England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		11th October 2005

1. LORD JUSTICE KEENE: I shall ask Poole J to give the first judgment.
2. MR JUSTICE POOLE: This is an application for judicial review of the magistrates' decision at the Highbury Corner Magistrates' Court on 9th March of this year, 2005, to dismiss an application made on behalf of the claimant, who is the tenant of Flat No 1, Beedon, Peckwater Estate, London NW5. That application was that the application of the Metropolitan Police for a closure order of those premises, under the Anti-social Behaviour Act 2003, be dismissed on the grounds that it was time-barred. Thereafter an application for an adjournment of the proceedings was made, - without success.
3. The brief history is this: first, the claimant is, and has for some years been, the tenant of Flat N o (1), Beedon, Peckwater Estate. Secondly, over a period of years the police have received numerous complaints about his conduct, and that of others, at and adjacent to those premises. These complaints increased in number during 2004 and the early months of 2005, and included complaints that the premises were being used as a crack house and complaints of disorderly behaviour, including the possession of a gun and knives at the premises. It was complained that drugs' debris, including needles, were littered around the premises, and the police search, on 9th February, revealed drugs paraphernalia within the premises, including needles, syringes and silver foil. Neighbours had complained that they were concerned for themselves and for their children.
4. On 9th February, the Metropolitan Police issued a closure notice on the premises, pursuant to section 1 of the 2003 Act, on the grounds that they had been used in connection with the production or supply of controlled drugs, and had been associated with the occurrence of disorder, or serious nuisance, to members of the public.
5. Following the issue of the notice, proceedings for a closure order, under section 2 of the 2003 Act, were commenced in Highbury Corner Magistrates' Court. The case first came before the court on 11th February, at which time the claimant's solicitor indicated that the application was to be contested. The proceedings were then adjourned on his application to 25th February. On that day the claimant did not attend court but was represented by his brother as a McKenzie friend, who sought an adjournment on the claimant's behalf to enable him to seek legal advice. The case was therefore further adjourned to 9th March.
6. On 9th March, the court refused an application by the claimant's counsel for a further adjournment in order to enable his new solicitor to consider the 100 or so pages of evidence received by him, it was said, on the morning of the hearing. At trial it was submitted, on behalf of the claimant, that the application was time barred by virtue of the decision of Mitting J in Commissioner of the Metropolitan Police v Hooper [2005] EWHC 340 Admin at which the court held that, save in exceptional circumstances, it was not possible to adjourn the proceedings to a date more than 14 days after the application for the closure order was made.
7. The Justices rejected the submission without giving reasons and, having heard the application, made the closure order sought. Later that day the claimant was granted an order staying operation of the closure order by Bell J. That stay remains in place following further orders of Hughes J, on 11th March, and of Forbes J, on 22nd March, when he granted permission.
8. The claimant has advanced four grounds. First, that the decision of the justices to adjourn the proceedings for 16 days, on 11th February, was ultra vires. That contention proceeded on the basis of a mathematical error and has been abandoned. Second, that the decision to adjourn for a further 12 days, on 25th February, was similarly ultra vires. Thirdly, that the justices acted unlawfully in refusing to stay the closure order application at the resumed hearing on 9th March and, fourthly, that the refusal of the justices to grant the claimant an adjournment on 9th March was unreasonable and inconsistent with their previous decisions on 11th February and 25th February.
9. The statutory framework is this; I go to the Anti-social Behaviour Act 2003. By section 1:

"This section applies to premises if a police officer not below the rank of superintendent ... has reasonable grounds for believing -

(a) that at any time during the relevant period the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug, and

(b) that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public."

I go to subsection (4):

"A closure notice must -

(a) give notice that an application will be made under section 2 for the closure of the premises;"

I go to section 2 "closure order":

"(1): If a closure notice has been issued under section 1 a constable must apply under this section to a magistrates' court for the making of a closure order.

(2) The application must be heard by the magistrates' court not later than 48 hours after the notice was served in pursuance of section 1(6)(a)."

