Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LLOYD JONES
Between:
THE QUEEN ON THE APPLICATION OF JEFFREY TAYLOR
Claimant
v
COMMISSIONER FOR THE METROPOLITAN POLICE
Defendant
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Martin Westgate (instructed by Hartnells) appeared on behalf of the Claimant
Matthew Holdcroft (instructed by Department of Legal Services, Metropolitan Police) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE LLOYD JONES: This is an appeal by way of case stated by Mr Jeffrey Taylor against the decision of Deputy District Judge Newton, sitting at Camberwell Green Magistrates' Court on 2nd May 2007, declining to make an order for costs in his favour following the dismissal of an application by the respondent, the Metropolitan Police Commissioner, for a closure order under section 2 of the Anti-social Behaviour Act 2003 ("the 2003 Act").
On 13th April 2007 an application was made by the Metropolitan Police Commissioner for a closure order in respect of 28-34 St Agnes Place, London SE11. The full application was heard by Deputy District Judge Newton on 27th April 2007, when, having heard the evidence, the closure order was refused.
The Deputy District Judge gave reasons for her decision on 2nd May 2007. On that occasion the appellant applied for an order for costs against the respondent, relying on section 64 of the Magistrates' Courts Act 1980. The Deputy District Judge ruled that while proceedings under section 2 of the 2003 Act are civil in nature, the Magistrates' Courts' jurisdiction to award costs under section 64 of the 1980 Act was dependent upon the proceedings in question being commenced by way of complaint. She considered that an application for a closure order, as prescribed by Part I of the 2003 Act, involves the initial issue and fixture to the relevant premises of a closure notice bringing to the attention of interested parties the time, date and place of hearing of the closure order application. She considered that as there is no provision for the laying of a complaint, or the subsequent issue of a summons, the court was not concerned with a complaint. Therefore, the court had no jurisdiction to make a costs order under section 64 of the Magistrates' Courts Act 1980.
The question which has been stated for the opinion of the High Court is as follows:
"Whether a Magistrates' Court on hearing an application for a closure order under section 2 of the Anti Social Behaviour Act 2003 has jurisdiction to award costs under section 64 of the Magistrates' Courts Act 1980."
The relevant facts are set out in the case stated:
On the 13th April 2007 application was made by the Metropolitan Police Commissioner for an order under section 2 Anti-Social Behaviour Act 2003 in respect of premises at 28-34 St Agnes Place SE 11. Proceedings were adjourned to enable evidence to be served on the respondents to 20th April and adjourned again to 27th April for a full hearing. On that occasion the evidence was heard and I refused the police application. I do not propose to set out the facts which I found on hearing the application since these are not challenged.
The court re-constituted on 2nd May when I explained the reasons for my judgment. There were applications on behalf of both the respondents, the Ethiopian World Federation and Mr Taylor, for awards of inter partes costs against the police citing the provisions of section 64 of the Magistrates' Courts Act 1980. Counsel for the Ethiopian World Federation cited the provision under section 10 of the Anti Social Behaviour Act 2003 for payment of compensation from central funds as an alternative to an inter partes award. After listening to arguments from both parties I made an order under section 10 for the payment of compensation to the Ethiopian World Federation representing their legal expenses but made no order under either section in favour of Mr Taylor who was the subject of a legal representation order."
The reasoning by which the Deputy District Judge concluded that she had no power to award costs against the Commissioner is set out in the case stated:
Firstly it falls to be determined whether the application comprises civil or criminal proceedings since upon this question depends the appropriate statutory authority to award costs. I find that the question is answered conclusively by the case of Metropolitan Police Commissioner v Hooper (2005) EWHC 340 (Admin)(2005) 4 All E R 1095 (2005) 1 WLR 1995 (2005) 169 JP 409. The judgment in this case clearly states that an application for a closure order should be classified as civil proceedings since there is no formal accusation by the respondent of a criminal offence. The court goes on to state that whether criminal or civil these proceedings nevertheless attract the protection of articles 1 of the First Protocol and articles 6 and 8 of the European Convention on Human Rights.
It would appear to be well established that the court has no power to make a costs order other than under any provision found in statute. 'The Justices have no power to award costs in any proceedings before them either judicial or administrative. The jurisdiction if it exists must be found in a statute' per Denning LJ in Regina v Uxbridge Justices ex parte Commissioner of Police for the Metropolis.
Part I (Sections 1-11) of the Anti-Social Behaviour Act 2003 contains no express power to award inter partes costs. I therefore have to refer to Part II of the Magistrates' Courts Act 1980 (expressly headed 'Civil Jurisdiction and Procedure') and to examine the provisions of section 64. This section provides that:
On the hearing of any complaint a magistrates' court shall have power in its discretion to make such an order as to costs:-
on making the order for which the complaint is made to be paid by the defendant to the complainant
on dismissing the complaint to be paid by the complainant to the defendant,
as it thinks just and reasonable.
The application procedure for a closure order prescribed under Part I of the Anti-Social Behaviour Act involves the initial issue and fixture on the premises concerned of a closure notice which is required to be brought to the attention of interested parties and notifies those persons of the time, date and place of hearing of the application to the Magistrates' Court. There is no provision for the laying of a complaint or the subsequent issue of a summons. Instead the Act sets out a specific procedure to bring proceedings without reference to the standard civil method for the issue of a summons on complaint.
