England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand. London. WC2A 2LL
		12/02/2009

Mr Justice Wyn Williams :

1. This is an appeal by case stated against a ruling made on 26 November 2007 by HH Judge Dixon sitting in the Winchester Crown Court whereby the learned judge ruled that he had power to extend the time for appealing against a closure order made pursuant to section 2 Anti-Social Behaviour Act 2003 (the 2003 Act). Having determined that he had the power to extend time the Judge went on to grant the Respondent the necessary extension for her to bring her appeal.
2. In the Case Stated the opinion of this Court is sought upon the following questions.

(1) Does Rule 7(5) of the Crown Court Rules 1982 Part III apply to appeals against Closure Orders so as to allow the Court a discretion to grant leave to appeal after the expiry of 21 days prescribed in the Anti-Social Behaviour Act 2003 S6(2)?

Must appeals against Closure Orders made pursuant to S.6(2) Anti-Social Behaviour Act 2003 be lodged within 21 days, or must the appeal itself be heard by the Crown Court within 21 days?

(3) If the Crown Court does have the discretion to grant leave to appeal after the expiry of 21 days, in what circumstances should leave be granted?

(4) Was the decision to grant leave to appeal out of time in this case wrong in the light of the facts and the reason put forward by the Respondent for not appealing within time?

Relevant Background and Facts

3. On 30 August 2007 Deputy District Judge Rose sitting at the Aldershot Magistrates' Court made a closure order under the 2003 Act in respect of the premises known as 227 Beaulieu Gardens, Blackwater in the county of Hampshire. The premises in question were and are a residential property and in August 2007 the premises were occupied by the Respondent, her partner and her three children.
4. The Respondent did not attend the hearing before the Deputy District Judge. During the course of the hearing evidence was adduced which satisfied the Judge on the balance of probabilities that the premises had been used in connection with the unlawful use and/or supply of Class A drugs and that the use of the premises was associated with the occurrence of disorder or serious nuisance.
5. By notice of appeal dated 8 October 2007 the Respondent appealed against the decision to make a closure order. 39 days had passed following the making of the closure order before the Respondent issued her notice appeal. She sought to explain the delay by submitting that her solicitors had not been in receipt of public funding. She also asserted that she had not attended the hearing on 30 August 2007 because she had not understood the closure notice served upon her and in any event she was at hospital with her daughter at the material time.
6. On 10 October 2007 HH Judge Broderick granted leave to appeal. He did so without a hearing and because he considered, erroneously, that the Respondent was appealing against a conviction. The learned judge obviously thought that he had power to extend time for appealing - not surprisingly, given that he believed he was dealing with an appeal against conviction.
7. The first hearing in relation to the appeal took place on 8 November 2007. On that occasion the Appellant "queried" whether the Crown Court had power to extend time for appealing. A further hearing was fixed so that this issue could be dealt with as a discrete issue before the hearing of the substantive appeal. HH Judge Dixon gave his ruling on this discrete issue, as I have said, on 26 November 2007.

The Anti-Social Behaviour Act 2003

8. Section 1 of the 2003 Act provides as follows:-

"(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......

(2) The authorising officer may authorise the issue of a closure notice in respect of premises to which this section applies if he is satisfied-fa) that the local authority for the area in which the premises are situated has been consulted;

(b) that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for or an interest in the premises."

Section 1(4) specifies the information which must be contained within a closure notice; section 1(5) provides that a notice must be served by a constable and section 1(6) makes detailed provisions about the manner of serving of a notice.

9. Section 2 empowers the magistrates' court to make a closure order. Sub-section (1) specifies that a constable must apply to a court for the making of a closure order if a closure notice has been issued under section 1. Sub-section (2) is in the following terms:-

"(2) The application must be heard by the magistrates' court not later than 48 hours after the notice was served. . . ."

Sub-section (3) empowers the court to make a closure order if three statutory criteria are met. Sub-section (4) provides:-

"(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."

Sub-section (6) empowers the court to adjourn the hearing on application for a period of not more than 14 days provided that certain statutory criteria are met and subsection (7) specifies that in the event of such an adjournment the court may order the closure notice should continue in effect until the end of the period of adjournment.

10. Section 6 contains a number of provisions relating to appeals. The provisions of section 6 apply to an order made under section 2 or a decision by the court not to make an order under section 2. Section 6(3) specifies the persons who may bring an appeal in the event that an order is made under section 2 and section 6(4) specifies the persons who may bring an appeal in the even that the magistrates refuse to make such an order. Section 6(2) provides:-

"(2) An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made. "

The Crown Court Rules 1982

11. HH Judge Dixon founded his decision that he had power to extend the time for appealing against a closure order upon rule 7(5) of the Crown Court Rules 1982. Rule 7(5) is a rule within Part III of the Rules; Part III contains provisions relating to appeals to the Crown Court. Rule 6 is entitled "Application of Part III" and is in the following terms :-

"(1) Subject to the following provisions of this rule, this part of this rule shall apply to every appeal which by or under any enactment lies to the Crown Court from any court, tribunal or person except......

