R Ms Aili Qin and Others v The Commissioner of The Police for the Metropolis and Another Pallas Investments Ltd and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 03 November 2017 |
| Neutral Citation | [2017] EWHC 2750 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 November 2017 |
| Docket Number | Case Nos: CO/5484/2016, CO/2683/2017 & CO/1223/2017 |
[2017] EWHC 2750 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Choudhury
Case Nos: CO/5484/2016, CO/2683/2017 & CO/1223/2017
and
Charles Streeten (instructed by Wilson Barca LLP Solicitor) for the Claimants
Stephen Walsh QC and Daniel Mansell (instructed by Metropolitan Police) for Defendant (1)
Hearing dates: 12 October 2017
Judgment Approved
Introduction
These two claims for judicial review and appeal by way of case stated (together, "the claims") concern applications made by the Commissioner of Police for the Metropolis ("the Commissioner") for Closure Orders under the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act") in respect of six massage parlours in Soho which were suspected of operating as brothels. Those applications were refused on 2 November 2016 by the District Judge ("the DJ") on the basis that the Commissioner had not proved the alleged criminal conduct to the requisite standard. The Claimants/Appellants in this matter (to whom I shall refer as "the Claimants"), who operate massage parlours at the properties concerned, were therefore successful in resisting the Closure Orders. However, the DJ refused to order costs and compensation in favour of the Claimants. It is those refusals which form the basis of the claims before me.
Factual background
Operation Lanhydrock was a joint Metropolitan Police, City of Westminster and Modern Slavery and Kidnap Unit Command Investigation into six premises believed to have been systematically operating as brothels disguised as massage parlours across London's West End and Chinatown. The evidence giving rise to that belief comprised the following:
a. A number of "reviews" of each of the premises on a website in relation to sexual services offered at the premises. These services included the alleged availability of "extended sessions" during which clients engaged in a variety of sexual acts with "masseuses" upon payment of money;
b. Advertisements on another website, described as "London and the UK's biggest erotic and sensual massage directory", which appeared alongside pornographic images; and
c. Intelligence from the Safer Neighbourhoods Team and Westminster City Council, including that:
i. informants had reported that women working at the premises were offering sexual services to customers; and
ii. there had been reports of aggressive touting in the area around the premises by female members of staff dressed provocatively
The Closure Notices
Under s.76 of the 2014 Act, the Commissioner has the power to issue Closure Notices in respect of premises if she is satisfied on reasonable grounds that the use of the premises had resulted, or was likely soon to result, in nuisance to members of the public or disorder near those premises. Closure Notices have the effect of preventing any person (except the owner and persons habitually resident there) from entering or using the premises. Given the evidence available, the Commissioner considered that there were reasonable grounds for believing that the use of the premises resulted in or was likely to result in nuisance or disorder. Accordingly, on 20 October 2016, six Closure Notices were issued under section 76(1) of the 2014 Act.
Also on 20 October 2016, six search warrants were executed simultaneously at the six premises. Several items of a sexual nature were found at certain of the premises and at one of the premises, a police officer walked in on a couple having sexual intercourse in a room upstairs.
Service of the Closure Notices and subsequent proceedings
The Closure Notices were served under section 79(2) of the 2014 Act. Once the Closure Notices are served, the Commissioner has a short window of up to 48 hours in which to apply to the Magistrates for a Closure Order under s.80 of the 2014 Act. A Closure Order may prohibit access to the premises by all persons for a period of up to three months.
In the present case, that application for a Closure Order was made on the following morning, 21 October 2016, to Hammersmith Magistrates' Court. It was agreed that the substantive hearing, to determine whether Closure Orders should be made by the court under s. 80 of the 2014 Act, should be adjourned to 27 October 2016. I am told that the solicitor for the premises did object to the continuation of the Closure Notices, but the Magistrates decided that the continuation of the Closure Notices pending the full hearing was necessary in respect of all six premises (in accordance with section 81(4) of the 2014 Act).
At the adjourned hearing on 27 October 2016, those acting for the premises applied to adjourn proceedings on the basis that they were seeking permission to judicially review the validity of the Closure Notices on the grounds that there had been a failure to comply with the requirement under s.76(6) of the 2014 Act to inform persons having an interest in the premises that the notice is going to be issued. It is not in dispute that the Commissioner did not inform all of the relevant parties that the notice was going to be issued. The reasons for that, as set out in the police evidence lodged in support of the Closure Order, were the confidentiality of the operation, the suspected role of some of the interested parties in the organised criminal network and the nature of the offences being investigated. There was also a concern that some of the females being required to work at the premises were or may have been victims of trafficking in human beings, and that informing persons that a Closure Notice was going to be issued would undermine or compromise police efforts to engage with those victims.
This application for a further adjournment was refused by DJ Snow. DJ Snow accepted the Commissioner's argument that any questions of invalidity of the Closure Notices were a matter for judicial review and should not delay the Magistrates' determination of the application for Closure Orders. Directions were made and the substantive hearing was adjourned to 1 November 2016.
On 28 October 2016, the Claimants brought an urgent claim for judicial review ('the First JR') against the Commissioner's decision to issue the Closure Notices and DJ Snow's refusal to hear submissions regarding non-compliance with section 76(6). It was suggested in the First JR that there be a rolled-up hearing on 1 November 2016. On 31 October 2016, the Claimants made an application to this Court for urgent consideration of the First JR by the next day and prior to the substantive hearing in respect of the Closure Orders. Jefford J refused that application, considering it neither possible, practicable nor necessary to hold a rolled-up hearing on such an urgent basis.
The Closure Order hearing
The substantive hearing of the application for Closure Orders therefore went ahead on 1 November 2016 at Hammersmith Magistrates' Court with DJ Matson presiding. All six premises were legally represented. It was not in dispute at that hearing that the requirement to inform under s.76(6) had not been complied with. Whilst the Closure Notices had been sought on the basis of likely nuisance and disorder, by the stage of the hearing, the focus of the Commissioner's case had shifted to the alleged criminal behaviour on the premises, and the applications for Closure Orders were made on this basis, as permitted by s. 80 of the 2014 Act.
After hearing evidence from a number of witnesses and considering documents presented to her, DJ Matson decided that whilst, "there are many things in this case which may lead to the suspicion that sexual services were being carried out at some of these premises", the test in s.80(5) of the 2014 Act for making Closure Orders was not satisfied and they should not be made. DJ Matson's decision was issued on 2 November 2016.
Application for costs and compensation
The premises had remained closed for a period of 13 days from the issuing of the Closure Notices on 21 October 2016 until the refusal of the Closure Orders on 2 November 2016. The massage parlours lost business in that period. The Claimants made applications for their costs and for compensation in respect of losses incurred as a result of the Closure Notices. These applications were dealt with on the papers and, on 27 February 2017, DJ Matson handed down her decision. In dealing with costs, the DJ applied the principles established in Bradford Metropolitan District Council v Booth [2001] LLR 578 (" Booth") and in R (Perinpanathan) v City of Westminster [2010] EWCA Civ 40 (" Perinpanathan"), including that a straightforward 'costs follow the event' approach may not be appropriate in cases involving public authorities acting reasonably in the public interest, and that in such cases the starting point and default position is that no order for costs should be made. The DJ found that:
"Given the circumstances in this case as a whole, I find that the police acted reasonably and properly in making the application itself, despite my finding that the grounds were not made out to make the closure orders.
I also find the need for public authorities to be able to make such applications in the public interest without financial prejudices (sic) to them, outweigh any financial prejudice the respondents may have suffered in this case. I therefore dismiss the application for costs."
The DJ also dealt with compensation. Under s.90(5)...
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