Kayleigh Crocker v Devon and Cornwall Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Griffiths |
| Judgment Date | 28 October 2020 |
| Neutral Citation | [2020] EWHC 2838 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2017/2020 |
| Date | 28 October 2020 |
[2020] EWHC 2838 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
ADMINISTRATIVE COURT
Bristol Civil and Family Justice Centre
2 Redcliff Street
Bristol, BS1 6GR
Lord Justice Dingemans, VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Griffiths
Case No: CO/2017/2020
and
Katie Churcher (instructed by Rundlewalker Solicitors) for the Appellant
Chris Cuddihee (instructed by Plymouth City Council Legal) for the Respondent and Interested Party
Hearing date: 16 October 2020
Approved Judgment
Introduction
This appeal by way of case stated from the Crown Court at Plymouth raises a point about the proper construction of the joint effect of section 84(5) of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) and the Crown Court Rules SI 1982 No 1109 as amended (“the 1982 Crown Court Rules”). The issue is whether the Crown Court has any power to extend the time for service of the notice of appeal on the other party to the appeal after the appeal notice had been sent in time to the Court office. HHJ Townsend considered that the effect of Hampshire Police Authority v Smith [2009] EWHC 174 (Admin); [2010] 1 WLR 40, which had considered time limits for appeals against closure orders made under the Anti-Social Behaviour Act 2003 (“the 2003 Act”), meant that there was no power to extend time.
The 2003 Act provided Magistrates with the power to make closure orders in respect of dwelling-houses where drug dealing was occurring. The 2003 Act provided strict time limits for the making and determination of applications for closure orders. The 2003 Act was replaced by the 2014 Act, which expanded the grounds on which closure orders could be made to include serious nuisance at the dwelling-house, and which retained the strict time limits. This was because closure orders are intended to provide a swift means of dealing with very disruptive behaviour affecting neighbouring occupiers of houses. It is common ground that closure orders are, however, draconian in effect because they prevent people living in their own homes.
Relevant background
The appellant Kayleigh Crocker became a tenant of Flat 15, 156 Woodville Road, Plymouth (“the flat”) in August 2019. The occupiers of neighbouring flats made serious complaints about the behaviour of Ms Crocker and the criminal behaviour of visitors to the flat. Plymouth City Council, the interested party, became involved because of its powers relating to anti-social behaviour.
The proceedings in the Courts below
On 11 February 2020 the police issued a closure notice in respect of the flat, commencing proceedings under the 2014 Act. The effect of issuing that notice was to prevent anyone other that the occupier or someone habitually resident at the flat from entering the property. An application to the Magistrates' Court for a closure order must be made within 48 hours after the issue of the closure notice pursuant to section 80 of the 2014 Act. The police applied for a closure order against Ms Crocker at the Plymouth Magistrates' Court.
On 13 February 2020 there was a hearing of the application made by the police. Ms Crocker was represented and indicated that she intended to contest the application for a closure order. The police served a bundle of statements and documents on which they intended to rely. The hearing of the application was adjourned to 19 February 2020 for a final contested hearing.
Ms Crocker alleges that on 19 February 2020 she had been told by her former legal representatives that the hearing before the Magistrates had been adjourned. Neither Ms Crocker nor her legal representatives attended the hearing. The hearing had not been adjourned and on that date Plymouth Magistrates' Court made a closure order for three months.
Ms Crocker states that she made unsuccessful attempts to contact her former legal representatives. On 4 March 2020 Ms Crocker instructed her current solicitors to pursue the appeal against the closure order.
On 6 March 2020 Ms Crocker's solicitors were granted legal aid. An appeal notice was sent to the email address for Plymouth Magistrates' Court. The covering email asked for the email address of Plymouth City Council so that the appeal could be served.
On 11 March 2020 the 21 day period for appealing set out in the 2014 Act expired.
