R (Cleary) v Highbury Corner Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice May:,Mr Justice Langstaff,Lord Justice May |
| Judgment Date | 26 July 2006 |
| Neutral Citation | [2006] EWHC 1869 (Admin) |
| Docket Number | Case No: CO/10480/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2006 |
[2006] EWHC 1869 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May and
Mr Justice Langstaff
Case No: CO/10480/2005
Ben Cooper (instructed by Kaim Todner) for the Claimant
James Watson QC and Claire Watson (instructed by Metropolitan Police Legal Services) for the 1 st Interested Party
Gemma White (instructed by Treasury Solicitors) for the 2 nd Interested Party
Part 1 of the Anti-social Behaviour Act 2003 concerns premises where drugs are used unlawfully. Section 2 of the Act empowers a magistrates' court to make a closure order of such premises. As I shall indicate, the Act specifies very short time limits. This application for judicial review illustrates problems which are likely to arise under this legislation with the service of evidence, especially hearsay evidence, and disclosure of documents in the possession of the police.
An application for a closure order under section 2 of the Act has to be preceded by a closure notice for which section 1 makes provision. Section 1 applies if a police officer not below the rank of superintendent has reasonable grounds for believing that at any time during the preceding three months premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug; and that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. It is immaterial whether anyone has been convicted of a drug offence. The officer may then authorise the issue of a closure notice in respect of the premises. To do so he has to be satisfied that the relevant local authority has been consulted and that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has an interest in them. The authorisation for the closure notice may be given orally or in writing. It is pointed out to us that oral authorisation may, for instance, be appropriate if the execution of a search warrant produces information which establishes or confirms the officer's reasonable grounds for belief.
A closure notice has to give notice that an application will be made under section 2 at a specified date, time and place for a closure order of the premises. It has to explain the effect of a closure order. It has to state that access to the premises is prohibited by any person other than the owner or any person who habitually lives there. It has to state that failure to comply with the notice amounts to an offence and give information about getting advice. There are provisions for service of the notice, which include fixing it to the premises. Thus a closure notice restricts access to the premises to the owner and those who habitually live there. The notice is concerned as much with the premises as with people. The notice also serves as notice of the hearing of an application to magistrates for a closure order.
By section 2, if a closure notice has been issued, a constable must apply to a magistrates' court for the making of a closure order. The application must be heard by the magistrates' court not later than 48 hours after the closure notice was served. A closure order is an order that the premises are closed to all persons for such period, not exceeding 3 months, as the court decides. But the order may include provision for access. By section 5(4), the initial period may be extended by a further period not exceeding 3 months, if the court is satisfied that the extension is necessary to prevent the occurrence of disorder or serious nuisance. Section 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."
It is again immaterial whether anyone has been convicted of a drug offence. Section 4 provides for offences. In particular, by section 4(2), a person commits an offence if he remains on or enters premises in respect of which a closure order has been made. An appeal against a closure order must be brought to the Crown Court within 21 days.
It is obvious that 48 hours from the service of the closure notice is a very short period. Section 2(6) provides that the magistrates' court may adjourn the hearing of the application for a period of not more than 14 days to enable those concerned to show why a closure order should not be made. If the court does adjourn the hearing, it may order that the closure notice continues in effect until the end of the adjournment. Although the parties to these proceedings agree that the court has general power to order further adjournment beyond the 14 days, there is no power to order that the closure notice should continue in effect for any such further extended period.
As I have said, the present judicial review application, for which Collins J gave permission, concerns the service and adequacy of evidence and disclosure. In that context, there are a number of points to note.
