England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/06/2008

Underhill J:

INTRODUCTION

1. Prior to the events with which this application for judicial review is concerned the Claimant had lived for many years in a flat at 117 Richmond Road, London E8. He was at first a secure tenant from the London Borough of Hackney but latterly a "tolerated trespasser". On 17^th July 2007 the Thames Magistrates Court made a closure order in respect of the premises under s. 2 of the Anti-Social Behaviour Act 2003, with a duration of three months. On 16^th October 2007 the same court extended the order for a further three months pursuant to s. 5 of the Act. The Claimant appealed against the extension of the order. On 13^th December 2007 his appeal was heard at the Snaresbrook Crown Court by Bean J. (sitting as a Circuit Judge) and two justices and was dismissed. The application before us is for judicial review of the order of the Crown Court: there is no challenge to the original closure order. The claim is defended by the Commissioner of Metropolitan Police as an Interested Party, since it was his officer who obtained the order, and it was he who was the respondent on the appeal. The Claimant has been represented before us by Mr. Jan Luba QC and Ms. Maya Sikand. The Commissioner has been represented by Mr. Grahame Aldous QC and Ms. Melanie Winter. Ms. Sikand and Ms. Winter appeared in the Crown Court.
2. The application for judicial review is in one sense academic because the extension period has expired. But Munby J. gave permission primarily because he regarded the Claimant's grounds of challenge not only as arguable but as raising a point of law of potentially wide application which required determination in the public interest. (He also took into account the fact that the Claimant had included in his claim form a claim for damages, which would in principle remain live notwithstanding the expiry of the closure order. There may in fact be, as Mr. Luba candidly acknowledged, real difficulties about whether any such claim is available to the Claimant, and if so against whom; but we need not in any event consider it further since it is accepted that, if the primary claim were to succeed, the claim for damages, if maintained, would need to be considered at a later hearing.)

THE STATUTORY SCHEME

3. The scheme of Part 1 of the 2003 Act, which is headed "Premises Where Drugs Used Unlawfully", can most usefully be considered in two parts – first, the provisions relating to the making of the original closure order; and secondly the provisions governing its extension.

Closure Notice and Closure Order

4. The basic scheme is that where the use of premises for the unlawful use, production or supply of Class A drugs (in shorthand, "drug-related use") is leading to disorder or serious nuisance the premises in question can be summarily "closed" on a short-term basis, in accordance with the provisions of s. 1 of the Act, by a notice served by a constable; but that that notice needs to be confirmed, or otherwise, within 48 hours (extendable by a maximum of fourteen days) by an order of the magistrates' court under s. 2. The detailed provisions can be summarised as follows:

(1) The issue and service of a closure notice must be authorised in accordance with s. 1 (1). Under the statute as originally enacted the "authorising officer" had to be a police officer not below the rank of superintendent. By virtue of the provisions of art. 4 (2) of the Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (SI 2006/987), "authorising officer" was, with effect from 1^st April 2006, re-defined as "a designated person not below grade 2", i.e. "a member of the staff of SOCA [the Serious Organised Crime Agency] designated as having the powers of a constable under s. 43 (1) (a) of the Serious Organised Crime and Police Act 2005" (see art. 4 (4)).

(2) By s. (1) (1) the power to authorise the issue of a closure notice arises if 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.

The "relevant period" is the three months prior to the date of the authorising officer's decision: see s. 1 (10).

(3) The effect of a closure notice is that access to the premises is prohibited to any person "other than a person who habitually resides in the premises or the owner of the premises", pending the hearing of an application to the magistrates' court for a closure order: see s. 1 (4) (b)

(4) There are elaborate provisions covering the service of a closure notice, designed so far as possible to ensure that it comes promptly to the attention of any person likely to be affected by it: see s. 1 (5)-(7A).

(5) S. 2 provides, so far as material, 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 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.

(5) – (9) …

(6) Ss. 3 and 4 provide for the enforcement of a closure order in various respects and for its contravention to be an offence.

5. Mr. Luba emphasised to us how draconian these powers are. An occupier may be excluded from his home, by what is on any view a summary process, for as much as three months (ignoring at this stage the power of extension) in circumstances where he is likely to find it very difficult to obtain other accommodation and where he may well remain liable for rent or mortgage payments and other incidents of his tenure. That being so, it is well settled that art. 8 of the European Convention of Human Rights is engaged. That both colours the application of the civil standard of proof and means that, in deciding whether to make an order and if so for how long, the magistrates' court must apply the principle of proportionality: see R (Cleary) v. Highbury Corner Magistrates Court [2007] 1 WLR 1272, per May LJ at para. 7 (pp. 1274-5). Magistrates' courts, he submitted, ought not to make closure orders "on the nod" nor automatically for the maximum three-month period: they must carefully consider whether the statutory criteria are satisfied and what period of closure is necessary in order to achieve the aim of bringing to an end the disorder or nuisance to which the drug-related use of the premises has given rise. For my part, I accept those propositions.

