“Given the circumstances in this case as a whole, I find that the police acted reasonably and properly in making the application itself, despite my finding that the grounds were not made out to make the closure orders. I also find the need for public authorities to be able to make such applications in the public interest without financial prejudices (sic) to them, outweigh any financial prejudice the respondents may have suffered in this case. I therefore dismiss the application for costs.”
“In relation to the application for compensation, having regard to all of the circumstances (as required by S 90 (5)(d)) and for the same reasons discussed above, I do not consider it is appropriate to order payment of compensation and also dismiss that part of the application.”
“I did apply the same principles that I’d considered whether to award costs in deciding whether to award compensation… However, in coming to the conclusion not to award compensation, I applied the same principles in the authorities above which I considered in relation to the application of costs. That is a need for public authorities to be able to make such applications in the public interest without financial prejudices (sic) to them, outweigh any financial prejudice the respondents may have suffered in this case. The use of the word ‘them’ in this context in my judgement includes all public authorities and includes payments from public monies even though the police would not themselves have been liable for payment of any order of compensation. I took into account the fact that payment from central funds is of course a payment from public funds.”
“…the Commissioner had acted properly and reasonably in making the application and therefore, having regard to all the circumstances (as required by s.90(5)(d)), I came to the conclusion that it was also correct to refuse the application for compensation.”
“…the renewed application deals with an issue which is at most peripheral to any question of compensation, and which in any event appears clearly otiose. I do not regard it as either helpful nor necessary to resolve the question whether the notice was invalid because of a lack of prior notification in order to decide, at the end of a hearing, whether the Claimants should have their costs. ”
“Q1 Was I correct to consider the same authorities and principles in relation to the ordering of costs when considering whether to award compensation undersection 90 Anti-Social Behaviour, Crime and Policing Act 2014 : Do the same principles apply when considering payment from central funds? Is the starting point that no order should be made? Is it necessary to weigh up financial prejudice to the public purse against the need to encourage public authorities to make such applications when considering whether to away during compensation? Q2. Should I at the time, have taken account of the Commissioner’s failure to comply withsection 76(6) of the Anti-Social Behaviour, Crime and Policing Act 2014 as a relevant factor in deciding whether to award costs or compensation.”
“76 Power to issue closure notices (1)A police officer of at least the rank of inspector, or the local authority, may issue a closure notice if satisfied on reasonable grounds— (a) that the use of particular premises has resulted, or (if the notice is not issued) is likely soon to result, in nuisance to members of the public, or (b) that there has been, or (if the notice is not issued) is likely soon to be, disorder near those premises associated with the use of those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. (2) A closure notice is a notice prohibiting access to the premises for a period specified in the notice. For the maximum period, see section 77. (3) A closure notice may prohibit access— (a) by all persons except those specified, or by all persons except those of a specified description; (b) at all times, or at all times except those specified; (c) in all circumstances, or in all circumstances except those specified. (4) A closure notice may not prohibit access by— (a) people who habitually live on the premises, or (b) the owner of the premises, and accordingly they must be specified under subsection (3)(a). (5) A closure notice must— (a) identify the premises; (b) explain the effect of the notice; (c) state that failure to comply with the notice is an offence; (d) state that an application will be made under section 80 for a closure order; (e) specify when and where the application will be heard; (f) explain the effect of a closure order; (g) give information about the names of, and means of contacting, persons and organisations in the area that provide advice about housing and legal matters. (6) A closure notice may be issued only if reasonable efforts have been made to inform— (a) people who live on the premises (whether habitually or not), and (b) any person who has control of or responsibility for the premises or who has an interest in them, that the notice is going to be issued. (7) Before issuing a closure notice the police officer or local authority must ensure that any body or individual the officer or authority thinks appropriate has been consulted.”
“(a) that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or (b) that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or (c) that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises, and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.”
