Cumbria Constabulary v Wright & Anor [2006] EWHC 3574 (Admin)

Case No CO/5343/2006

[2006] EWHC 3574 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 20 November 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE KEENE

MR JUSTICE LLOYD JONES

Between

CHIEF CONSTABLE OF CUMBRIA CONSTABULARYAppellant

-v-

Between

MARC WRIGHTRespondent

FIONA WOODRespondent

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MS F WHITELAW (instructed by Force Solicitor, Cumbria Constabulary) appeared for CLAIMANT

MR PT EVANS (instructed by HFT Gough & Co) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE KEENE:

[1]I shall ask Mr Justice Lloyd Jones to give the first judgment.

[2]MR JUSTICE LLOYD JONES: This is an appeal by way of case stated against the decision of the Whitehaven Justices on 21st March 2006 refusing an application for a closure order under section 2 of the Anti-Social Behaviour Act 2003 ("the 2003 Act"). The appellant is the Chief Constable of the Cumbria Constabulary. The first defendant, Mr Marc Wright, does not appear. The second defendant, Ms Fiona Wood, appears and is represented by counsel on the hearing of this appeal.

[3]The relevant provisions of the 2003 Act are sections 1 and 2:

"1 Closure notice (1) This section applies to premises if a police officer not below the rank of superintendent (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, and (b) that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. (2) The authorising officer may authorise the issue of a closure notice in respect of premises to which this section applies if he is satisfied- (a) that the local authority for the area in which the premises are situated has been consulted; (b) that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for or an interest in the premises. (3) An authorisation under subsection (2) may be given orally or in writing, but if it is given orally the authorising officer must confirm it in writing as soon as it is practicable. (4) A closure notice must- (a) give notice that an application will be made under section 2 for the closure of the premises; (b) state that access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises is prohibited; (c) specify the date and time when and the place at which the application will be heard; (d) explain the effects of an order made in pursuance of section 2; (e) state that failure to comply with the notice amounts to an offence; (f) give information about relevant advice providers. ... (8) It is immaterial whether any person has been convicted of an offence relating to the use, production or supply of a controlled drug. (9) The Secretary of State may by regulations specify premises or descriptions of premises to which this section does not apply. (10) The relevant period is the period of three months ending with the day on which the authorising officer considers whether to authorise the issue of a closure notice in respect of the premises. ... 2 Closure order (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) But the order may include such provision as the court thinks appropriate relating to access to any part of the building or structure of which the premises form part. (6) The magistrates' court may adjourn the hearing on the application for a period of not more than 14 days to enable- (a) the occupier of the premises; (b) the person who has control of or responsibility for the premises, or; (c) any other person with an interest in the premises; to show why a closure order should not be made (7) If the magistrates' court adjourns the hearing under subsection (6) it may order that the closure notice continues in effect until the end of the period of the adjournment. (8) A closure order may be made in respect of all or any part of the premises in respect of which the closure notice was issued. (9) It is immaterial whether any person has been convicted of an offence relating to the use, production or supply of a controlled drug."

[4]On 15th March 2006 a closure notice under section 1 of the 2003 Act was served on behalf of the appellant in respect of premises at 57 Crummock Avenue, Whitehaven. On 16th March 2006 an application for a closure order was made under section 2 of the Act to the Whitehaven Magistrates' Court. The application was heard on 21st March 2006.

[5]The justices found that the premises at 57 Crummock Avenue, Whitehaven, had been used in connection with the unlawful use, production or supply of a class A controlled drug. They also found on the basis of hearsay evidence that the use of 57 Crummock Avenue was associated with the occurrence of disorder or serious nuisance.

[6]It was contended before the Magistrates' Court by the appellant that paragraphs 2(3)(a) and (b) of the Act were discrete; that is, that the disorder or serious nuisance did not need to be demonstrated by or result from the unlawful use, production or supply of a class A controlled drug. The attention of the magistrates was drawn to a section of the Guidance published by the Home Office in relation to the statute. The appellant also contended that the court should give weight to incidents that occurred outside the period of three months prior to the application.

