England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		6th February 2009

1. LORD JUSTICE SCOTT BAKER: This is an appeal by way of case stated against a decision of justices sitting in Thames Magistrates' Court on 4th June 2008. The case concerns a closure order made under section 2 of the Anti-social Behaviour Act 2003 in respect of Flat 5, 12 Gillett Street in Hackney. 12 Gillett Street comprises six purpose-built flats, two per floor on three floors. Flat 5 is a one-bedroom flat on the third floor. Karen Dumble, the appellant, had been the tenant of this flat since March 2006.
2. The justices found the following facts:

"i) That Flat 5, 12 Gillett Street had been used in connection with the unlawful use of Class A controlled drugs.

ii) That numerous people attended the block of flats day and night.

iii) On occasions these people gained entry to Flat 5, either by invitation, or making such a commotion that they were admitted, or by damaging the entrance door.

iv) Drug paraphernalia was found in the stairwell by other residents.

v) As a result of the activity of those who attended the flats, members of the public, in particular the other residents, were variously subjected to disorder and serious nuisance.

vi) Karen Dumble did not have control over the people who attended the premises.

vii) Karen Dumble is intimidated by some of the people who attended and at times lost control of the premises to the individuals."

3. On 19th May 2008 at 1.35 pm, authority was given by a police superintendent to issue a closure notice under section 1 of the Act. It was served on Karen Dumble at 2.15 pm the same day. On 21st May 2008 application was made to Thames Magistrates' Court for a closure order.
4. It is necessary at this stage to refer to some of the provisions of the Act. Section 1 is headed "Closure notice" and it provides:

"(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—

(a) 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.

(3) An authorisation under subsection (2) may be given orally or in writing, but if it is given orally the authorising officer must confirm it in writing as soon as it is practicable.

(4) A closure notice must—

(a) give notice that an application will be made under section 2 for the closure of the premises;

(b) state that access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises is prohibited;

(c) specify the date and time when and the place at which the application will be heard;

(d) explain the effects of an order made in pursuance of section 2;

(e) state that failure to comply with the notice amounts to an offence;

(f) give information about relevant advice providers."

It is to be noted that under subsection (4)(b) access to the premises is prohibited by anyone other than someone who habitually resides in the premises or the owner of the premises. The notice is likely to come to the attention of anybody who goes to the premises.

"(5) The closure notice must be served by a constable.

(6) Service is effected by—

(a) fixing a copy of the notice to at least one prominent place on the premises.

(b) fixing a copy of the notice to each normal means of access to the premises.

(c) fixing a copy of the notice to any outbuildings which appear to the constable to be used with or as part of the premises.

(d) giving a copy of the notice to at least one person who appears to the constable to have control of or responsibility for the premises, and

(e) giving a copy of the notice to the persons identified in pursuance of subsection (2)(b) and to any other person appearing to the constable to be a person of a description mentioned in that subsection.

(7) The closure notice must also be served on any person who occupies any other part of the building or other structure in which the premises are situated if the constable reasonably believes at the time of serving the notice under subsection (6) that the person's access to the other part of the building or structure will be impeded if a closure order is made under section 2."

It is unnecessary for present purposes to read the remaining subsections of section 1.

5. It is not disputed that all the relevant provisions to which I have referred, and all other relevant statutory provisions in relation to these proceedings, were complied with.
6. There was one further finding of fact made by the justices, to which I have not yet referred. It is that since the closure notice had been served, there had been no further incidents at 12 Gillett Street. The notice was served on 19th May and the justices' decision was given on 4th June, so that the hiatus, if I can call it that, was over a period of some 2 weeks and 2 days. Section 2 provides that if a closure notice is issued, a constable must apply to a Magistrates' Court for an order and the application must be heard by the magistrates not later than 48 hours after it is served on the premises. Under section 2(6) an application can be adjourned by the magistrates for up to 14 days. That is what happened in this case. Section 2 is headed "Closure order" and subsection 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."