“a person who claims to have incurred financial loss in consequence of a closure notice or a closure order may apply to the appropriate court for compensation … (5) On an application under this section court may order the payment of compensation out of central funds if it is satisfied- (a) that the applicant is not associated with the use of the premises, or the behaviour on the premises, on the basis of which the closure notice was issued with a closure order made, (b) if the applicant is the owner or occupier of the premises, that the applicant took reasonable steps to prevent that use or behaviour, (c) that the applicant has incurred financial loss in consequence of the notice or order, and (d) that having regard to all the circumstances it is appropriate to order payment of compensation in respect without loss.”
“…on hearing a complaint, a magistrates court shall have power in its discretion to make such order as to costs… as it thinks just and reasonable”. ”
“75 As I have indicated, there is a respectable argument for saying that there should be a presumption that a person in the position of the claimant should be able to recover the sum of the costs should successfully defeated the claim by the police to confiscate her money. However, there is also a respectable argument for saying that there is no such presumption, and that, absent other factors, she should only be able to recover any costs in so far as they were incurred as a result of the actions of the police in connection with the detention and claim confiscation of the money which were unreasonable or in some other way open to criticism. In my view, the resolution of the question as to which of these two views should prevail is really determined by the decisions to which I referred of the High Court and Court of Appeal over the past 30 years the effect of which is encapsulated in Lord Bingham CJ’s principles [in Booth]. … 77 The effect of our decision is that a person in the position of the claimant who has done nothing wrong, may normally not be able to recover the costs of vindicating her rights against the police in proceedings under section 298 of the 2002 act, where the police have behaved reasonably. In my view, this means that magistrates should exercise particular care when considering whether the police have acted reasonably in the case where there is an application costs against them under section 64. It would be wrong to invoke the wisdom of hindsight set too exacting standard, but particularly given the understandable resentment felt by a person in the position of the claimant if an order for costs is made, and the general standards of behaviour that can properly be expected from the police, it must be right to scrutinise a behaviour in relation to the seizure, the detention, and the confiscation proceedings, with some care when deciding whether they acted reasonably and properly.”
“15 The question thus arises as to whether any failures, if there were any failures, by the authorising officer, are matters which it was open to these appellants to raise in the proceedings before the Crown Court. The allegation was that Superintendent Morgan failed to comply with the obligation imposed on him by section 11K to have regard to the Secretary of State's guidance. That failure, so it was said, was a matter which the Crown Court ought to have considered but failed, by declining to exercise what the court regarded as a species of prior judicial review analysis. 16 It is not disputed, and cannot be disputed, that the Crown Court, exercising the statutory jurisdiction conferred upon it by section 11F, must exercise that jurisdiction in a way to achieve the statutory objective of fairness and justice in the consideration of whether it is right to make a Closure Order or not. This is not correctly described as an inherent jurisdiction, but rather a jurisdiction to be implied from its statutory function. In order to achieve the objective of deciding whether to make a Closure Order or not, both the Magistrates' Court, under section 11B, and the Crown Court on appeal under section 11F , must be able to deploy implied powers so as to achieve fairness and justice in reaching a conclusion. If authority is wanted for such a proposition it can be found in the decision of Hickinbottom J in R (V)and the Asylum and Immigration Tribunal v Secretary of State for the Home Department[2009] EWHC 1902 Admin and in Chief Constable of Nottingham v Nottinghamshire Magistrates' Court[2009] EWHC 3182 or [2010] 2 AER 347. The court is entitled to prevent its processes from abuse and, in exceptional cases, may prevent an application from being persisted in or continued where it is clear to the court that there is either bad faith or manipulation of its processes in order to achieve a Closure Order. Examples, possibly far fetched, but nevertheless easily identifiable, were given in argument where it could be shown that, for example, the proceedings were being brought in bad faith or for ulterior motives. 