Since the legislation is recent and there is no direct authority on the point in question I am referred to analogous statutory provisions under the Magistrates' Courts civil jurisdiction. A number of cases in the reports concern the issue of the Magistrates' power to award costs under the Police Property Act 1897 where the use of the word 'application' has led to argument concerning the correct procedure to be adopted on costs applications. There is the case cited above R v Uxbridge Justices ex parte Commissioner of Police for the Metropolis [1981] Q.B. 829 where the Court of Appeal made a number of interesting observations as to the proper procedure to adopt under the relevant legislation. Unlike the present case the 1897 Act prescribes no procedure for making an application to the court. Sir George Baker held that the complaint method was a 'proper procedure' while Sir Stanley Rees maintained that it was a necessary procedure in the circumstances. In a dissenting judgment Lord Denning held that although the application was made on a complaint form it was an application simpliciter and did not give the justices power to award costs. On a pragmatic note he urged Magistrates' Courts to adopt an application form specifically marked as such thus relieving the court from considering any question of inter partes costs on final determination. I believe the law in relation to the Police Property Act where an application has been brought by way of complaint to be firmly settled by Mercer v Oldham (1984) Crm LR 232 which clearly confirms that the court does have the power to award costs in these circumstances. However the circumstances of applications under the Police Property Act are to be distinguished from those pertaining in the present case since the procedure is essentially different.
I have been made aware of recent authority concerning the character of the proceedings brought under Part I of the Anti-Social Behaviour Act 2003 namely the observations of Poole J in R (Turner) v Highbury Corner Magistrates' Court [2006] 1 WLR 220 where he held that 'in so far as there is no specific mention of complaint in section 2 of the Anti-Social Behaviour Act 2003 I am satisfied that by reason of their nature such applications as those we are considering here have all the necessary characteristics of complaint and are covered by section 54 of that Act' Poole J was referring here to the provision which enables the court to adjourn a summons laid on complaint and its applicability to section 2(6) of the 2003 Act which appears to restrict the power of the court to adjourn the application to no more than fourteen days. This aspect of the legislation was examined by the Administrative Court in Metropolitan Police Commissioner v Hooper referred to above. In that case the court found that section 2 provides a self-contained statutory code for the hearing and determination of these applications and that the power to adjourn under section 54 should only be exercised where there was no other way available to avoid a breach of the subject's Convention rights and to avoid incompatibility with the Convention (in the case in question to ensure that the respondent was not jeopardised by the limited time available to seek her solicitors' advice on the late service of prosecution evidence).
I am of the view that the provision of a self-contained statutory code in Section 2 characterises the general scheme of Part I of the Act which is tightly constructed and should be read as a whole. The purpose of Part I of the Act is to set out a relatively straightforward summary procedure which (having regard to the time constraints set out in the section) is expected to be invoked by the police in situations where time is of the essence to prevent disorder and serious nuisance to the public from continuing and avoid its re-occurrence the administrative court observed in Hooper that the proceedings must be conducted with sufficient speed so as not to defeat the beneficial object of the statute. I further consider that the provisions eschew an adversarial approach but instead entitle certain categories of persons (specified in section 2(6) of the Act) who might be adversely affected by a closure order to resist the application by showing cause why an order should not be made. Section 10 of the Act expressly enables a court (in the exercise of its discretion) to award compensation from central funds in favour of persons who satisfy the criteria of section 10(4) of the Act (essentially restricting such awards to persons who suffer loss through no fault of their own). I do not consider that it is necessary to look any further to interpret the legislation in accordance with section 3 of the Human Rights Act unlike the Administrative Court in the case of Hooper previously cited where it considered it legitimate to apply the provisions of section 54 of the Magistrates' Courts Act to adjourn proceedings beyond the time limits allowed to enable a party to obtain legal advice or to allow an incapacitated party to attend court.
Section 9 exempts a police officer (in sub-section 1) or a chief officer of police (in sub-section 2) from relevant damages for anything done or omitted to be done in the exercise of his powers under the Act (subject to exceptions for actions done in bad faith or actions unlawful under section 6 of the Human Rights Act).
I find this provision consistent with the purposive interpretation I have adopted of these statutory provisions to the effect that they are not intended to place the police under any undue pressure for incurring financial liability for actions properly taken in the exercise of their common law and statutory duties."
Statutory provisions
Section 64(1) of the Magistrates' Courts Act 1980 provides:
"On the hearing of a complaint, a magistrates’ court shall have power in its discretion to make such order as to costs—
on making the order for which the complaint is made, to be paid by the defendant to the complainant;
on dismissing the complaint, to be paid by the complainant to the defendant
As it thinks just and reasonable; but if the complaint is for an order for the periodical payment of money, or for the revocation, revival or variation of such an order, or for the enforcement of such an order, the court may, whatever adjudication it makes, order either party to pay the whole or any part of the other’s costs."
It will be noted that the power is conferred "on the hearing of a complaint". The Act does not define a complaint.
Part I of the Anti-social Behaviour Act 2003 creates a statutory scheme relating to closure orders. In summary, section 1 enables a police officer holding the rank of superintendent or above to serve a closure notice on premises where he has reasonable grounds for believing that:
the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug; and
the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public.
