Errington, R (on the application of) v Metropolitan Police Authority

MR JUSTICE COLLINS: This claim raises important issues in relation to control orders under part 1 of the Anti-social Behaviour Act 2003, which deals with the closure of premises which have been used in connection with the unlawful use, production or supply of Class A drugs (often referred to colloquially as "crack houses") and that use has given rise to disorder or serious nuisance to members of the public.

The claimant is a secure tenant of the relevant premises: a flat on the first floor of a block containing six flats in Walthamstow in East London. For some years complaints had been received from neighbours about the disturbance caused by, inter alia, continual coming and going of visitors at all hours of the day and night, and threats of eviction proceedings have been made by the local authority who own the premises. There was evidence of drug use in the form of a large quantity of drug paraphernalia found in the estate near the premises.

Accordingly, in May 2005 it was decided to commission undercover surveillance by means of a DVD recording of the premises. This took place between 25 May and 8 June. It provided support for the allegation that the premises were being used in connection with the unlawful use or supply of Class A drugs. The intention was to obtain a closure order of those premises.

I should now refer to the relevant statutory provisions. Section 1 of the 2003 Act provides, so far as material:

Section 3 deals with enforcement and enables the constable or authorised person to enter the premises and to do anything reasonably necessary to secure the premises against entry by any person. He may use reasonable force in so doing.

Section 4, headed "Closure of premises: offences", provides:

The penalty by subsection (3) is imprisonment not exceeding six months and/or a fine not exceeding level 5 on the standard scale. Subsection (4) creates a defence if a person has a reasonable excuse for entering or being on the premises, as the case may be. Section 5 provides for the possibility of extension and discharge of closure orders and provides, by subsection (5), that a closure order must not have effect for more than six months. Section 6 deals with appeals and gives a right of appeal to the Crown Court which by subsection (2) must be brought before the end of the period of 21 days beginning with the day on which the order or decision is made. On an appeal the Crown Court may make such order as it thinks appropriate.

Incidentally there is a right of appeal given not only to the person affected by the control order but also a constable or the local authority, which has an interest. The process thus starts with a closure notice, which must be authorised by a police officer not below the rank of superintendent. He must have reasonable grounds for believing that the drug use has taken place within the relevant period, that is to say three months before the authorisation of the notice, and he must also have reasonable grounds for believing that the use is associated with disturbance and nuisance. Thus the officer must have reasonable grounds for believing that the disturbance and nuisance associated with the use exists at the time of the authorisation.

The purpose of a closure order is to protect neighbours from the nuisance and disturbance caused by the use of premises as crack houses, hence the need for the belief that the nuisance and disturbance is continuing. Further, the notice itself results in the closure of the premises and creates criminal offences for those who enter the premises in contravention of the notice (section 4(1)), or who obstruct the taking of any of the steps required by section 1(6) (section 4(2)(a)). In addition the notice is a necessary trigger for the proceedings to obtain a closure order.

Those proceedings must be heard by magistrates within 48 hours of the issue of the closure notice, subject to a power to adjourn for no more than 14 days to enable the person affected to be able to make representations. There is power to extend the validity of the notice for the period of any adjournment. Any further adjournment under the general powers conferred by section 54 of the Magistrates' Courts Acts 1980 can be exercised, but only in exceptional circumstances since the notice cannot be extended and so it will lapse if any adjournment beyond the 14-day period is allowed by the magistrates (see Commissioner of the Metropolitan Police v Hooper [2005] 4 All ER 1095.)

It was intended in this case to issue a notice and to take the necessary steps to obtain a control order in July 2005, but the events of 7 July intervened and led to a need to divert resources to deal with the threat resulting from the bombings. So it was that it was not until October 2005 that it was considered possible to pursue the question of the control order in respect of the premises. Superintendent Rivers, who was the officer who signed the authorisation, had regard to the history of the premises. In addition complaints of disturbance continued to be made and they included late night visits which followed the pattern of visitors who would be obtaining drugs. He, therefore, asserted that he had reasonable grounds for believing the matter set out in section 1(1), namely that there had been drug use within the three months before the authorisation and that there was continuing disturbance and nuisance.

The closure order was issued on 6 October and an order was made by the magistrates on the 12th. An appeal was brought to the Crown Court, the Notice of Appeal being lodged on 26 October 2005. The hearing of the appeal was not fixed until 14 December 2005. That was far too long a delay since the order was for three months from 12 October. It is important that appeals against control orders be heard by the Crown Court as soon as possible, ideally within a very few days of the lodging of the notice. Steps, in my judgment, should be taken by the courts to ensure that such appeals are given the necessary priority.