17 There was no controversy about the exercise of that traditional and well recognised power, but the dispute between the parties arose over the question as to whether the court was required to consider a challenge to the Closure Order on the basis that the superintendent had, as a matter of public law, acted unlawfully, in that he had failed to consider the guidance that he was required to consider. The classic example of bringing a collateral challenge in criminal, or for that matter civil, enforcement proceedings on public law grounds occurs where a public body, in the exercise of its statutory powers, makes an order and seeks to rely upon that order in bringing proceedings for an offence of breach of the order. In such circumstances a defendant may raise a public law defence, contending that the order made was outwith the powers of the authority. In civil proceedings an example of that may be found in Wandsworth London Borough Council v Winder[1985] AC 461 where proceedings were brought for arrears of rent and the increase of rent made by the local authority was unlawful. In criminal proceedings the paradigm may be observed in Boddington v the British Transport Police[1999] AC 143 . In that case a criminal prosecution was brought for breach of the by-law prohibiting smoking in a railway carriage. On appeal, the House of Lords concluded that it was open to the defendant to contend, by way of defence to a criminal prosecution, that the by-law, or the administrative act of sticking up the notices pursuant to it, was ultra vires and unlawful. Lord Irvine of Lairg Lord Chancellor, at page 153G to H, said: “It would be a fundamental departure from the rule of law if an individual were liable to conviction for contravention of some rule which is itself liable to be set aside by a court as unlawful”
“The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case the justices will have to rule upon the validity of the Act. On the other hand, the statute may, upon its true construction, merely require an Act which appears formally valid and has not been quashed by judicial review. In such a case nothing but the formal validity of the Act will be relevant to an issue before the justices. It is, in my view, impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute”. (See page 117B to D) He then referred to the approach of Webster J in Quietlynn Ltd v Plymouth City Council[1988] QB 114 in which, in the context of those proceedings in relation to a sex establishment licensing code, Webster J commented that justices should not be expected to assume the functions of a Divisional Court and consider the validity of decisions made by a local authority. He continued: “Every decision of the Licensing Authority … under the Act of 1982 is to be presumed to have been validly made and to continue in force unless and until it has been struck down by the High Court and neither the justices nor the Crown Court have the power to investigate or decide on its validity” (see page 131). 21 In the instant case the scheme of the Act is that once an authorised police officer of the rank of Superintendent and above has issued a Closure Notice it is then for the Magistrates' Court to decide whether it is satisfied of those considerations identified in section 11B(4) and further, I emphasis, to consider whether as a matter of discretion such an order ought to be made. Thus, the issue of a notice is merely the trigger for the magistrates' jurisdiction. In the absence of any allegation of a breach of the notice, the legality or otherwise of the notice has no impact upon the jurisdiction of the magistrates. The magistrates make their own decision as to whether the conditions are satisfied. If they are, the magistrates are then required to go on to consider whether, even though those conditions are satisfied, it is right to make the order. In those circumstances, this is just the sort of statutory scheme to which Lord Hoffman and Webster J were referring, in which questions of the validity or otherwise of a notice are not questions for either the justices or, on appeal, for the Crown Court. It is the examination and analysis of the statutory scheme that dictates a conclusion that the Crown Court was correct. That seems to me to be a further ground for upholding its conclusion.”
“14 I have no doubt that that decision was wrong. This court has indicated that in general it is inappropriate to intervene at an interlocutory stage (see, for example, R v Rochford Justices, ex parte Buck). The court must decide all issues whether of fact or law for itself and reach its decision. If that decision is, or is alleged to have been, tainted by any errors of law, a case can be stated or exceptionally judicial review proceedings can then be brought. It is particularly inappropriate to permit judicial review before the final decision in cases such as this where speed, and the continuing protection of the public, are of particular importance. … 16 (1) Is the jurisdiction of the Magistrates' Court to hear the application for a closure order undersection 2 of the Anti-social Behaviour Act 2003 dependent upon the existence of a validly issued and served closure notice undersection 1 of the Act ? … 21 At the hearing of the application the court should satisfy itself that copies of the notice have indeed been served as required by section 1(6) so that anyone who would be adversely affected by it, and entitled to make representations against it because he had control of, responsibility for, or interest in the premises, had been so far as reasonably practicable, identified and served. One of the purposes of section 1(6) is to give all those who might be affected by an order, or interested in the premises, notice of the intention to apply for the control order. If the magistrates are not satisfied that those mandatory steps have been taken they should then consider whether to exercise their powers to adjourn under section 2(6) and require that the necessary steps be taken. If persuaded that there are shortcomings, they would be likely to take the view that the notice should not continue in effect until those necessary steps were taken; thus they would not exercise their powers under section 2(7) to continue the notice in being. 22 The notice itself, on the face of it, is required to inform of the date and time of the hearing before the Justices. Obviously if the notice does not contain the necessary information the magistrates will be likely to indicate that they are not prepared to continue with any hearing until the notice is put in proper form. In that way the interests of those who are affected by it are preserved while the protection of the public, which stems from the need for the premises to be closed down, if that is established, is also kept in being. 