QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JEFFREY TAYLOR||Claimant|
|COMMISSIONER FOR THE METROPOLITAN POLICE||Defendant|
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Matthew Holdcroft (instructed by Department of Legal Services, Metropolitan Police) appeared on behalf of the Defendant
Crown Copyright ©
"Whether a Magistrates' Court on hearing an application for a closure order under section 2 of the Anti Social Behaviour Act 2003 has jurisdiction to award costs under section 64 of the Magistrates' Courts Act 1980."
"1. On the 13th April 2007 application was made by the Metropolitan Police Commissioner for an order under section 2 Anti-Social Behaviour Act 2003 in respect of premises at 28-34 St Agnes Place SE 11. Proceedings were adjourned to enable evidence to be served on the respondents to 20th April and adjourned again to 27th April for a full hearing. On that occasion the evidence was heard and I refused the police application. I do not propose to set out the facts which I found on hearing the application since these are not challenged.
2. The court re-constituted on 2nd May when I explained the reasons for my judgment. There were applications on behalf of both the respondents, the Ethiopian World Federation and Mr Taylor, for awards of inter partes costs against the police citing the provisions of section 64 of the Magistrates' Courts Act 1980. Counsel for the Ethiopian World Federation cited the provision under section 10 of the Anti Social Behaviour Act 2003 for payment of compensation from central funds as an alternative to an inter partes award. After listening to arguments from both parties I made an order under section 10 for the payment of compensation to the Ethiopian World Federation representing their legal expenses but made no order under either section in favour of Mr Taylor who was the subject of a legal representation order."
"4. Firstly it falls to be determined whether the application comprises civil or criminal proceedings since upon this question depends the appropriate statutory authority to award costs. I find that the question is answered conclusively by the case of Metropolitan Police Commissioner v Hooper (2005) EWHC 340 (Admin)(2005) 4 All E R 1095 (2005) 1 WLR 1995 (2005) 169 JP 409. The judgment in this case clearly states that an application for a closure order should be classified as civil proceedings since there is no formal accusation by the respondent of a criminal offence. The court goes on to state that whether criminal or civil these proceedings nevertheless attract the protection of articles 1 of the First Protocol and articles 6 and 8 of the European Convention on Human Rights.
5. It would appear to be well established that the court has no power to make a costs order other than under any provision found in statute. 'The Justices have no power to award costs in any proceedings before them either judicial or administrative. The jurisdiction if it exists must be found in a statute' per Denning LJ in Regina v Uxbridge Justices ex parte Commissioner of Police for the Metropolis.
6. Part I (Sections 1-11) of the Anti-Social Behaviour Act 2003 contains no express power to award inter partes costs. I therefore have to refer to Part II of the Magistrates' Courts Act 1980 (expressly headed 'Civil Jurisdiction and Procedure') and to examine the provisions of section 64. This section provides that:
(1) On the hearing of any complaint a magistrates' court shall have power in its discretion to make such an order as to costs:-
(a) on making the order for which the complaint is made to be paid by the defendant to the complainant
(b) on dismissing the complaint to be paid by the complainant to the defendant,
as it thinks just and reasonable.
7. The application procedure for a closure order prescribed under Part I of the Anti-Social Behaviour Act involves the initial issue and fixture on the premises concerned of a closure notice which is required to be brought to the attention of interested parties and notifies those persons of the time, date and place of hearing of the application to the Magistrates' Court. There is no provision for the laying of a complaint or the subsequent issue of a summons. Instead the Act sets out a specific procedure to bring proceedings without reference to the standard civil method for the issue of a summons on complaint.
8. Since the legislation is recent and there is no direct authority on the point in question I am referred to analogous statutory provisions under the Magistrates' Courts civil jurisdiction. A number of cases in the reports concern the issue of the Magistrates' power to award costs under the Police Property Act 1897 where the use of the word 'application' has led to argument concerning the correct procedure to be adopted on costs applications. There is the case cited above R v Uxbridge Justices ex parte Commissioner of Police for the Metropolis  Q.B. 829 where the Court of Appeal made a number of interesting observations as to the proper procedure to adopt under the relevant legislation. Unlike the present case the 1897 Act prescribes no procedure for making an application to the court. Sir George Baker held that the complaint method was a 'proper procedure' while Sir Stanley Rees maintained that it was a necessary procedure in the circumstances. In a dissenting judgment Lord Denning held that although the application was made on a complaint form it was an application simpliciter and did not give the justices power to award costs. On a pragmatic note he urged Magistrates' Courts to adopt an application form specifically marked as such thus relieving the court from considering any question of inter partes costs on final determination. I believe the law in relation to the Police Property Act where an application has been brought by way of complaint to be firmly settled by Mercer v Oldham (1984) Crm LR 232 which clearly confirms that the court does have the power to award costs in these circumstances. However the circumstances of applications under the Police Property Act are to be distinguished from those pertaining in the present case since the procedure is essentially different.