Subsection (6):

"The magistrates' court may adjourn the hearing on the application for a period of not more than 14 days to enable -

(a) the occupier of the premises,

(b) the person who has control of or responsibility for the premises, or

(c) any other person with an interest in the premises,

to show why a closure order should not be made."

By section 54 of the Magistrates' Courts Act 1980:

"(i) A magistrates' court may at any time, whether before or after beginning to hear a complaint, adjourn the hearing, and may do so, notwithstanding anything in this Act, when composed of a single justice.

(2) The court may when adjourning either fix the time and place at which the hearing is to be resumed or, ... leave the time and place to be determined later by the court."

10. In so far as there is no specific mention of complaint in section 2 of the Anti-social Behaviour Act, I am satisfied that by reason of their nature such applications as those we are considering here, have all the necessary characteristics of complaint and are covered by section 54. The claimant has not argued otherwise.
11. The claimant's submissions are these: his first ground, as I have indicated, concerning the adjournment of 11th February, has been abandoned. His second ground is that the magistrates' decision on 25th February to adjourn the proceedings for a further 12 days was ultra vires. At that hearing the claimant was not present and was not legally represented. But at the request of the claimant's brother who was present, the magistrate agreed to an adjournment to 9th March in order that the claimant could find legal representation. It was explained by his brother that the claimant, who was mentally ill, had had a solicitor but had dismissed him.
12. The reasons for that dismissal were not explained but it was said that given his state of health he had particular need of representation. It was also complained that no disclosure had been made. As to that, more presently. In the event and by reason of the claimant's lack of legal representation the magistrate adjourned the hearing to 9th March.
13. The claimant now complains that that decision, one at the time sought on his behalf, was ultra vires. For if, which Mr Madden his counsel does not accept, the case of the Commissioner of the Metropolitan Police v Hooper [2005] EWHC 340 (Admin) was correctly decided, the magistrates simply had no power to adjourn for 12 days on 25th February, since mere lack of legal representation could not properly be construed as an exceptional circumstance as required by the judgment of Mitting J in that case. Therefore, and this constituted his third ground, the justices were wrong on 9th March not to stay the proceedings on application by the claimant in relation to that adjournment of 25th February, that decision amounting to a material error of law. If the construction of Mitting J in Hooper is to be followed (a) the intention that proceedings would be complete within a maximum of 16 days, the 48-hours plus 14 days, should be complied with, subject only to exceptional circumstances and (b) if the magistrates on 9th March found themselves in the position that there could not be a fair hearing on 25th February, but in circumstances where there had been no exceptional circumstances, they should have stayed the proceedings.
14. The claimant's fourth ground, and the one on which he principally relies, is that the refusal of the justices to grant the claimant an adjournment on 9th March was unreasonable and inconsistent with their previous decisions on 11th February and 25th February, and is based on his primary submission of law which is that Hooper was wrongly decided and should not be followed.
15. His submissions are these: that Mitting J in Hooper erred (a) in stating that the discretion available to the magistrates' court under section 54 of the 1980 Act should only be exercised in "exceptional circumstances";(b) in categorising the power to adjourn proceedings contained in section 2(6) of the 2003 Act as constraining the circumstances and extent of adjournments available to magistrates under section 54 of the 1980 Act; and (c) in determining the statutory purpose behind section 2(6) of the 2003 Act as one of setting fixed time limits for the completion of the proceedings. Rather, he submits, the statutory purpose behind section 2(6) is that as stated by the Parliamentary-Under-Secretary of State for the Home Department, Mr Ainsworth, in the Committee Stage of the Bill, sitting on 6th May 2003. I quote briefly from the passage to which we were referred:

"By providing an option to adjourn for up to 14 days, we have taken account of any additional time that the court may require. The court has discretion in allowing an adjournment. It is an option to be used when the court feels that the owner or tenant will be able to stop the misuse of the premises within the period of the adjournment. That allows those who face the closure of their property to take action to convince the court that they are both willing to resolve the problem and capable of doing so before their property is removed from them for ever, or for a period of time if they are the owners. If that proves unsuccessful, the closure order can still be made."