[7]It was contended before the Magistrates' Court by the first respondent that the intention of Parliament was to deal with the problem of crack houses and that it would not make sense to hold that the requirements of paragraphs 2(3)(a) and 2(3)(b) were distinct. It was contended by the second respondent that paragraphs 2(3)(a) and (b) were linked, in that the disorder or serious nuisance must be demonstrated by or result from the unlawful use, production or supply of a class A drug. Reference was also made in that regard to section 48 of the statute.

[8]The justices expressed their conclusions that section 2(3)(a) and (b) were "joined" and that the disorder or serious nuisance referred to did need to be demonstrated by or to result from the unlawful use, production or supply of a class A drug. They considered that there was no direct evidence of serious nuisance or disorder within the relevant three-month period. The evidence was non-specific as to dates, only one witness referring to visits on 5th March 2006 and one date being recorded by another witness. The chronology referred to incidents of serious nuisance which fell outside what the magistrates considered to be the relevant three-month period. In this regard they observed that section 2 does not expressly state that all the incidents have to take place within the three-month period. The magistrates considered that if the incidents had taken place outside the three-month period and they had insufficient evidence that there had been incidents of serious disorder or nuisance within the three-month period, the need for an order was weakened. They concluded that they could not be satisfied on the balance of probabilities that serious nuisance or disorder had occurred within the relevant three months, and accordingly they decided not to make a closure order to prevent recurrence of such disorder or serious nuisance. They were not satisfied that it was necessary.

[9]The justices certified three questions for the opinion of the High Court:(1) Does section 2(3)(b) of the Anti-Social Behaviour Act 2003 require an applicant to prove that the occurrence of disorder or serious nuisance to members of the public has arisen from or is connected to the unlawful use, production or supply of class A drugs?

(2) What weight should Justices give to the Home Office Guidance regarding closure orders?

(3) Must the applicant present evidence of serious nuisance or disorder occurring that has occurred within the "relevant period" of three months specified in section 1(10), in order for section 2(3)(b) and/or (c) to be satisfied?

[10]I propose to address these questions in a different order.

[11]It is convenient to state at the outset that section 2 confers on the justices a power to make a closure order if, and only if, they are satisfied that all of the conditions stipulated in subsection (3) apply. The second question

[12]The second question concerns the extent to which it may be permissible to have regard to the Home Office Guidance when interpreting a provision of the 2003 Act.

[13]The Home Office Guidance states that it is designed to help those who are responsible for the exercise of powers under the Act to use the powers effectively and efficiently, to see the use of the powers in the broader context of tackling drug problems and to understand the implications of the powers as they relate to affected persons and the communities in which they occur. It states at paragraph 1.1.2:

"This guidance is designed principally for: • the courts; • the police; • teams involved in tackling anti-social behaviour."

[14]The justices referred to the Guidance when reaching their decision. However, they clearly disagreed with what it had to say on the issue raised by the first question on this appeal.

[15]The appellant submits that although the Guidance has no statutory authority, it should be taken into account when interpreting the 2003 Act and should not be disregarded without good reason. The appellant draws an analogy with Explanatory Notes.

[16]The second respondent submits that the Guidance should not be taken into account by the court when interpreting the 2003 Act. She submits that there is a clear danger in adducing guidance provided by and or behalf of the executive when determining the intention of Parliament. She also points to the fact that in R(Errington) v Metropolitan Police Authority

[2006] EWHC 1155

Collins J identified a significant error in the Guidance (at paragraph 29) and considered another passage to be potentially misleading (at paragraph 36).

[17]It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions. That is the principle stated by Bennion on Statutory Interpretation, 4th Ed, section 232. In the present case we are concerned with Guidance published by the Home Office, which is the government department which had responsibility for the enactment and operation of the legislation in question. In any given case, it may be helpful for a court to refer to the Guidance in the interpretation of the legislation. It may be of some persuasive authority. However, to my mind that is the limit of its influence. It does not differ in that regard from a statement by an academic author in a text book or an article. It does not enjoy any particular legal status. There seems to me to be no satisfactory basis for the submission that it gives rise to a presumption that the views it contains are correct and should be rejected only for good reason.

