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
		7th April 2006

1. LORD JUSTICE MAURICE KAY: This is an appeal by way of case stated from a decision of the Crown Court in Liverpool. The matter comes before this court at an interlocutory stage. We are reminded by counsel that the hearing of appeals by way of case stated in interlocutory matters is something which should take place on a sparing basis. However, nobody is discouraging us from hearing this appeal. Quite the contrary. The reason is that it does raise an important point of general application in relation to closure orders made under the Anti-Social Behaviour Act 2003.
2. The background to the case, factually, is that such an order has been made in relation to premises in St Helens occupied by the respondent, Michelle Harrison. It was made on 5th November 2004 for a period of three months. It therefore expired on 4th February 2005. Miss Harrison appealed to the Crown Court and that resulted in the ruling on a preliminary point which has given rise to the present appeal. The immediate consequences of this appeal for Miss Harrison are probably now extremely limited. As we understand it, she has been back in the premises for a significant period of time. However, the matter, as I have said, has some general importance and we now proceed to deal with it.
3. Closure orders under the 2003 Act are dealt with in Part I of the Act under the heading "Premises where drugs used unlawfully". Section 1 empowers a police officer to issue a closure notice. He has to be of a rank not below that of superintendent and in order to issue a closure notice, he must have reasonable grounds for believing: (a) that 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. The closure notice has to state that an application will be made under section 2 for the closure of the premises. The material parts of section 2 read as follows:

"(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 168.

(3) The Magistrates' Court may make the 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."

5. There is provision in section 2(6) for the adjournment of the hearing on application for a period of not more than 14 days, to enable the occupier of the premises or the person who has control of or responsibility of the premises, or any other person with an interest in the premises, to show why a closure order should not be made. There is also provision for the extension of a closure order for a further period of 3 months, but for no further extension beyond that.
6. Once a closure order has been made, by section 4 a person commits an offence if he remains on or enters premises in contravention of a closure notice. A person guilty of an offence under section 4 is liable, on summary conviction, to imprisonment for a period not exceeding 6 months or to a fine not exceeding Level 5 on the standards scale. It is, in other words, a summary offence.
7. The questions that are posed for this court relate to the standard of proof to be applied by the Magistrates' Court when considering the making of a closure order. It is common ground that as to the three criteria set out in section 2(3), the first two attract a standard of proof but the third (the question of whether the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance) is a matter not of standard of proof but of evaluation and judgment. Accordingly, we confine our consideration to section 2(3)(a) and (b).
8. It is common ground that proceedings under section 2 are civil proceedings. The Crown Court came to the conclusion that, nevertheless, they are civil proceedings which exceptionally attract the criminal standard of proof. In that regard, there is recent authority for such a proposition in an area that bears some similarity, namely the making of Anti-Social Behaviour Orders which were considered by the House of Lords in the case of McCann [2002] UKHL 39. Anti-Social Behaviour Orders are made under the Crime and Disorder Act 1998. In McCann, the House of Lords concluded that an application for an Anti-Social Behaviour Order is an application made in civil rather than criminal proceedings but that, exceptionally, the standard of proof is the criminal standard. In paragraph 37 of his speech, Lord Steyne said:

"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary . . . In my view, pragmatism dictates that the task of Magistrates' should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."

It is apparent that his Lordship took the view that that conclusion was based on considerations of pragmatism relevant to Anti-Social Behaviour Orders. Lord Hope of Craighead said this at paragraph 82:

"But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think there are good reasons in the interests of fairness for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made."

In paragraph 83 he added:

"The condition in section 11(a) that the defendant has acted in an anti-social manner raises serious questions of fact and the implications from him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."

9. As Mr Horne on behalf of the Chief Constable rightly observes, there are therefore two strands of rationale in McCann: one based on pragmatism, the other based on principle. They seem both to form part of the ratio of the case.
10. The question that we have to consider is whether the application of the criminal standard to Anti-Social Behaviour Orders should lead to a similar conclusion in relation to closure orders under the later Act. Mr Horne submits that there should be no such consequence and that, for a number of reasons, the appropriate standard of proof in relation to closure orders should remain the civil standard, namely the balance of probabilities. In that regard, he also refers to the flexibility of that standard varying with the seriousness of the allegation, and he draws our attention to the recent decision of the Court of Appeal Civil Division in R (on the application of AN) v Mental Health Tribunal (Northern Region) [2005] EWCA Civ 1605 where Richards LJ giving the judgment of the court said this at paragraph 62:

"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus, the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved, such that a more serious allegation has to be proved to a higher degree of probability, but in the strength or quality of the evidence that will, in practice, be required for an allegation to be proved on the balance of probabilities."

That is a formulation which will serve all future courts well when they have to consider the question of the civil standard of proof and its application.