16. Mr Madden continues that the judgment of Mitting J was further in error in declaring that it was not possible for magistrates to continue an existing closure order outside of any adjournment granted under section 2(6) of the 2003 Act. He therefore submits that in refusing to adjourn the hearing of 9th March the magistrates erred in that they wrongly fettered their discretion to adjourn the proceedings under section 54 of the Act by considering themselves bound to adjourn further only in exceptional circumstances.
17. They failed to adjourn where it was clear (i) that the claimant's legal adviser had had no proper opportunity to review, consider or take instructions on the evidence, thus denying the claimant a fair hearing according to established principles of natural justice; (ii) when it was clear that the interest of justice required that the claimant received proper advice and consideration of his case and (iii) clear that it was irrational to refuse the adjournment having granted prior adjournments on the basis that the claimant did have the right to be properly represented and that such representation required sufficient time to prepare his case.
18. Mr Madden, in his written argument, had an additional submission, though not one that has any material bearing on the outcome of this judicial review, namely that closure proceedings before magistrates are criminal and not civil in character. As to that, I do not feel it necessary to say any more than that for the reasons spelt out by Mitting J in Hooper, at paragraphs 12 to 16 of his judgment, based in large part on dicta of Lord Bingham and Lord Stein in Customs and Excise Commissioners v the City of London Magistrates' Court [2000] 1 WLR 2025, I am entirely satisfied that these proceedings were clearly civil and not criminal under domestic law.
19. Mr Madden has today added another argument, not, as I see it, explicit in his skeleton, but one that he has spelt out fully today. In a nutshell, as I understand the argument it is this: that section 2(6) of the 2003 Act does not raise the threshold, or in any way fetter the magistrates' power to adjourn under section 54 and merely grants additional means for a defendant to seek adjournment in the circumstances specified in section 2. Whether or not that be the case, I, for my part, am satisfied that in exercising their power under section 54 magistrates must have regard to the scheme of the 2003 Act and to its purposes, which include expedition in the interests of all parties, including, of course, the defendant and those of protected persons.
20. I bear in mind here the comments of Moses J, as he then was, in the case of R v Dudley Magistrates' Court, ex-parte Hollis [1999] 1 WLR 642 who, when considering the use of the power of adjournment under section 54, stated at page 660, paragraphs D to E: CHECKED

"The wide discretion as to whether to grant an adjournment conferred by sections 10 and 54 of the Magistrates' Courts Act 1980 cannot, usually, be impugned. But it is a power which must not be exercised in a manner which undermines the statute under which the proceedings are brought or in any way which deprives a litigant of rights conferred by that statute."

21. Thereafter, of course, on an application the magistrates must exercise their powers under section 54 in the interests of justice, which include the interests both of a defendant and of those whom the Act seeks to protect.
22. The defendants' acknowledgment of service, to which I ought to refer, although the defendants have not been represented and have not appeared before us today, advanced the following grounds for contesting the claim. As to ground two, since the application for an adjournment, on 25th February, was made on behalf of the occupier, that is the claimant, he can hardly now be heard to question the validity of the application's success. As to ground three, the court was made aware on 9th March of the reasoning in Hooper, which had been decided on 16th February, but was satisfied that by granting the application for an adjournment it would not thereby be deprived of the power to make a closure order. The court on 25th February had been informed that the applicant who did not appear in person was unwell and unrepresented and that by reason of his pyschiatric condition, in particular, he stood in need of legal representation.
23. The effect of an immediate closure order would mean that the claimant would be prevented from having access to his home. The district judge therefore held that Article 8 of the Convention was engaged, as was Article 6, and that an adjournment was justified for the purpose of enabling the claimant, if reasonably possible, to attend a trial and to obtain legal representation in order to ensure a fair trial. For those reasons he felt able, by virtue of section 3 of the Human Rights Act 1998, to interpret section 2(6) to read:

"The magistrates' court may adjourn the hearing on the application for a period of not more than 14 days at a time".