At the hearing of the appeal it was submitted, on behalf of the claimant, that the closure notice was defective and so invalid. Broadly speaking it was said that the superintendent could not have believed that the drug use occurred within the relevant period because the positive evidence related to May and June 2005. Further, the notice itself stated that the superintendent had reasonable grounds to suspect, rather than to believe, that such use had occurred. The court took the view that this issue should be decided by this court and that it was necessary to adjourn for that purpose.

I have no doubt that that decision was wrong. This court has indicated that in general it is inappropriate to intervene at an interlocutory stage (see, for example, R v Rochford Justices, ex parte Buck). The court must decide all issues whether of fact or law for itself and reach its decision. If that decision is, or is alleged to have been, tainted by any errors of law, a case can be stated or exceptionally judicial review proceedings can then be brought. It is particularly inappropriate to permit judicial review before the final decision in cases such as this where speed, and the continuing protection of the public, are of particular importance.

We are now 12 April 2006 so that the control order could not now be extended since the six-month maximum period has expired. However, permission for judicial review was granted and three questions have been posed for me to consider. They are as follows:

(1) Is the jurisdiction of the Magistrates' Court to hear the application for a closure order under section 2 of the Anti-social Behaviour Act 2003 dependent upon the existence of a validly issued and served closure notice under section 1 of the Act?

(2) If the reply to question 1 above is yes is the question of the validity of the closure notice, as set out above, a matter which the Magistrates' Court or Crown Court have jurisdiction to determine?; and

(3) Whether the superintendent issued a valid closure notice in this case and in accordance with section 1 of the Act.

The proceedings under Part 1 of the 2003 Act are civil proceedings. That follows from the decision of the House of Lords in relation to anti-social behaviour orders in general (see R v McCann v Crown Court at Manchester [2003] 1 AC 787 and the decision of Mitting J in The Commissioner of the Metropolitan Police v Hooper in relation to control orders in particular). They would accordingly usually be instituted by the making of a complaint to a Magistrates’ Court (see the Magistrates' Courts Act 1980, sections 51 and 52.) I understand that that is the procedure which was adopted in this case, and has been adopted in all cases, certainly so far as the Metropolitan Police are concerned, while enclosure orders are sought. Normally the court will then issue a summons directed to the person against whom the order is to be made.

However, that procedure does not seem to me to be appropriate. The closure order which is sought is not made against any person, but is directed to the premises, although obviously it does affect the individual occupier or person who has responsibility for, or control of, the premises. It seems to me that section 2 of the 2003 Act contains its own procedural provisions. It requires that an application be made to the Magistrates' Court for the making of a closure order. No particular form for that application is prescribed. The closure notice must inform the person who is interested in the premises, to put it generally, when and where the application to the court will be heard (see section 1(4)) and it must be served upon those who are so interested (section 1(6). Thus there is no need for a summons from the court because the notice itself tells the individual that he has to attend the court on a particular date and at a particular time.

At the hearing of the application the court should satisfy itself that copies of the notice have indeed been served as required by section 1(6) so that anyone who would be adversely affected by it, and entitled to make representations against it because he had control of, responsibility for, or interest in the premises, had been so far as reasonably practicable, identified and served. One of the purposes of section 1(6) is to give all those who might be affected by an order, or interested in the premises, notice of the intention to apply for the control order. If the magistrates are not satisfied that those mandatory steps have been taken they should then consider whether to exercise their powers to adjourn under section 2(6) and require that the necessary steps be taken. If persuaded that there are shortcomings, they would be likely to take the view that the notice should not continue in effect until those necessary steps were taken; thus they would not exercise their powers under section 2(7) to continue the notice in being.

The notice itself, on the face of it, is required to inform of the date and time of the hearing before the Justices. Obviously if the notice does not contain the necessary information the magistrates will be likely to indicate that they are not prepared to continue with any hearing until the notice is put in proper form. In that way the interests of those who are affected by it are preserved while the protection of the public, which stems from the need for the premises to be closed down, if that is established, is also kept in being.

