on gangs and how they run. It is becoming a regular occurrence finding unqualified individuals document their opinion which has no relevance to proceedings. And, it is becoming a regular occurrence that we object to these sorts of statements and ensure they are removed from evidence or heavily edited. ‘Dear Officer, may I remind you of CrimPR 19 and how you are not an expert as you make unjustifiable assumptions and rely on flawed inferences’. I now have this saved as a blanket response in these sorts of cases.
On first glance, reading such a statement from a police officer, would have you think the client who was referred to Nicholls & Nicholls, is a member of a violent gang. But this troubles me. So, that got me undertaking some investigation into this youth’s background and lifestyle.
What became blazingly obvious is that this was a victim, and not a gang member. What stood out was that this youth has been bullied, threatened, assaulted and forced into undertaking tasks and actions by older and real, violent, adult criminals.
After holding the police to account, they now concede these facts. How could anyone not?
This then leads me to the reasons why police use gang injunctions. They’re supposed to be to prevent crime, not to punish. So why place an order on a victim?
When the police and social services and medical authorities know of the situation the youth has found themself in, at what point should they intervene and how? Is sending the child to prison going to stop this behaviour or criminalise them? Why do the police think this method is okay? Why is it that a police officer with no qualifications can make this judgement call with no intervention from a legally qualified individual?
Protection by penalisation appears to be the current system. Developments are needed to change this misguided approach to help youths move away from these dangerous environments. My experience is that almost every time, the youth has never chosen this path.’
Moira is recognised in the courts for her work with youths and dealing with complex civil orders in the criminal courts regularly placed before District Judges. She has recently been selected and become part of ChiRP; the ‘Child first custody training and Research Pilot’.