He was not, of course, on that date, 25th February, aware of the reasoning in Hooper and he did not consider that he was exercising his power under section 54 of the 1980 Act, to which he had not been referred.

24. The district judge, therefore, allowed the application for an adjournment and added an order under section 2(7) of the Act ordering the closure notice to continue, in effect, until the end of the period of adjournment, because it would be contrary to public policy if the effect of the adjournment would be that the closure notice would lapse, thereby obliging the police to serve a new notice so that the entire process could start all over again, an exercise, as it seems to me, in futility that Parliament could not have intended. The defendants, therefore, submit that the justices were right to hold that there was nothing in the judgment of Mitting J to prevent the court from making the closure order that was sought.
25. As to ground four, the defendants argue that the justices, on 9th March, were entitled to take into account the purposes of the 2003 Act in considering whether to grant a further adjournment and to take the view that a period of 28 days from the first hearing was sufficient, having regard both to the claimant's rights under Articles 6 and 8 and to the purposes of the Act for the claimant to obtain legal representation and to present a case to the court. They further argued that they were also entitled to give weight to the Article 8 rights of other residents on the estate affected by the anti-social behaviour notice and having heard the evidence to make a closure order. They explained that they took into account in doing this the evidence of Police Constable Malone, which this court has read, in concluding that it would have been disproportionate to have granted any further adjournment.
26. The interested party, that is the Commissioner for the Metropolitan Police, in effect, adopts all of those arguments and adds these: under grounds two and three if the magistrates' decision to adjourn, on 25th February, was ultra vires so that there was an error of law, it was not a material one and should not be subject to review. Granted the district judge's reasoning on 25th February was in conflict with the reasoning in Hooper that the total period of adjournment should not exceed 14 days, save in Mitting J's words that in certain exceptional circumstances it may be necessary that the power to adjourn should be available over and above the express statutory power in section 2(6). However, as Mitting J had recognised, the Magistrates' Court, while having no inherent non-statutory power to adjourn, had power to adjourn under section 54 and what, at worst, the district judge had done, on 25th February, it is argued, in striving to give effect to the claimant's Convention rights, was to misinterpret his powers under one statute, the 2003 Act, and mistakenly discount them under the other, the 1980 Act.
27. The interested party continues the argument in these terms: the question of whether any and/or every error of law is subject to review was considered by Lord Browne-Wilkinson in the House of Lords decision in R v the Lord President of Privy Council, ex-parte Page (1993) AC 682 where it was concluded that the mere existence of an error of law does not automatically vitiate a decision, rather that the error has to be an error in the actual making of the decision which affected the decision itself. The interested party cites a number of authorities to like effect, to which this court would add that of R v Knight and Another [2005] UKHL 50, where in a case concerning a postponement in confiscation proceedings under the Proceeds of Crime Act 2002 Lord Brown of Eaton-Under-Heywood said this:

"Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his section 72A power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender."

mutadis mutandis I would gratefully adopt those words here.

