England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		16th February 2005

1. MR JUSTICE MITTING: This is an appeal by case stated against two decisions of the Thames Magistrates' Court to adjourn proceedings brought under section 2 of the Anti-social Behaviour Act 2003 made on 7th July to adjourn proceedings to the 15th, and on 15th July to adjourn them to 12th August.
2. At first sight, it may appear surprising that decisions of a magistrates' court to adjourn proceedings could give rise to an appeal by case stated, but, as the circumstances demonstrate, this appeal raises questions of statutory construction and magistrates courts' practice of general importance.
3. The facts can be shortly stated. On 29th June 2004 a police officer issued a closure notice under section 1 of the 2003 Act in respect of 18 Groveley House, Woodberry Down Estate, London N4. The closure notice was, it seems, affixed on the premises in the way required by section 1 and served on the tenant, Karen Hooper. On 30th June 2004 a police officer applied to the magistrates' court for a closure order under section 2 of the Act. Miss Hooper indicated that she wanted to oppose the application and obtain legal advice and representation. The magistrates adjourned the hearing, purportedly under section 2(6), to enable her to do so until 7th July. The magistrates commenced the hearing proper on 7th July. What happened then is set out in the case:

"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."

4. What happened at and after that hearing is set out in paragraphs 10 to 14 of the case:

"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."

5. On 12th August the magistrates' court dismissed the application "for want of prosecution". That decision is not in issue in this appeal.
6. The questions posed by the magistrates are as follows:

"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."

7. To answer those questions it is necessary to examine the statutory scheme. Section 1 of the 2003 Act provides, relevantly:

"(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.

8. Section 2 relevantly provides:

"(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."

9. The main difference between a closure notice and a closure order is that the notice applies only to non-residents and the order applies to all and can be enforced by entry and by the securing of premises by a police officer: see section 3(2).
10. The order clearly has a significant effect on the occupier, especially on a residential occupier. It will result in his or her exclusion for three months, or six months if the order is extended under section 5, from his or her home.
11. Section 4(1) provides:

"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.

12. It is, first of all, necessary to consider into what domestic and Convention category proceedings brought under section 2 fit. In the case of closely analogous orders under then section 1 of the Crime and Disorder Act 1998, the House of Lords categorised the proceedings as clearly civil, R (on the application of) McCann and others) v Crown Court at Manchester [2003] 1 AC 787, citing the observations of Lord Bingham of Cornhill, Lord Chief Justice, in Customs and Excise Commissioners v City of London Magistrates' Court [2000] 1 WLR 2025:

"'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.

