Leary, R (on the application of) v West Midlands Police [2012] EWHC 639 (Admin)

Case No CO/530/2011[2012] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 17 February 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAIR
Between
THE QUEEN ON THE APPLICATION OF LEARYClaimantv
Between
CHIEF CONSTABLE OF WEST MIDLANDS POLICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R de Mello appeared for ClaimantMiss J Josephs (instructed by West Midlands Police Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAIR: This is an appeal by way of a case stated from a decision of Her Honour Judge Fisher sitting with justices at Birmingham Crown Court on 5 August 2010.[2]The issue relates to the power to make a closure order where premises are being used in connection with class A drugs. It is said by the appellant that Article 8 of the European Convention on Human Rights requires the relevant authority to have considered other less draconian measures first. He also contends that a closure order can be made, excluding visitors only, whilst allowing the occupier continued use.[3]The statutory scheme is as follows. Section 1 of the Anti-social Behaviour Act 2003 empowers a police officer not below the rank of superintendent to issue a closure notice in respect of premises he believes have been used in connection with the use, production or supply of class A drugs and the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public. There is an obligation to consult with the local authority. The notice must state that an application will be made to the court for closure of the premises. By section 1(4)(b) the effect of the notice is that access to the premises by people other than the residents or owner is prohibited.[4]The next step is an application to the Magistrates' Court for the making of a closure order under section 2. There are tight time limits. By section 2(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."
Subsection (4) goes on to provide that:
"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."
This is qualified by subsection (5) which provides that:
"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."
By subsection (8) a closure order may be made in respect of all or part of the premises in respect of which the closure notice was issued. Subject to those provisions, a closure order does just that: it closes the premises.[5]With that introduction, the facts can be taken from the case stated. The appellant was the sole tenant of a flat at 21 Bangor House, Forth Drive, Birmingham. The flat is situated on the third floor of a tower block. Prior to the events that gave rise to this case, a search warrant had already been executed at the flat in connection with drugs. There was consultation between the local authority and the police about alternative methods for dealing with the situation. The police decide that a criminal investigation in respect of the unlawful use of class A drugs at the premises was appropriate.[6]As a result, on 24 March 2010 a further search warrant was executed and the appellant was arrested, together with another occupant of the premises, although he was not charged.[7]A closure notice was served on the appellant on 6 June 2010. A complaint was preferred by the police against him seeking a closure order in respect of the premises under section 2 of the Anti-social Behaviour Act 2003. At a hearing on 22 June 2010, which was contested, a District Judge made the closure order. The appellant appealed to the Crown Court against the decision, the appeal being heard on 5 August 2010.[8]The court had to consider whether the three requirements in section 2(3) of the 2003 Act were met, namely whether the premises had been used in the connection with the unlawful use, production or supply of class A controlled drugs, whether the use of the premises was associated with the occurrence of disorder or serious nuisance to members of the public and whether the making of the order was necessary to prevent the occurrence of such a disorder or serious nuisance from the period specified in the order.[9]In respect of the first, there was no issue that there was unlawful use of class A drugs at the premises. In respect of the second, there was considerable evidence about a number of visitors to the property over an extended period of time which was an indication, in the court's view, of the occurrence of disorder or serious nuisance to members of the public, being other residents and occupants of the tower block and people who worked properly on the premises. The court held that this requirement was also satisfied.[10]In respect of the third requirement, the appellant submitted that the local authority and the police did not in any detail consider the alternative methods of dealing with the situation with which they were confronted. In that respect, the court found that the situation had built up over a period of time. The first raid was in 2009 and it was clear that there had been disturbances over a period of time by virtue of the number of people gaining entry to the block itself, if not directly into flat number 21.[11]There had been consultation between the local authority and the police about alternative methods for dealing with this situation. The court was of the view however that the appellant was not likely to engage either with the police in any form of cooperation or with the council.[12]In the result, the court was satisfied that it was necessary to make the order to prevent the occurrence of disorder or serious nuisance for the period specified in the order. Thus, all three requirements were satisfied.[13]As regards the subject matter of the appeal, the court found as follows. Article 8 of the ECHR was engaged but the closure order was necessary and proportionate in the light of the situation which presented itself following the raid on 24 March 2010 and the steps then taken. A closure order had to be an inclusive order and could not, it considered, properly be framed in such a way that for example the appellant and his daughter could properly go into the premises under the terms of a closure order that was exclusive to everyone but them.[14]The questions posed by the Crown Court for the opinion of the High Court are:
"1. For there to be compatibility with Article 8 of the Convention, is it necessary for the police and relevant Housing Authority to demonstrate that they have considered and tried other less draconian measures before applying for a Closure Order, so that a Closure Order is one of last resort? 2. Can the terms of a Closure Order be adjusted to prevent visitors from going to the property, but allows the tenant to do so?"
The parties' respective submissions are as follows. Article 8, it is submitted by the appellant who is represented by Mr de Mello, is engaged because the appellant's home is closed. The issue is whether it is proportionate to have made the closure order without first considering alternative measures to closure. If the appellant's visitors had been prevented from entering the building, then the mischief would have been prevented. The burden is on the landlord and police authority to demonstrate that there are no other measures which could have been adopted to prevent the nuisance occurring. If that is not done the court should refuse to make a closure order. There are other less intrusive measures available to the landlord, such as injunctions and/or prosecution under the Harassment Act. Further, there is ample statutory power to apply for an injunction prohibiting antisocial behaviour. No such steps were taken and the order made was disproportionate.[15]As regards the second question, the appellant submits that a closure order may be made to exclude visitors from entering the building but not the tenants of the flat from entering it. The statute, it is submitted, permits this and the legislative objective of the scheme is not distorted if the appellant can have access to his flat with all visitors being excluded. In effect, the submission is that the closure order can properly be made whilst leaving the (in this case) tenant free to continue to live in the property.