Birmingham City Council v Aakaash Changaz [2025] EWHC 700 (KB)

[2025] EWHC 700 (KB)

Case No KB-2022-BHM-000221

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Venue Birmingham Civil and Family Justice Centre,

The Priory Courts, 33 Bull Street,

Venue Birmingham, B4 6DS

Date 5 th March 2025

Start Time: 11.22 Finish Time: 11.53

Before

HER HONOUR JUDGE EMMA KELLY

Between

BIRMINGHAM CITY COUNCILClaimant

MR AAKAASH CHANGAZDefendant

MR SANGHERA of Counsel appeared for Claimant

MR HARRINGTON Solicitor appeared for Defendant

APPROVED JUDGMENT

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[1]The defendant, Mr Changaz, appears before this court having admitted contempt by virtue of his driving in the early hours of 16 February 2025.

[2]The defendant admits that his conduct amounts to a breach of paragraph 1 of an injunction granted by Julian Knowles J on 27 February 2024. That order has since been varied in part by an order of Ritchie J on 3 March 2025 following a review hearing that took place on 27 February. However, the form of order that was in force on 16 February and material for purposes of this application is that of Knowles J of 27 February 2024.

[3]The claimant has been represented at today’s hearing by counsel, the defendant by his solicitor. Background

[4]The order made by Knowles J was aimed at preventing street cruising or car cruising occurring on the streets of Birmingham. The application followed concern by the claimant local authority that anti-social and often unlawful behaviour in the form of car cruising was occurring within its administrative boundary.

[5]The defendants to the claim included a number of named defendants. Mr Changaz was not one of those named defendants. However, the injunction also covers categories of persons unknown defendant. The tenth defendant is defined as:

“Persons unknown who participate or intend to participate in street cruises in Birmingham, as car drivers, motorcycle riders or passengers in motor cars or on motorcycles.”

It is that category of persons unknown within which Mr Changaz falls.

[6]Paragraph 1 of the injunction forbid the defendants from participating:

“in a street cruise within the claimant’s local government area (known as the City of Birmingham), the boundaries of which are delineated in red on a map attached to this order at schedule 1.”

That plan outlined the administrative area of Birmingham.

[7]Paragraph 3 of the order defined the term “street cruise and participating in a street cruise” by reference to schedule 2 of the order.

[8]At paragraph 1 of schedule 2 “street cruise” is defined as:

“…a congregation of the drivers of two or more vehicles, (including motor cycles), on the public highway or at any place to which the public have access within the claimant’s local government area (known as the City of Birmingham) as shown delineated in red on the map at schedule 1, at which any driver, rider or passenger in or on a motor vehicle performs any of the activities set out in paragraph 2 below, so as by such conduct to cause any of the following: (i) Excessive noise; (ii) Danger to other road users, including pedestrians; (iii) Damage or the risk of damage to private property; (iv) Any nuisance to another person not participating in the street cruise.”

[9]Paragraph 2 of schedule 2 lists various activities referred to in paragraph 1 of schedule 2. Those include:

“(i) Driving or riding at excessive speed or otherwise dangerously; (ii) Driving or riding in convoy; (iii) Racing against other vehicles.”

There were other activities that are not directly relevant to this application.

[10]Paragraph 3 of schedule 2 defines “participating in a street cruise” in the following way:

“A person participates in a street cruise if he or she is: (i) the driver or rider of, or passenger in or on, a motor vehicle at a street cruise and performs or encourages any person there present to perform any activity to which paragraphs 1 to 2 above apply; or (ii) is a spectator at the street cruise…”

A power of arrest was attached to paragraph 1 of the injunction by paragraph 4 and the order came into force on 27 February 2024. Service

[11]The defendant accepts valid service of the injunction. Paragraph 9 of the order permits service on the persons unknown defendant by alternative means. The alternative service requirements are set out in schedule 3 to the order with the deemed date of service being the date of completion of the final of those steps.