28. This approach, it is argued on behalf of the interested party, is consistent with the Administrative Court's general approach to procedural irregularities, namely that in determining the consequences of non-compliance with a procedural requirement the court has to consider the language of the legislation and the legislator's intention against the factual situation and seek to do what is just in all the circumstances. In deciding whether to grant the adjournment as requested in the present case the magistrate, it is pointed out, expressly considered the claimant's Convention rights and more particularly his rights under Articles 6 and 8 and the need to act consistently with the statutory purpose of the Act and the relative balancing exercise identified by Mitting J in Hooper.
29. Therefore, it is submitted on behalf of the Commissioner, whether the magistrate made his decision under section 2(6) of the Act or under section 54 of the 1980 Act is a point of technical and unmeritorious challenge. On 25th February the defendant had the power to grant an adjournment in excess of the 14 day period in exceptional circumstances and the circumstances as relayed to the defendant by the claimant's brother were clearly capable of amounting to such circumstances. The claimant was poorly and the magistrate had been told he had mental health problems and was currently without legal representation.
30. Therefore, even if there had been a material error of law which was not conceded, to determine that this rendered the making of the order that followed unlawful and beyond the powers of the court to make, would frustrate the statutory purpose of the Act and cannot have been the legislator's intended consequence. It is implicit, counsel for the Commissioner goes on, in the claimant's third ground for review, that the consequences of the magistrate's failure correctly to exercise his powers to grant an adjournment, regardless of the lack of prejudice caused, are that the proceedings that followed thereafter are unlawful or, more particularly, that the making of a closure order was beyond the power of the court to make.
31. That contention must fail for the following reasons, it is argued: first, the purpose of the Act is speedily to procure the closure of disorderly crack houses and to protect the neighbours of such premises from the severe nuisance caused by them, whilst ensuring a construction of sections 1 and 2 of the Act which is compatible with the Convention. Section 2(6) of the Act gives those persons whose rights would be affected by the making of an order adequate opportunity to assert those rights by contending that an order should not be made whilst ensuring that the beneficial object of the statute is not defeated by delay, by restricting the affected person to only 14 days in which to collate the relevant evidence.
32. Section 54 of the Magistrates' Courts Act introduces some limited flexibility into this timetable, it is argued, to ensure that there is no breach of a relevant person's Convention rights which would be caused if there were no flexibility in the time period for which an adjournment could be granted. However, the exercise of that power is restricted to exceptional circumstances and cannot be exercised in such a way as would frustrate the statutory purpose of the Act.
33. The argument concludes that the combined effect of these restrictions is protective. They are designed to balance the rights of affected persons by giving them adequate opportunity to show reason why an order should not be made, with the interest of the public by ensuring that no adjournment causes undue delay in the proceedings; and, it is submitted, it was precisely such a balancing exercise that the court carried out on 25th February.
34. Turning finally to ground four, it is argued on behalf of the Commissioner that the magistrates on 9th March had power to grant a further adjournment under section 54 only if there were exceptional circumstances. In all the circumstances, and on the particular facts here, it could not be argued that the decision to refuse a further adjournment was one that was Wednesbury unreasonable. Finally, the interested party argues, in considering whether or not to exercise its discretion, to grant a remedy in these proceedings the court is entitled to have regard to any material prejudice that the claimant has suffered. It is argued that he has suffered none over and above the making of a closure order, the merits of which have not been challenged.
35. I am not persuaded that this court should interfere with the decisions of the magistrates in this case on any of the argued grounds. On grounds two and three, first, the argument has proceeded on too narrow a construction of Mitting's J phrase "in exceptional circumstances". First, as the interested party points out, citing R v the Home Secretary, ex-parte Swati, Court of Appeal [1986] 1 WLR 477, page 485: CHECKED.

"By definition, exceptional circumstances defy definition."

Although exceptional circumstances will often be rare ones, the primary meaning of exceptional is not 'rare' or 'infrequent', and I have no doubt that Mitting's phrase "exceptional circumstances" encompasses and should be taken to encompass, circumstances, however frequent or infrequent, that are so compelling as to make them a clear exception to the general section 2(6) rule, that is, literally, to take them outside its ambit.