9. I have been made aware of recent authority concerning the character of the proceedings brought under Part I of the Anti-Social Behaviour Act 2003 namely the observations of Poole J in R (Turner) v Highbury Corner Magistrates' Court  1 WLR 220 where he held that 'in so far as there is no specific mention of complaint in section 2 of the Anti-Social Behaviour Act 2003 I am satisfied that by reason of their nature such applications as those we are considering here have all the necessary characteristics of complaint and are covered by section 54 of that Act' Poole J was referring here to the provision which enables the court to adjourn a summons laid on complaint and its applicability to section 2(6) of the 2003 Act which appears to restrict the power of the court to adjourn the application to no more than fourteen days. This aspect of the legislation was examined by the Administrative Court in Metropolitan Police Commissioner v Hooper referred to above. In that case the court found that section 2 provides a self-contained statutory code for the hearing and determination of these applications and that the power to adjourn under section 54 should only be exercised where there was no other way available to avoid a breach of the subject's Convention rights and to avoid incompatibility with the Convention (in the case in question to ensure that the respondent was not jeopardised by the limited time available to seek her solicitors' advice on the late service of prosecution evidence).
10. I am of the view that the provision of a self-contained statutory code in Section 2 characterises the general scheme of Part I of the Act which is tightly constructed and should be read as a whole. The purpose of Part I of the Act is to set out a relatively straightforward summary procedure which (having regard to the time constraints set out in the section) is expected to be invoked by the police in situations where time is of the essence to prevent disorder and serious nuisance to the public from continuing and avoid its re-occurrence the administrative court observed in Hooper that the proceedings must be conducted with sufficient speed so as not to defeat the beneficial object of the statute. I further consider that the provisions eschew an adversarial approach but instead entitle certain categories of persons (specified in section 2(6) of the Act) who might be adversely affected by a closure order to resist the application by showing cause why an order should not be made. Section 10 of the Act expressly enables a court (in the exercise of its discretion) to award compensation from central funds in favour of persons who satisfy the criteria of section 10(4) of the Act (essentially restricting such awards to persons who suffer loss through no fault of their own). I do not consider that it is necessary to look any further to interpret the legislation in accordance with section 3 of the Human Rights Act unlike the Administrative Court in the case of Hooper previously cited where it considered it legitimate to apply the provisions of section 54 of the Magistrates' Courts Act to adjourn proceedings beyond the time limits allowed to enable a party to obtain legal advice or to allow an incapacitated party to attend court.
11. Section 9 exempts a police officer (in sub-section 1) or a chief officer of police (in sub-section 2) from relevant damages for anything done or omitted to be done in the exercise of his powers under the Act (subject to exceptions for actions done in bad faith or actions unlawful under section 6 of the Human Rights Act).
I find this provision consistent with the purposive interpretation I have adopted of these statutory provisions to the effect that they are not intended to place the police under any undue pressure for incurring financial liability for actions properly taken in the exercise of their common law and statutory duties."
"On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs—
(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;
(b) on dismissing the complaint, to be paid by the complainant to the defendant
As it thinks just and reasonable; but if the complaint is for an order for the periodical payment of money, or for the revocation, revival or variation of such an order, or for the enforcement of such an order, the court may, whatever adjudication it makes, order either party to pay the whole or any part of the other's costs."
It will be noted that the power is conferred "on the hearing of a complaint". The Act does not define a complaint.
(a) the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug; and
(b) the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public.
The effect of the notice is to prohibit access to the premises by anybody other than those habitually resident there.
"(1)A magistrates' court may at any time, whether before or after beginning to hear a complaint, adjourn the hearing, and may do so, notwithstanding anything in this Act, when composed of a single justice.
(2)The court may when adjourning either fix the time and place at which the hearing is to be resumed or, unless it remands the defendant under section 55 below, leave the time and place to be determined later by the court; but the hearing shall not be resumed at that time and place unless the court is satisfied that the parties have had adequate notice thereof."
"18 In my view, the interpretation of the statutory provisions is plain. Once a closure notice has been served, it must be 'heard', in other words determined, within 48 hours by a magistrates' court, but the persons whose rights will be affected by the making of such an order must be given adequate opportunity to assert those rights by contending that the order should not be made. That must, however, be done with sufficient speed so as not to defeat the beneficial object of the statute: to procure the closure of what can colloquially be referred to as 'disorderly crack houses' and to protect the neighbours of such premises from the severe nuisance caused by them. That purpose is achieved by section 2(6) of the 2003 Act. The persons there specified have the right to ask the justices to adjourn proceedings for a limited period, 14 days, to show why the order should not be made. That can be on any of the grounds specified in section 2(3); that is to say, that the premises have not been used in connection with the unlawful use, production or supply of a class A drug, that the use of the premises has not been associated with the occurrence of disorder or serious nuisance to members of the public, and that the making of the order is not necessary to prevent the occurrence of such disorder or serious nuisance in the period specified in the order.