[12]The court has before it an affidavit from Michelle Lowbridge, the claimant’s community safety officer, dated 4 April 2024. She addresses the steps taken to effect service and states that the final step was completed on 22 March 2024. The court is therefore satisfied as to service of the injunction, taking into account Ms Lowbridge’s evidence and the admission made by the defendant. Events of 15/16 February 2025

[13]On the evening of Saturday 15 February, the police were undertaking patrols at various locations known as hotspots for car cruising activity. The evidence before the court is to the effect that the defendant was seen driving a black BMW X3 with registration number X3 YYH at various times during the course of the Saturday evening and into the early hours of Sunday 16 February. There is no suggestion that at those times his driving was such to put him in breach of the terms of the injunction but simply that he was seen in the vicinity of others engaging in car cruising. i) He was first noted shortly before 10pm at Spring Hill in Birmingham at a location close to the outer ring road around the city. ii) He was later seen on Damson Parkway in Solihull, an area outside the claimant’s administrative boundary but where other vehicles were racing and spectators were present. iii) He then noted at Bassetts Pole, Sutton Coldfield, an area to the north of the claimant’s administrative boundary and a location where other vehicles were racing.

[14]The defendant was seen again on Small Heath Highway, an area to the south east of the city’s outer ring road, shortly after midnight on 16 February. Small Heath Highway is an urban dual carriageway with a 40 miles per hour speed limit. There were a number of spectators outside the Applegreen petrol station on Small Heath Highway. The defendant’s vehicle was seen to slow to around 5 miles an hour alongside an Audi A3 vehicle and both vehicles then raced each other along the dual carriageway. They were seen by the police officers to circle a roundabout and return down the opposite side of the carriageway past spectators.

[15]The claimant’s case is that the defendant was racing at speeds of over 80 miles an hour and specifically up to 85 miles per hour before eventually being stopped by a marked police car. He was arrested for alleged breach of the injunction and produced before this court on Monday, 17 February when the matter was adjourned for service of the evidence and for the defendant to take legal advice. On receipt of legal advice, the defendant made admissions at the earliest opportunity.

[16]The court has the benefit of the defendant’s written admission that was prepared in advance of today’s hearing. The defendant admits in that document that he engaged in car cruising shortly before being stopped by the police. A further written admission has been prepared today which the defendant accepts in express terms driving at excessive speed, driving in convoy, racing against another motor vehicle and causing a nuisance to any person not otherwise participating. During the course of submissions, the defendant’s solicitor confirmed that the defendant does not seek to challenge the claimant’s case that he was driving in excess of 80 miles per hour and specifically up to 85 miles per hour, although the defendant asserts he has no direct recollection of the precise speed he was travelling.

[17]The court has had the opportunity of viewing footage that was taken from the police video cameras which record part of the driving on Small Heath Highway.

[18]These are contempt proceedings. The burden of proof rests on the claimant to establish the contempt to the criminal standard, that is beyond reasonable doubt. Having taken into account the defendant’s admissions and having read the police evidence and watched the video footage, I am satisfied that the contempt has been proved in respect of the driving in the early hours of 16 February on Small Heath Highway. There is clear video and written evidence, supported by the admissions, of street cruise activity by the driving at excessive speed or otherwise dangerously and racing against another motor vehicle. That conduct self-evidently causes a danger to other road users, including spectators, a risk of damage to property and a nuisance to individuals who are trying to otherwise go about their lawful business. Approach to sentencing

[19]This court has already sentenced a number of individuals for contempt arising from breach of interim and final versions of the injunction. I adopt the same approach to sentencing as I have done in previous cases and, for reasons of proportionality, do not propose to repeat the detail of it here. The parties agree, as do I, that the court should follow by analogy the guidance in Lovett v Wigan Borough Council

[2022] EWCA Civ 1631

. The use of that guidance by analogy in street cruising cases has been endorsed by the Court of Appeal in Birmingham City Council v Lloyd

[2023] EWCA Civ 1355

, a case which related to an interim version of this injunction.