(2) Without prejudice to rule 7(5), this Part of these Rules shall have effect subject to the provisions of the enactments specified in Part I of Schedule 3 (being enactments which make special procedural provisions in respect of certain appeals), and those enactments shall have effect subject to the amendments set out in Part II of that Schedule (being amendments reproducing amendments made by rule 6(2) of, and Part II of Schedule 1 to, the Crown Court Rules 1971. "

Rule 7 contains a number of provisions relating to notices of appeal. Those which are relevant to the instant case are Rule 7(3) and 7(5). Rule 7(3) reads:-

"Notice of appeal shall be given not later than 21 days after the day on which the decision appealed against is given and, for this purpose, where the court has adjourned the trial of an information after conviction, that day shall be the day on which the court sentences or otherwise deals with offender. "

Rule 7(5) provides:-

"The time for giving notice of appeal(whether prescribed under paragraph (3) or under an enactment listed in Part I of Schedule 3) may be extended, either before or after it expires, by the Crown Court, on an application made in accordance to paragraph (6)."

Discussion

12. A potential issue arises as to the proper interpretation of section 6(2) of the 2003 Act. Does that sub-section provide a time limit for issuing a notice of appeal or is it specifying a limit within which the appeal must be heard by the Crown Court? This issue is raised in the case stated and is encapsulated by the second question posed by HH Judge Dixon for the opinion of this Court.
13. Ms Bagley, who has argued this case most persuasively on behalf of the Appellant, is content to accept that the section specifies a time within which a notice of appeal must be issued. She does not submit that the section means that the appeal must be heard within the 21 day period specified in section 6(2).
14. I confess I do not find the language of the sub-section easy to interpret. The phrase "must be brought" is not obviously the phraseology which is most apt to create a time limit for issuing a notice of appeal. Indeed a respectable argument can be made in support of the view that the phrase means that an appeal must be heard before 21 days has expired. In the context of an appeal against an order which can subsist for a maximum period of 3 months, unless renewed, I can well understand that any appeal should be heard expeditiously. Further a closure order is draconian - it prevents persons from living in their home. It is obviously highly desirable in these circumstances that an appeal is heard as quickly as possible.
15. However if the sub-section is interpreted to mean that the appeal must be heard within 21 days a number of practical problems might arise. First, there would be no time limit within which a notice of appeal needs to be issued. That would or might lead to considerable uncertainty. Second and consequentially, an appellant might issue a notice of appeal shortly before the period for the hearing of the appeal was due to expire. There would then be considerable pressure upon the relevant police force to respond to the appeal very quickly. Further there might be considerable difficulty in arranging for a hearing to take place. Judicial resources might be stretched significantly.
16. All these practical problems lead me to the view that sections 6(2) should be interpreted to mean that an appellant has 21 days from the date of the closure order to issue his notice of appeal.
17. I am fortified in this conclusion to some extent by observations made by Collins J in R (Errington) v Metropolitan Police Authority [2006] EWHC 1155 (Admin) At paragraph 12 of his judgment Collins J said:-

"The closure order was issued on 6 October and an order was made by the magistrates on the 12^th. An appeal was brought to the Crown Court, the notice of appeal being lodged on 26 October 2005. The hearing of the appeal was not fixed until 14 December 2005. That was far too long a delay since the order was for three months from 12 October. It is important that appeals against closure orders be heard by the Crown Court as soon as possible, ideally within a very few days of the lodging of the notice. Steps, in my judgment, should be taken by the courts to ensure that such appeals are given the necessary priority. "