The justices were satisfied that all three of those criteria were met and they made a closure order for the maximum period permitted, namely 3 months.

7. The present proceedings are, it seems to me, to a very large extent now academic. The closure order was extended in September 2008 for a further period of 3 months up to the maximum of 6 in total that is permissible. There have also been possession proceedings taken against the appellant by the owners of Flat 5 and we were told that there was an injunction against the appellant for a time, restraining her from re-entering the premises. However, she has been back in residence since 29th December 2008, the interlocutory injunction in the possession proceedings having been discharged.
8. Ms Ward, who appears for the appellant, submits that the present proceedings are not academic, because if the present appeal succeeds and the true position is that the closure order last June was unlawfully made, that may have a material effect on the appellant's position in the possession proceedings. I can see the force in that submission and, accordingly, the court has continued and heard this case stated appeal.
9. Returning to section 2(3), it is not disputed that (a) was satisfied in this case, but Ms Ward submits that the justices should not have been satisfied that (b) and (c) were established and that, in those circumstances, no closure order should have been made.
10. Dealing first with (b), what the appellant in essence submits is that because of the justices' finding that there have been no further incidents since the notice was served, the continuing use of the premises is not associated with the occurrence of disorder or serious nuisance to members of the public and the appellant further submits, through Ms Ward, that in any event the making of an order is not necessary to prevent it, even we are against the appellant on (b). So on Ms Ward's argument, a great deal turns on the finding of fact 19(viii), that since the closure notice was served there had been no further incidents.

Ms Ward submits that if we look at the questions posed by the High Court, the first question is posed in this way:

"On our findings of fact and the evidence presented to us, was it reasonable to conclude that the use of the premises is associated with the occurrence of disorder or serious nuisance to the public?"

It is to be noted that in the form of the question, the findings of fact are elided by the justices with the evidence presented. It does appear, on reading the stated case, that most of the evidence was not effectively disputed and was accepted by the justices.

11. Ms Ward submits that there are two important findings and that for these purposes 17(x) is of particular importance, where it is said that the court notes that it was Ms Dumble's evidence that since the door had been fixed at the end of April there had been much reduced nuisance and there was no evidence to the contrary. I do, however, observe that it was a little higher up, at (t), that the magistrates recorded that she accepted that people would still try and come in in the future: "there could be people who don't get the message". So that was a concession made in evidence by the appellant herself. What Ms Ward is submitting is that the door was mended at the end of April and, following Ms Dumble's evidence, the conclusion to be reached is that matters had improved significantly from that time and, following the service of the closure notice, there had, as the magistrates specifically found, been no further incidents.
12. For my part, dealing first with the latter point, it seems to me highly likely that, following service of a closure notice in circumstances such as those in the present case, the situation is likely to improve. Anybody who enters the premises, other than the occupier or person who habitually lives there, in contravention of such a notice is committing a criminal offence and renders themselves liable to prosecution. The question, of course, for the justices is what the position is going to revert to in the event that they decide not to make a closure order and to leave matters as they were before.
13. As to events since the entrance door was fixed, it seems to me that insofar as one looks at references to the evidence other than as set out specifically in paragraph 19, the findings of fact, it is necessary to look at the whole of the evidence that the magistrates recited, and apparently accepted, because they inevitably had to look at the whole picture both before and after the door was mended. That evidence included evidence from Judy MacLeod, who had kept a diary of events from the end of April of the activities of Flat 5 occurring day by day. There is also the evidence of Kim Bryan, who spoke of an assault on 11th April, and evidence that when the door has been repaired, it often gets kicked off the same day. Furthermore, Police Constable Livingston spoke of an incident on 22nd April, when he went to the premises following a disturbance. His evidence is recorded by the magistrates thus:

"On arrival he could hear a commotion from inside the address. The door was opened by a white male. On entering he noticed items associated with use of Class A drugs, namely a glass bottle with holes punctured in the base, he saw seven people in the lounge area, he was informed by another officer of something being thrown from the window. As a result, all people were detained pursuant to section 23, Misuse of Drugs Act. A disturbance ensued, resulting in one male being arrested immediately. The female had also been arrested by another officer on suspicion of possession of a Class A drug. At this point a further male became very aggressive and was shouting, despite being told to calm down. He shouted, 'One of you fuckers own up or I will fucking do you' four or five times. A male by the name of Jonathan Liben admitted to throwing cling film from the window and was arrested."