The effect of the notice is to prohibit access to the premises by anybody other than those habitually resident there.
The notice is served by fixing it to the premises; and by giving a copy of the notice to at least one person who appears to the constable to have had control of or responsibility for the premises and by giving a copy of the notice to the persons identified in pursuance of subsection (2)(b), that is those living on the premises, or who have control of or responsibility for or an interest in the premises, and to any other person appearing to the constable to be a person of a description mentioned in subsection (6)(e).
The notice must state that an application for a closure order is to be made and give particulars of the time and place where the application will be heard.
By section 2, where a closure notice has been served, the constable must make an application to a Magistrate's Court for a closure order. The application must be heard by the magistrates within 48 hours after service of the notice, but may be adjourned for a period of no more than 14 days to enable an occupier, a person with responsibility or control, or any other person with an interest in the premises to show cause why the order should not be made. The court also retains its general power to adjourn under section 54 of the Magistrates' Courts Act 1980, as is established in a series of decisions to which I shall come.
A closure order may be made where the court is satisfied that the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug, that the use of premises is associated with the occurrence of disorder serious to members of the public, and the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for a period specified in order.
If the effect of the order is to prohibit any access to the property, except such as is specified in the order, it will be made for a period of up to 3 months.
Section 5 provides that a constable may apply to extend the period of operation of a closure order, provided it had been made by way of a complaint and the court may issue a summons to ensure the attendance of affected parties. By section 5(6), persons affected by the making of a closure order may apply, again by way of complaint, for the order to be discharged.
Section 9 provides certain protection for the police from an action for damages where they have acted in good faith.
Section 10 provides that a person who incurs financial loss as a result of a closure order may apply for compensation out of central funds. I note in passing that it was on this basis that costs were ordered to be paid out of central funds by the Deputy District Judge to the Ethiopian World Federation. The point as to whether section 10 extends to costs has not arisen directly in these proceedings, the matter has not been fully argued before me and therefore I express no view on that matter.
On this appeal before me, certain matters are common ground:
The proceedings before the Deputy District Judge were civil in character.
The power of the Magistrates' Court to award costs is entirely statutory.
There is no express power to award costs in the 2003 Act.
The parties accept that if any power exists, then it must be found in section 64 of the 1980 Act, that being the only general power to award costs in civil proceedings before the Magistrates' Court.
The appellant's case is that the proceedings in this case were proceedings by way of complaint for the purposes of section 64 of the Magistrates' Courts Act 1980. There is no authority directly in point. However, the weight of such authority as touches on this issue is, in my judgement, in favour of the appellant.
The appellant relies on a line of authority to the effect that the power to grant an adjournment conferred by section 54 of the Magistrates' Courts Act applies in proceedings under the 2003 Act. Section 54 provides:
"(1)A magistrates’ court may at any time, whether before or after beginning to hear a complaint, adjourn the hearing, and may do so, notwithstanding anything in this Act, when composed of a single justice.
(2)The court may when adjourning either fix the time and place at which the hearing is to be resumed or, unless it remands the defendant under section 55 below, leave the time and place to be determined later by the court; but the hearing shall not be resumed at that time and place unless the court is satisfied that the parties have had adequate notice thereof."
The point is made that this power to adjourn is dependent on the proceedings being by way of complaint. However, it has been held to apply to cases brought under Part I of the 2003 Act, notwithstanding the express provision in section 2(6) of that Act relating to adjournment.
In Metropolitan Police Commissioner v Hooper [2005] 4 All ER 1095, Mitting J held that in proceedings under Part I of the 2003 Act magistrates did not have an inherent power to adjourn proceedings. However, he considered that they did have a power to adjourn proceedings pursuant to section 54 of the Magistrates' Courts Act. He considered that proceedings under the 2003 Act are civil in nature. He then turned to the question whether the 2003 Act itself constituted a self-contained statutory code:
"18 In my view, the interpretation of the statutory provisions is plain. Once a closure notice has been served, it must be 'heard', in other words determined, within 48 hours by a magistrates' court, but the persons whose rights will be affected by the making of such an order must be given adequate opportunity to assert those rights by contending that the order should not be made. That must, however, be done with sufficient speed so as not to defeat the beneficial object of the statute: to procure the closure of what can colloquially be referred to as 'disorderly crack houses' and to protect the neighbours of such premises from the severe nuisance caused by them. That purpose is achieved by section 2(6) of the 2003 Act. The persons there specified have the right to ask the justices to adjourn proceedings for a limited period, 14 days, to show why the order should not be made. That can be on any of the grounds specified in section 2(3); that is to say, that the premises have not been used in connection with the unlawful use, production or supply of a class A drug, that the use of the premises has not been associated with the occurrence of disorder or serious nuisance to members of the public, and that the making of the order is not necessary to prevent the occurrence of such disorder or serious nuisance in the period specified in the order.
19 Thus, in the ordinary case, whether or not a closure order should be made will be determined within 16 days, at most, of the service of the closure notice. However, the 2003 Act does not expressly exclude the operation of section 54 of the Magistrates' Courts Act 1980, or, I add, if I am wrong in my categorisation of the proceedings as civil, section 10 of the same Act.
