Closure order – Extension – Section 5 of Anti-Social Behaviour Act 2002 – Three-month closure order made in respect of property occupied by claimant – Extension made in his absence for further three months – Crown Court dismissing appeal against extension – Whether extension justified where sole reason is benefit to community in continuing order as long as possible – Claim dismissed
The claimant occupied a flat that he had previously held as a secure tenant of the local authority before becoming a tolerated trespasser. In July 2007, the magistrates’ court made a closure order in respect of the premises for the maximum three months, under section 2 of the Anti-Social Behaviour Act 2003, on the grounds that: (i) it was satisfied that the premises had been used in connection with the unlawful use, production or supply of a Class A controlled drug; (ii) the use of the premises was associated with the occurrence of disorder or serious nuisance to members of the public; and (iii) the making of the order was necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order, within the meaning of section 2(3). Consequently, the claimant was compelled to leave the premises.
Prior to the expiry of the order, a duly authorised police officer made a complaint under section 5 seeking its extension; by section 5(4), the magistrates’ court could extend the order for a further period of no more than three months. The magistrates did not exercise their power, under section 5(3), to issue a summons ordering the claimant to appear before the court, but made the extension sought in his absence, after hearing evidence from a local authority officer that they intended to seek an outright possession order but needed the closure order extension to maintain the peace and quiet in the meantime. The claimant learned of the extension and appealed to the Crown Court. That appeal was dismissed and the extension was upheld. Counsel made notes of the judgment, however, they were not submitted to the judge for approval.
The claimant sought judicial review of the Crown Court’s decision. He submitted that a closure order should not normally continue beyond the maximum permissible period of three months without an extension. Parliament must be taken to have struck the correct balance between the interests of the community and the prejudice to the occupier, solely on the ground that it was in the interests of the community to continue the benefits of closure for as long as possible. He also raised further matters concerning the test applied by the Crown Court and the sufficiency of its reasons.
Held: The claim was dismissed.
(1) Although the procedure under section 5 did not require that the excluded occupier should be served with a summons before an extension is made, fairness would require that proper notice should be given wherever possible: R (on the application of Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin); [2007] 1 WLR 1272 applied.
In deciding whether an extension should be granted, the courts should approach the test prescribed by section 5(4) without any presumptions as to the statutory intention beyond what appeared in the actual wording, bearing in mind the guidance in Cleary. They should ask whether it had been proved that an extension was necessary and proportionate to prevent the occurrence of further drug-related disorder or serious nuisance, and, if so, how long the extension should be. That would not result in extensions being sought and granted automatically in most cases. While the existence of such occurrences prior to the making of the original order would generally justify the court in starting from the position that that situation would recur if the order were not continued, all depended upon the facts of the particular case and there were a variety of circumstances that might prevent the court from being satisfied that an extension was necessary. For example where there was evidence that the person responsible for the drug-related use of the premises had left the area, or had changed his behaviour, or that the premises would be in different occupation once the order was lifted. In any event, even if most closure orders were extended so as to last the maximum six months permitted by section 5(4), that would simply be the result of applying the statutory provisions and was not contrary to the intentions of parliament.
(2) In the absence of any approved note of the judge’s decision in the Crown Court, there was no authoritative record of his reasoning and the claimant was not in a position to make submissions as to his reasoning and its adequacy. This was a paradigm example of proceedings in which the transcript of the Crown Court judge’s reasons should have been submitted to him for approval. That was, in the first instance, the responsibility of the claimant. Where that had not been done, the court would be extremely reluctant to conclude that the judge had made an error of law or fact unless that was inevitable on the material before it.
Jan Luba QC and Maya Sikand (instructed by Duncan Lewis & Co) appeared for the claimant; the defendant was not represented; Grahame Aldous QC and Melanie Winter (instructed by the legal department of the Metropolitan Police) appeared for the interested party, the Commissioner of Police of the Metropolis.
Sally Dobson, barrister