Extension

6. S. 5, which is the section with which we are directly concerned on this application, provides, so far as material, as follows (as amended by the 2006 Order):

(1) At any time before the end of the period for which a closure order is made or extended a constable may make a complaint to a justice of the peace for an extension or further extension of the period for which it has effect.

(2) But a complaint must not be made unless it is authorised by a designated person not below grade 2:

(a) who has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the occurrence of disorder or serious nuisance to members of the public, and

(b) who is satisfied that the local authority has been consulted about the intention to make the complaint.

(3) If a complaint is made to a justice of the peace under subsection (1) the justice may issue a summons directed to:

(a) the persons on whom the closure notice relating to the closed premises was served under subsection (6) (d) or (e) or (7) of section 1;

(b) any other person who appears to the justice to have an interest in the closed premises but on whom the closure was not served,

requiring such person to appear before the magistrates' court to answer to the complaint.

(4) If the court is satisfied that the order is necessary to prevent the occurrence of disorder or serious nuisance for a further period it may extend the period for which the order has effect by a period not exceeding three months.

(5) But a closure order must not have effect for more than six months.

(6) - (9)… .

7. Mr. Luba asked us to note a number of features of s. 5. Some of them I will consider in addressing the particular issues which are raised by this application. But there are four general points with which it is convenient to deal at this stage.

(1) The propositions set out at para. 5 above apply equally – indeed it might be said a fortiori – to an application for an extension. (We were referred in this connection to the observation in the Home Office's "Notes of Guidance" on Part 1 of the 2003 Act to the effect that "there are many disadvantages to leaving properties empty for an extended period, and few advantages" (see para. 10.2.1).) Thus such applications should not be made or granted as a matter of routine. Careful consideration should always be given to whether the statutory criteria are met.

(2) More than one extension can be granted, so long as the overall maximum closure period of six months is not exceeded. Thus in a proper case there could, for example, be an initial closure for two months, followed by two additional periods also of two months. In Chief Constable of Merseyside Police v. Harrison [2007] QB 79, Maurice Kay LJ appears to say, albeit obiter and in passing, that only one extension is possible: see at para. 11 (p. 84E). That, submits Mr. Luba, is inconsistent with the express terms of s. 5 (1).

(3) The procedure under s. 5 does not in terms require that the excluded occupier or other interested parties should have been served with the summons before an extension order is made. However, Mr. Luba submits that the ordinary requirements of a fair procedure mean that proper notice should be given wherever possible: he refers to the observations of May LJ at para. 8 of his judgment in Cleary (above – at p. 1275D).

(4) Although s-s. (2) (setting out the matters of which the designated person authorising the making of the complaint must be satisfied) and s-s. (4) (setting out the matters of which the magistrates' court must be satisfied before making an extension order) refer only to the need to prevent disorder and serious nuisance, it must of course be understood that those provisions are concerned with disorder and serious nuisance associated with the drug-related use of the premises, as in s. 2 (3).

Again, for my part I accept each of these points.

Appeal to the Crown Court

8. S. 6 of the Act provides for a right of appeal to the Crown Court. Nothing turns on its detailed provisions and I need not set them out. It was common ground before us that the nature of such an appeal is, as with other appeals from the magistrates' court, a full re-hearing.

