England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2006

Lord Justice May:

1. Part 1 of the Anti-social Behaviour Act 2003 concerns premises where drugs are used unlawfully. Section 2 of the Act empowers a magistrates' court to make a closure order of such premises. As I shall indicate, the Act specifies very short time limits. This application for judicial review illustrates problems which are likely to arise under this legislation with the service of evidence, especially hearsay evidence, and disclosure of documents in the possession of the police.
2. An application for a closure order under section 2 of the Act has to be preceded by a closure notice for which section 1 makes provision. Section 1 applies if a police officer not below the rank of superintendent has reasonable grounds for believing that at any time during the preceding three months premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug; and that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. It is immaterial whether anyone has been convicted of a drug offence. The officer may then authorise the issue of a closure notice in respect of the premises. To do so he has to be satisfied that the relevant local authority has been consulted and that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has an interest in them. The authorisation for the closure notice may be given orally or in writing. It is pointed out to us that oral authorisation may, for instance, be appropriate if the execution of a search warrant produces information which establishes or confirms the officer's reasonable grounds for belief.
3. A closure notice has to give notice that an application will be made under section 2 at a specified date, time and place for a closure order of the premises. It has to explain the effect of a closure order. It has to state that access to the premises is prohibited by any person other than the owner or any person who habitually lives there. It has to state that failure to comply with the notice amounts to an offence and give information about getting advice. There are provisions for service of the notice, which include fixing it to the premises. Thus a closure notice restricts access to the premises to the owner and those who habitually live there. The notice is concerned as much with the premises as with people. The notice also serves as notice of the hearing of an application to magistrates for a closure order.
4. By section 2, if a closure notice has been issued, a constable must apply to a magistrates' court for the making of a closure order. The application must be heard by the magistrates' court not later than 48 hours after the closure notice was served. A closure order is an order that the premises are closed to all persons for such period, not exceeding 3 months, as the court decides. But the order may include provision for access. By section 5(4), the initial period may be extended by a further period not exceeding 3 months, if the court is satisfied that the extension is necessary to prevent the occurrence of disorder or serious nuisance. Section 2(3) provides:

"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."

It is again immaterial whether anyone has been convicted of a drug offence. Section 4 provides for offences. In particular, by section 4(2), a person commits an offence if he remains on or enters premises in respect of which a closure order has been made. An appeal against a closure order must be brought to the Crown Court within 21 days.