19 Thus, in the ordinary case, whether or not a closure order should be made will be determined within 16 days, at most, of the service of the closure notice. However, the 2003 Act does not expressly exclude the operation of section 54 of the Magistrates' Courts Act 1980, or, I add, if I am wrong in my categorisation of the proceedings as civil, section 10 of the same Act.
20 In certain exceptional circumstances it may be necessary that that power to adjourn should be available over and above the express statutory power in section 2(6). Therefore, to achieve a construction of sections 1 and 2 compatible with the Convention, it is, in my view, necessary to rule that section 54 is not impliedly excluded by those provisions. Indeed, Miss Watson does not contend that it is."
"10 In so far as there is no specific mention of complaint in section 2 of the Anti-social Behaviour Act 2003, I am satisfied that by reason of their nature such applications as those we are considering here have all the necessary characteristics of complaint and are covered by section 54 of the 1980 Act. The claimant has not argued otherwise."
"19. The proceedings under Part I of the 2003 Act are civil proceedings. That follows from the decision of the House of Lords in relation to anti-social behaviour orders in general (see R v McCann v Crown Court at Manchester  1 AC 787 and the decision of Mitting J in The Commissioner of the Metropolitan Police v Hooper in relation to control orders in particular). They would accordingly usually be instituted by the making of a complaint to a Magistrates' Court (see the Magistrates' Courts Act 1980, sections 51 and 52.) I understand that that is the procedure which was adopted in this case, and has been adopted in all cases, certainly so far as the Metropolitan Police are concerned, while enclosure orders are sought. Normally the court will then issue a summons directed to the person against whom the order is to be made.
20. However, that procedure does not seem to me to be appropriate. The closure order which is sought is not made against any person, but is directed to the premises, although obviously it does affect the individual occupier or person who has responsibility for, or control of, the premises. It seems to me that section 2 of the 2003 Act contains its own procedural provisions. It requires that an application be made to the Magistrates' Court for the making of a closure order. No particular form for that application is prescribed. The closure notice must inform the person who is interested in the premises, to put it generally, when and where the application to the court will be heard (see section 1(4)) and it must be served upon those who are so interested (section 1(6). Thus there is no need for a summons from the court because the notice itself tells the individual that he has to attend the court on a particular date and at a particular time."
"We have no doubt that it will be only in rare cases that a Divisional Court will think it fit to depart from a decision of another Divisional Court exercising this jurisdiction. Furthermore, we find it difficult to imagine that a single judge exercising this jurisdiction would ever depart from a decision of a Divisional Court."
"And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision."
"This expression [complaint] is now used exclusively for describing the Act, corresponding to an information... by which proceedings that are not in respect of an offence are set in motion."
"Civil proceedings in magistrates' courts are started by the making of a complaint, followed by the issue of a summons. Most family proceedings, however, are commenced by filing an application with the justices' clerk."
"It is said that an 'application' for an order for delivery of his money is not a 'complaint' in the ordinary sense but is akin to an application to a court for an order that fingerprints of a person in custody may be taken (section 40 of the Magistrates' Courts Act 1952) or for the return of property taken from an accused (section 39). I think this is wrong on two grounds: first the applications under sections 39 and 40 relate to persons who are already before the court, they are not initiating process; and secondly, and more important, Mr. Prasad was saying: 'You, the police, have my money. You will not, perhaps cannot, give it to me without an order of the court. That is my grievance. I apply for an order to remedy that grievance.' In my opinion that is a 'complaint' in ordinary language, and is certainly a 'complaint' within a definition of the Shorter Oxford English Dictionary, 3rd ed. (1944), p. 355: '4. Law . A statement of injury or grievance laid before a court … for purposes of prosecution and redress; …' See also Pugh's Matrimonial Proceedings Before Magistrates, 3rd ed. (1974), p. 256, note:
'Complaint. This expression is now used exclusively for describing the act, corresponding to an information, by which proceedings that are not in respect of an offence are set in motion.'"
Sir Stanley Rees (at pages 846-7) appears to have considered that proceedings begun by complaint require the existence of a lis between the parties. Lord Denning MR dissented. However, he considered the characteristics of a complaint in the following terms:
"'Complaint' or 'application'
The Act of 1952 does not define 'complaint.' Nor does it define 'application.' In the absence of any definition I would state these as the essential features of a complaint as disclosed in the statute: there must be a complainant and a defendant. There must be a grievance alleged by the complainant against the defendant. There must be an application for an order to be made against the defendant. There must be a summons to be served on the defendant requiring him to appear."