THE PROCEEDINGS

9. The issue of a closure notice in relation to 117 Richmond Road was authorised on 4^th July 2007 and the notice was served on the Claimant on 9^th July: he was told that the application for an order would be made at the Thames Magistrates Court on 11^th July. In the event the application was adjourned to 17^th July, when, as I have said, a three-month closure order was made. The Claimant attended the hearing but was not represented. P.S. Duck on behalf of the Commissioner adduced evidence in the form of witness statements from a number of witnesses, including police officers, a neighbour (not at that point named but subsequently identified as a Mrs. Sole) and council officials. It is accepted before us that the evidence showed that there had been extensive drug-related use of the premises and that that use was associated with the occurrence of serious nuisance to members of the public. In particular, Mrs. Sole gave evidence of continual comings and goings of drug users and prostitutes, who frequently knocked on the door of her own flat, intruded into, and caused damage to, her garden and used a passage serving both properties as a lavatory. She was extremely frightened.
10. The premises were duly closed by the police and the Claimant was compelled to leave. Over the period of the order he led a peripatetic existence, sleeping in friends' houses and in a car.
11. The order was due to expire on 17^th October 2007. The previous day P.S. Duck, having been duly authorised to do so, made a complaint to the Thames Magistrates' Court seeking a three-month extension. The complaint was supported by a bundle containing the evidence lodged in support of the original order together with a statement dated 12^th October from a Mr. Doran of the relevant Neighbourhood Housing Office. He gave a good deal of background about the problems which led to the making of the original order but his evidence about the period since 17^th July was largely concerned with his contacts with the Claimant. He recounted a conversation which he had had with him two days after the order, in which the Claimant had said that the problems were all the fault of a friend who had been living with him: that friend was now in custody. Mr. Doran had advised the Claimant to contact the Homeless Persons Unit, but he subsequently ascertained that they had no record of him and he did not now know how to contact him. He said that the Claimant had recently come to the office saying that he intended to move back in on the expiry of the order: he had made an appointment to collect the keys for that purpose on 9^th October but had not turned up. All that Mr. Doran said about the extension which was being sought was:

On Friday the 2^nd November 2007 I have a hearing at the Clerkenwell & Shoreditch County Court where I intend to seek an outright order for possession of the dwelling, therefore I need an extension of the Closure Order to maintain the peace and quiet which is now being enjoyed by the residents surrounding 117 Richmond Road.

(That sentence seems to roll up two distinct points – first that an extension was necessary in support of the Council's possession proceedings, and secondly that it was necessary in order to maintain the improvement resulting from the original order. So far as the former point is concerned, I do not fully understand the thinking; but in any event the Crown Court held that the fact that the Council were seeking possession was an irrelevant consideration, and the contrary was not argued before us.)

12. Notice of the complaint was not served on the Claimant, apparently because the police had no address for him, but a copy was posted at the premises. The Claimant did not attend. The magistrates made the order sought.
13. The Claimant learnt of the extension order when he attended the neighbourhood office to try to pick up the keys. On 1^st November 2007 he appealed to the Crown Court. Regrettably, the appeal took over six weeks to be heard. In R (Errington) v. Metropolitan Police Authority [2006] EWHC 1155 (Admin) Collins J. was critical of a very similar delay and said that appeals against closure orders "should be heard as soon as possible, ideally within a very few days of the lodging of the notice"; he said that Crown Courts should put in place arrangements to see that such appeals were given priority (see para. 12). We were not told the reason for the delay in this case; but on the face of it it would appear that Collins J.'s strictures have not been heeded.
14. For the purpose of the appeal the Commissioner put in evidence the materials that had been before the magistrates' court, together with a further witness statement from Mrs. Sole. Mrs. Sole's evidence was to the effect that following the making of the order there had been "a slow and steady change" as the previous visitors to the premises realised that they had been closed and that her life had improved dramatically. She asked the court "to leave this order in place for as long as possible for the sake of the area around the address". Mr. Doran gave live evidence and was cross-examined. The Claimant also lodged a short witness statement which simply dealt with the question of where he had been living since the original order and the subsequent extension and said that he would be resisting the Council's possession proceedings. He too gave live evidence and was cross-examined. We have no note of his (or Mr. Doran's) oral evidence.
15. The judgment of the Crown Court dismissing the Claimant's appeal was given by Bean J. It is apparently not the practice at the Snaresbrook Crown Court (or indeed, I understand, at some other London Crown Courts) for judgments given on appeals from the magistrates' court to be tape-recorded. Both counsel made notes of the judgment and for the purpose of this application they have produced a combined version drawing from the notes of both. But the step was not taken, as it should have been, of submitting the note to Bean J. for his approval. This is more than a formal failing. Although the combined note which we have is agreed – as Mr. Aldous put it – "as far as it goes", and there are no obvious lacunae, certain passages read more as a summary than as a full representation of what the Judge said. And even if what he said is in fact fully and accurately reproduced, it is not uncommon, and entirely legitimate, for judges when approving a note of this kind (as indeed when correcting a transcript) to take the opportunity to correct minor errors or to amend the wording where it is unclear or otherwise infelicitous. This omission has consequences for one of the issues which we will have to consider below; but subject to that point we are obliged to treat the "agreed note" as the best record of the judgment.