5. It is obvious that 48 hours from the service of the closure notice is a very short period. Section 2(6) provides that the magistrates' court may adjourn the hearing of the application for a period of not more than 14 days to enable those concerned to show why a closure order should not be made. If the court does adjourn the hearing, it may order that the closure notice continues in effect until the end of the adjournment. Although the parties to these proceedings agree that the court has general power to order further adjournment beyond the 14 days, there is no power to order that the closure notice should continue in effect for any such further extended period.
6. As I have said, the present judicial review application, for which Collins J gave permission, concerns the service and adequacy of evidence and disclosure. In that context, there are a number of points to note.
7. Proceedings upon an application for a closure order are civil proceedings – see Commissioner of Police of the Metropolis v Hooper [2005] 1 WLR 1995; [2005] EWHC 199 (Admin); Chief Constable of Merseyside Police v Harrison [2006] EWHC 1106 (Admin). The burden of satisfying the magistrates' court is on the police, notwithstanding the final words of section 2(6). The standard of proof is the civil standard (see Harrison). But the magistrates' court may make a closure order "if and only if it is satisfied" of the matters in section 2(3). Since a closure order may well dispossess people from their home for up to 6 months, Article 8 of the European Convention on Human Rights is of central importance, and the magistrates' court cannot make a closure order unless they are satisfied that it is necessary and proportionate to do so to achieve the obvious and plainly legitimate legislative aim of closing premises used for Class A drug dealing or use which also give rise to disorder or serious nuisance. The civil standard of proof is plainly coloured by these considerations – see Harrison; McCann [2002] UKHL39; and R (AN) v Mental Health Tribunal [2005] EWCA Civ 1605 at paragraph 62. Further, there is a contrast between the closure notice – for which the officer has to have reasonable grounds for believing – and the precondition of a closure order that the magistrates' court is satisfied of the matters in section 2(3). The matters have to be proved to the appropriate standard. Although Class A drug dealing or use within the terminology of section 2(3) is unlawful, a closure order cannot be made under this legislation of premises used for Class A drug dealing or use if there is not also disorder or serious public nuisance associated with the use of the premises.
8. The legislation does nothing to spell out the means whereby the magistrates' court are to be satisfied, nor, importantly, the steps which must be taken to ensure that Article 6 of the European Convention on Human Rights is complied with, so that defendants, who may be at risk of losing their home, have a fair hearing. No doubt the magistrates' court has to be satisfied by evidence called by the police. No doubt also that the defendants must have proper notice of the case advanced by the police, and of the evidence that will be called. They should have a proper opportunity to cross-examine witnesses called by the police, and to give and call evidence themselves. Particular problems arise here because the statutory time limits are very short, and because the police may want to rely on hearsay evidence – this last because those on the fringes of the Class A drug world may be afraid to give oral evidence in person for fear of being identified. These proceedings illustrate many of these difficulties and their consequences.
9. The claimant, Kim Cleary, became a tenant of the London Borough of Camden on 7^th February 2005, occupying a one bedroom flat at 17 Wendling, Haverstock Road, London NW5. Wendling is a block of 48 flats which appear to have had a problem with, for instance, drug users leaving drugs paraphernalia in stairwells since at least September 2004 - that is before Ms Cleary moved into the building.
10. On 13^th May 2005, the police executed a search warrant at 17 Wendling. Ms Cleary was arrested for possession of Class A drugs. In June and August 2005, she was convicted of Class A drug offences and received sentences of one day's imprisonment and a modest fine respectively.
11. The police claim that there was a series of complaints from Ms Cleary's neighbours of drug use in and around 17 Wendling and associated disturbance, nuisance and intimidation. On 10^th November 2005, a second search warrant was executed at her premises and a closure notice served on her and fixed to the premises. Apparently a small quantity of drugs and drug paraphernalia was found. The closure notice stated that an application for a closure order would be made to Highbury Corner Magistrates' Court on 11^th November 2005. The application was made then and adjourned to 25^th November 2005.
12. There is a dispute about when and whether the police served evidence on the claimant or her solicitors. It is not necessary to resolve this, since the solicitors certainly had the evidence on 21^st November 2005 and much time has passed since then. However, the problem illustrates and justifies the solicitor's complaint that this legislation provides no rules or guidance about how and when evidence should be served.