20 In certain exceptional circumstances it may be necessary that that power to adjourn should be available over and above the express statutory power in section 2(6). Therefore, to achieve a construction of sections 1 and 2 compatible with the Convention, it is, in my view, necessary to rule that section 54 is not impliedly excluded by those provisions. Indeed, Miss Watson does not contend that it is."
The judge did not expressly address the question of whether such proceedings did involve the hearing of a complaint. This point does not appear to have been argued before him. Rather, it seems that he assumed that the power to adjourn under section 54 applied unless excluded impliedly by the scheme of the 2003 Act. It was that issue on which he concentrated in his judgment. Nevertheless, it seems to me that, subject to that qualification, the decision does provide some support for the appellant's case.
On behalf of the respondent, Mr Holdcroft submitted that the decision provides little assistance, because it turns on a construction adopted as necessary to comply with the European Convention on Human Rights. The passage which I cited above makes it clear that the judge did approach the issue of the implied exclusion of section 54 on that basis. However, there is nothing in the judgment to indicate that the assumption that the court was concerned with a complaint was made on the basis that that conclusion was necessary in order to satisfy the requirements of the European Convention on Human Rights.
Some months later, the same issue arose before the Queen's Bench Divisional Court in R (Turner) v Highbury Corner Magistrates' Court [2006] 1 WLR 220. There the Divisional Court, comprising Keene LJ and Poole J, followed the decision of Mitting J in Hooper. On this occasion, Poole J expressly referred to the question of whether proceedings under Part I of the 2003 Act were by way of complaint:
"10 In so far as there is no specific mention of complaint in section 2 of the Anti-social Behaviour Act 2003, I am satisfied that by reason of their nature such applications as those we are considering here have all the necessary characteristics of complaint and are covered by section 54 of the 1980 Act. The claimant has not argued otherwise."
Contrary to the submission made on behalf of the respondent, I consider that in paragraph 10 Poole J is clearly saying not only that the application possessed the characteristics of a complaint, but that it was a complaint. Keene LJ agreed with Poole J without developing this point in his judgment.
Here again it is fair to say that the specific point as to whether the proceedings had been commenced by a complaint was not the subject of argument. However, on this occasion the issue clearly was addressed and decided by the court. Moreover, in Turner there is no indication that the court's conclusion as to the nature of the proceedings was arrived at in order to comply with obligations under the European Convention on Human Rights.
I note that Poole J did not identify the necessary characteristics of "complaint", to which he referred. I shall return to this matter.
In 2006 the matter arose once again in the Divisional Court in R (Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272, where May LJ considered (at page 1277 E-F) that in Hooper Mitting J had correctly held that section 2(6) of the 2003 Act did not exclude the general power under section 54 of the Magistrates' Courts Act. Here, once again, it is fair to say that the concentration of the court is on the implied exclusion of the general power. However, as far as they go, it seems to me that these cases, and in particular the judgment of Poole J in Turner, support the appellant. Indeed, it seems to me that the conclusion of Poole J and the Divisional Court in Turner that proceedings under the 2003 Act sections 1 and 2 are a complaint is a necessary part of the reasoning by which they reached their conclusion.
By contrast, the judgment of Collins J in R (Errington) v Metropolitan Police Authority [2006] EWHC 1155 (Admin) seems, at first sight at least, to favour the respondent. The question there was whether the validity of the original notice was a precondition to the validity of the control order:
The proceedings under Part I 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."
Mr Holdcroft on behalf of the respondent submits that this passage demonstrates that the procedure to be followed under the 2003 Act is not by way of complaint. I accept that the judge's comments can be read as lending some support to the view that this procedure is not by way of complaint. However, it seems to me that Collins J was here addressing a rather different question: the procedural steps which must be taken under the 2003 Act. He was not addressing, at least directly, their characterisation. The issue with which we are concerned does not appear to have been directly raised or argued. Moreover, Collins J was not referred to certain further authorities, in particular the decision of the House of Lords in Hill v Anderton [1983] AC 328, to which I shall return later in this judgment, which makes clear that it is not a necessary feature of a complaint that a summons be issued.
It is also significant that at paragraph 10 of his judgment Collins J referred to the judgment of Mitting J in Hooper without suggesting that it was incorrectly decided. Collins J certainly did not address the consequence that if proceedings under Part I of the 2003 Act are not by way of complaint, Hooper and the cases which follow it have been wrongly decided.
In the course of his submissions, Mr Holdcroft did not shrink from this submission. He submits that Hooper, Turner and Cleary are all wrongly decided. He puts this on the ground that the application of a further power to adjourn is inconsistent with the statutory scheme of Part I and is capable of leading to absurdity in that if this power of adjournment is exercised, the power under section 2(7) to order that a closure notice continue until the end of the period of adjournment is not available. This consequence was, of course, identified by Mitting J in Hooper. However, it does not seem to me to be an absurdity, nor to demonstrate that the power in section 54 is excluded, by implication, from the statutory scheme. On the contrary, there will be circumstances in which the court will be assisted in having this additional power, notwithstanding the fact that its invocation may lead to a hiatus in the closure order.