36. It was the view of Mitting J in Hooper that in proceedings under section 2 of the Act the section 54 power should be exercised only when no other way is available to avoid a breach of a person's Convention rights. Whether or not that be the case, I am in no doubt that on 25th February the magistrate was faced with circumstances sufficiently compelling as to make them exceptional. He had been told, and had accepted, that the claimant had mental problems and that he was not legally represented and that he stood in need of legal representation. He concluded that Articles 6 and 8 were engaged. Balancing the requirement of the Act for expedition against the engagement of the claimant's rights under those Articles, he concluded that a further adjournment was justified.
37. He had the power to do so under section 54, and it is nothing to the point that his mind was not directed to that power at the time, or that he misdirected himself, as he did, as to the meaning of section 2(6) of the 2003 Act. In so far as it is relevant, the claimant's reference to the words of the Parliamentary- under-Secretary in committee, on 6th May 2003, take the matter no further. Mr Ainsworth was explaining there one set of circumstances in which an adjournment of up to 14 days would be justified. He was not, as I read it, attempting to foresee or define every such set of circumstances, nor was he seeking to put the court in a position where, faced with circumstances such as these, it would be obliged either to ride roughshod over a defendant's rights, or to frustrate the purposes of the very Act that he was seeking to promote.
38. I conclude that there is no merit in this ground, nor for the same reasons in ground three to which it is so closely linked. There was no reason in law why the Justices should stay the proceedings on 9th March 2005. What the district judge had decided on 25th February was not in fact ultra vires.
39. The claimant's fouth ground requires a detailed examination of the facts and the history, it being the claimant's case that no reasonable tribunal could have determined the issue of the application for an adjournment, as the magistrates did by refusing it. First, the warrant for the closure notice was executed by Police Constable Malone on evening of 9th February. The claimant was told then that there would be a hearing at the Highbury Magistrates' Court on 11th February and that the file of evidence on which the prosecution was relying was there and then available for collection at the police station, which was about 500 metres away. So from the very beginning the file was available.
40. Secondly, on 11th February the claimant did not himself attend court but his then solicitor, a Mr Babar, did. He stated that he had received no disclosure and would like the case to be adjourned so that he could examine the evidence. The file of evidence was given to him there and then, as nobody had picked it up from the police station in the preceding 48 hours. Therefore the evidence was in the hands of the defence, generically speaking, from the afternoon of 11th February. On 25th February, again the claimant did not appear but his brother, who had clearly been contacted by him, explained to the court that the claimant had dismissed his solicitor, for reasons which were not explained and that his former solicitors still had the file. Police Constable Malone then gave his mobile number to the claimant's brother and told him that a file was ready to be picked up by the claimant or his solicitor from the police station at any time.
41. My understanding is that the claimant's brother on that same day, 25th February, made contact with those who thereafter came to represent the claimant and who represent him today. Several days passed, but on 4th March Police Constable Malone received a call from the claimant's new solicitors. They said that they had not received disclosure and were told by PC Malone that disclosure had been made to Mr Babar and that a spare file was available at the police station for collection. The claimant's new solicitors were then given the telephone number of a Police Constable Rider who had custody of the file. No contact was made with Police Constable Rider during the five days that followed.
42. On 9th March, the claimant's new solicitors, through counsel, first applied that the case be quashed as having exceeded the 14 day adjournment and then asked for a further adjournment as they had only that day received the file from Mr Babar. In this context the court has considered the statement, dated 4th October of this year, of Mr Cuddihee, a trainee solicitor of Kaim Todner, solicitors now acting for the claimant. He agrees that he was told by Police Constable Malone on 4th March that the papers were available for collection at the police station. However he decided not to collect them as delivery by DX would be more convenient. He therefore contacted the claimant's former solicitors who agreed to put them in the DX in the hope that they would arrive by 7th March. The wrong DX address was then used causing two days of further delay with the result that they did not arrive until the morning of 9th March, still some hours before the hearing, but not a sufficient time it is submitted for the taking of instructions.
