Chief Constable of Merseyside v Harrison
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,MR JUSTICE TUGENDHAT |
| Judgment Date | 07 April 2006 |
| Neutral Citation | [2006] EWHC 1106 (Admin) |
| Docket Number | CO/6613/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2006 |
[2006] EWHC 1106 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Maurice Kay
Mr Justice Tugendhat
CO/6613/2005
MR K HORNE (instructed by Force Solicitor) appeared on behalf of the CLAIMANT
MR M STEWARD (instructed by Brighouse Wolf) appeared on behalf of the DEFENDANT
MR T OTTY (instructed by the Treasury Solicitor) appeared on behalf of the INTERVENER
This is an appeal by way of case stated from a decision of the Crown Court in Liverpool. The matter comes before this court at an interlocutory stage. We are reminded by counsel that the hearing of appeals by way of case stated in interlocutory matters is something which should take place on a sparing basis. However, nobody is discouraging us from hearing this appeal. Quite the contrary. The reason is that it does raise an important point of general application in relation to closure orders made under the Anti-Social Behaviour Act 2003.
The background to the case, factually, is that such an order has been made in relation to premises in St Helens occupied by the respondent, Michelle Harrison. It was made on 5th November 2004 for a period of three months. It therefore expired on 4th February 2005. Miss Harrison appealed to the Crown Court and that resulted in the ruling on a preliminary point which has given rise to the present appeal. The immediate consequences of this appeal for Miss Harrison are probably now extremely limited. As we understand it, she has been back in the premises for a significant period of time. However, the matter, as I have said, has some general importance and we now proceed to deal with it.
Closure orders under the 2003 Act are dealt with in Part I of the Act under the heading "Premises where drugs used unlawfully". Section 1 empowers a police officer to issue a closure notice. He has to be of a rank not below that of superintendent and in order to issue a closure notice, he must have reasonable grounds for believing: (a) that 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 closure notice has to state that an application will be made under section 2 for the closure of the premises. The material parts of section 2 read 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 168.
(3) The Magistrates' Court may make the 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."
There is provision in section 2(6) for the adjournment of the hearing on application for a period of not more than 14 days, to enable the occupier of the premises or the person who has control of or responsibility of the premises, or any other person with an interest in the premises, to show why a closure order should not be made. There is also provision for the extension of a closure order for a further period of 3 months, but for no further extension beyond that.
Once a closure order has been made, by section 4 a person commits an offence if he remains on or enters premises in contravention of a closure notice. A person guilty of an offence under section 4 is liable, on summary conviction, to imprisonment for a period not exceeding 6 months or to a fine not exceeding Level 5 on the standards scale. It is, in other words, a summary offence.
The questions that are posed for this court relate to the standard of proof to be applied by the Magistrates' Court when considering the making of a closure order. It is common ground that as to the three criteria set out in section 2(3), the first two attract a standard of proof but the third (the question of whether the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance) is a matter not of standard of proof but of evaluation and judgment. Accordingly, we confine our consideration to section 2(3)(a) and (b).
It is common ground that proceedings under section 2 are civil proceedings. The Crown Court came to the conclusion that, nevertheless, they are civil proceedings which exceptionally attract the criminal standard of proof. In that regard, there is recent authority for such a proposition in an area that bears some similarity, namely the making of Anti-Social Behaviour Orders which were considered by the House of Lords in the case of McCann [2002] UKHL 39. Anti-Social Behaviour Orders are made under the Crime and Disorder Act 1998. In McCann, the House of Lords concluded that an application for an Anti-Social Behaviour Order is an application made in civil rather than criminal proceedings but that, exceptionally, the standard of proof is the criminal standard. In paragraph 37 of his speech, Lord Steyne said:
"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary … In my view, pragmatism dictates that the task of Magistrates' should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."
It is apparent that his Lordship took the view that that conclusion was based on considerations of pragmatism relevant to Anti-Social Behaviour Orders. Lord Hope of Craighead said this at paragraph 82:
"But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think there are good reasons in the interests of fairness for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made."
In paragraph 83 he added:
"The condition in section 11(a) that the defendant has acted in an anti-social manner raises serious questions of fact and the implications from him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."
As Mr Horne on behalf of the Chief Constable rightly observes, there are therefore two strands of rationale in McCann: one based on pragmatism, the other based on principle. They seem both to form part of the ratio of the case.
The question that we have to consider is whether the application of the criminal standard to Anti-Social Behaviour Orders should lead to a similar conclusion in relation to closure orders under the later Act. Mr Horne submits that there should be no such consequence and that, for a number of reasons, the appropriate standard of proof in relation to closure orders should remain the civil standard, namely the balance of probabilities. In that regard, he also refers to the flexibility of that standard varying with the seriousness of the allegation, and he draws our attention to the recent decision of the Court of Appeal Civil Division in R (on the application of AN) v Mental Health Tribunal (Northern Region) [2005] EWCA Civ 1605 where Richards LJ giving the judgment of the court said this at paragraph 62:
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus, the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved, such that a more serious allegation has to be proved to a higher degree of probability, but in the strength or quality of the evidence that will, in practice, be required for an allegation to be proved on the balance of probabilities."
That is a formulation which will serve all future courts well...
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