For these reasons, I consider that the authorities, in particular Turner, which is a decision of the Divisional Court, a decision where the point was expressly considered by the court, albeit without the benefit of argument, and in which the court's conclusion forms a step in the reasoning leading to the conclusion, all support the appellant's case.
In this regard, I raised with counsel during the course of argument the question as to the extent to which I may be bound by the decision of the Divisional Court in Turner. They have drawn my attention first to R v Greater Manchester Coroner ex parte Tal [1985] 1 QB 67. There Robert Goff LJ (as he then was), delivering the judgment of the Divisional Court, explained that if a judge of the High Court sits exercising the supervisory jurisdiction of the High Court, then the relevant principle of stare decisis is that applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, i.e. he will follow a decision of another judge of first instance as a matter of judicial comity unless he is convinced that that judgment is wrong. However, he is not bound to follow the decision of a judge of equal jurisdiction. The court considered that the same principle applies where the supervisory jurisdiction of the High Court is exercised not by a single judge, but by a Divisional Court where two or three judges are exercising precisely the same jurisdiction as the single judge. Robert Goff LJ observed at page 81:
"We have no doubt that it will be only in rare cases that a Divisional Court will think it fit to depart from a decision of another Divisional Court exercising this jurisdiction. Furthermore, we find it difficult to imagine that a single judge exercising this jurisdiction would ever depart from a decision of a Divisional Court."
Mr Westgate, in the course of his submissions, drew my attention to certain passages in the judgment which support the view that a stricter rule may apply where the court is sitting on appeal, as I am in this case. Mr Westgate's submission in this regard is founded on the judgment in Huddersfield Police Authority v Watson [1947] KB 842, which is considered by Robert Goff LJ at pages 76-77. I note that Hooper was a case of an appeal by way of case stated and, therefore, an appeal case. Turner and Errington, on the other hand, are cases of judicial review where the court was exercising a supervisory jurisdiction.
I have also been referred to R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955. There the Court of Appeal concluded at paragraph 33, not without some hesitation, they said, that there is a principle, stated in general terms, that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before, or consideration by, that court. However, they acknowledged an exception to that principle. At paragraph 38 they stated that the rule must only be applied in the most obvious of cases, and limited with great care. The basis of the rule is that the proposition in question must have been assumed and not have been the subject of decision. They observed that that condition will almost always only be fulfilled where the point has not been expressly raised before the court and there has been no argument upon it. They added:
"And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision."
It does seem to me that the judgment of Poole J in Turner is a case where the court's acceptance of the proposition went beyond mere assumption and that it was a case in which the matter was consciously addressed by the court in coming to its conclusion. That is borne out by the judge's reference to the characteristics of a complaint being present in that case.
However, I do not have to decide whether I am bound by the decision of the Divisional Court in Turner, because of the conclusion to which I have come in any event. Considering the certified question as a matter of principle, it is necessary to identify the essential characteristics of proceedings commenced by complaint and then to consider whether they are present in the circumstances with which we are concerned.
A complaint is the ordinary process by which civil proceedings in a Magistrates' Court are initiated. The annotations to section 51 of the Magistrates' Courts Act in Halsbury's Statutes state:
"This expression [complaint] is now used exclusively for describing the Act, corresponding to an information... by which proceedings that are not in respect of an offence are set in motion."
Stones Justices' Manual states at paragraph 1-750:
"Civil proceedings in magistrates' courts are started by the making of a complaint, followed by the issue of a summons. Most family proceedings, however, are commenced by filing an application with the justices' clerk."
In R v Uxbridge Justices ex parte Commissioner of Police for the Metropolis [1981] QB 829 the Court of Appeal was concerned with the question whether an application to justices for the return of money held by the police had been commenced by complaint so as to give rise to a power to award costs under the predecessor of section 64, section 55(1) of the Magistrates' Courts Act 1952. The majority of the Court of Appeal, Sir George Baker and Sir Stanley Rees, concluded that the proceedings had been brought by way of complaint. Sir George Baker considered that it was a proper procedure and had been followed. Sir Stanley Rees considered that it was, in the circumstances, the only proper procedure.
At page 841 of his judgment, Sir George Baker observed:
"It is said that an 'application' for an order for delivery of his money is not a 'complaint' in the ordinary sense but is akin to an application to a court for an order that fingerprints of a person in custody may be taken (section 40 of the Magistrates' Courts Act 1952) or for the return of property taken from an accused (section 39). I think this is wrong on two grounds: first the applications under sections 39 and 40 relate to persons who are already before the court, they are not initiating process; and secondly, and more important, Mr. Prasad was saying: 'You, the police, have my money. You will not, perhaps cannot, give it to me without an order of the court. That is my grievance. I apply for an order to remedy that grievance.' In my opinion that is a 'complaint' in ordinary language, and is certainly a 'complaint' within a definition of the Shorter Oxford English Dictionary, 3rd ed. (1944), p. 355: '4. Law . A statement of injury or grievance laid before a court … for purposes of prosecution and redress; …' See also Pugh's Matrimonial Proceedings Before Magistrates, 3rd ed. (1974), p. 256, note:
'Complaint. This expression is now used exclusively for describing the act, corresponding to an information, by which proceedings that are not in respect of an offence are set in motion.'"