[20]The court therefore has to consider the concepts of culpability and harm. The claimant submits that the culpability should be categorised in category A, that being high culpability, a very serious breach or persistent serious breaches. The defendant submits that the case properly falls in category B. In my judgment, the case falls more readily into category B, being a deliberate breach falling between A and C. Whilst this may be a serious breach, I do not take the view it is a very serious breach given the relatively short-lived nature of the driving concerned. It is a first breach and there is certainly therefore no suggestion it is persistence. I therefore propose to proceed on the basis this falls in category B culpability.

[21]As to the category of harm, the claimant’s primary submission is that the case falls within category 1 given the speed of the driving, alternatively into category 2. The defendant submits it falls within category 2. In assessing harm, the court has to look at the harm that was actually caused, which fortunately on the facts of this case was limited, but also the risk of harm. The risk of harm associated with the defendant’s driving was significant. Racing on the public highway at high speed self-evidently gives rise to a very high risk of harm, including the risk of fatalities to those in the vicinity, whether those others are also participating in the street cruising as drivers, passengers, or spectators or are law abiding road users and pedestrians simply trying to go about their business.

[22]I have noted from the video footage that it was raining on that night and it was obviously dark being shortly after midnight. Those factors only increase the risk that harm. I place this matter in category 2 harm, albeit falling very much at the upper end of that bracket. I am not persuaded given the circumstances that it falls fairly and squarely within category 1 which would be breaches causing or risking very serious harm or distress.

[23]The starting point for a culpability B, category 2 harm case is a sentence of one month’s imprisonment with a range from adjourned consideration to three months’ imprisonment. The court has to take into account any aggravating or mitigating circumstances.

[24]The claimant submits that the question of speed is an aggravating matter that the court should take into account. I am not persuaded that is appropriate. The speed in this case is a factor that is taken into account when assessing the category of harm and to add that factor back in in terms of aggravation risks double counting to the detriment of the defendant.

[25]I do, however, consider it an aggravating factor that the defendant was seen in his vehicle at other car cruising locations earlier in the evening. Whilst there is no suggestion that his conduct earlier in the evening put him in breach of the injunction, his presence at three different geographical locations prior to the index event demonstrates the defendant’s persistence in wishing to associate himself with this type of unlawful behaviour. All the more so as anyone with a knowledge of the geography of Birmingham will know that there are not inconsiderable distances between the different locations.

[26]Turning to mitigation, the defendant is now aged 33. He is not of an age where he can rely on his youth as an excuse on grounds of immaturity. He is, I am afraid, of an age where he quite frankly should have known better to engage in this sort of behaviour.

[27]The defendant does, however, have a number of relevant matters of mitigation. The court has not been provided with any information as to any convictions or cautions and therefore I treat him as being of positive good character.

[28]This is his first breach of the injunction. He has indicated his remorse and an intention to comply with the order in the future. He has taken immediate steps to disassociate himself with the performance vehicle he was driving that evening. The court has been provided with documentary evidence evidencing his transfer of the vehicle and notification to the DVLA of that transfer on 22 February and therefore within days of his arrest.

[29]The defendant has a stable home life with a partner and is involved in the care of his partner’s 5 year old son who has additional needs. The court is told that the defendant is very much part of providing a stable routine for that child. He also has his own children in whose lives he is involved. The defendant is not in employment and receives universal credit of some £320 a month.

[30]Notwithstanding the mitigation in this case, neither a deferred consideration or a fine would be an adequate penalty for the breaches of this injunction. Breach of the injunction by participating in street cruising on a public highway is an extremely serious matter with associated very significant risks. The contempt is so serious that I am satisfied that it passes the custody threshold and only a custodial sentence will suffice.

[31]Taking into account the admissions made as to the speed of the driving and the circumstances, I take the view that the appropriate sentence before consideration of credit for any admission but taking into account the time spent in custody following the initial arrest before production at court is one of 48 days’ imprisonment. The defendant is entitled to the maximum credit for his admission. The sentence is thus reduced by one third to 32 days’ imprisonment.