13. On 22^nd November 2005, the police wrote to the claimant's solicitors enclosing a document entitled "Hearsay Notice". It was accepted before us that this did not in form comply with the relevant rules for hearsay in magistrates' courts. The solicitors responded saying that the claimant intended to contest the application. They outlined her case, which was essentially that the block of flats is a known drugs area and that her premises are not the source of the problem. She believes that a perception of other residents that her address is the source of the problem was created by the police or the local authority telling people that her premises are believed to be a "crack house". The solicitors asked for further disclosure. The police had disclosed short summaries only of 9 crime reports. The solicitors asked for full copies of the reports with other relevant documents referred to, such as, but not limited to, police notebooks, witness statements and CAD reports. The police had disclosed two so called professional hearsay statements of P.C. Davidson relating statements made to him by two residents of Wendling who did not wish to be identified or attend court due to fear of reprisals. The solicitors asked for copies of the original notes or statements, records of any reports made by the witnesses to the police and details of any convictions of the witnesses. They also asked for details of all arrests in the area, reports to the police of anti-social behaviour or other complaints to the police since 7^th February 2005; and details of any other addresses within 150 yard radius of 17 Wendling which were suspected of or were the source of the use, supply or production of drugs or the source of serious nuisance or disturbance. A later letter asked for details of complaints of anti-social behaviour from the Queen's Crescent Estate, since 1^st January 2003.
14. On 23^rd November 2005, the police wrote saying that it would not be proportionate to provide copies of the crime reports, but they would be available for the court to see at the hearing. They said of PC Davidson's statements that hearsay evidence was allowed and appropriate. They said that it was wholly inappropriate and disproportionate to provide the other material which the solicitors had asked for.
15. Also on 23^rd November 2005, the solicitors wrote to the magistrates' court complaining that the absence of rules or guidance about how proceedings for a closure order should be conducted meant that there was a real possibility that the proceedings would not be fair. They were instructed to challenge the legality of the proceedings. In so far as this might be seen as an attack on the compatibility of the legislation with the European Convention on Human Rights, this is not pursued in this court.
16. At the hearing on 25^th November 2005, the claimant appears to have argued that there should be an adjournment for the police to provide the further disclosure requested and so that guidance on procedure might be sought by judicial review. The police appear to have submitted that they had a general policy not to disclose criminal intelligence reports in order to preserve the anonymity and privacy of vulnerable witnesses who do not wish their identity to be revealed.
17. The magistrates refused an adjournment. Their written reasons stated that the claimant had been legally represented, but had not requested papers until 10 days after the first hearing. As to the request for disclosure, the claimant's legal representative would, if necessary, have the ability to ask for short adjournments during the course of the proceedings on points of detail as they emerged. It was not a breach of Article 6 of the Convention for such information not to be disclosed before the time when case papers are provided. The police opposition to disclosing documents of calls and complaints due to fear of reprisals was consistent with the object of the Act to encourage people to come forward without fear. Witnesses involved with the reporting procedures were present and could be cross-examined. The possibility of the High Court giving guidance did not compel an adjournment.
18. The claimant contends in this court that the magistrates' court decision to permit the proceedings to continue denied her a fair hearing and was contrary to natural justice. Minimal summaries of anonymous complaints prevented any meaningful testing of the evidence. The magistrates were wrong to decide that there was no need for advance disclosure of information and evidence; and wrong to think that it was fair for the claimant's legal representative to have to take piecemeal instructions at the hearing as points emerged. A police policy not to serve evidence at all unless it is requested offends Article 6. Not to disclose the basic material on which the case depends is likewise unfair. By the magistrates' court decision, there was no equality of arms. The magistrates' court rules as to hearsay evidence were not complied with and the hearsay notice was defective. The magistrates' court were wrong in not determining for themselves whether the police assertion that evidence was too sensitive to serve was justified in the present case.
19. Matters have moved on since 25^th November 2005. The hearing was not concluded and a closure order has not yet been made. We understand that further disclosure has been made. The claimant contends that it is still inadequate.
20. In my view, it is not appropriate for this court to address and decide questions of disclosure at a detailed level. We should be prepared to give some general guidance. In doing so, I note and respect submissions to the effect that judicial review applications of procedural decisions of magistrates' courts should not normally be entertained. I generally agree with and endorse this. Such applications are normally unnecessary and disruptive. It is normally preferable for the proceedings to continue and for any surviving challenge to be made on appeal or otherwise after the magistrates have made their substantive decision. I would be prepared to give general guidance in this case because permission to bring the proceedings was given and the matter has been brought to court upon full investigation; and because the claimant's complaint that applications for a closure order currently lack structured procedural regulation is justified.