Sir Stanley Rees (at pages 846-7) appears to have considered that proceedings begun by complaint require the existence of a lis between the parties. Lord Denning MR dissented. However, he considered the characteristics of a complaint in the following terms:
"'Complaint' or 'application'
The Act of 1952 does not define 'complaint.' Nor does it define 'application.' In the absence of any definition I would state these as the essential features of a complaint as disclosed in the statute: there must be a complainant and a defendant. There must be a grievance alleged by the complainant against the defendant. There must be an application for an order to be made against the defendant. There must be a summons to be served on the defendant requiring him to appear."
It may be necessary to enter certain qualifications to these statements in the light of later authority. The more recent cases make clear that the question whether a procedure is to be characterised as a complaint is a matter of substance, not form, and that formality is to be discouraged. In Chief Constable of North Wales Police v Anglesey Justices [2008] EWHC 309 (Admin), Maurice Kay LJ stated in paragraph 14:
"Mr Wells submits, and I accept, that the form and content of the summons are not strictly relevant to the question whether the proceedings were initiated by complaint rather than by the laying of an information. The essential question for the Magistrates' Court was whether what was lodged at court was in substance a complaint."
In R v Coventry Magistrates' Court ex parte Crown Prosecution Service [1996] 160 JP 741, Pill LJ in the Divisional Court observed:
"I consider that because a complaint can be oral (Rule 4) and because the jurisdiction to hear a complaint does not depend upon a summons being issued (Hill), it is possible to conclude that the present proceeding was by way of complaint notwithstanding non-compliance with Form 98 and the use of an inappropriate form. The substance of a complaint of the kind contemplated by section 115 of the 1980 Act was included on the form used and a complainant sufficiently identified though not as such...
I would have regard to the substance rather than the form. Whatever PC Clemons purported to do he should, in my judgement, be treated on the evidence as having made a complaint to the magistrate under section 115 of the 1980 Act."
That decision was followed by the Divisional Court in Director of Public Prosecutions v Speede [1998] 2 CR App R 108. These cases show that the courts will take a wide view of what constitutes a complaint. They will be concerned with the substance rather than the form of what has occurred.
Against this background, I consider that the following are characteristics of a complaint and proceedings commenced by complaint:
It is a characteristic of a complaint that it seeks redress for an injury or grievance (Uxbridge Justices case per Sir George Baker at page 841).
Rule 4 of the Magistrates' Courts Rules states that it is not necessary for a complaint to be in writing.
The issue of a summons is not a requirement of proceedings by way of complaint. It may well be the case that in such proceedings the court will usually exercise its powers under section 51 of the Magistrates' Courts Act to issue a summons. However, this is not essential. In Hill v Anderton [1983] AC 328, Lord Roskill observed:
"First, in their criminal jurisdiction, what magistrates' courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them. Secondly, in their civil jurisdiction, what a magistrates' court have jurisdiction to try is a complaint, and what is required to give them that jurisdiction is that a complaint has been made to them. Their jurisdiction in criminal cases does not depend upon a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued. As to the former, as was pointed out during the argument, where a defendant is arrested at night and after having been duly charged is brought before a magistrates' court next morning, there is neither a summons nor a warrant. He is charged. The information is thus laid before the magistrates' court at the latest when the charge is read in open court, and in practice, often earlier when, no doubt, the clerk to the justices, or his or her subordinate, is informed by the police of the charge which it is proposed to bring against the defendant later that morning. A complaint under section 51 may legitimately be made unaccompanied by the issue of a summons. It was common ground, as it was in the Divisional Court, that a complaint need not be in writing. It can be and sometimes still is made orally as for example when an aggrieved wife arrives in the office of the clerk to the justices and complains, perhaps vehemently, that her arrears of maintenance have not been paid and that she requires action to be taken to secure payment. This may or may not require a summons in order to secure the attendance of the allegedly defaulting husband."
I note that this authority was not cited in Errington. I consider the observations of Lord Denning in the Uxbridge Justices case must now be read subject to this.
It is not necessary for there to be an identifiable defendant for proceedings to be properly classified as a complaint. An example of this is provided by R v Havering Justices ex parte Smith [1974] 3 All ER 484. There the court was concerned with section 11, Caravan Sites Act 1968, under which a local authority could proceed by way of a complaint for an order removing caravans from land, even where the owner could not be found. The decision in that case was that an occupier had, as a matter of fairness, to be served. However, it seems to follow from the terms of section 11 that there is nothing inherent in the complaint process which requires a defendant to be identified at the outset of proceedings. Another example was provided by Sir George Baker in the Uxbridge Justices case (at page 843 G-D), where he considered that an application under the Guardianship of Minors Act is required to be made by way of complaint. Similarly, I note that under section 5 of the 2003 Act, where a complaint is expressly stated to be the appropriate procedure for obtaining an extension of a closure order, it may well be necessary to seek this relief in circumstances in which a defendant has not been identified. Section 5(3) makes provision for the issue of a summons. However, this provision is permissive, not mandatory.
There may well be circumstances in which it is not possible to identify a person on whom a summons may be served. It seems to me, therefore, that it may be necessary to qualify the observation of Sir Stanley Rees in the Uxbridge Justices case that it is a characteristic of proceedings brought by complaint that there exists a lis between the parties. It is clear from these examples that it is possible to have proceedings brought by way of complaint, where, at least at the initial stages of the proceedings, there is no identifiable or ascertainable defendant.