[18]The appellant seeks to draw comparisons with Explanatory Notes under the new practice followed since 1999 whereby such notes are published alongside the majority of public Bills introduced by the Government into Parliament. The text of such notes is prepared by the Government department with responsibility for the Bill. The practice is described by Lord Steyn in his speech in R (Westminster City Council) vNational Asylum Support Service

[2002] 1 WLR 2956

;

[2002] UKHL 38

at paragraph 3. I am not persuaded that this is a true analogy. In any event it is apparent from the speech of Lord Steyn in the Westminster case that there are important limitations on the extent to which recourse may be had to such Explanatory Notes. In particular it is impermissible to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament.

[19]In the present case, the mischief against which the legislation is directed is not in dispute. Moreover, the Guidance with which we are concerned cannot be taken as any indication of the intention of Parliament. The Guidance provides one view as to meaning of the legislation. It is of some persuasive authority, but no more than that.

[20]Accordingly, I would answer the second question as follows: The Guidance may be taken into account by a court considering the legal meaning of the statutory provisions to which it refers. It is capable of being persuasive authority. The first question

[21]On behalf of the appellant it is contended that paragraphs (a) and (b) of subsection 2(3) are not "joined" as the justices considered, but are discrete limbs. It is contended on behalf of the appellant that the words in their natural meaning do not require any causal link between the use specified in (a) and the disorder or serious nuisance identified in (b). It is submitted for the appellant that although it is accepted that the section is intended to deal with the problem of crack houses, it does not follow that there is an evidential requirement to link the matters in these two paragraphs.

[22]On behalf of the second respondent it is submitted that there must be a degree of connection between the use of the premises in connection with the unlawful use, production or supply of class A controlled drugs, and the use of the premises associated with the occurrence of disorder or serious nuisance. It is said that since the overall aim of the section is to permit action to be taken to close crack houses, it follows as a matter of common sense that the requirement in (b) must be something to do with that overall aim. It is submitted that this reading would not frustrate or impede the effect or operation of the Act and that it would enable the court to strike a proper balance between the control of the abuse and an individual's rights to his or her home.

[23]Considering first the natural meaning of the words used, the words in paragraph (b) - "the use of the premises" - are, if considered in isolation from paragraph (a), wide enough to include any use of the premises. However, paragraph (a) refers to premises being used in a particular way. I consider that the natural inference is that the words "the use of the premises" in paragraph (b) refer back to the use of the premises which has just been described in paragraph (a); that is, use in connection with the unlawful use, production or supply of a class A controlled drug.

[24]I accept that if it was the intention of Parliament to limit the use referred to in (b) to the use referred to in(a) in this way, it could have placed the matter beyond doubt either by repeating the words in (a) - "the use of the premises in connection with the unlawful use, production or supply of a class A controlled drug", so that

(b) would then read, "the use of the premises in connection with the unlawful use, production or supply of a class A controlled drug is associated with the occurrence of disorder or serious nuisance to members of the public", or, more simply, by limiting paragraph (b) by employing the words "that use of the premises" or "such use of the premises". However, when paragraphs (a) and (b) are considered in conjunction, I consider that the words are to be understood as referring not to any use but to the use which has just been described in paragraph (a).

[25]This preliminary conclusion, based on the words used and the structure of the subsection, is strengthened when one considers the purpose of the measure. It is common ground between the parties that the mischief at which the provision is aimed is that of crack houses and other drug dens. Hence the activities described in paragraph (a). However, it is clear that the legislation requires something more than that the justices should be satisfied as to the use of premises in connection with the unlawful use, production or supply of a class A controlled drug. It also requires that the justices be satisfied that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public; and that the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order.

[26]Having regard to the purpose of the legislation, it would be surprising if the disorder or serious nuisance contemplated could be wholly unconnected with the use of the premises in connection with the unlawful use, production or supply of a class A controlled drug. The point is well made by Mr Evans, counsel for the second respondent, who points out that on the appellant's reading of the provision if the condition in paragraph (a) were satisfied, the condition in paragraph (b) could be satisfied by a wholly unconnected use, such as the use of the rear garden of the premises to house a particularly noisy or noxious aviary or menagerie. To my mind it could not have been intended that the further conditions imposed by the statute could be met where disorder or serious nuisance arise from a use wholly unconnected with the unlawful activity in relation to class A drugs described in paragraph (a).