For reasons which will become apparent, I do not think that the jurisdiction to hear the application is affected by any shortcomings in the notice, although they would affect the validity of the notice so as to make it impossible to maintain criminal proceedings under section 4(1) or (2) in so far as they depended upon the validity of the notice. If within the period permitted by the Justices any defects were not cured then no doubt the application would be likely to be refused. It is important to bear in mind that the closure notice itself produces an immediate effect in that it prevents anyone other than a habitual resident or the owner from entering the premises. In addition its breach by any visitor is a criminal offence, as is any obstruction by any person of the taking of any of the steps which have to be taken under section 1(6). It will be a defence to any criminal charge under section 4(1) or (2) in so far as it relates to section 1(6) that the notice is not a valid notice. Such a defence will have to be considered by the court (see Boddington v British Transport Police [1998] 2 All ER 203), but while the issue of a notice, which does not have to be contemporaneous with its authorisation, is an essential pre-requisite to the application to the court, the court must decide whether an order is needed. The court will consider whatever evidence is put before it in satisfying itself that each of the paragraphs in section 2(3) applies. That is the protection for the claimant and anyone adversely affected by the notice which cannot be in force for more than 16 days, that is a combination of the 48 hours in section 2(2) and the 14 days’ adjournment in subsection (6).

Whether or not the superintendent had reasonable grounds for his belief will inevitably be irrelevant at the stage that the magistrates consider whether to make a control order, since they must decide whether in fact there has been the drug use and whether in fact there is the associated disturbance and so the making of an order is necessary.

In so far as breaches result in criminal offences, the validity of the closure notice must, as I have said, be established. Since Parliament has laid down mandatory requirements those must be complied with. The same approach is not necessary in considering an application under section 2 of the Act. It seems to me that in this respect the approach adopted by the House of Lords in the Attorney General's reference (No 3 of 1999) [2001] 1 All ER 577 is applicable. A notice must have been issued to enable an application to be made, but the application does not depend, nor does the Act say that it depends, upon the validity of that notice. The Justices must ensure that those affected have been properly notified and so can appear and, if they wish, raise objections, but it is for the Justices to decide on the evidence before them whether a control order is to be made. That process provides all the necessary protection for those affected and does not frustrate the obvious Parliamentary purpose in permitting the making of control orders for the protection of those living near such premises.

Mr De Mello drew my attention to the notice itself which states as follows, in so far as relevant, referring to the premises and then commencing with these words:

That contained a clear error since the Act requires there to be reasonable grounds for believing and not for suspecting. Belief is a more positive frame of mind than suspicion. If authority is needed for that it is to be found in R v Moys 79 Cr App R 72, a case concerning the handling of stolen goods and the test relevant to belief that they were stolen. Section 1(1) requires that the authorisation notice be based on reasonable grounds for believing. The authorisation (an internal document) is before me and that is correct. It states that the grounds for granting authority are that the signatory, who is Superintendent Rivers, has reasonable grounds to believe that during the relevant period the premises had been used in connection with use, production or supply of a Class A controlled drug. It is signed by the superintendent.

Unfortunately there is an error on it in that he has written the time twice instead of the date, but I am informed, and I think it is fairly obvious, that it was dated the same day as the notice, that is to say 6 October.

The wording of the notice itself is, it seems, based on Home Office guidance. That guidance, in paragraph 4.1(2), provides under the general heading:

As I have said, there is a distinction between suspicion and belief. This case has at least identified that mistake and I am told that that guidance is to be changed. There must clearly be an immediate change not only of the guidance but also of the closure notice that the Metropolitan Police use, which at present contains that erroneous reference to suspicion.

Mr De Mello has further submitted that hearsay cannot be relied upon by the superintendent in forming his belief. That is, I am afraid, clearly wrong. His is an administrative act and he can rely on any material which is relevant whatever its source. He will decide what weight to attach to it (see, for example, Kavanagh v the Chief Constable of Devon and Cornwall Constabulary [1974] QB 624 which involved a shotgun licence and objections to it and referred in the statutory provision to reasonable belief). So here the superintendent relied on information given him by the sergeant who was deputed to investigate the matter. Some of that material was information given by complainants who wished to remain anonymous and who were not prepared to come forward to give evidence for fear of reprisals.

In cases arising under part 1 of the Act such fears are commonplace and are understandable. It is one of the major problems which has in the past prevented successful action against such premises. These being civil proceedings it is open to the Justices to consider any material, whether hearsay or not, which is relevant to their determination. It is for them to decide what weight, if any, to attach to particular items of evidence put before them.