On behalf of the respondent, Mr Holdcroft has submitted that it is an essential characteristic of a complaint that it initiates proceedings in personam, whereas, he submits, proceedings under the 2003 Act are essentially in rem. By this I understand him to mean that the proceedings are essentially concerned with the status of premises and not with the activities of individuals. In this regard he has drawn my attention to the Magistrates' Court's (Detention and Forfeiture of Terrorist Cash)(No. 2) Rules 2001 and to the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002. Both of these he characterises as relating to applications made to the Magistrates' Court in rem. However, he has drawn to my attention provisions in each case, for example, Rule 11 in the case of the 2002 Rules, which provide that, for the purposes of these rules, the application shall be deemed to be a complaint.
It is correct that Parliament, in the 2003 Act, has neither stated that closure order proceedings must be commenced by complaint, nor provided that such proceedings should be deemed proceedings on a complaint. However, to my mind there are difficulties in the path of Mr Holdcroft's argument. First, I do not accept that proceedings under the 2003 Act are directed at the status of property and not at the activities of individuals. It is true that the procedural steps set out in section 1 require the fixing of the closure notice to the premises. However, it seems to me that, at least in a case where a closure order is opposed, there are issues joined between parties as to activities in relation to the premises.
Mr Holdcroft has submitted that the nature of a complaint is to be considered limited by section 51, which states in part:
"Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons..."
However, it seems to me that the words "a complaint relating to a person" are wide enough to include proceedings under sections 1 and 2 of the 2003 Act. They are wide enough to include a person who has such an interest in the premises as to justify his appearing to oppose the order. In this regard, I also note that Mitting J in Hooper considered that the provisions of the 2003 Act engaged Article 6 of the European Convention on Human Rights and such proceedings clearly relate to a person interested in the premises. In any event, I accept the submission of Mr Westgate that section 51 does not purport to define a complaint, nor should it be read as limiting the nature of a complaint. It is simply concerned with the power to issue a summons. By contrast, section 52, which confers jurisdiction on magistrates to deal with complaints, is in very general terms. It provides that a Magistrates' Court has jurisdiction to hear any complaint. It is not limited in the way Mr Holdcroft suggests. Secondly, even if Mr Holdcroft were correct in his premise, it does not follow that a complaint would be an inappropriate procedure. I have already considered whether the procedure requires an identifiable defendant at the outset of proceedings and I have concluded that it does not. To my mind, a complaint can clearly relate to matters other than the conduct of an individual. The status or use of premises is a matter which is appropriately addressed by a complaint. Examples are provided by the Caravan Sites Act 1968 considered in the Havering Justices case to which I have referred. Thirdly, the deeming provisions to which Mr Holdcroft refers do not mean that the proceedings to which they refer could not otherwise be properly regarded as proceedings brought by way of complaint or that such a procedure would be inappropriate. Fourthly, the absence of such a provision in the 2003 Act does not mean that the procedure under that statute is not by complaint or does not possess the characteristics of a complaint.
I note in passing that subsections 5(1) and (6) of the 2003 Act expressly prescribe a complaint as the appropriate procedure for the extension and the discharge of a closure order. By contrast, there is no such express provision in subsections (1) and (2). However, it seems to me that the differences in wording do not reflect an intention that the processes are fundamentally different. Rather, they are explained by the fact that where the initial application is made, there will be no need to invite the court to issue a summons, because the closure notice is sufficient to bring the parties before the court. Indeed, the issues and procedure on applications under subsections 5(1) and (6) are not materially different in kind from those on the initiating application. To my mind, this supports the view that such subject matter is appropriate for the complaints procedure.
I need to address two further matters arising from Mr Holdcroft's submissions. The first is a submission based on a passage in the speech of Lord Roskill in R v Manchester Stipendiary Magistrate ex parte Hill [1983] AC 329, where he says that a complaint is initiated when the complaint is received at the office of the clerk of the justices. Thereafter, no more is required of the complainant. Lord Roskill states (at page 346 C) that in the case of an information or a complaint, it is enough that it is received by any member of the staff of the clerk to the justices expressly or impliedly authorised to receive it for transmission to a Justice of the Peace or to the clerk to the justices. On the basis of these observations, Mr Holdcroft submits that the character of an application must be determined at the outset and cannot change subsequently. He says that as a result, it is not possible to know at the outset of proceedings under section 2 of the 2003 Act whether there will be a lis joined between the parties. In this regard he refers to the observations of Sir Stanley Rees in the Uxbridge Justices case. Accordingly, he says it cannot be concluded that an application is a complaint at that stage and it cannot change its character subsequently. I have already indicated that it may be necessary to qualify this statement of Sir Stanley Rees in the Uxbridge Justices case. A complaint is the usual procedure for bringing civil matters before the Magistrates' Court. There are many instances which show that proceedings by way of complaint can be brought in circumstances where there is, at the outset, no identifiable or ascertainable defendant. In those circumstances, there may or may not be a lis subsequently. In these circumstances, it does not seem to me that Mr Holdcroft's objection is fatal to the appellant's case.
