R (Smith) v Crown Court at Snaresbrook
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 2008 |
| Neutral Citation | [2008] EWHC 1282 (Admin) |
| Docket Number | Case No: CO/11618/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2008 |
[2008] EWHC 1282 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Mr Justice Underhill
Case No: CO/11618/2007
Jan Luba Q.C. and Maya Sikand (instructed by Duncan Lewis & Co.) for the Claimant
Grahame Aldous Q.C. and Melanie Winter (instructed by the Metropolitan Police Solicitor) for the Interested Party
The Defendant was not represented
Hearing date: 30 th April 2008
Underhill J:
INTRODUCTION
Prior to the events with which this application for judicial review is concerned the Claimant had lived for many years in a flat at 117 Richmond Road, London E8. He was at first a secure tenant from the London Borough of Hackney but latterly a “tolerated trespasser”. On 17 th July 2007 the Thames Magistrates Court made a closure order in respect of the premises under s. 2 of the Anti-Social Behaviour Act 2003, with a duration of three months. On 16 th October 2007 the same court extended the order for a further three months pursuant to s. 5 of the Act. The Claimant appealed against the extension of the order. On 13 th December 2007 his appeal was heard at the Snaresbrook Crown Court by Bean J. (sitting as a Circuit Judge) and two justices and was dismissed. The application before us is for judicial review of the order of the Crown Court: there is no challenge to the original closure order. The claim is defended by the Commissioner of Metropolitan Police as an Interested Party, since it was his officer who obtained the order, and it was he who was the respondent on the appeal. The Claimant has been represented before us by Mr. Jan Luba QC and Ms. Maya Sikand. The Commissioner has been represented by Mr. Grahame Aldous QC and Ms. Melanie Winter. Ms. Sikand and Ms. Winter appeared in the Crown Court.
The application for judicial review is in one sense academic because the extension period has expired. But Munby J. gave permission primarily because he regarded the Claimant's grounds of challenge not only as arguable but as raising a point of law of potentially wide application which required determination in the public interest. (He also took into account the fact that the Claimant had included in his claim form a claim for damages, which would in principle remain live notwithstanding the expiry of the closure order. There may in fact be, as Mr. Luba candidly acknowledged, real difficulties about whether any such claim is available to the Claimant, and if so against whom; but we need not in any event consider it further since it is accepted that, if the primary claim were to succeed, the claim for damages, if maintained, would need to be considered at a later hearing.)
THE STATUTORY SCHEME
The scheme of Part 1 of the 2003 Act, which is headed “Premises Where Drugs Used Unlawfully”, can most usefully be considered in two parts – first, the provisions relating to the making of the original closure order; and secondly the provisions governing its extension.
Closure Notice and Closure Order
The basic scheme is that where the use of premises for the unlawful use, production or supply of Class A drugs (in shorthand, “drug-related use”) is leading to disorder or serious nuisance the premises in question can be summarily “closed” on a short-term basis, in accordance with the provisions of s. 1 of the Act, by a notice served by a constable; but that that notice needs to be confirmed, or otherwise, within 48 hours (extendable by a maximum of fourteen days) by an order of the magistrates' court under s. 2. The detailed provisions can be summarised as follows:
(1) The issue and service of a closure notice must be authorised in accordance with s. 1 (1). Under the statute as originally enacted the “authorising officer” had to be a police officer not below the rank of superintendent. By virtue of the provisions of art. 4 (2) of the Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (SI 2006/987), “authorising officer” was, with effect from 1 st April 2006, re-defined as “a designated person not below grade 2”, i.e. “a member of the staff of SOCA [the Serious Organised Crime Agency] designated as having the powers of a constable under s. 43 (1) (a) of the Serious Organised Crime and Police Act 2005” (see art. 4 (4)).
(2) By s. (1) (1) the power to authorise the issue of a closure notice arises if the authorising officer:
… has reasonable grounds for believing –
(a) that at 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, (b) that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public.
The “relevant period” is the three months prior to the date of the authorising officer's decision: see s. 1 (10).
(3) The effect of a closure notice is that access to the premises is prohibited to any person “other than a person who habitually resides in the premises or the owner of the premises”, pending the hearing of an application to the magistrates' court for a closure order: see s. 1 (4) (b)
(4) There are elaborate provisions covering the service of a closure notice, designed so far as possible to ensure that it comes promptly to the attention of any person likely to be affected by it: see s. 1 (5)-(7A).
( 5) S. 2 provides, so far as material, 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 1 (6) (a).
(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.
(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.
(5) – (9) …
(6) Ss. 3 and 4 provide for the enforcement of a closure order in various respects and for its contravention to be an offence.
Mr. Luba emphasised to us how draconian these powers are. An occupier may be excluded from his home, by what is on any view a summary process, for as much as three months (ignoring at this stage the power of extension) in circumstances where he is likely to find it very difficult to obtain other accommodation and where he may well remain liable for rent or mortgage payments and other incidents of his tenure. That being so, it is well settled that art. 8 of the European Convention of Human Rights is engaged. That both colours the application of the civil standard of proof and means that, in deciding 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 “on the nod” nor automatically for the maximum three-month period: they must carefully consider whether the statutory criteria are satisfied and what period of closure is necessary in order to achieve the aim of bringing to an end the disorder or nuisance to which the drug-related use of the premises has given rise. For my part, I accept those propositions.
Extension
S. 5, which is the section with which we are directly concerned on this application, provides, so far as material, as follows (as amended by the 2006 Order):
(1) At any time before the end of the period for which a closure order is made or extended a constable may make a complaint to a justice of the peace for an extension or further extension of the period for which it has effect.
(2) But a complaint must not be made unless it is authorised by a designated person not below grade 2:
(a) who has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the occurrence of disorder or serious nuisance to members of the public, (b) who is satisfied that the local authority has been consulted about the intention to make the complaint.
(3) If a complaint is made to a justice of the peace under subsection (1) the justice may issue a summons directed to:
(a) the persons on whom the closure notice relating to the closed premises was served under subsection (6) (d) or (e) or (7) of section 1;
(b) any other person who appears to the justice to have an interest in the closed premises but on whom the closure was not served,
requiring such person to appear before the magistrates' court to answer to the complaint.
(4) If the court is satisfied that the order is necessary to prevent the occurrence of disorder or serious nuisance for a further period it may extend the period for which the order has effect by a period not exceeding three months.
(5) But a closure...
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