Mr De Mello has further submitted that the relevant period of three months applies to both of the paragraphs of section 1(1) and to paragraphs (a) and (b) of section 2(3). Neither submission is, in my view, well-founded. Section 1(1) would have read differently if that is what Parliament had intended. It would have read:

It is, to say the least, ungrammatical to suggest that it should have read:

The present tense in paragraph (b) shows that it is indeed only (a) that imports the relevant period. In effect, the superintendent must believe that the drug use has existed within the relevant period and that that use, and its associated disturbance and nuisance, is continuing. Section 2(3) does not refer to any particular period to which evidence of use is to be restricted. That is not surprising since section 2(3)(b) requires that use which has occurred is associated with disorder or serious nuisance, and section 2(3)(c) provides that it is necessary to make the order to prevent recurrence. Normally there will be evidence of use within the previous three months since the notice will have been based upon such use, but there will, in any event, have to be evidence which satisfied the magistrates that that use exists and is likely to continue unless an order is made. A pattern of such use and disturbance over a long time is likely to be material to the issues before the magistrates. Thus there is no need to limit their consideration and material in the way suggested by Mr De Mello.

In this regard there is a further need for reconsideration of a potentially misleading sentence in the Home Office guidance. That is in Annex B. In Annex B4.1 there is reference to other powers to control nuisance. This is a general guidance in relation to closure of premises. So far as material it reads:

Accordingly, for the reasons I have given, I would answer the first question raised in the negative. The magistrates’ jurisdiction depends upon an application made under section 2 of the 2003 Act and the existence of a notice. Any relevant issues relating to the notice and, in particular, whether any persons who should have been notified have been must be decided by the magistrates. If the magistrates are in any doubt about whether there has been a proper display of the notice or notification in accordance with section 1(6), they must ensure that all necessary steps are taken to draw its existence to the attention of those who otherwise might try to visit the premises and so commit an offence.

In this case I have no doubt that the notice itself was a valid notice and that it would have been perverse to have reached any other conclusion. Whether or not the proceedings are now effectively moribund I am not sure. I suspect they perhaps are. It may be necessary, if anything is to be pursued, to issue a fresh notice and make a fresh application. That is a matter on which I can now hear any submissions. As it is this claim for judicial review is dismissed. What is the present position? Presumably the notice has been in effective or the order has been ineffective, or has it been effective all this time?

MISS WATSON: It is my understanding that the order has run its course.

MR JUSTICE COLLINS: Has the order run?

MISS WATSON: I believe it expired in January.

MR JUSTICE COLLINS: He was not suspended in any way?

MR DE MELLO: I gather it has run its course.

MR JUSTICE COLLINS: In that case I was right to say that these proceedings are moribund. It cannot extend beyond today.

MR DE MELLO: That is correct. You have indicated in the judgment--

MR JUSTICE COLLINS: So there is no order that need be made?

MR DE MELLO: That is right, yes.

MR JUSTICE COLLINS: I do not know whether it is necessary to go back to the crown court simply to clear the matter up. I would not have thought so. I would have thought the sensible thing for the crown court is perhaps to simply note that the appeal is withdrawn because there is no point in continuing.

MR DE MELLO: Absolutely. Once they have seen the judgment that will be it.

MR JUSTICE COLLINS: It is obviously unnecessary and indeed it would be absurd to require any further costs to be occasioned in any formal application to the crown court.

MR DE MELLO: The claimants have the benefit of a public funding certificate. May I have the normal order?

MR JUSTICE COLLINS: You may, indeed.

MISS WATSON: There is an application for costs on behalf of Commissioner. I understand that given that the applicant is legally aided. That will have to go for detailed assessment.

MR JUSTICE COLLINS: Subject, if I make it, to the usual order not to be enforced. Whatever its terms are. I do not think you can resist the making of the order. It will be subject to the usual terms.

MISS WATSON: I am grateful, my Lord.

MISS WHITE: A short point for the purpose of the transcript. My Lord, on a few occasions you referred to a control order rather than a closure order.

MR JUSTICE COLLINS: I will tell you why that is: it happens that the matter I was dealing with before was a control order. That is easily corrected.

MR DE MELLO: I am told, I always get this wrong, that the application for costs would not be enforced without the leave of the court. It has a section 11 protection.

MR JUSTICE COLLINS: That is right, subject to the usual order.