Mr Holdcroft further submits that if proceedings under sections 1 and 2 of the 2003 Act are brought by way of complaint, it would follow that section 55(3) of the Magistrates' Courts Act would apply. This, he submits, would completely undermine the procedure of the 2003 Act. If there were no appearance by a person served at the first hearing, section 55(3) would prevent the hearing from going ahead and it would be necessary for the court to adjourn, a state of affairs completely contrary to the intention of the 2003 Act, which requires an urgent hearing in relation to the closure order. Accordingly, he submits, it follows from this that the proceedings cannot be in the nature of a complaint. However, to my mind section 55(3) is impliedly excluded. Sections 1 and 2 dispense with the need for a summons and the provisions in section 2 in respect of a hearing make specific provision for the procedure to be followed because of the imperative need for an early hearing. It seems to me that the effect of the provisions in section 2 is to create a special procedure which overrides the general rule applied in sections 55(1) and (3).
I turn, therefore, to the question whether, on the particular facts of the present case, the proceedings with which we are concerned have the characteristics of proceedings brought by complaint. We do not know the precise course of events. We do not know if Mr Taylor was actually served at the outset with the closure order itself. However, we do know that he did appear to oppose the closure order.
I consider that the proceedings in the present case possess the necessary characteristics of a complaint. The fact that no summons was issued is irrelevant. It is not necessary for there to be an identifiable defendant at the outset of proceedings for the proceedings to be brought by way of complaint. When the appellant appeared to resist the application, he was clearly in the position of a defendant to the application. Contrary to the submission of the respondent, there was, in my judgement, clearly here a grievance alleged by the Commissioner against the appellant and they were in the position of complainant and defendant. The proceedings sought redress for an injury or grievance. I consider that at the hearing there was clearly a lis between the parties.
Accordingly, having regard to the substance of the matter, as opposed to the form, I have come to the clear view that Poole J was correct in his conclusion in Turner that applications under section 2 of the 2003 Act have all the necessary characteristics of a complaint.
In deference to the arguments of Mr Holdcroft, I should refer finally to one further matter. He submits that it is apparent from the 2003 statute and its scheme that Parliament did not intend there to be any costs consequences against the police as a result of such applications. Here he refers to section 9, dealing with exemptions from liability, and to section 10, which provides for compensation from central funds. The Deputy District Judge in this case concluded that section 10 extended to costs. I express no view in relation to that conclusion. However, I am unable to detect any underlying policy within Part I of the 2003 Act which is intended to protect the police from orders as to costs. Indeed, I note that proceedings brought under section 5 for the extension of an order are expressly characterised by the statute as a complaint and it follows that the powers of the courts under the Magistrates' Courts Act to award costs apply in such proceedings. It seems to me there is nothing to distinguish such a situation in terms of the policy of the availability of costs from an application pursuant to sections 1 and 2.
Accordingly, for reasons of principle, and on the basis of the authorities, I would allow this appeal. I would answer the question in the following terms:
A Magistrates' Court, on hearing an application for a closure order under section 2 of the Anti-social Behaviour Act 2003, has jurisdiction to award costs under section 64 of the Magistrates' Courts Act 1980.
Finally, I wish to thank both counsel for their very helpful submissions.
MR WESTGATE: My Lord, I am grateful to you for doing the judgment so promptly in this matter. In the light of your Lordship's judgment, the relief sought in the notice of appeal is that the matter be remitted to the District Judge for her to reconsider. I think it may also be necessary to quash her decision refusing costs in the first place. I ask you to make an order in those terms.
MR JUSTICE LLOYD JONES: Mr Holdcroft, that is right, is it not?
MR HOLDCROFT: Yes, my Lord.
MR JUSTICE LLOYD JONES: I will quash the decision in relation to the jurisdiction to award costs and I remit the matter for her further consideration.
MR WESTGATE: I am grateful. There is no other order that is sought.
MR JUSTICE LLOYD JONES: Thank you very much. Can I repeat my thanks to counsel for their assistance in what has been a very interesting case. I note that Lord Denning described it in the Uxbridge Justices case as a particularly arid point, but I have not found it arid. Thank you both very much.
MR HOLDCROFT: My Lord, one other matter. Is this a matter which you would consider raises some important points of practice? I heard what your Lordship said this morning about a second appeal, but it seems to me that it may be a case where permission could be granted by the Court of Appeal, because sitting as a case stated, the White Book suggests that you are our first tier appeal court.
MR JUSTICE LLOYD JONES: I see. This is not a matter that I have looked into. I draw to your attention a case which was enclosed with my papers by the Administrative Court office, which is Westminster City Council v O'Reilly [2004] 1 WLR 195. You are asking me to...?
MR HOLDCROFT: I am not asking for permission, because your Lordship cannot give it, but if one were to apply to the Court of Appeal, if your Lordship thought this were a case that raises an important point of principle or practice, your Lordship's opinion on that point may assist the Court of Appeal in deciding whether or not they should grant permission.
MR JUSTICE LLOYD JONES: I think it does raise an important point of principle or practice. I cannot say any more than that. I express that view.
MR HOLDCROFT: No, but I am grateful for that expression.
MR JUSTICE LLOYD JONES: Are there any other matters?
MR WESTGATE: No, my Lord.
MR JUSTICE LLOYD JONES: Thank you very much.