43. During all of this time, since 4th March, a file had been available at the police station for collection by those now representing the claimant. It follows from the above recital (a) that the papers were available for collection by the claimant himself from 9th February; (b) that they were in the hands of his solicitors then acting for him on 11th February; (c) that the claimant, for whatever reason, chose to part company with those solicitors; (d) that his new solicitors, who had been contacted on 25th February on his behalf, were on notice from 4th March, at the latest, that a spare copy of the papers was available at the police station for collection by them; (e) that they chose, for reasons of convenience, not to collect them; and (f) that they finally received the papers from the former solicitors on the morning of the hearing.
44. It is not entirely clear to what extent the magistrates, on 9th March, were made aware of this chain of events, but I am in no doubt that if they had been they would have had every justification in refusing the application for a further adjournment which has now been sought. The claimant's new solicitors knew the history. The papers were available to them at latest for several days before the hearing and, in my judgment, whatever difficulties they confronted there was no proper excuse for their arriving at the court unarmed and unprepared. Balancing the requirements of the Act, and the rights of protected persons under the Act, against the rights and interests of the claimant, I have no doubt that it was reasonable for the magistrates to refuse the adjournment and to proceed with the hearing. I would dismiss this application on all the argued grounds.
45. LORD JUSTICE KEENE: I agree. Neither party seeks to suggest that section 2(6) of the 2003 Act is exhaustive of the powers of the Magistrates' Court to grant an adjournment and, for my part, I accept that the more general powers of the court under section 54 of the Magistrates' Courts Act co-exist with those under section 2(6). It may be, as Mr Madden argues, that the specific power in section 2(6) was intended mainly to enable the persons identified therein to raise arguments under section 2(3)(c) to the effect that a closure order was unnecessary, despite the criteria in paragraphs (a) and (b) of section 2(3) having been met, but the words of section 2(6) do not confine its scope to such situations.
46. In any event, the more important issue is how the Magistrates' Court should approach the question of the exercise of its more general powers of adjournment. It seems to me that the proper approach is embodied in the passage of the judgment of Moses J, as he then was, in R v Dudley Magistrates' Court, ex-parte Hollis case, already referred to by my Lord. Consequently when a closure order is being sought under the 2003 Act the Magistrates' Court must remember that Parliament has clearly intended that such proceedings are to be dealt with as a matter of urgency. The reasons for that are obvious and lie in Parliament's intention. The impact of premises being used in connection with Class A drugs and causing disorder, or serious nuisance to others, should be removed without delay. Such an effect upon neighbours or other members of the public should not be allowed to persist as a result of prolonged court proceedings. Nonetheless, there will be occasions when a fair trial necessitates an adjournment in the way described by Mitting J in ex-parte Hooper. The court may exercise its general powers under section 54 to grant an adjournment in such a case if it is satisfied that the need for such an adjournment, in the interests of justice, overrides Parliament's intention that the proceedings should be concluded speedily. That seems to me to embody what Mitting J was saying about Article 6 and a fair trial, although, like my Lord, I would not myself seek to use the phrase "exceptional circumstances".
47. On that basis the Magistrates' Court, in the present case, was entitled to grant the adjournment which it did, on 25th February 2005, a decision which forms the basis of two of the grounds of challenge raised today. The circumstances then were that the claimant was without legal advice and only 14 days had passed since the application for a closure order had been made. A further brief adjournment was not unlawful. However, like my Lord, I am wholly unpersuaded that the magistrates, on 9th March 2005, wrongly exercised their discretion by refusing a further adjournment. By then a whole month had passed since the closure notice had been served. It was becoming urgent that the application for a closure order be dealt with.
48. According to the witness statement of PC Malone, the claimant had been told, when the closure notice was served, that he could pick up the evidential file at any time at Kentish Town police station. The police file had also been made available to the claimant's original solicitors at the first hearing on 11th February. The claimant's brother was told at the second hearing that the file could be picked up at the police station. The claimant's new solicitors knew five days before the third hearing that they could obtain a copy of the file from the Kentish Town police station. There is no suggestion in the evidence that they ever tried to adopt that course of action, even when on Monday 7th March the file had not arrived from the previous solicitors.