[16]The respondent, represented by Miss Josephs, notes that the Crown Court concluded on the evidence that the appellant was no longer living at the premises by the time the closure notice was served and hence cannot have been deprived of his Article 8 right. Leaving that aside, on the point of principle she points to the fact that Article 8 is qualified by what is necessary in the interests of the prevention of disorder or crime, or protection of the rights or freedoms of others. She submits that the right to respect for family life in Article 8 of the Convention in this case, in truth, was breached so far as the other residents of the tower block were concerned and not so far as the appellant was concerned. It is not, she submits, part of the statutory test that the court must be satisfied that alternative measures have been tried. The whole point of a closure order is for swift action to stop drug misuse and the effect that it is having on other people.[17]Both parties referred to notes of guidance on Part 1 of the Antisocial Behaviour Act 2003 which are issued by the Home Office. Mr de Mello drew attention to the passages including those at the beginning of the guidance to put the matter into context. The powers set out, he pointed out, are said to be there to be used in the context of much wider action to tackle the problem of drugs and in the context of other powers closely related which are available under civil or criminal law.[18]Miss Josephs for her part refers to two paragraphs as follows. Paragraph 4.2 states at 4.2.1:
"There are a variety of other powers that may be suitable for dealing with situations of this type. The officer is not required to demonstrate that they have considered all these options before authorising the issue of a Closure Notice, but it is a matter of good practice to consider them. If other powers can be used as an alternative to the potential displacement that might result from the use of these powers, but achieve the same result, then these should be seriously considered."
Similarly, paragraph 6.1.2 provides:
"The court is asked to decide whether the making of the Closure Order is necessary to prevent the occurrence of disorder or serious nuisance for the period specified in the Order. The court may, therefore, wish to consider whether alternative methods would be more appropriate and what other action might have been attempted, which is why the history of action and considered action against the premises and their occupants may be important. It is not a requirement for the court to have evidence that these other methods have been tried first or exhausted, nor need they have been tried, but the court may feel that other powers have more likelihood of achieving control and preventing occurrence of serious nuisance or disorder more effectively and, as a result, that the Closure Order need not be made."
[19]Rightly, neither party suggests that this guidance binds the court since the proper exercise of the statutory powers is ultimately a question of the construction of the statute in the light of the convention. Nevertheless, the respondent relies on this approach and submits that the very purpose of a class A drugs order would be defeated if the landlord was forced to take other measures before the police were brought in to make a closure application.[20]As to the second question, the respondent points out that a closure order by its very nature is an order by which the premises are closed. When in place the property is literally boarded and barred up. The whole point is that the premises are closed so that no one may enter. What the appellant suggests, the respondent submits, is unworkable and defeats the very purpose of the closure order. There is no power under the statute to exclude from its ambit certain individuals only such as the tenant.[21]I express my conclusions as follows. The operation of these provisions have been authoritatively explained in the case law to which I have been referred in the parties' helpful written and oral submissions - see Commissioner of Police of the Metropolis v Hooper [2005] 1 WLR 1995; R (Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272; Chief Constable of Cumbria v Wright [2006] EWHC 3574 (Admin); R (Smith) v Snaresbrook Crown Court [2008] EWHC 1282 (Admin); and Dumble v The Commissioner of Police for the Metropolis [2009] EWHC 351 (Admin). In addition, Mr de Mello has referred me to certain well-known authorities on proportionality namely R (Samaroo) v SSHD [2001] EWCA Civ 1139, and the discussion in Bank Mellat v HM Treasury (No 2) [2011] 3 WLR 714 at paragraph 21 and following (Maurice Kay LJ).[22]What these authorities show is that before the court can make an order, it has to be satisfied as to the three matters in section 2(3) of the Anti-social Behaviour Act 2003, namely that the premises in respect of which the closure notice was issued had been used in connection with the unlawful use, production or supply of a class A controlled drug; 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.[23]The correct approach for the court is as set out in Smith at paragraph 19 in the context of an extension. The question for the court is whether these requirements are proved to the civil standard. Where the premises comprise someone's home, it follows from Cleary at paragraph 7 that Article 8 of the ECHR is engaged and the making of an order must be necessary and proportionate to achieve what May LJ described as the "obviously and plainly legitimate legislative aim of closing such premises". There is no statutory requirement on the part of the police and relevant housing authority to demonstrate that they have considered and tried other less draconian measures before applying for a closure order so that a closure order is one of last resort. The case law does not contemplate any such requirement under Article 8. Under Article 8, as Miss Josephs points out, the right to respect for home is subject to what is necessary for the prevention of disorder or crime. It is true, as Mr de Mello says, that a closure order may have a draconian effect, but the misuse of premises for class A drugs may have a grievous effect on other people, not least in a tower block community as in the present case. The guidance explains how alternative remedies may be taken into account by the authorities as a matter of good practice, but they do not thereby become additional requirements which must be satisfied before the court can make a closure order. The answer to the first question, therefore, is "no".[24]The second question has to do with the ambit of the closure order. As Mitting J explained in Hooper, whereas a closure notice restricts access to the premises to the people who live there and the owner, a closure order closes the premises themselves. That distinction emerges from a comparison of section 1(4)(b) and section 2(4). The latter specifies that the premises are closed to "all persons". The provision cannot be read as carving out an exception for the tenant. That, as the respondent points out, would also be self-defeating since the tenant may be largely, if not wholly, responsible for the misuse of the premises in the first place.[25]The Act provides in section 2(5) that the order may provide for access as appropriate. This enables (for example) provision to be made if necessary and practicable for the occupier to collect belongings. According to the respondent, the appellant was offered the opportunity to return to the flat to collect clothing but did not avail himself of it.[26]In my view, therefore, the answer to the second question posed by the Crown Court and subject to these statutory provisions is also "no". The terms of a closure order cannot be adjusted to prevent visitors from going to the property but allow the tenant to do so. Even more so, the terms of the order cannot be adjusted so as to allow the tenant to continue to live at the property, which is in fact the submission that in substance is put forward by the appellant.[27]I have had regard to some additional points made by Mr de Mello in oral submissions. He points out that under section 4 of the Act, a person does not commit an offence if he has a reasonable excuse for entering or being on the premises. That would cover a situation where the court had ordered appropriate access under section 2(5). However, it cannot have the wider effect that the appellant contends for. It follows that this appeal must be dismissed.[28]MR DE MELLO: My Lord, two things. In relation to your answer to the first question, of course your Lordship will note that I had cited the case of Samaroo.