THE ISSUES

16. Before the Crown Court Ms. Sikand advanced the submission that an extension order under s. 5 should, as a matter of law, only be made where there was evidence of continuing disorder or serious nuisance associated with the (drug-related) use of the premises in the period prior to the application for the extension order, as is required where the initial application for a closure order is made (see s. 2 (3) (a)-(b)). The Crown Court rejected that submission. In my view it was plainly right to do so. The only criterion for the making of an extension order specified by s. 5 (4) is whether such an order "is necessary to prevent the occurrence of disorder or serious nuisance for a further period". S. 5 contains no equivalent to heads (a) and (b) under s. 2 (3), and they cannot be imported by association. It is in fact clear why s. 5 (4) is drafted in the way it is. At the s. 2 stage the statute treats it as necessary, in order to justify the draconian step of making an order, that a recent history of drug-related disorder and serious nuisance be shown: the focus then moves to the question (identical in s. 2 (3) (c) and s. 5 (4)) of whether such disorder or nuisance will occur in the future unless an order is made. But once that threshold condition has been proved, there is no reason why it needs to be considered all over again when an extension is being sought. (Indeed, if that were necessary the application of s. 5 would be confined to the case where the drug-related use of premises had continued or resumed notwithstanding their having been closed: I think it doubtful whether Parliament contemplated such a possibility, but even if it did such cases would on any view be exceptional, and I think it most unlikely that s. 5 was intended to be confined to them.)
17. Before us Mr. Luba did not maintain Ms. Sikand's submission but sought to advance a more subtle alternative. He submitted that it can be inferred from the structure of Part 1 of the 2003 Act that Parliament regarded three months as the normal maximum duration for a closure order: that appeared not only from the express provision that an order under s. 2 should be for no more than three months but also from what he termed the "symmetry" between that period and the three months which constitute the "relevant period" for the purpose of s. 1 (1) (a). The choice of a maximum period requires striking a balance (inevitably of a rather arbitrary kind) between the benefit to the community of the making of a closure order and the prejudice to the occupier and owner: Parliament must be taken to have chosen the period of three months as representing the right balance. It follows, he submitted, that an extension beyond three months could never be appropriate where all that was being said in support of the extension was that it was in the interests of the community that the benefits of closure be continued for as long as possible. Otherwise an extension would be available for the asking in almost every case, and the three-month maximum envisaged by Parliament as the norm would become, in practice, one of six months. There had, as he put it, to be "something more" in order to justify an extension – such as specific evidence that the previous occupier was intending to resume the drug-related use of the premises as soon as the original order expired. If that approach were correct, there was no "something more" in the present case: it was in fact explicit in the evidence that the Commissioner simply wanted the order extended in order to prolong the improvement brought about by the original order.
18. Attractively as Mr. Luba put his submission, I am not persuaded by it. I do not read the statute as providing for a norm of the kind that he suggests. There is nothing in the wording to justify that construction. The fact that the scheme adopted is of an initial order with provision for extension does not seem to me to give rise to any inference that the operation of the extension should be exceptional. It is at least equally explicable on the basis that Parliament, recognising the serious impact of a closure order, believed that the police should bear the onus of having to satisfy a court that it remained justifiable after (at most) three months. As regards Mr. Luba's "symmetry" point, I cannot see any significance in the fact that the same period of three months appears in s. 1 (1) (a) and s. 2 (4).
19. Accordingly, I believe that courts should approach the test prescribed by s. 5 (4) without any presumptions as to the statutory intention beyond what appears in the actual words of the sub-section. They should simply ask whether it has been proved (bearing in mind the guidance in Cleary referred to at para. 5 above) that an extension is necessary and proportionate to prevent the occurrence of further (drug-related) disorder or serious nuisance; and if so how long the extension should be. I do not believe that this will mean that extensions will be sought or granted automatically in all, or nearly all, cases. I grant that the fact that there has been drug-related use of the premises, and associated disorder or serious nuisance, prior to the making of the original order will generally justify the court in starting its assessment from the common-sense position that if the order is not extended that situation will recur. But everything depends on the facts of the particular case, and even if the court adopts that starting-point it may well not be where it ends up. There are a variety of possible circumstances which may prevent the court from being satisfied that an extension is necessary. There may, for example, be evidence that the person responsible for the drug-related use of the premises is in custody or has otherwise left the area; or that there are good grounds for believing that he has changed his behaviour; or that if the order is lifted the premises will be in different occupation; or that for some other reason the making of the order would in the circumstances as they then exist be disproportionate.
20. I cannot say whether such an approach, conscientiously followed, will mean that many or most closure orders are extended so as to last the maximum six months; but if that is the consequence, it will simply be the product of applying the statutory provisions, and I see no reason to believe that it will be contrary to the intention of Parliament.
21. That disposes of the issues of general principle raised before us. But Mr. Luba had in addition two submissions based on particular points arising from Bean J.'s judgment. It is unnecessary to set out the "agreed note" in full. Most of it is concerned with reciting the history and in dealing with the submission from Ms. Sikand which I have discussed at para. 16 above. The only part that is relevant to Mr. Luba's submissions is the final two paragraphs, which read as follows:

We are satisfied that an extension can be made where there are reasonable grounds for fearing re-occurrence of disorder or serious nuisance.