[27]By their first question, the justices ask whether paragraph 2(3)(b) requires an applicant to prove that the occurrence of disorder or serious nuisance to members of the public has arisen from or is connected to the unlawful use, production or supply of class A drugs. In the course of argument, reference has been made to the existence of a causal link. The expression used in the statute is "associated with". Those words convey a wide and general meaning, sufficiently wide to include a degree of association which may fall short of a strict or direct causal link. To my mind an applicant for a closure order need only prove some association between the use described in paragraph (a) and the disorder or serious nuisance described in paragraph (b).

[28]I doubt that this reading, which accepts a requirement that the disorder or nuisance be associated with the drug activity, could impede the achievement of the purpose of the legislation. That purpose is, after all, to protect the public from disorder or serious nuisance associated with crack houses. In the course of her submissions, Miss Whitelaw on behalf of the Chief Constable placed great emphasis upon difficulties of proof which she says may arise if it is necessary for the applicant to prove an association between the disorder or serious nuisance and the particular use of the premises described in paragraph (a). She suggests that there may be many instances in which it will not be possible to prove that particular instances of disorderly behaviour are attributable to the unlawful use, production or supply of class A drugs. I consider that the supposed difficulty is overstated. First, it is not necessary to prove more than that the disorder or serious nuisance is associated with the particular use, a matter which I have already addressed. Secondly, it must be remembered that it will be open to the magistrates to draw reasonable inferences from the evidence before them as to whether there is such an association. It will often not be necessary for an applicant for such an order to prove by direct evidence an association between the two. It will frequently be the case that the justices will be entitled to draw a reasonable inference as to such an association. Moreover, I note in this regard that the standard of proof is the civil standard and that hearsay evidence will often be admissible on such an application.

[29]I am mindful of the fact that the conclusion to which I have come on this issue differs from the view expressed in the Guidance. That states at paragraph 2.5.1:

"It is up to the courts to define these terms for themselves as there is no formal legal definition. In all cases of the use of this power it is necessary to demonstrate that disorder or serious nuisance is associated with the premises. When a Superintendent assesses the need for the issue of a Closure Notice, he or she has to have reasonable grounds for believing there is disorder or serious nuisance associated with the premises. It does not need to be demonstrated that the disorder or serious nuisance is associated or resultant from the drug use, production or supply, simply that both are present at the same premises."

For the reasons that I have given I do not agree with this reading of the relevant statutory provision. I would also add that, contrary to the statement in the passage I have just quoted, the occurrence of disorder or serious nuisance to members of the public must be associated not with the premises, but with the use of the premises, which I take to be a reference to the particular use described in paragraph (a).

[30]In this regard I should refer to one further matter. The justices in their case stated referred to the state of the garden of the premises concerned. In deference to the argument of Miss Whitelaw, I should state that in my judgement in any given case the state of the premises may be sufficient to satisfy the justices as to the requirement in paragraph (b) provided it is associated with the drug use described in paragraph (a). Whether this is or is not sufficient in any given case is a matter of fact which can be left to the good sense of the magistrates.

[31]Finally, in this regard I should refer to the fact that the justices considered that there was an analogy to be drawn between section 2(3) and section 48(1) of the 2003 Act. Section 48(1) provides:

"(1) This section applies where a local authority is satisfied - (a) that a relevant surface in an area has been defaced by graffiti, and (b) that the defacement is detrimental to the amenity of the area or is offensive."

I do not derive any assistance from this section, nor do I consider that there is an analogy between section 48(1) and section 2(3). There can be no doubt that section 48(1) does require a causal link between the defacement by graffiti referred to in paragraph (a) and the detriment to the amenity of the area or the offence referred to in paragraph (b). That is achieved by the express reference in (b) to "the defacement", words which can only refer to the matters described in paragraph (a).

