QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE COMMISSIONER OF THE METROPOLITAN POLICE||(CLAIMANT)|
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MR J MADDEN (instructed by Kaim Todner) appeared on behalf of the DEFENDANT
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"6. We heard the testimony of a police officer and watched a video recording taken by police showing the condition of the premises. A second police witness was called and began her testimony, being evidence as to the serious nuisance or disorder said to be associated with the premises. Her evidence had not been disclosed in advance of the resumed hearing to the tenant's representative, and relevant police notebooks and operational logs had not been brought to court. The tenant's representative asked that the hearing be adjourned so that he could consider and take instructions on the evidence in question. He submitted that, without this, he was handicapped in putting his client's case.
7. On the facts of the case, we were of the view that this was so and were minded to adjourn so that the tenant's representative could consider and take instructions on the evidence in question. We were so minded because of:
(a) the need to ensure a fair trial, and
(b) the serious potential consequences to the tenant of a closure order, namely, the closure of the premises to all persons for up to three months (section 2(4) of the 2003 Act).
8. After discussion with our learned clerk, it was conceded by both parties that we had power further to adjourn the hearing.
9. We decided to grant the request for an adjournment. All three members of the bench were not able to reconvene in the near future, but two of us were able to do so on 15th July. In the circumstances, we decided that the hearing should be resumed on that date, being the earliest possible resumption date, before the two available members of the bench. Accordingly, we adjourned the hearing until 15th July 2004."
"10. On the resumed hearing on 15th July 2004, the tenant was present and legally represented. Her representative informed us that she had been the victim of a robbery during which she had received a head injury, which needed hospital treatment. The police confirmed that the incident in question had happened earlier that day.
11. We were of the view that the tenant needed to receive medical treatment. As she would be unable to participate in the hearing, we were of the view that, in all the circumstances, we should not proceed further that day. In forming this view, we had regard, amongst other factors, to:
(a) the need to ensure a fair trial, and
(b) the need to allow the tenant the opportunity to be heard in person on the issue of whether a closure order was 'necessary' within the meaning of section 2(3)(c) of the 2003 Act.
12. The earliest date upon which two members of the bench were able to reconvene was 12th August 2004.
13. There was discussion between our learned clerk, the police and the tenant's representative concerning section 2(6) of the Act [which restricts the period of adjournment of the hearing to 14 days] and our jurisdiction to adjourn. The police raised objections to a further adjournment in excess of 14 days.
14. Having taken legal advice, we were of the view that, in the exceptional circumstances of the case, we had an inherent power to adjourn to ensure fairness in the proceedings. In so concluding, we took account of the fact that section 2(6) of the 2003 Act restricts the scope of adjournments for the purpose of allowing interested parties to show cause why a closure order should not be made. However, we did not consider that the Court was prevented, in exceptional circumstances, from adjourning outside the scope of section 2(6), for instance, where magistrates are ill or unavailable, or (as in this case) a tenant is ill and unable to be heard in person on the issue of whether a closure order is necessary.
Accordingly, we adjourned the hearing until 12th August 2004 at 10.30, being the earliest possible resumption date, before the two available members of the bench."
"1. Whether, when adjourning an application for a closure order under section 2(6) of the 2003 Act, a magistrates' court has jurisdiction to adjourn more than once for up to 14 days on each occasion;
2. In the light of the answer to Question 1, whether at the hearing on 7th July 2004 we acted outside our powers under the 2003 Act:
(i) in adjourning the application for a second time
(ii) in adjourning to 15th July 2004, a date more than 14 days after the initial making of the closure application on 30th June 2004;
3(i). Whether a magistrates' court hearing an application under section 2 of the 2003 Act for a closure order has any inherent or extra-statutory jurisdiction to adjourn the proceedings for a period exceeding 14 days at any time,
(ii) and whether we came to a correct decision and determination in point of law."
"(1) This section applies to premises if a police officer not below the rank of superintendent (the authorising officer) 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...
(4) A closure notice must -
(a) give notice that an application will be made under section 2 for the closure of the premises;
(b) state that access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises is prohibited;
(c) specify the date and time when and the place at which the application will be heard;
(d) explain the effects of an order made in pursuance of section 2;
(e) state that failure to comply with the notice amounts to an offence;
(f) give information about relevant advice providers."
Subsection (6) specifies the means of service, including affixing copies to the premises and giving a copy to the occupier.
"(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).
(3) The magistrates' court may make a closure order if and only if it is satisfied that each of the following paragraphs applies -
(a) the premises in respect of which the closure notice was issued have been used in connection with the unlawful use, production or supply of a Class A controlled drug;
(b) the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public;
(c) the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order.
(4) A closure order is an order that the premises in respect of which the order is made are closed to all persons for such period (not exceeding three months) as the court decides...
(6) The magistrates' court may adjourn the hearing of 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.
(7) If the magistrates' court adjourns the hearing under subsection (6) it may order that the closure notice continues in effect until the end of the period of the adjournment."
"A person commits an offence if he remains on or enters premises in contravention of a closure notice."
There are further provisions for the commission of an offence in relation to closure orders.
"'It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.'"
Lord Steyn concluded that the proceedings were clearly civil under domestic law. Following an analysis of the Convention law on the topic, he concluded in paragraph 34 that an application for an anti-social behaviour order does not involve the determination of a criminal charge. I follow those observations in what I believe to be closely analogous circumstances.
"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."
"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 ..."
The power should only be exercised when no other way is available to avoid a breach of a relevant person's Convention rights. The factors which should be taken into account must always include the statutory purpose of closing down by a speedy procedure premises fulfilling the conditions identified in section 2(3). One factor which must always be borne in mind is that if the power to adjourn under section 54 is exercised, the express power under section 2(7) of the 2003 Act, to order that the closure notice continues in effect until the end of the period of adjournment, is not available. By exercising the power under section 54, a magistrates' court would, accordingly, deprive itself and the police of a valuable weapon to ensure that premises to which the conditions in section 2(3) apply are closed.
"... reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words."