21. I note also submissions on behalf of the Secretary of State that the court should not give such guidance in advance of the product of current consultation with police forces. I consider, however, that dispassionate judicial guidance is urgently needed, as this case illustrates. I acknowledge that guidance in matters of detailed procedure, where the Act is largely silent and there are no rules of court, cannot be inflexibly binding in law, and that what appears appropriate and necessary in the light of the facts of this case may prove to be inappropriate in other circumstances.
22. It is evident from the terms of the 2003 Act that the legislative intention is that applications for closure orders should be dealt with speedily, and that adjournments should not normally be granted beyond the 14 days permitted by section 2(6). In Hooper, Mitting J held, correctly in my view, that section 2(6) did not exclude the general power under section 54 of the Magistrates' Courts Act 1980 to adjourn the hearing; further, that the power should only be used exceptionally and should not be exercised so as to frustrate the statutory purpose. The court should exercise its power consistently with the Convention rights of affected persons, but also consistently with the statutory purpose. The decision in Hooper was in substance upheld and applied in R.(Turner) v Highbury Corner Magistrates' Court [2006] 1 WLR 220; [2005] EWHC 2568 (Admin). In this context, it is obviously important that the police provide affected persons with all information which they ought fairly to have in sufficient time for it to be fair for the hearing to be completed within 16 days of the service of the closure notice. Otherwise the court may be constrained to grant a further adjournment.
23. As to the service of evidence, in my view fairness requires that the police must normally serve written versions of the evidence they propose to adduce in sufficient time before the hearing to enable the defendant fairly to deal with it. The magistrates in the present case, were, I think, generally speaking wrong to decide that it was fair for the claimant to have short adjournments during the hearing to consider how to deal with evidence as it emerged. There is no relevant rule which requires evidence to be served in writing in advance, but this accords with what is now regarded as necessary and fair – see, for instance, Sullivan J in R(Bentley) v HM Coroner District of Avon [2001] EWCA Admin 170 at paragraphs 65 and 66.
24. In the present case, the First Interested Party, the Commissioner, suggests that service of written evidence before the first hearing of the application for a closure order is likely to be impractical, for instance because the product of the execution of a search warrant at the time of the service of the closure notice will need to be processed in writing and perhaps substituted for material upon which the closure notice was authorised. The Commissioner suggests that an overview statement may be served with the closure notice. The Second Interested Party, the Secretary of State, suggests that service of the written evidence with the closure notice is preferable and should be encouraged.
25. In my view, the (perhaps optimistic) statutory intention is that the first 48 hour hearing should be an effective hearing if possible. There may be cases in which the defendant does not contest the application and where a closure order may fairly be made at the first hearing. But it is difficult to suppose that the police could fairly oppose an adjournment of the first hearing if the defendant wishes to contest the matter; and it would scarcely be possible to do so, if the defendant had not been provided with the written evidence before the hearing itself. An overview statement may be useful to serve as a document in the nature of the police's pleaded case to give the person on whom the closure notice is served notice of the case. But it would normally be no substitute for written evidence.
26. If the evidence which the police propose to adduce is not served by the time of the first 48 hour hearing, or if it is not fully served, fairness requires that it should be served well in advance of the adjourned hearing. Offering it for collection would not normally be sufficient, absent agreement. I would not be theoretically prescriptive here as circumstances may vary. But I should have thought that generally 7 days before the adjourned hearing is likely to be the minimum, bearing in mind that the police cannot suppose that the first hearing will always be adjourned and should have served their evidence by then.
27. As to hearsay evidence, this is in principle admissible under section 1 of the Civil Evidence Act 1995. But, by section 2(1), a party proposing to adduce hearsay evidence in civil proceedings has to give the other party notice of that fact and, on request, such particulars of or relating to the evidence as is reasonable and practicable in the circumstances for the purpose of enabling him to deal with any matters arising from it being hearsay. Syntactically, the "reasonable and practicable" requirement applies to the notice as well as the particulars. There is provision for rules of court. A failure to comply with rules does not affect the admissibility of the evidence, but may be taken into account as a matter affecting the weight to be given to the evidence.
28. Section 3 provides that the rules may provide that another party to the proceedings may with the leave of the court call as a witness and cross-examine the maker of the hearsay statement. Thus to expect to adduce, as hearsay, evidence of a person who is not identified offends the spirit if not the letter of section 3, since a defendant cannot seek leave to call and cross-examine a witness whose identity is not revealed.
29. Section 4 of the 1995 Act provides:

"(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following –

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matter stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had a motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

30. In my view, it may too easily be supposed that people who give information about drug dealers should not be required to come to court to give evidence. In individual cases, the fear may be genuine. But an easy assumption that this will always be so and that hearsay evidence is routine in these cases risks real injustice. After all, defendants to an application for a closure order may risk being dispossessed from their home for up to 6 months, and the statute for obvious reasons expects both that witnesses will be identified and that they may have to attend for cross-examination. In this context, paragraphs 131-140 of the judgment of Brooke LJ in Moat Housing Group South Limited v Harris [2005] EWCA Civ 287 are in point. Brooke LJ was rightly critical of anonymous hearsay witnesses stating that they do not wish to identify themselves for fear of reprisals without, in many cases, being at all specific about the reasons for their fear. The willingness of a civil court to admit hearsay evidence carries with it inherent dangers. It is much more difficult for a court to assess the truth of what they are being told if the original maker of the statement does not attend to be cross-examined. More attention should be paid by claimants to the need to state by convincing direct evidence why it is not reasonable and practicable to produce the original maker of the statement as a witness. Magistrates should have these matters well in mind. The use of the words "if any" in section 4 of the 1995 Act shows that some hearsay evidence may be given no weight at all. Credible direct evidence of a defendant in an application for a closure order may well carry greater weight than uncross-examined hearsay from an anonymous witness or several anonymous witnesses.
31. It may be that hearsay evidence of this kind is technically admissible under the 1995 Act whatever its deficiencies. But a magistrates' court is much more likely to be satisfied of the matters in section 2(3) of the 2003 Act if the application is supported by direct evidence of witnesses available for cross-examination; and, if there is to be hearsay evidence, if Brooke LJ's admonitions are followed, and if what is served and adduced is first hand and complete – as it might be a full version of a direct witness statement leaving out details of identity. If what is relied on is oral statements to a police officer, the officer should give direct evidence of what was said and the circumstances in which it was said.
32. There is a further problem with hearsay evidence. Rule 3 of the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, which were made pursuant to the 1995 Act, provides that a party who desires to give hearsay evidence at a hearing must serve a hearsay notice on every other party not less than 21 days before the date fixed for the hearing. Rule 3(4) stipulates what a hearsay notice must state. Rule 4 provides for the court to allow, on application, another party to call and cross-examine the maker of a statement whom it is not proposed to call. The rule provides a time scale for doing this. The 21 days in rule 3(1) does not fit with the shorter expected statutory timetable for the hearing of applications for closure orders. Rule 3(2) provides that the court or the justices' clerk may on the application of a party to the proceedings make a direction substituting a different time period from the 21 days in rule 3(1). These rules cannot be complied with before the first 48 hour hearing of the application for a closure order. Further, if the police intend to rely on hearsay evidence, they will have to make an application for a direction under rule 3(2) to reduce the 21 day period. They would, I imagine, want to make the application at the first hearing and may need to serve an application to that end with the closure notice. If the court accedes to the application, the stipulated period for serving the hearsay notice will need to be sufficiently in advance of the adjourned hearing to enable the defendant fairly to deal with it, including making an application of the kind referred to in rule 4. There are further timing problems with rule 5, where a party wishes to attack the credibility of the person who made the statement tendered as hearsay. Those who are responsible for these rules may wish to address these problems. Meanwhile, magistrates' courts should act fairly in accordance with their spirit.
33. I have said that the police should serve in advance written versions of the evidence they propose to adduce. The claimant in the present proceedings maintains that the police should also on request make further wide-ranging disclosure of material which they may not wish to adduce, but which may be generally relevant. This, in my view, is generally too broad and would tend to frustrate the statutory expectation that applications for closure orders should be dealt with expeditiously.
34. The Civil Procedure Rules do not specifically apply in magistrates' courts. But CPR rule 31(6) seems to me to be a good guide to what is necessary and proportionate. This provides that standard disclosure requires a party to disclose only the documents on which he relies and documents which adversely affect his own case or support another party's case. The Commissioner is concerned that a requirement such as this would be imprecise so as to frustrate the statutory purpose. He suggests that there should be no initial duty to disclose in advance of a written statement on behalf of the defendant of the nature of his defence and a specific request for particular admissible documents relevant to that defence. I have some general sympathy with this, in that disclosure under the CPR supposes that the parties have exchanged pleadings crystallizing the issues. Requests for documents should certainly be for specific relevant documents and not a fishing expedition. But applications for closure orders threaten to trample on defendants' Article 8 rights and defendants may be vulnerable and unrepresented. I think, therefore, that the police should disclose documents which clearly and materially affect their case adversely or support the defendant's case.
35. What I have said is intended as a general flexible guide to the fair conduct of proceedings which, because of the very short statutory timescale and the nature of the subject matter, are in danger of being unfair and oppressive. I would not expect adherence to every detail to be necessary in every case. Experience may show that fairness can be achieved in somewhat different ways. But this case has shown that procedures of the kind I have outlined are necessary.
36. As to the claim in the present proceedings, I am not persuaded that any specific order need now be made.

Mr Justice Langstaff

37. I agree with both the reasons for, and the guidance in, the judgment of Lord Justice May. I too do not consider it necessary to make any specific order.
38. I would emphasise this. It has become almost axiomatic that a party's right to be heard carries with it the need to know the case that is to be made against that party, and a reasonable opportunity to consider it. It is not otherwise a meaningful right. Although it is impossible to be prescriptive in advance of knowledge of the particular circumstances of any case, and although the Anti-Social Behaviour Act 2003 provides for a hearing within a very short time-scale, magistrates courts will not usually secure the enjoyment of that right only by permitting short adjournments in the course of a hearing in cases where evidence is served at the last minute, or where evidence which may be significant and is probably relevant is unavailable.