R Leary v Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BLAIR |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWHC 639 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/530/2011 |
| Date | 17 February 2012 |
[2012] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blair
CO/530/2011
Mr R de Mello appeared on behalf of the Claimant
Miss J Josephs (instructed by West Midlands Police Solicitors) appeared on behalf of the Defendant
This is an appeal by way of a case stated from a decision of Her Honour Judge Fisher sitting with justices at Birmingham Crown Court on 5 August 2010.
The issue relates to the power to make a closure order where premises are being used in connection with class A drugs. It is said by the appellant that Article 8 of the European Convention on Human Rights requires the relevant authority to have considered other less draconian measures first. He also contends that a closure order can be made, excluding visitors only, whilst allowing the occupier continued use.
The statutory scheme is as follows. Section 1 of the Anti-social Behaviour Act 2003 empowers a police officer not below the rank of superintendent to issue a closure notice in respect of premises he believes have been used in connection with the use, production or supply of class A drugs and the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. There is an obligation to consult with the local authority. The notice must state that an application will be made to the court for closure of the premises. By section 1(4)(b) the effect of the notice is that access to the premises by people other than the residents or owner is prohibited.
The next step is an application to the Magistrates' Court for the making of a closure order under section 2. There are tight time limits. By section 2(3):
"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."
Subsection (4) goes on to provide that:
"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."
This is qualified by subsection (5) which provides that:
"But the order may include such provision as the court thinks appropriate relating to access to any part of the building or structure of which the premises form part."
By subsection (8) a closure order may be made in respect of all or part of the premises in respect of which the closure notice was issued. Subject to those provisions, a closure order does just that: it closes the premises.
With that introduction, the facts can be taken from the case stated. The appellant was the sole tenant of a flat at 21 Bangor House, Forth Drive, Birmingham. The flat is situated on the third floor of a tower block. Prior to the events that gave rise to this case, a search warrant had already been executed at the flat in connection with drugs. There was consultation between the local authority and the police about alternative methods for dealing with the situation. The police decide that a criminal investigation in respect of the unlawful use of class A drugs at the premises was appropriate.
As a result, on 24 March 2010 a further search warrant was executed and the appellant was arrested, together with another occupant of the premises, although he was not charged.
A closure notice was served on the appellant on 6 June 2010. A complaint was preferred by the police against him seeking a closure order in respect of the premises under section 2 of the Anti-social Behaviour Act 2003. At a hearing on 22 June 2010, which was contested, a District Judge made the closure order. The appellant appealed to the Crown Court against the decision, the appeal being heard on 5 August 2010.
The court had to consider whether the three requirements in section 2(3) of the 2003 Act were met, namely whether the premises had been used in the connection with the unlawful use, production or supply of class A controlled drugs, whether the use of the premises was associated with the occurrence of disorder or serious nuisance to members of the public and whether the making of the order was necessary to prevent the occurrence of such a disorder or serious nuisance from the period specified in the order.
In respect of the first, there was no issue that there was unlawful use of class A drugs at the premises. In respect of the second, there was considerable evidence about a number of visitors to the property over an extended period of time which was an indication, in the court's view, of the occurrence of disorder or serious nuisance to members of the public, being other residents and occupants of the tower block and people who worked properly on the premises. The court held that this requirement was also satisfied.
In respect of the third requirement, the appellant submitted that the local authority and the police did not in any detail consider the alternative methods of dealing with the situation with which they were confronted. In that respect, the court found that the situation had built up over a period of time. The first raid was in 2009 and it was clear that there had been disturbances over a period of time by virtue of the number of people gaining entry to the block itself, if not directly into flat number 21.
There had been consultation between the local authority and the police about alternative methods for dealing with this situation. The court was of the view however that the appellant was not likely to engage either with the police in any form of cooperation or with the council.
In the result, the court was satisfied that it was necessary to make the order to prevent the occurrence of disorder or serious nuisance for the period specified in the order. Thus, all three requirements were satisfied.
As regards the subject matter of the appeal, the court found as follows. Article 8 of the ECHR was engaged but the closure order was necessary and proportionate in the light of the situation which presented itself following the raid on 24 March 2010 and the steps then taken. A closure order had to be an inclusive order and could not, it considered, properly be framed in such a way that for example the appellant and his daughter could properly go into the premises under the terms of a closure order that was exclusive to everyone but them.
The questions posed by the Crown Court for the opinion of the High Court are:
"1. For there to be compatibility with Article 8 of the Convention, is it necessary for the police and relevant Housing Authority to demonstrate that they have considered and tried other less draconian measures before applying for a Closure Order, so that a Closure Order is one of last resort?
2. Can the terms of a Closure Order be adjusted to prevent visitors from going to the property, but allows the tenant to do so?"
The parties' respective submissions are as follows. Article 8, it is submitted by the appellant who is represented by Mr de Mello, is engaged because the appellant's home is closed. The issue is whether it is proportionate to have made the closure order without first considering alternative measures to closure. If the appellant's visitors had been prevented from entering the building, then the mischief would have been prevented. The burden is on the landlord and police authority to demonstrate that there are no other measures which could have been adopted to prevent the nuisance occurring. If that is not done the court should refuse to make a closure order. There are other less intrusive measures available to the landlord, such as injunctions and/or prosecution under the Harassment Act. Further, there is ample statutory power to apply for an injunction prohibiting antisocial behaviour. No such steps were taken and the...
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Anthony Taylor v Solihull Metropolitan Borough Council
...Kay LJ). 46 The Court of Appeal's decision in Bank Mellat was among the authorities cited by Blair J in Leary v West Midlands Police [2012] EWHC 639 (Admin), in which, as counsel for the claimant, Mr de Mello made the same submission as he now makes to me, based on the then applicable Home......