Police Constable Livingston also said that there were eleven reports in relation to these premises between 27th September 2007 and 11th May 2008. Anthony Cole spoke of an incident on 18th April, which was a report of an assault.

14. The lack of incidents since the service of the closure notice seems to me to be explicable by the fact that the notice has to be fixed to the premises and state that access is prohibited to all except the owner and habitual resident. The position since the end of April seems to me, on the whole picture, to be very far from the way that Ms Ward would submit that we should view it. It seems to me that there were problems at these premises that were extremely detrimental to the lives of all the other occupants, and that those incidents continued right up to the service of the closure notice.
15. Ms Ward submits that, in answering the second of the two questions, it was necessary for the justices to focus on the position as at 4th June, and that the fact that nothing had happened for the previous 16 days was of the utmost importance. We were referred, in particular, in this regard, to Chief Constable of Cumbria Constabulary v Wright and Another [2006] EWHC 3574 (Admin), which was a decision of this court presided over by Keene LJ, sitting with Lloyd Jones J. Lloyd Jones J, giving the main judgment, said this at paragraph 42:

"To my mind the fact that section 2(3) requires a magistrate to be satisfied as to an existing state of affairs and the necessity of making an order to prevent its occurrence does not necessarily mean that a brief temporary hiatus from the required state of affairs would deprive the justices of the power to make such an order. It is possible to imagine circumstances in which, notwithstanding a brief temporary hiatus for an identified cause of limited duration, the justices could nevertheless be satisfied of all three matters stipulated under section 2(3). I consider that this is a matter which can safely be left to the good sense and judgement of the magistrates."

Miss Ward submits that 16 days is far too long to qualify as a brief temporary hiatus. Keene LJ added this at paragraph 47:

"The court has to be satisfied that there is at the time of the hearing a continuing problem of disorder or serious nuisance. That does not mean that there has to be evidence of disorder or nuisance within, say, the past 24 hours before the hearing. A brief temporary hiatus in such problems will not prevent the justices being satisfied in an appropriate case under section 2(3), whatever that hiatus is caused by. However, if the justices conclude that the disorder or serious nuisance has permanently ceased, then the terms of neither section 2(3)(b) nor section 2(3)(c) would be met."

16. I would respectfully agree with the observations of both judges in that case. It seems to me that the gap of 16 days in the present case between the service of the closure notice and the making of the closure order comes precisely within the description of a brief temporary hiatus for an identified cause. What the justices were having to look at was the ongoing picture. It seems to me plain beyond peradventure that it would be quite impossible to conclude that disorder or serious nuisance in this case had permanently ceased. Therefore, I am, for my part, entirely satisfied that the justices were entitled to conclude that second of the three criteria was met.
17. As to the third of the three criteria, the necessity of making an order is a matter of judgement and evaluation. It is beyond dispute that Article 8 was engaged in this case, because a closure order necessarily deprives the person of the right to occupy his or her home. May LJ summed it up in this way in paragraph 7 in the case of R (Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272 where he said:

"Since a closure order may well dispossess people from their home for up to 6 months, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 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[s] rise to disorder or serious nuisance. The civil standard of proof is plainly coloured by these considerations."