Proceedings upon an application for a closure order are civil proceedings – see Commissioner of Police of the Metropolis v Hooper [2005] 1 WLR 1995; [2005] EWHC 199 (Admin); Chief Constable of Merseyside Police v Harrison [2006] EWHC 1106 (Admin). The burden of satisfying the magistrates' court is on the police, notwithstanding the final words of section 2(6). The standard of proof is the civil standard (see Harrison). But the magistrates' court may make a closure order "if and only if it is satisfied" of the matters in section 2(3). Since a closure order may well dispossess people from their home for up to 6 months, Article 8 of the European Convention on Human Rights 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 rise to disorder or serious nuisance. The civil standard of proof is plainly coloured by these considerations – see Harrison; McCann [2002] UKHL39; and R (AN) v Mental Health Tribunal [2005] EWCA Civ 1605 at paragraph 62. Further, there is a contrast between the closure notice – for which the officer has to have reasonable grounds for believing – and the precondition of a closure order that the magistrates' court is satisfied of the matters in section 2(3). The matters have to be proved to the appropriate standard. Although Class A drug dealing or use within the terminology of section 2(3) is unlawful, a closure order cannot be made under this legislation of premises used for Class A drug dealing or use if there is not also disorder or serious public nuisance associated with the use of the premises.
The legislation does nothing to spell out the means whereby the magistrates' court are to be satisfied, nor, importantly, the steps which must be taken to ensure that Article 6 of the European Convention on Human Rights is complied with, so that defendants, who may be at risk of losing their home, have a fair hearing. No doubt the magistrates' court has to be satisfied by evidence called by the police. No doubt also that the defendants must have proper notice of the case advanced by the police, and of the evidence that will be called. They should have a proper opportunity to cross-examine witnesses called by the police, and to give and call evidence themselves. Particular problems arise here because the statutory time limits are very short, and because the police may want to rely on hearsay evidence – this last because those on the fringes of the Class A drug world may be afraid to give oral evidence in person for fear of being identified. These proceedings illustrate many of these difficulties and their consequences.
The claimant, Kim Cleary, became a tenant of the London Borough of Camden on 7 th February 2005, occupying a one bedroom flat at 17 Wendling, Haverstock Road, London NW5. Wendling is a block of 48 flats which appear to have had a problem with, for instance, drug users leaving drugs paraphernalia in stairwells since at least September 2004 —that is before Ms Cleary moved into the building.
On 13 th May 2005, the police executed a search warrant at 17 Wendling. Ms Cleary was arrested for possession of Class A drugs. In June and August 2005, she was convicted of Class A drug offences and received sentences of one day's imprisonment and a modest fine respectively.
The police claim that there was a series of complaints from Ms Cleary's neighbours of drug use in and around 17 Wendling and associated disturbance, nuisance and intimidation. On 10 th November 2005, a second search warrant was executed at her premises and a closure notice served on her and fixed to the premises. Apparently a small quantity of drugs and drug paraphernalia was found. The closure notice stated that an application for a closure order would be made to Highbury Corner Magistrates' Court on 11 th November 2005....
To continue reading
Request your trial
-
Secretary of State for the Home Department v BM
...to which he referred. I shall return to this matter. 28 In 2006 the matter arose once again in the Divisional Court in R (Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272, where May LJ considered (at page 1277 E-F) that in Hooper Mitting J had correctly held that section 2(6) ......
-
Newman v Commissioner of Police of the Metropolis
...the context of closure orders pursuant to s2 of the Anti-social Behaviour Act 2003: R (Cleary) v Highbury Corner Magistrates' CourtWLR[2007] 1 WLR 1272. At para 22, May LJ referred to the legislative intention that closure orders should be dealt with speedily. In that context, it was obviou......
-
R (Smith) v Crown Court at Snaresbrook
...whether to make an order and if so for how long, the magistrates' court must apply the principle of proportionality: see R (Cleary) v. Highbury Corner Magistrates Court [2007] 1 WLR 1272, per May LJ at para. 7 (pp. 1274–5). Magistrates' courts, he submitted, ought not to make closure orders......
-
Application For A Closure Order In Respect Of Premises At 174 Elgin Drive, Glenrothes, Fife
...to the necessity for the Order. Mr Summers then referred in some detail to the case of R (Cleary) v Highbury Corner Magistrates Court [2007] 1 W.L.R. 1272. At this stage I think it is sufficient to note that Cleary dealt with the application of the 2003 Act and, in particular, matters such ......