11. I turn, therefore, to the matters which Mr Horne (supported by Mr Otty who intervenes on behalf of the Secretary of State) identifies as justifying a different conclusion for closure orders from that which was reached in relation to Anti-Social Behaviour Orders in McCann. It is submitted that closure orders are less serious than Anti-Social Behaviour Orders. In particular, they do not in terms contain any allegation or finding against any named individual. They are orders requiring the closure of the property. They are of far shorter duration. Whereas a closure order is for a maximum of 3 months, subject to one extension of that period, an Anti-Social Behaviour Order must be for a minimum of 2 years and can endure for substantially longer periods. The Anti-Social Behaviour Order is directed against an individual and specifically restricts the liberty of that individual. There is also a significant difference in the penalty for breaches of the two types of order. Whereas a breach of an Anti-Social Behaviour Order can result in imprisonment for up to 5 years, the penalty for breach of a closure order is a maximum of 6 months' imprisonment in summary proceedings.
12. Mr Horne acknowledges that as a result of a closure order, one or more people may be deprived of their home for a period of time and he acknowledges the potential seriousness of that for those persons. However, he submits, there is nothing unique in civil proceedings about the deprivation of a home. It may happen to a tenant as a result of a possession order being made in the County Court, it may happen as a result of an exclusion order being made under section 96 of the Housing Act, or it may result from an occupation order under the Family Law Act of 1996. These are all proceedings with potentially serious consequences for people residing in property resulting in the immediate or almost immediate exclusion from the property. Nevertheless, they attract the civil standard of proof.
13. In addition to those matters, he also refers to the potentially inhibiting effect of imposing a higher standard of proof so far as those entrusted with the enforcement of this Act are concerned. Mr Otty also refers to the fact that the impact of a closure order is mitigated in various ways. First, the closure order is preceded by a closure notice which, whilst initially for a period of 48 hours, may become a rather longer period as a result of the adjournments that are sanctioned by the statute. Secondly, he says that the making of an order is likely to be in the interests not only of the locality, but very often of vulnerable residents in the very property the subject of the order.
14. In addition to the factors to which I have referred thus far, we are also invited, quite appropriately, to have regard to the intention of Parliament in enacting this legislation. One does not have to investigate Hansard or any extraneous material to be persuaded that the Act was brought into being, and the concept of the closure order was enacted, in response to a serious social problem which cannot be resolved simply by the enforcement of the criminal law against individuals committing criminal offences. At its highest, the target of this particular piece of legislation is the sort of premises sometimes referred to as "crack houses", where a sometimes transient household uses the premises in a way which facilitates the furtherance of the drug trade and causes great nuisance to people in the immediate locality. It is well known that, in those circumstances, the criminal law is simply not adequate to bring the problem to an end by the prosecution of one or two individuals for specific offences. This much is obvious from the very concept of the closure order.
15. We are invited (and no-one is seeking to prevent us) to look at a report in Hansard relating to the passage of the Bill in Parliament on 6th May 2003. The junior Minister who was responsible for taking the bill through this particular passage of its process through Parliament, Mr Ainsley, was asked specifically about proof of the matters which have to be proved so as to make a closure notice and a closure order in due course. He said this:

"They are concerned to ensure that we have not set the barrier too high and that we are not rendering the powers difficult to use . . . When we say 'satisfied' we mean that the court needs to be satisfied with regard to Class A drugs. That might not be as straightforward as he might think, but we are talking about the balance of probability and not proof beyond all reasonable doubt."

A little later he makes similar observations to like effect.

16. As the statute is silent on the question of standard of proof, it is submitted that we should seek assistance from Hansard, particularly where there is a ministerial statement in such an unequivocal form, using our power so to do as set out in Pepper v Hart [1993] AC 593. In our view, that is an appropriate resort to Hansard in the circumstances of this case. It merits two observations. Not only is the statement unequivocal as to the intention behind the Bill; it is a factor which arises for our consideration which was not present in the different circumstances in relation to Anti-Social Behaviour Orders in McCann. The main difference between Anti-Social Behaviour Orders and closure orders is that they are different concepts with different consequences and, reverting in particular to what Lord Hope said in McCann, there is far greater direction of an allegation against an individual in an Anti-Social Behaviour Order than there is when making a closure order in respect of a specific property without any allegation against a particular named person.
17. In McCann, counsel appearing for the Secretary of State submitted to the House of Lords that the Secretary of State's preference was for a civil standard of proof, but he was not doing so by reference to ministerial statements which were made during the passage of the bill through Parliament. There was no such material before the House of Lords in McCann. In the present case, dealing with the very different concepts, notwithstanding superficial similarity, there is specific Parliamentary assistance that can and should be taken into account.
18. It seems that some debate took place in the Crown Court as to the extent to which submissions of counsel on behalf of the Secretary of State in McCann might assist in the construction of the legislation in relation to closure orders. It also seems that the judge did derive some such assistance when concluding that the appropriate standard was the criminal standard. In my judgment, that provides no assistance in relation to closure orders. What counsel was submitting was based on a ministerial preference, about which he had current instructions, subsequent to the passing of the legislation. What we have in the present case is a clear ministerial statement made to Parliament in the course of the enactment of the legislation. What is more, counsel in McCann was, of course, dealing with a different Act, the Crime and Disorder Act, and not with the Anti-Social Behaviour Act.
19. In my judgment, the several submissions made by Mr Horne and Mr Otty about the difference between closure orders and Anti-Social Behaviour Orders are irresistible. There are clear differences and, for my part, I accept that the points are well made. In seeking to persuade us to the contrary, Mr Stewart refers to a number of matters. He observes, correctly, that there may be cases in which a closure order is applied for at the same time as an Anti-Social Behaviour Order and this would have the result of the Magistrates having to apply different standards of proof to the two applications. Whilst he is correct in that analysis, in my judgment that will not provide an insuperable difficulty to Magistrates' Courts. They are well used to dealing with cases in which sometimes the burden or standard of proof varies within a single hearing. For example, as between what the prosecution have to prove in a trading standards prosecution and what a defendant may seek to establish by way of due diligence on a balance of probabilities. There are numerous other examples as well.
20. Mr Stewart also seeks to emphasise that the making of a closure order can have profound consequences for individuals, some of whom are indeed vulnerable individuals. It is a matter of interest that when the government contemplated this legislation and referred to its intentions in a White Paper, they had vulnerable people very much in mind. The White Paper, under the sub-heading "Crack houses", says this at paragraph 3.13:

"We have to close down these properties from which drug dealers operate or new dealers will simply move in. These dealers are sophisticated and devious in their methods. They can prey on vulnerable people, compelling them to give over their property whilst they deal and use drugs and intimidate both the residents and neighbours, sometimes making them too frightened to speak out for fear of retribution."

21. There undoubtedly are vulnerable people who will be displaced by closure orders. They are not without a degree of legal protection to the extent that they are displaced. They may, by reason of their vulnerability and family circumstances, fall within the category of priority need under the Housing Act when they become homeless, and they may be able to show that they did not become homeless intentionally. Moreover, even within the hearing of an application for a closure order, a resident will be able to invoke protection from Article 8 of the European Convention on Human Rights and Fundamental Freedoms. True it is that in the majority of cases, one would imagine, on appropriate evidence the applicant will be able to establish that the making of the closure order is proportionate and justified in the circumstances. But there is a point of protection which will require to be addressed. In addition, as Mr Otty has shown us, there are protocols in place dealing with the treatment of the vulnerable in these circumstances. No doubt difficulties will remain. No doubt there will be cases in which some people who have done nothing wrong themselves will be displaced and will, at least for a period of time, suffer some hardship. But that simply is the consequence of this legislation.
22. As a consequence, in my judgment, it is significantly less adverse to the interests of individuals than is the making of an Anti-Social Behaviour Order. For all the reasons to which I referred earlier in this judgment, I come to the conclusion that the appropriate standard of proof in relation to closure orders is the civil standard of proof.
23. I remind myself that the form in which I am coming to that conclusion is within an appeal by way of case stated. The case stated poses three questions. It is common ground between counsel that the important question is the third one, namely: "What is the standard of proof to be applied to paragraphs (a) and (b) of section 2(3) of the Anti-Social Behaviour Act 2003?" My answer to that is that it is the civil standard of proof, namely a balance of probabilities.
24. As I understand it, there is no dispute about the two earlier questions which relate to the use of Hansard and to reliance upon submissions made by counsel for the Secretary of State in McCann as evidence of how Parliament intended the statute to be interpreted. As I have indicated, I consider that resort to Hansard is appropriate in the present case. As I have also indicated, my answer to the question: "Is a court permitted to rely on the submissions made by counsel for the Secretary of State (in McCann) as evidence of how Parliament intended that a statute could be interpreted?" is "No", particularly in circumstances where the statute, as here, is not the same statute that was the subject of counsel's submissions.
25. MR JUSTICE TUGENDHAT: I agree and have nothing to add.
26. LORD JUSTICE MAURICE KAY: Thank you all very much.
27. MR HORNE: My Lord, I do seek a consequential order which is that the case be remitted to the Crown Court. I would request that the respondent pay the appellant's costs of this appeal, not be enforced without leave of the court.
28. LORD JUSTICE MAURICE KAY: She is publicly funded presumably?
29. MR STEWARD: She is, my Lord, yes.
30. LORD JUSTICE MAURICE KAY: Is there any point in the order? Are you entitled to your costs from Central Funds in any event?
31. MR HORNE: I do not think there is a power to award costs from Central Funds.
32. LORD JUSTICE MAURICE KAY: No. It is not a criminal case.
33. MR HORNE: There is potentially some point but, as things stand, probably the respondent is not going to have the means to satisfy any order.
34. LORD JUSTICE MAURICE KAY: You have brought this as a test case because you no longer have any interest in Miss Harrison. No costs, I am afraid. I am conscious at one point when I was giving judgment I misdescribed the standard of proof in McCann. I think I said it was civil rather than criminal at one point. I will check it in the transcript. The order ought to quash the decision of the Crown Court.
35. MR HORNE: Yes.
36. LORD JUSTICE MAURICE KAY: Yes. Thank you very much.