23 For reasons which will become apparent, I do not think that the jurisdiction to hear the application is affected by any shortcomings in the notice, although they would affect the validity of the notice so as to make it impossible to maintain criminal proceedings under section 4(1) or (2) in so far as they depended upon the validity of the notice. If within the period permitted by the Justices any defects were not cured then no doubt the application would be likely to be refused. It is important to bear in mind that the closure notice itself produces an immediate effect in that it prevents anyone other than a habitual resident or the owner from entering the premises. In addition its breach by any visitor is a criminal offence, as is any obstruction by any person of the taking of any of the steps which have to be taken under section 1(6) . It will be a defence to any criminal charge under section 4(1) or (2) in so far as it relates to section 1(6) that the notice is not a valid notice. Such a defence will have to be considered by the court (see Boddington v British Transport Police[1998] 2 All ER 203 ), but while the issue of a notice, which does not have to be contemporaneous with its authorisation, is an essential pre-requisite to the application to the court, the court must decide whether an order is needed. The court will consider whatever evidence is put before it in satisfying itself that each of the paragraphs in section 2(3) applies. That is the protection for the claimant and anyone adversely affected by the notice which cannot be in force for more than 16 days, that is a combination of the 48 hours in section 2(2) and the 14 days' adjournment in subsection (6). 24 Whether or not the superintendent had reasonable grounds for his belief will inevitably be irrelevant at the stage that the magistrates consider whether to make a control order, since they must decide whether in fact there has been the drug use and whether in fact there is the associated disturbance and so the making of an order is necessary. 25 In so far as breaches result in criminal offences, the validity of the closure notice must, as I have said, be established. Since Parliament has laid down mandatory requirements those must be complied with. The same approach is not necessary in considering an application undersection 2 of the Act . It seems to me that in this respect the approach adopted by the House of Lords in the Attorney General's reference (No 3 of 1999)[2001] 1 All ER 577 is applicable. A notice must have been issued to enable an application to be made, but the application does not depend, nor does the Act say that it depends, upon the validity of that notice. The Justices must ensure that those affected have been properly notified and so can appear and, if they wish, raise objections, but it is for the Justices to decide on the evidence before them whether a control order is to be made. That process provides all the necessary protection for those affected and does not frustrate the obvious Parliamentary purpose in permitting the making of control orders for the protection of those living near such premises. … 37 Accordingly, for the reasons I have given, I would answer the first question raised in the negative. The magistrates' jurisdiction depends upon an application made undersection 2 of the 2003 Act and the existence of a notice. Any relevant issues relating to the notice and, in particular, whether any persons who should have been notified have been must be decided by the magistrates. If the magistrates are in any doubt about whether there has been a proper display of the notice or notification in accordance with section 1(6), they must ensure that all necessary steps are taken to draw its existence to the attention of those who otherwise might try to visit the premises and so commit an offence.”
“If a bona fide challenge to the validity of the decision in question is raised before them, then the proceedings should be adjourned to enable an application for judicial review to be made and determined. In our view, therefore, except in the case of a decision is invalid on its face, every decision of the licensing authority under the act is to be presumed to have been validly made and to continue in force unless and until has been struck down by the High Court; and neither the justices nor a Crown Court have power to investigate or decide upon its validity.”
“[31] However, as the magistrate found that there had not been adequate service, it is necessary to consider consequence of the service after the first hearing when the proceedings were adjourned. Mr Sauter’s argument said that the structure of the act required the service on the occupiers of the basement to take place before the complaint (seeking a closure order) was issued. That argument, if correct, could be to the disadvantage of those who may subsequently occupy the premises and whose interests might need to be protected. It seems to me that a proper interpretation of section 41 only requires service of the principal to have taken place before the complaint is issued. The reason for the two-stage process so far as the principal is concerned, pursuant to ss.3 & 4 of the Act is to give the operator of the sex establishment and opportunity to discontinue his activities of which the council makes complaint. The reason for serving others (apart from the person operating the sex establishment) is to enable them to protect their interests. As long as they are in a position to attend the hearing, the policy and the objectives of the Act will be achieved.” (Emphasis added).