Miss Sikand submits that the order must be proportionate – we do not think that there is anything unreasonable about the extension of the order and we dismiss the appeal.

22. Mr. Luba's first point was that in the first of those two paragraphs Bean J. formulates the statutory test as being whether there are "reasonable grounds" to fear the recurrence of disorder or serious nuisance. Mr. Luba pointed out that, whereas that is indeed the test which should be applied by the designated person in considering whether to authorise an application for an extension under s. 5 (2) (a), the test to be applied by the court under s. 5 (4) is not whether there are reasonable grounds to believe that they will occur but whether they in fact will occur. He submitted, therefore, that there was a plain self-misdirection: the two tests are different, and the "reasonable grounds" test is less stringent (see Cleary (above), per May LJ at para. 7 (p. 1275 B-C)). If the passage quoted accurately reflects Bean J.'s intended formulation of the statutory test, that submission must be right. I am bound to say, however, that I think it pretty unlikely that Bean J., who had earlier in his judgment recited the terms both of s. 5 (2) and of s. 5 (4), fell into the error attributed to him. Mr. Aldous submitted that in so far as the Judge had referred to "reasonable grounds" it was only in the context of Ms. Sikand's submission discussed above – that is, by way of making the point that a court could reasonably infer a continuing risk of disorder or serious nuisance from the fact that it had occurred prior to the making of the original order: he submitted that that reflected the way in which the argument had been conducted in the Crown Court. It is at this point that the absence of any approved note of the judgment becomes a matter of importance. Without Bean J. having had the chance to consider and, if appropriate, correct counsel's note we have no authoritative record of his reasoning.
23. Mr. Luba's second point was simply that – so far as the note shows – the only actual consideration of whether the statutory criterion for making an extension order was met is in the final sentence of the note; and he submitted that a general conclusion of that kind was not sufficient to satisfy the obligation of the Crown Court to give reasons. If this was indeed the totality of what Bean J. said on this issue, then there is obvious force in Mr. Luba's point. But again the absence of an approved note creates a real difficulty. I am, for myself, doubtful whether the Judge said quite as little as appears here. Not very much more would have been required to satisfy the requirement to give adequate reasons: on what is ultimately an issue of judgment, there may not – depending on what points were argued - be room for any elaborate reasoning.
24. If there were still a live issue, with serious consequences for the Claimant, as to the validity of the Crown Court's decision, it would have been necessary for us to consider whether to adjourn this application in order to obtain an authoritative note of Bean J.'s judgment. But – sensibly – Mr. Luba did not ask us to do so. As I have explained, the principal reason why Munby J. gave permission in this case was because it appeared to give rise to a question of law of some general importance. I have attempted to deal with that question at paras. 16-20 above. It could not be justified further to prolong these proceedings in order to investigate whether the particular reasoning of the Crown Court in the present case is flawed – which could at most result in a remission for consideration of an order which has long since expired; nor, I believe, to assist (if in truth it would assist) in the Claimant advancing a highly speculative claim for damages. In those circumstances it is sufficient to say that in the absence of an approved note of Bean J's judgment Mr. Luba was not in a position to make his submissions good.
25. I would accordingly dismiss this claim.

Latham LJ:

26. I entirely agree. There are only three matters I would like to comment on. First, this case is a paradigm example of proceedings in which the transcript of the judge's reasons should have been submitted to the judge for approval. That was in the first instance the responsibility of the Claimant. Where that has not been done, and this court decides, for whatever reason, to continue with the hearing, the court will be extremely reluctant to conclude that the judge has made an error of law or fact unless that is inevitable on the material before it. Second, delay in hearing an appeal against closure orders is capable of producing serious hardship. Whilst I acknowledge that that may also be the case in relation to many other appeals from orders made by a Magistrates Court, nonetheless, for the reasons given by Collins J. in the case referred to in paragraph 13 above, Crown Courts should ensure that such appeals are heard as soon as possible. Third, the absence of a tape recording of the proceedings is unfortunate. The resources apparently saved in relying upon the notes of those present may ultimately result in the futile expenditure of greater resources in pursuing appeals or applications to this Court.