MR JUSTICE BLAIR: Yes, I mentioned the well-known authorities you cited.

[30]MR DE MELLO: Yes, I simply say that because a reader would know that your Lordship has had in mind the principles.

MR JUSTICE BLAIR: Thank you.

[32]MR DE MELLO: The second thing I ask for, the normal order that there shall be a detailed assessment of the appellant's costs of the appeal in accordance with the representation order and regulation -- I have a draft order for your clerk. It is an order for legal aid taxation.

MR JUSTICE BLAIR: I am sure there is no objection to that.

[34]MISS JOSEPH: I have no say in that at all, that is the appellant's costs. I do raise the question of costs as far the respondent is concerned. In fact Mr Leary was ordered to pay the costs of both the magistrates and the Crown Court hearings and he has not as yet done that.

MR JUSTICE BLAIR: Were they assessed?

[36]MISS JOSEPH: They were. It was a total of £2,400 for the earlier hearings. For today's hearing I am instructed to seek my costs, not the costs of the police and the administration briefing me, but my costs, if appropriate, which including VAT is the figure of £2,100, excluding VAT.

MR JUSTICE BLAIR: And that includes all the written work and so forth?

[38]MISS JOSEPH: It does. It is the skeleton argument and today's hearing.[39]MR DE MELLO: Nothing to add.[40]MR JUSTICE BLAIR: That is most realistic. I make an order for costs in those terms, £2,100.[41]Can I express my appreciation for the excellent written submissions as well as the economical and helpful oral submissions.[42]MR DE MELLO: My Lord, we are grateful. Thank you very much.

Cited in 3 later judgments