[32]For these reasons, I would answer the first question as follows: Section 2(3)(b) of the Anti-Social Behaviour Act 2003 requires the Magistrates' Court to be satisfied that the use of the premises in connection with the unlawful use, production or supply of a class A controlled drug is associated with the occurrence of disorder or serious nuisance to members of the public. The third question

[33]By their third question the justices asked whether an applicant for a control order must present evidence of serious nuisance or disorder that has occurred within the relevant period of three months specified in section 1(10) in order for section 2(3)(b) and/or (c) to be satisfied.

[34]Section 1 sets out the procedure governing the issue and service of a closure order. Section 1 applies to premises if a police officer not below the rank of superintendent has reasonable grounds for believing that two conditions are satisfied. The first condition under section 1(1)(a) is 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. The relevant period is defined in section 1(10) as the period of three months ending with the day on which the authorising officer considers whether to authorise the issue of a closure notice in respect of the premises. The second condition under section 1(1)(b) is that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. The statute applies the concept of the relevant period in section 1(1)(a) but not in section 1(1)(b). It is not difficult to see why that is. Section 1(1)(b) is expressed in the present tense and addresses a current state of affairs. As Collins J observed in (Errington) vMetropolitan Police Authority

[2006] EWHC 1155 (Admin)

at paragraph 35, the authorising officer must believe that the drug use has existed within the relevant period and that that use, and its associated disturbance and nuisance, is continuing.

[35]Before the justices in the present case it was contended on behalf of the respondents that the relevant period of three months referred to in section 1(10) also applied to section 2(3). It was submitted on behalf of the respondents that for the police to issue a closure notice there must be evidence of serious nuisance or disorder within the preceding three months. It was further submitted that before the justices could make a closure order there must be evidence of the unlawful use, production or supply of class A controlled drugs and disorder or serious nuisance to members of the public within the preceding three months.

[36]In the case stated the justices record their conclusion on this submission as follows:

"Section 2 does not specifically mention that all the incidents have to take place within the three month period but we believe that if they have taken place outwith the three months, and we have insufficient evidence that there have been incidents of serious nuisance or disorder within the three months that the need for an order is weakened."

They then went on to conclude:

"We therefore found that we could not be satisfied on a balance of probabilities that serious nuisance or disorder had occurred within the relevant three months and we would not therefore make a Closure Order to prevent recurrence of such disorder or serious nuisance as we were not satisfied that it was necessary."

On the hearing of this appeal it is no longer contended on behalf of the second respondent that the relevant period of three months is imported into section 12(3). No doubt this is due to the judgment of Collins J in Errington which was delivered on 12 April 2006 after the decision of the justices in the present case.

[37]I consider that there can be no justification for the importation of the concept of the relevant period into section 2(3). If that had been the intention, there would have been an express provision limiting the period to which the evidence could relate, as in the case of section 1. Rather, section 2(3) proceeds by imposing requirements that the use (which in my judgement refers to the drug use defined in paragraph (a)) is associated with the occurrence of disorder or serious nuisance and that the making of an order is necessary to prevent such an occurrence. Before the justices may make an order they must be satisfied as to the existence of a current state of affairs associated with the use of the premises defined in paragraph (a) and the necessity of acting to prevent it.

[38]However, on this appeal it is maintained by the appellant that as section 2(3) does not refer to any particular period of time to which evidence is to be restricted, the magistrates' court is entitled to make an order based on evidence of class A drug use, production or supply and disorder or serious nuisance occurring outside the period of three months prior to the application for the order or where an incident cannot be dated precisely. On behalf of the second respondent exception is taken to this formulation because it might permit the making of an order notwithstanding the fact that the conduct in question has ceased. It may be that the difference between the parties is more apparent than real.

[39]Before an order can be made under section 2(3) the magistrates must be satisfied of each of the three matters specified. No express restriction is imposed on the period within which the use of the premises and the associated disorder or serious nuisance must have occurred. However, the second condition, that in section 2(3)(b), relates to a current state of affairs and the third condition, that imposed by section 2(3)(c), relates to the necessity of making an order so as to prevent the future occurrence of that state of affairs. On an application under section 2(3) evidence is admissible as to what has occurred in the past without restriction of time. Moreover, evidence is admissible of incidents which cannot be precisely dated. However, the justices may make an order only if satisfied that the use of the premises in connection with the unlawful use, production or supply of a class A controlled drug is currently associated with the occurrence of disorder or serious nuisance to members of the public and that the making of the order is necessary to prevent its occurrence in the future.