18. I entirely agree with that, but one has to look at the material before the court. This was not a case where any significant Article 8 issues were being raised before the justices. In fact, there was nothing on which Article 8 might bite, other than the obvious fact that the appellant would be removed from her home in the event that a closure order was made. This was not a case where issues were raised about children or other aspects of family life or the appellant's health or any matters of that kind. The mere fact that the justices did not specifically recite Article 8 is not, in my judgment, in any way fatal to the making of a closure order. This is a case where there were overwhelming reasons to make a closure order in my judgement, and it was absolutely plain that the necessity to do so trumped the fact that the appellant would be being deprived of the occupation of her home.
19. I have come to the very clear conclusion that the justices were correct and entitled, on the basis of their findings of fact, to make the orders that they did. The questions posed are:

1. On the our findings of fact and the evidence presented to us, was it reasonable to conclude that the use of the premises is associated with the occurrence of disorder or serious nuisance to the public?

2. On our findings of fact, was it reasonable for us to conclude that a closure order was necessary to prevent the occurrence of disorder or serious nuisance?

For my part, I would answer both of those questions in the affirmative and would dismiss this appeal.

20. MR JUSTICE SILBER: I agree. I only add a few brief comments of my own in deference to the sustained submissions of Miss Ward.
21. The task for the magistrates, when determining whether the requirements of section 2(3)(b) of the Anti-social Behaviour Act 2003 have been satisfied, is to use their good sense and determine whether the facts satisfy the requirements. They might find it helpful to bear in mind three principles, which are (a) if the disorder or serious nuisance has permanently ceased, then the terms of section 2(3)(b) have not been satisfied; (b) as was explained by Collins J in R (Errington) v Metropolitan Police Authority [2006] EWHC 1155 (Admin), which was referred to by Lloyd Jones J in his judgment in the Wright case:

"A pattern of such use and disturbance over a long time is likely to be material to the issues before the magistrates";

and (c) a temporary hiatus from a required state of affairs would not deprive the magistrates of their power to make an order.

22. Applying those principles to this case, although the justices found that there had been no further incidents since the closure notice was served, there was a clear admission made by the appellant that "people would still try and come in the future". In my view, on the basis of that admission and the facts that the justices found, both the questions in this case had to be answered in the affirmative.
23. MR McALLISTER: My Lord, I rose to say there is an application for costs, but I do not know the position of Ms Dumble's funding.
24. MS WARD: My Lord, Ms Dumble is publicly funded. I am afraid I am not desperately familiar with the arrangements in this court but I would submit a funding order has been made. She is publicly funded.
25. LORD JUSTICE SCOTT BAKER: Are you pursuing it in view of that?
26. MR McALLISTER: I would ask for an order for costs not to be enforced without the leave of the court.
27. LORD JUSTICE SCOTT BAKER: That would seem to be appropriate.
28. MS WARD: I cannot resist that.
29. LORD JUSTICE SCOTT BAKER: Very well.
30. MR McALLISTER: I do not think the court, in those circumstances, would go on to an assessment today.
31. LORD JUSTICE SCOTT BAKER: No, absolutely not.
32. MS WARD: I think that is absolutely right. Because of the funding order, I do not need to ask for any further order in respect of my costs. My Lord, fairly briefly, having heard your judgment, there are two factual points. First a very brief one. Your Lordship said that there were 11 reports between 27th September 2005 and 11th May 2008. In fact it was 27th September 2007.
33. LORD JUSTICE SCOTT BAKER: I thought I might have made a mistake when I said that. That will be corrected.
34. MS WARD: The other point, I do not know whether your Lordship would wish to correct his judgment or not, but your Lordship referred several times to the door being mended at the beginning of April. In fact, I looked at the reference. The only reference is in the statement of Mr Charlton, who represented Ms Dumble at that hearing. He said it was 3 weeks before 19th May. So in fact it was the end of April. I simply make the observation. Your Lordship may wish to amend the judgment as appropriate.
35. LORD JUSTICE SCOTT BAKER: Yes, thank you very much. Anything else?
36. MS WARD: While we are all still here, I have been told I do need an order for detailed assessment.
37. LORD JUSTICE SCOTT BAKER: You can have it.
38. MS WARD: I am very grateful, my Lord.