18. It does not seem to me that Collins J would have expressed himself in this was if the proper interpretation of sections 6(2) was that an appeal should be heard within 21 days of the closure order being made. To repeat, therefore, I have come to the conclusions that section 6(2), properly interpreted, lays down a time limit within which a notice of appeal must be issued. That disposes of the second question raised in the Case Stated for the opinion of this Court.
19. I turn to what is clearly the principal issue. Was HH Judge Dixon correct to hold that rule 7(5) of the Crown Court Rules 1982 empowered him to extend the time specified in section 6(2) of the 2003 Act.
20. The Crown Court Rules 1982 are no longer in force in so far as they relate to criminal cases. They have been repealed by the Criminal Procedure Rules 2005. Ms Bagley accepts, however, (a) that the Crown Court Rules 1982 are still in force in relation to appeals from the magistrates' court which relate to civil cases and (b) that proceedings in respect of closure orders are civil proceedings. In my judgment there can be no doubt that these concessions are properly made.
21. Does Rule 7(5), properly interpreted, apply to an appeal brought under section 6(2)? The language of rule 7(5) suggests that the sub-rule is confined to notices of appeal to which rule 7(3) applies or notices which are issued under an enactment listed in Part I of Schedule 3 to the Rules. The 2003 Act does not appear in Part I of Schedule 3. Further the time for giving notice of appeal against a closure order is not prescribed under rule 7(3) but, rather, it is the time prescribed by section 6(2) itself.
22. Rule 7(5) cannot be interpreted in a vacuum. It must be interpreted in the light of other rules which are relevant and, in particular, in the context of Part III of the Rules. In my judgment, however, there is nothing in any other rule or in Part III itself which casts doubt upon the natural meaning of the language used in rule 7(5).
23. It follows that I would hold that rule 7(5) does not apply to a notice of appeal issued under section 6(2) of the 2003 Act and, in consequence, I would answer the first question posed for the opinion of this Court in the negative.
24. I am conscious that a possible consequence of such a finding is that no power exists to extend time for issuing a notice of appeal against a closure order. Since, as I have said, a closure order is properly described as draconian it might be thought that a power to extend the time for appealing should exist in an appropriate case. Consequently I have considered whether or not such a power might exist independently of rule 7(5).
25. There is nothing within the 2003 Act, itself, which expressly confers upon the court the power to extend the time limit under section 6(2). Ms Bagley submits that this omission is quite deliberate. There are, she submits, good policy reasons why the 21 day period for issuing a notice of appeal should not be extended, whatever the circumstances. A closure order can subsist for no more than 3 months. In those circumstances it is obvious that any appeal should be heard quickly. If an appellant avails himself of the 21 day period before he issues his notice of appeal a substantial period of time would elapse before any appeal was heard. The 21 day period is itself a very generous period in which to decide whether to appeal, given the nature and effect of the order against which any appeal is brought. It should also be observed that the time limit applies not just in respect of the making of a closure order but also in respect of the refusal to make such an order. In this context a strict time limit which cannot be extended affords a measure of protection to the persons occupying the dwelling-house in question.
26. In my judgment Ms Bagley is correct when she submits that Parliament intended that no power to extend the time for appeal under section 6(2) should exist.
27. This view is supported when other provisions within the Act relating to appeals are considered. Section 51 concerns appeals against graffiti removal notices. Section 51(1) provides a 21 day time limit for the making of an appeal and there is no express reference to a power to extend the time for appealing. The appeal lies to a magistrates' court.
28. Section 71 deals with appeals against various kinds of remedial notices served by the public authorities specified in the Act. Appeals are made to the authority in question rather than a court. Section 71(4) provides:-

"(4) An appeal under this section must be brought before -

(a) the end of the period of 28 days beginning with the relevant dates;

(b) such later time as the appeal authority may allow "

29. In my judgment the fact that an express power to extend time under section 71 exists is a powerful indicator that Parliament intended that no power to extend time for appealing the various orders contained within the 2003 Act should exist. If Parliament had intended there to be such a power it would have said so expressly.
30. Since the conclusion of the oral argument in this case the decision of the House of Lords in Mucelli v The Government of Albania [2009] UKHL 2 has been published. That decision concerns provisions of the Extradition Act 2003. One of the provisions considered is section 26(4) which provides:-

"Notice of appeal [against a District Judge's order for extradition] must be given in accordance with rules of Court before the end of...... 7 days starting with the day on which the order is made."

One of the points which concerned their Lordships was whether any power exists to extend that time limit. In summary, their Lordships reached the conclusion that no such power exists. It suffices for the purpose of this judgment to refer to paragraphs 73 to 80 in the speech of Lord Neuberger. In those paragraphs a full explanation is given as to why no power to extend the time limit exists in the face of a clear and unqualified statutory time limit.

31. In the instant case there is a clear and unqualified statutory time limit which provides a significant period of time to an appellant to issue a notice of appeal. The statute which creates this time limit makes no provision for an extension of time and, in those circumstances, I have reached the clear conclusion that no power exists to extend the time for appealing under section 6 of the 2003 Act. To repeat, I would answer the second question at in the case stated in the negative and I would allow the appeal.
32. In the light of my view as to the principal question raised in this appeal no purpose would be served in any detailed discussion of whether or not time should have been extended for the bringing of an appeal in this case had power to extend time been found to exist (questions 3 and 4). It suffices that I say that the time should not have been extended on the basis of the limited information available in this case. In my judgment, if, contrary to my view, a power to extend time exists, it should be exercised very sparingly.

Lord Justice Maurice Kay:

33. I agree.