[40]I am fortified in this conclusion by the judgment of Collins J in Errington v Metropolitan Police Authority. He expressed his conclusion on a similar submission in that case in the following terms: "The present tense in paragraph (b) [of section 1(1)] 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 satisfies 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." (paragraph 35 of the judgment). I respectfully agree.

[41]In the present case the magistrates therefore erred in referring to and taking account of the period of three months for the reasons which I have given. However, I consider that they were clearly entitled to conclude, on the basis of the evidence before them, that there was no continuing state of affairs such as to make a closure order necessary.

[42]Finally, I should mention one further matter which arose in the course of argument. To my mind the fact that section 2(3) requires a magistrate to be satisfied as to an existing state of affairs and the necessity of making an order to prevent its occurrence does not necessarily mean that a brief temporary hiatus from the required state of affairs would deprive the justices of the power to make such an order. It is possible to imagine circumstances in which, notwithstanding a brief temporary hiatus for an identified cause of limited duration, the justices could nevertheless be satisfied of all three matters stipulated under section 2(3). I consider that this is a matter which can safely be left to the good sense and judgement of the magistrates.

[43]For these reasons I would dismiss the appeal.

LORD JUSTICE KEENE: I agree and I only add a few brief comments of my own.

[45]On the first issue, namely whether under section 2(3)(b) "the use of premises" is the use referred to in the preceding paragraph, paragraph (a), that is to say use "in connection with the unlawful use, production or supply of a class A controlled drug", it seems to me to be clear that the answer has to be in the affirmative. The alternative construction advanced by the appellant would mean that one could have a situation where a closure order could depend upon some chance circumstance. For example, an order could be made where the disorder or serious nuisance had no connection whatever with the class A drug use. I cannot accept that that was Parliament's intention. It would create the absurdity that one could have a control order if, for example, a teenager living in the premises was creating a serious nuisance through the playing of loud music, which activity had nothing whatsoever to do with the drug activity in the premises, but that no order could be made if that unconnected nuisance were absent and no connected nuisance existed. Parliament cannot have intended the making of an order of this kind to turn on such a chance feature of the situation.

[46]The Chief Constable, I recognise, is concerned about the practical difficulties of proving that the disorder or severe nuisance is associated with the drug activity. I understand those concerns, but I would emphasise that proof of such an association can be achieved by way of inference which is a perfectly normal method of proving a fact under our legal system. Justices should use their common sense in deciding whether or not the disorder or severe nuisance is linked with the drug activity. As my Lord has pointed out, the words used in section 2(3)(b) are "is associated with", rather than "has caused", and this wording in the paragraph sets a somewhat lower hurdle to be surmounted by the police applying for such an order. Given that the standard of proof is the civil standard, the anxieties about satisfying the justices that section 2(3)'s requirements are met are likely to prove exaggerated.

[47]As for the third issue, in my judgment Collins J was right in his views expressed at paragraph 35 of Errington, which my Lord has quoted. The court has to be satisfied that there is at the time of the hearing a continuing problem of disorder or serious nuisance. That does not mean that there has to be evidence of disorder or nuisance within, say, the past 24 hours before the hearing. A brief temporary hiatus in such problems will not prevent the justices being satisfied in an appropriate case under section 2(3), whatever that hiatus is caused by. However, if the justices conclude that the disorder or serious nuisance has permanently ceased, then the terms of neither section 2(3)(b) nor section 2(3)(c) would be met. If those terms are met, then there is no prohibition, in my judgment, on more historic evidence being put in to whatever date it relates. So long as it is relevant to the statutory test, past history may sometimes illuminate the evidence about the present. But it is unlikely to be of very great significance in most cases, and the further back in time that it relates to, the less likely it is to have any relevance to the real issue which the justices have to determine.

[48]For those reasons, as well as those given by my Lord, I too would dismiss this appeal. (Appeal dismissed; assessment of Appellant's publicly-funded costs).

Cited in 22 later judgments

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