49. The same situation persisted on the Tuesday, the day before the hearing. Even then no steps were taken to get the file from the police. Furthermore, the hearing on 9th March was in the afternoon. The claimant's new solicitors had received the file from the previous solicitors that morning and counsel was then granted an additional half hour adjournment that afternoon. When seen in the context, which I have described, that was a proper decision by the magistrates. Certainly the decision to refuse an adjournment cannot be characterised as one to which no reasonable bench could have come. It was within the range of permissible decisions in the exercise of their undoubted discretion.
50. I too, therefore, would dismiss this application for judicial review.
51. Are there any further applications?
52. MR MADDEN: There are no further applications made on behalf of the claimant. My Lord, it does raise the issue of the order itself. We are outside the three-month period when the original order was made. I am lost as to where that leaves us.
53. LORD JUSTICE KEENE: You are seeking to challenge, by way of judicial review, the order that was made by the Magistrates' Court ultimately on the substance of this matter, and they made a closure order, as I understand?
54. MR MADDEN: For a period of three months.
55. LORD JUSTICE KEENE: Yes, there was then a stay of that order. So are you concerned about whether the order now runs afresh?
56. MR MADDEN: Given that order was made, yes, certainly. If that order starts afresh, given that the original order was from that date for a period of three months, or whether it is a matter that the magistrates should perhaps consider and consider at this point because, of course, one of the criteria must be whether it is necessary -- it may well have been necessary then but whether it is necessary now for the three months order to run from now is an issue on whether that is a matter to be best determined by the magistrates for referral .
57. LORD JUSTICE KEENE: What do you want to say on behalf of the police, Miss Ballard?
58. MISS BALLARD: I would say as follows: the stay should be lifted, the closure order should be put in place and that otherwise would frustrate the statutory purpose of the Act. The Act itself states that a closure order should not have effect for more than three months initially and then it can be extended for a further period. This closure order has not had an opportunity to have effect.
59. MR MADDEN: As to the question of whether it is necessary now, there is evidence that has been collated that can be put before this court that the serious nuisance disorder that initially required the order to be made still continues.
60. LORD JUSTICE KEENE: We are not going to be hearing that sort of substantive evidence.
61. MISS BALLARD: I recognise that fact. That is why I did not put it before you. To indicate if there are any concerns about necessity, there are none. The most important points that I make are the first two: first, to hold that the matter should be remitted back to the magistrates court is frustrating the statutory purpose and second, the stay should be lifted and a closing order should be put into effect.
62. LORD JUSTICE KEENE: Yes, Mr Madden?
63. MR MADDEN: I accept your Lordship's ruling as to the decision of the magistrates on that occasion. The criterion is whether it is a decision any reasonable magistrate can make. The decision, at this point, is where we go from here. In my submission it is a test which is more appropriate for your Lordships in (inaudible) decision that is in the interest of the justice. My learned friend say arguably says this further evidence, but I have not seen it, I would submit that the appropriate forum for that would be if your Lordships remitted this to the magistrates. We notice the timescales. It can be arranged very quickly presumably by the end of this week or next week. The evidence that is necessary now to put an order in can be looked at.
64. LORD JUSTICE KEENE: We are quite unpersuaded by the claimant's submissions. The stay on the closure order which was imposed, pending these proceedings, is lifted, the closure order will take effect. There is nothing in the statutory provisions which prevents it from doing so because the three-month period, during which it has effect, has not expired. Any other course of action would enable a party to frustrate the purpose of the Act by beginning proceedings of this kind and then obtaining a stay until they were determined. Consequently, in addition to refusing the application for judicial review we simply lift the stay on the closure order. Any other application?
65. MISS BALLARD: There is the application for costs in this matter on the basis that those representing the interested party have succeeded, in essence, on the grounds they have put forward in opposition for this claim for judicial review.
66. MR MADDEN: Yes, my Lord, in this case the applicant is legally aided.
67. LORD JUSTICE KEENE: What do we want? Is it the usual football pools order not to be enforced without leave of the court?
68. MR MADDEN: That still is the appropriate order in cases of this kind. I may be out of date.
69. LORD JUSTICE KEENE: We make an order that the claimant do pay the interested party's costs, such an order not to be enforced without the leave of this court.
70. MR MADDEN: May I apply for the legal representative's costs?
71. LORD JUSTICE KEENE: You are entitled to an order to that effect.