"Mr Wells submits, and I accept, that the form and content of the summons are not strictly relevant to the question whether the proceedings were initiated by complaint rather than by the laying of an information. The essential question for the Magistrates' Court was whether what was lodged at court was in substance a complaint."
In R v Coventry Magistrates' Court ex parte Crown Prosecution Service  160 JP 741, Pill LJ in the Divisional Court observed:
"I consider that because a complaint can be oral (Rule 4) and because the jurisdiction to hear a complaint does not depend upon a summons being issued (Hill), it is possible to conclude that the present proceeding was by way of complaint notwithstanding non-compliance with Form 98 and the use of an inappropriate form. The substance of a complaint of the kind contemplated by section 115 of the 1980 Act was included on the form used and a complainant sufficiently identified though not as such...
I would have regard to the substance rather than the form. Whatever PC Clemons purported to do he should, in my judgement, be treated on the evidence as having made a complaint to the magistrate under section 115 of the 1980 Act."
That decision was followed by the Divisional Court in Director of Public Prosecutions v Speede  2 CR App R 108. These cases show that the courts will take a wide view of what constitutes a complaint. They will be concerned with the substance rather than the form of what has occurred.
"First, in their criminal jurisdiction, what magistrates' courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them. Secondly, in their civil jurisdiction, what a magistrates' court have jurisdiction to try is a complaint, and what is required to give them that jurisdiction is that a complaint has been made to them. Their jurisdiction in criminal cases does not depend upon a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued. As to the former, as was pointed out during the argument, where a defendant is arrested at night and after having been duly charged is brought before a magistrates' court next morning, there is neither a summons nor a warrant. He is charged. The information is thus laid before the magistrates' court at the latest when the charge is read in open court, and in practice, often earlier when, no doubt, the clerk to the justices, or his or her subordinate, is informed by the police of the charge which it is proposed to bring against the defendant later that morning. A complaint under section 51 may legitimately be made unaccompanied by the issue of a summons. It was common ground, as it was in the Divisional Court, that a complaint need not be in writing. It can be and sometimes still is made orally as for example when an aggrieved wife arrives in the office of the clerk to the justices and complains, perhaps vehemently, that her arrears of maintenance have not been paid and that she requires action to be taken to secure payment. This may or may not require a summons in order to secure the attendance of the allegedly defaulting husband."
I note that this authority was not cited in Errington. I consider the observations of Lord Denning in the Uxbridge Justices case must now be read subject to this.
There may well be circumstances in which it is not possible to identify a person on whom a summons may be served. It seems to me, therefore, that it may be necessary to qualify the observation of Sir Stanley Rees in the Uxbridge Justices case that it is a characteristic of proceedings brought by complaint that there exists a lis between the parties. It is clear from these examples that it is possible to have proceedings brought by way of complaint, where, at least at the initial stages of the proceedings, there is no identifiable or ascertainable defendant.
"Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons..."
However, it seems to me that the words "a complaint relating to a person" are wide enough to include proceedings under sections 1 and 2 of the 2003 Act. They are wide enough to include a person who has such an interest in the premises as to justify his appearing to oppose the order. In this regard, I also note that Mitting J in Hooper considered that the provisions of the 2003 Act engaged Article 6 of the European Convention on Human Rights and such proceedings clearly relate to a person interested in the premises. In any event, I accept the submission of Mr Westgate that section 51 does not purport to define a complaint, nor should it be read as limiting the nature of a complaint. It is simply concerned with the power to issue a summons. By contrast, section 52, which confers jurisdiction on magistrates to deal with complaints, is in very general terms. It provides that a Magistrates' Court has jurisdiction to hear any complaint. It is not limited in the way Mr Holdcroft suggests. Secondly, even if Mr Holdcroft were correct in his premise, it does not follow that a complaint would be an inappropriate procedure. I have already considered whether the procedure requires an identifiable defendant at the outset of proceedings and I have concluded that it does not. To my mind, a complaint can clearly relate to matters other than the conduct of an individual. The status or use of premises is a matter which is appropriately addressed by a complaint. Examples are provided by the Caravan Sites Act 1968 considered in the Havering Justices case to which I have referred. Thirdly, the deeming provisions to which Mr Holdcroft refers do not mean that the proceedings to which they refer could not otherwise be properly regarded as proceedings brought by way of complaint or that such a procedure would be inappropriate. Fourthly, the absence of such a provision in the 2003 Act does not mean that the procedure under that statute is not by complaint or does not possess the characteristics of a complaint.
A Magistrates' Court, on hearing an application for a closure order under section 2 of the Anti-social Behaviour Act 2003, has jurisdiction to award costs under section 64 of the Magistrates' Courts Act 1980.