[32]I do consider it appropriate to suspend that sentence. The Court of Appeal in Lovett endorsed suspension as usually being the first response to secure compliance with the underlying order. The defendant is of previous good character. He has expressed through his legal representative an intention to comply with the order in the future and his stable home life leads me to the conclusion that there is a good prospect of future compliance and rehabilitation. The sentence will therefore be suspended for twelve months from today on condition of compliance with the terms of the final injunction in its current form or with any subsequent version of the injunction should it be amended between now and the end of the period of suspension. The current form of the order is that of Ritchie J dated 3 March 2025. Costs

[33]The claimant has made an application for its costs. A schedule of costs has been served in the sum of £4,120.36. The defendant does not oppose the principle as to costs but takes issue with the quantum, on the basis of the hours of solicitor time sought and taking into account the defendant’s means. As to the principle of costs, costs follow the event. There is no reason to depart from the general rule that the successful party will be entitled to its costs from the unsuccessful party. Therefore, the claimant is entitled to its costs.

[34]As to the quantum of those costs, the defendant’s impecuniosity is not a reason to reduce the amount of those costs. The court does, however, have to be satisfied that those costs are reasonable and proportionate. No issue is taken with counsel’s fees for today’s hearing, nor for the grade A solicitor’s attendance at the first hearing. Issue is however taken with the other solicitor profit costs. The profit costs for the grade A fee earner amount to approximately eight hours’ work in preparation plus a further just over two hours by a grade D fee earner and just under two hours by a another grade D fee earner. In my judgment, the solicitors’ profit costs do appear on their face to be disproportionate. There is no breakdown on the schedule, it simply says “preparation”. The standard court form for a schedule of costs for summary assessment has not been used so I cannot tell how that sum is broken down in terms of attendances, work on documents et cetera. Summary assessment by its nature does however require a relatively broad brush approach. I have no issue with the grade D fee earner time. It was clearly appropriate that there be some delegation, particularly in terms of tasks such as preparing the bundle. I am cognisant that the claimant has prepared a significant number of very similar applications and therefore to some extent the collation of documents such as the copies of the injunction, Ms Lowbridge’s affidavit, which has been used on many occasions in similar applications, will have been a relatively quick process. The grade A solicitor’s preparation is claimed at £2,354.56. I am going to reduce to £1,500 as being a more proportionate sum. I will leave others to calculate the net figure but the sum of £854.56 taken off the £4,120.36 claimed.

[35]The defendant offers to pay any costs at the rate of £50 per month. His financial position is somewhat unsatisfactory in that he chose to sell the X3 vehicle but has put all of the proceeds of sale into the purchase of a new Toyota vehicle notwithstanding the obvious liability he was exposed to whilst these proceedings remained unresolved. The court is told he has no savings and no ability to borrow any funds and his only income is the £320 a month of universal credit. Given his very modest means, I am prepared to accept his offer of payment. If the defendant enters employment or his finances otherwise improve before the liability is discharged, the expectation is that he pays more to reduce the liability more quickly. The first payment is to be made by 20 March and then by the 20th of each month thereafter. Right of appeal

[36]The order being made in this case is a suspended order of committal. That means that the defendant has a right to appeal. Any appeal lies to the Court of Appeal Civil Division and must be filed within 21 days of today.

[37]I direct that a transcript be obtained of this judgment on an expedited basis at public expense. The approved transcript will be published on the judiciary website in due course.

[38]It is clearly very important that Mr Changaz abide by the terms of the suspended order. Any future breach would mean that he is brought back to this court. If a further contempt were proved, he would then stand to be sentenced both for the new breach and face the likelihood that today’s sentence would be activated in whole or in part. Mr Changaz, the simple message to you is that you must not put yourself in a position of risking allegations of breach of this injunction again. To do so risks activation of today’s suspended sentence. This court has dealt with a number of car cruising breaches over the past couple of years. To date, no one who has been given a suspended sentence has been brought back before the court for breach of the terms of suspension. I do not want you to be the first person in that position. - - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd., 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. DX 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com