“28 I also consider that the Bank is entitled to succeed on the ground that it received no notice of the Treasury’s intention to make the direction, and therefore had no opportunity to make representations. 29 The duty to give advance notice and an opportunity to be heard to a person against whom a draconian statutory power is to be exercised is one of the oldest principles of what would now be called public law. In Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, the defendant local authority exercised without warning a statutory power to demolish any building erected without complying with certain preconditions laid down by the Act. … 31 It follows that, unless the statute deals with the point, the question whether there is a duty of prior consultation cannot be answered in wholly general terms. It depends on the particular circumstances in which each directive is made. Some directives that might be made under Schedule 7 to the Act could not reasonably give rise to an obligation on the Treasury’s part to consult the targeted entity, for example because there was a real problem about the implicit or explicit disclosure of secret intelligence or because prior consultation might frustrate the object of the directive by enabling the targeted entity to evade its operation, notably in a case involving money-laundering or terrorism. … 32 In my opinion, unless the Act expressly or impliedly excluded any relevant duty of consultation, it is obvious that fairness in this case required that Bank Mellat should have had an opportunity to make representations before the direction was made. In the first place, although in point of form directed to other financial institutions in the United Kingdom, this was in fact a targeted measure directed at two specific companies, Bank Mellat and IRISL. It deprived Bank Mellat of the effective use of the goodwill of their English business and of the free disposal of substantial deposits in London. It had, and was intended to have, a serious effect on their business, which might well be irreversible at any rate for a considerable period of time. Secondly, it came into effect almost immediately. The direction was made on a Friday and came into force at 10.30am on the following Monday. It had effect for up to 28 days before being approved by Parliament. Third, for the reasons which I have given, there were no practical difficulties in the way of an effective consultation exercise. While the courts will not usually require decision-makers to consult substantial categories of people liable to be affected by a proposed measure, the number of people to be consulted in this case was just one, Bank Mellat, and possibly also IRISL depending on the circumstances of their case. I cannot agree with the view of Maurice Kay LJ that it might have been difficult to deny the same advance consultation to the generality of financial institutions in the United Kingdom, who were required to cease dealing with Bank Mellat. They were the addressees of the direction, but not its targets. Their interests were not engaged in the same way or to the same extent as Bank Mallet’s. Fourth, the direction was not based on general policy considerations, but on specific factual allegations of a kind plainly capable of being refuted, being for the most part within the special knowledge of the Bank. For these reasons, I think that consultation was required as a matter of fairness. But the principle which required it is more than a principle of fairness. It is also a principle of good administration. The Treasury made some significant factual mistakes in the course of deciding whether to make the direction, and subsequently in justifying it to Parliament. They believed that Bank Mellat was controlled by the Iranian state, which it was not. They were aware of a number of cases in which Bank Mellat had provided banking services to entities involved in the Iranian weapons programmes, but did not know the circumstances, which became apparent only when the Bank began these proceedings and served their evidence. The quality of the decision-making processes at every stage would have been higher if the Treasury had had the opportunity before making the direction to consider the facts which Mitting J ultimately found. … 36 It does not of course follow that a duty of prior consultation will arise in every case. The basic principle was stated by Lord Reid 40 years ago in Wiseman v Borneman[1971] AC 297 , 308, in terms which are consistent with the ordinary rules for the construction of statutes and remain good law: “Natural justice requires that the procedure before any tribunal which is acting judicially shall be far in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”
“… I suggest that the right approach is to regard the question whether requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows 1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.) 2. Is the non-compliance capable of being waived, and if so, has it, or can it and should be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver. 3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.) Which questions will arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is it they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements in the mandatory ones, which asked jurisdiction or directory, which do not if the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”