On 26 March 2020 Plymouth Crown Court listed the appeal for hearing. On 27 March 2020 a copy of the appeal notice was served by Ms Crocker's solicitors on the police (through Plymouth City Council, acting as its legal agents), with an apology for the delay.
On 1 April 2020 written submissions were filed on behalf of the police to the effect that the appeal was out of time and that there was no power under the 1982 Crown Court Rules to extend time. On the same day the appeal came before His Honour Judge Townsend at Plymouth Crown Court by Skype for Business video link. He gave case management directions for the legal argument about his jurisdiction to hear the appeal. The legal argument was listed for 3 April 2020.
On 3 April 2020 written submissions were filed on behalf of Ms Crocker arguing that she had done all that was required by the statute. Her failure to serve the police was an error of procedure which could be cured by paragraph 7(5) of the 1982 Crown Court Rules.
The judgment of HHJ Townsend
On 3 April 2020 HHJ Townsend heard the legal argument. In a careful judgment the judge set out the relevant background, before finding that the appeal had not been “made” within 21 days of the order below. This was because there had been no service on the other party within the 21 day period. HHJ Townsend held that the effect of the judgment in Hampshire Police Authority v Smith was that there was no power under the 1982 Crown Court Rules to extend time because paragraph 7(5) did not apply on its terms. He therefore dismissed Ms Crocker's appeal as it was out of time.
The stated questions
HHJ Townsend agreed to state a case for the consideration of this Court. The stated questions are:
(i) Is the requirement for an appeal to be ‘made’ within 21 days under the Anti-Social Behaviour, Crime and Policing Act 2014 s84(5) satisfied by the giving of notice of appeal to the appropriate Court within that period, or does it also require that the notice be given to any other party to the appeal within that period?
(ii) Does Rule 7(5) of the Crown Court Rules 1982 Part III apply to appeals against Closure Orders so as to allow the Crown Court a discretion to extend the time for appeal after the expiry of the 21 day period prescribed in the Anti-Social Behaviour, Crime and Policing Act 2014 s84(5)?
Relevant statutory provisions
Section 84 of the 2014 Act provides:
“(1) An appeal against a decision to make or extend a closure order may be made by—
(a) a person on whom the closure notice was served under section 79;
(b) anyone else who has an interest in the premises but on whom the closure notice was not served.
[…..]
(4) An appeal under this section is to the Crown Court.
(5) An appeal under this section must be made within the period of 21 days beginning with the date of the decision to which it relates.
(6) On an appeal under this section the Crown Court may make whatever order it thinks appropriate.”
Paragraph 7 of the 1982 Crown Court Rules provides:
7 Notice of Appeal
(1) An appeal shall be commenced by the appellant's giving notice of appeal in accordance with the following provisions of this Rule.
(2) The notice required by the preceding paragraph shall be in writing and shall be given—
(a) in a case where the appeal is against a decision of a magistrates' court, to the designated officer for the magistrates' court;
(b) in the case of an appeal under section 67B or 81B of the Licensing Act 1964 against a decision of licensing justices, to the designated officer for the justices;
(c) in any other case, to the appropriate officer of the Crown Court;
(d) in the case of an appeal against a decision of a youth court in proceedings to which Part III of the Magistrates' Courts (Children and Young Persons) Rules 1988 applies (care proceedings and proceedings relating to care or supervision orders), to any person (other than the appellant) to whom notice of the proceedings in the youth court was given in pursuance of Rule 14(3) of the said Rules and to any other person who made representations to the youth court in those proceedings in pursuance of Rule 19(1) of those Rules; and
(e) in any case, to any other party to the appeal.
(3) 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 the offender:
[….]
(5) 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 with paragraph (6).
(6) An application for an extension of time shall be made in writing, specifying the grounds of the application and sent to the appropriate officer of the Crown Court.
…”
It was common ground that the Criminal Procedure Rules were not applicable in this case. This is because proceedings for a closure order are civil in nature. The...
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