13. Mr Madden submits that the circumstances are not truly comparable because the effect of proceedings under section 2 is to deprive a residential occupier of his or her home for a significant period. Consequently, he submits that the effects of the order are more draconian than those of the orders considered by the House of Lords in McCann.
14. I disagree. The proceedings do not under domestic law involve any formal accusation made by the state of the commission by the person affected of a criminal offence, nor do they culminate in the conviction and condemnation of the defendant. Categorisation in domestic law is not of course conclusive, but it is one indicator as to the way in which the proceedings may be categorised in Convention law.
15. Many categories of proceeding can result in the deprivation by a person of the right to occupy their home. A closely analogous provision is possession proceedings brought by a local authority against a tenant on the ground that he has committed acts of nuisance against his neighbours. Some of the elements indeed are common to both proceedings under the 2003 Act and to such proceedings. It would be absurd to suggest that possession proceedings brought on those grounds were criminal because they resulted in the deprivation, be it said for more than three months, of the right to occupy the home of the affected tenant.
16. I have no doubt at all that these proceedings are truly categorised as civil. Save for possibly different avenues of appeal, the categorisation makes no practical difference because it is perfectly clear that Article 8 is engaged insofar as the making of a closure order deprives a person of his right to occupy his home; Article 1 of the First Protocol is engaged insofar as it deprives a person of his possessions; and Article 6 is engaged because the proceedings, whether civil or criminal, are subject to Article 6. In my view, they are subject to Article 6 because the proceedings determine the civil rights of the occupier: his or her right to occupy premises for three to six months. The Act must, therefore, be read, so far as is possible, in a way which is compatible with those rights: section 3(1) of the Human Rights Act 1998.
17. Most of the debate that has occurred before me concerns the construction of sections 1 and 2, and in particular of section 2(6). Miss Watson submits that it provides a self-contained statutory code governing the length of time during which, save in exceptional circumstances, the magistrates must decide whether or not to make a closure order. Mr Madden submits that it is simply an additional right for the categories of people specified in subsection (6) to show why a closure order should not be made when otherwise it would be, in particular on the ground that the person applying can show that the making of the order is not necessary to prevent the occurrence of disorder or serious nuisance for the period to be specified in the order.
18. In my view, the interpretation of the statutory provisions is plain. Once a closure notice has been served, it must be "heard", in other words determined, within 48 hours by a magistrates' court, but the persons whose rights will be affected by the making of such an order must be given adequate opportunity to assert those rights by contending that the order should not be made. That must, however, be done with sufficient speed so as not to defeat the beneficial object of the statute: to procure the closure of what can colloquially be referred to as "disorderly crack houses" and to protect the neighbours of such premises from the severe nuisance caused by them. That purpose is achieved by section 2(6). The persons there specified have the right to ask the magistrates' court to adjourn proceedings for a limited period, 14 days, to show why the order should not be made. That can be on any of the grounds specified in section 2(3); that is to say, that the premises have not been used in connection with the unlawful use, production or supply of a Class A drug, that the use of the premises has not been associated with the occurrence of disorder or serious nuisance to members of the public, and that the making of the order is not necessary to prevent the occurrence of such disorder or serious nuisance in the period specified in the order.
19. Thus, in the ordinary case, whether or not a closure order should be made will be determined within 16 days, at most, of the service of the closure notice. However, the 2003 Act does not expressly exclude the operation of section 54 of the Magistrates' Courts Act 1980, or, I add, if I am wrong in my categorisation of the proceedings as civil, section 10 of the same Act. Section 54 provides:

"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."

20. In certain exceptional circumstances it may be necessary that that power to adjourn should be available over and above the express statutory power in section 2(6). Therefore, to achieve a construction of sections 1 and 2 compatible with the Convention, it is, in my view, necessary to rule that section 54 is not impliedly excluded by those provisions. Indeed, Miss Watson does not contend that it is.
21. I am not, however, satisfied, as the justices were advised, that they had an inherent non-statutory power to adjourn. I share the doubts expressed by the Court of Appeal in R (on the application of Mathialagan) v London Borough of Southwark [2004] EWCA Civ 1689 that a magistrates' court has any inherent powers other than the power to stay for abuse of its process. The statutory power, in my view, alone suffices and it is not in fact necessary to consider whether or not it is supplemented in identical terms and circumstances by an inherent power.
22. This case raises two questions of general importance. First, in what circumstances should the power under section 54 to adjourn be exercised? Secondly, to what factors should the magistrates' court have regard in exercising that power?
23. It is clear that the power must not be exercised so as to frustrate the statutory purpose. I gratefully adopt and repeat the observation of Moses J in R v Dudley Magistrates' Court ex parte Hollis [1999] 1 WLR 1999 642 at 660E:

"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.

24. When considering whether or not to exercise their power under section 54, the magistrates should have in mind the possibility of adjourning the case to another bench if, as here, due to the lack of availability of one or more magistrates, it was not possible to continue within the time frame envisaged by the statute or within a shorter time frame than that which would apply if the original magistrates were to continue the hearing. That the court has that power under sections 10 and 54 is made plain in two reported decisions of this court: first, R v Ripon Liberty Justices ex parte Bugg 155 JPL 213 and, second, R v Birmingham Magistrates' Court ex parte Shields 158 JPL 845.
25. In a nutshell, the court must always have in mind that it should exercise its powers consistently with the Convention rights of affected persons, but also consistently with the statutory purpose which I have identified.
26. The answer to the questions posed by the magistrates is as follows. As to question 1, the court had the power to adjourn under section 2(6) once or more than once, but not so as to extend the period of adjournment beyond 14 days after the application for a closure order was made. The answer to question 2 is: "Yes, the court did act outside its powers under the 2003 Act, not because it adjourned the application for a second time, but because it did so to a date more than 14 days after the application for a closure order was made". The answer to question 3(i) is that it is not necessary to answer that question because the court has a statutory power under section 54. The answer to question 3(ii) is that the court did not take into account relevant factors so that its decision is flawed.
27. I turn now and finally to an argument advanced by Mr Madden to the effect that I should have regard to Parliamentary material in construing section 2(6). The circumstances in which I could do so are unequivocally set out in the speech of Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593 at 634D-E:

"... 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."

28. I do not find these provisions obscure or ambiguous, nor do I find, on the construction which I have applied to them, that they lead to any absurdity. For that reason, it would not be right for me to turn to Parliamentary material as an aid to construction. I have in fact looked at what the Minister of State said in committee when this bill was under consideration. Having done so, I am bound to say that I do not find the statements of the Minister unequivocally helpful in determining what is the true construction of the Act. I need not set out his words in detail. The overall emphasis of them is that speed was regarded by the promoting Ministry as paramount in pursuing these proceedings. It may well be that in the construction that I have adopted the speed with which magistrates are to determine whether or not to make these orders is not quite as fast as that which the Minister might have wished, but because, in any event, I am satisfied that the meaning of the legislation is plain, I need not further consider his words.
29. I will now hear counsel on the relief, if any, which flows from my decision.
30. MISS WATSON: My Lord, in my submission, you are being asked today to make a declaration, and that is as far as matters go. The decision that you make today does not affect, as far as I am aware, Miss Hooper, who was the tenant. It will be, I hope, of assistance in magistrates' courts in future applications.
31. MR JUSTICE MITTING: Yes. I suspect it is the reasoning rather than an extended declaration that will assist it. I hope the reasoning is expressed with sufficient clarity, but what, if anything, do you want me to say by way of declaration?
32. MISS WATSON: My Lord, I believe that in answering the questions the declaration has been given. I do not ask you to do any more than you have done.
33. MR JUSTICE MITTING: Then I shall content myself with the answers that I have given.
34. Mr Madden?
35. MR MADDEN: My Lord, I have no observations as to the relief requested. Clearly, I have nothing to say as to that.
36. My Lord, I make just one submission to your Lordship. Clearly, under the Convention your Lordship has done so, has given clear reasons for your Lordship's judgment. I raise the concern in respect of only one matter, where I would submit that insufficient reasons have been given and they may be important. Your Lordship has said that you find the court did not take into account relevant factors and, my Lord, I simply ask under the Convention that your Lordship list the reasons why your Lordship has found that as a fact, but I am in your Lordship's hands. There appears in the judgment no reason why your Lordship has found that they did not take into account relevant factors.
37. MR JUSTICE MITTING: Well, I thought that was perfectly plain from the reasoning. They did not expressly refer to the lack of power under section 2(7) if they were adjourning, as they thought, under inherent powers. They did not expressly refer to the Parliamentary purpose behind this legislation, and they did not consider the option of adjourning to another bench with a view to the matter being determined either within 14 days or very soon thereafter.
38. MR MADDEN: My Lord, I have your reasons. Thank you.
39. MR JUSTICE MITTING: I ought perhaps to have said, and if required to amend the judgment will say, that no criticism can be made of the decision of the magistrates on 15th July to adjourn the proceedings in the interests of both justice and of the need to protect the tenant's Convention rights by reason of her incapacity, and I am happy to make that clear.
40. MR MADDEN: My Lord, thank you.
41. The only remaining application is for an order that costs be paid by public funds subject to taxation, a representation order is in place.
42. MR JUSTICE MITTING: There is a representation order in place. What you want is a detailed public funding assessment of Miss Hooper's costs.
43. MR MADDEN: My Lord, yes.
44. MR JUSTICE MITTING: You have that.
45. MR MADDEN: My Lord, I am grateful.