Anthony Taylor v Solihull Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 25 February 2020 |
| Neutral Citation | [2020] EWHC 412 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3629/2019 |
| Date | 25 February 2020 |
[2020] EWHC 412 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Family and Civil Justice Centre,
Bull Street, Birmingham B4 6DS
Mr Justice Chamberlain
Case No: CO/3629/2019
Ramby de Mello (instructed by McGrath & Co) for the Appellant
Jonathan Manning (instructed by Solihull MBC, Legal Services) for the Respondent
Hearing dates: 19 February 2020
Approved Judgment
Introduction
This is an appeal by case stated pursuant to s. 111 of the Magistrates' Courts Act 1980 (‘the 1980 Act’) from a decision of 17 July 2019 made by three justices in the Birmingham and Solihull Local Justice Area (Mrs J. Lyle, Mr T. Chauhan and Mrs M. Pittaway). The justices made a closure order under s. 80(3) of the Anti-social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’) in respect of the appellant's flat at 47 Clare House, Smiths Wood, Birmingham.
Mr Ramby de Mello, for the appellant, filed his skeleton argument with the bundle on 12 February 2020. Mr Jonathan Manning, for the respondent, filed his skeleton argument on 18 February 2020, the day before the hearing. The appellant made an application to extend time for the filing of the skeleton argument. The Administrative Court lawyer, acting under powers delegated pursuant to CPR r. 54.1A, said that the appellant had been required by CPR 52B PD, §6.3 to lodge the skeleton argument and bundle within 35 days of the filing of the appellant's notice. The lawyer noted that the extension sought would severely curtail the respondent's opportunity to respond to the skeleton argument and refused it. However, CPR 52B PD §1.1 indicates that that practice direction does not apply to appeals by case stated from a magistrates' court. The applicable practice direction is CPR 52E PD. That contains nothing about the filing of skeleton arguments or hearing bundles. It follows that there were no time limits for the filing of skeleton arguments. So, no extension of time was required by either party.
This discloses a lacuna in the rules and practice directions. The effect is that, once the magistrates or Crown Court have stated a case, there is no requirement to file anything other than the appellant's notice (which, as in this case, may be a very short and uninformative document) and the documents required by §2.3, i.e. (a) the stated case, (b) a copy of the judgment, order or decision in respect of which the case has been stated and (c) where the judgment, order or decision in respect of which the case has been stated was itself given or made on appeal, a copy of the judgment, order or decision appealed from. This is not satisfactory. Case stated appeals often raise important points of law. In a civil case, the decision of the High Court is final: s. 28A(4) of the Senior Courts Act 1981. Consideration should be given to an amendment to CPR 52E PD to impose a general requirement for the filing of skeleton arguments, agreed hearing bundles and authorities bundles. In the meantime, it may be sensible for directions to that effect to be made under delegated powers when the appellant's notice and other documents are received in accordance with CPR 52E PD §§2.2 & 2.3. I understand that this already happens in some cases.
Statutory framework
Section 76 of the 2014 Act confers on a police officer of at least the rank of inspector, or the local authority, the power to issue a closure notice if satisfied on reasonable grounds (a) that the use of particular premises has resulted, or (if the notice is not issued) is likely soon to result, in a nuisance to members of the public, or (b) that there has been, or (if the notice is not issued) is likely soon to be, disorder near those premises associated with the use of those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring occurring.
The effect of a closure notice is to prohibit access (a) by all persons except those specified, or by all persons except those of a specified description, (b) at all times, or at all times except those specified, (c) in all circumstances, or in all circumstances except those specified: s. 76(3).
When a closure notice is issued, an application must be made to a magistrates' court for a closure order: s. 80(1) of the 2014 Act. The application must be heard by the magistrates' court not later than 48 hours after service of the closure notice: s. 80(3). The magistrates may make a closure order if satisfied (a) that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or (b) that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or (c) that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises, and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.
The effect of a closure order is similar to that of a closure notice. It may prohibit access to the premises for a period, not exceeding three months, specified in the order.
The 2014 Act replaced a previous statutory regime under the Anti-social Behaviour Act 2003. The proper approach to hearsay evidence was considered by the Divisional Court in relation to that regime in R (Cleary) v Highbury Corner Magistrates Court [2006] EWHC 1869 (Admin), [2007] 1 WLR 1272. At [27]–[29], May LJ (with whom Langstaff J agreed) pointed out that hearsay evidence is in principle admissible under section 1 of the Civil Evidence Act 1995. However, under s. 2(1), a party proposing to adduce hearsay evidence in civil proceedings has to give the other party notice of that fact and, on request, such particulars of or relating to the evidence as was reasonable and practicable in the circumstances for the purpose of enabling him to deal with any matters arising from it being hearsay. Section 3 envisages a procedure under which the other party can apply to the court to call and cross-examine the maker of the hearsay statement. Thus, May LJ said, ‘to expect to adduce, as hearsay, evidence of a person who is not identified offends the spirit if not the letter of section 3, since the defendant cannot seek leave to call and cross examine the witness whose identity is not revealed’. Section 4 of the 1995 Act specifies certain factors to which regard may be had in estimating the weight, if any, to be given to hearsay in civil proceedings. These include: (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) where the original statement was made contemporaneously with the current existence of the matter stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
At [30], May LJ said this:
‘In my view, it may too easily be supposed that people who give information about drug dealers should not be required to come to court to give evidence. In individual cases, the fear may be genuine. But an easy assumption that this will always be so and that hearsay evidence is routine in these cases risks real injustice. After all, defendants to an application for a closure order may risk being dispossessed from their home for up to 6 months, and the statute for obvious reasons expects both that witnesses will be identified and they may have to attend for cross-examination. In this context the judgement of Brooke LJ in Moat Housing Group South Ltd v Harris [2006] QB 606, paras 131–140 is in point. Brooke LJ was rightly critical of anonymous hearsay witnesses stating that they do not wish to identify themselves for fear of reprisals without, in many cases being at all specific about the reasons for their fear. The willingness of a civil court to admit hearsay evidence carries with it inherent dangers. It is much more difficult for a court to assess the truth of what they are being told if the original maker of the statement does not attend to be cross-examined. More attention should be paid by claimants to the need to state by convincing direct evidence why it is not reasonable and practicable to produce the original maker of the statement as a witness. Justices should have these matters well in mind. The use of the words “if any” in section 4 of the [Civil Evidence Act 1995] shows that some hearsay evidence may be given no weight at all. Credible direct evidence of a defendant in an application for a closure order may well carry greater weight than uncross-examined hearsay from an anonymous witness or several anonymous witnesses.’
Background
On 4 July 2019, a closure notice was authorised by a senior officer of the local authority pursuant to s. 76(4) of the 2014 Act. The notice related to 47 Clare House, Smiths Wood, Birmingham, the respondent's home. It prohibited access to all persons save for staff, employees, contractors or agents of the Solihull Metropolitan Borough Council or of Solihull Community Housing or the emergency services.
On 5 July 2019, there was a hearing before a deputy district judge in the magistrates' court. The proceedings were adjourned to 17 July 2019. The evidence of what happened comes from the oral reasons given by the magistrates at the time and from the case stated drafted by the justices'...
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