No closure for rough justice

Schedule 17 of the Criminal Justice & Immigration Bill proposes a massive widening of the powers currently available to the police to close down premises. The current closure order regime pursuant to the Anti-Social Behaviour Act 2003 empowers a police officer of a rank not below that of superintendent to issue a closure notice if he has reasonable grounds for believing (a) that 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.

Anti-Social Behaviour Act 2003 envisaged an extremely speedy procedure. If a closure notice has been issued, a constable must apply to a magistrates’ court for the making of a closure order. The application must be heard by the magistrates’ court not later than 48 hours after the closure notice was served. There is a statutory power to adjourn for a further period of not more than 14 days and if it adjourns, it may order that the closure notice continues in effect until the end of the adjournment.

Case law has now established that the court has a general power to order further adjournment beyond the 14 days, but there is no power to order that the closure notice should continue in effect for any such further extended period.

A closure order is an order that the premises are closed to all persons for such period, not exceeding three months (with a power to extend for a total maximum period of six months) as the court decides.

A person commits a criminal offence if he remains on or enters premises in contravention of a closure notice or premises in respect of which a closure order has been made. A person found guilty of such an offence is liable, on summary conviction, to imprisonment for a period not exceeding six months or to a fine not exceeding level five on the standards scale.

In the government’s recent consultation paper, Strengthening Powers to Tackle Anti-Social Behaviour (November 2006), it described the present closure order regime operating under ASBA 2003 as delivering ‘visible, accountable and speedy summary justice […] with all the necessary court and judicial safeguards […] an example of a new balance between rights and due process’.

The regime is undoubtedly a visible and speedy one, but it certainly does not incorporate all the necessary judicial safeguards. This much was made clear in the case of R (Cleary) v Highbury Corner Magistrates Court [2006] EWHC 1869 (Admin).

The court noted that ‘applications for closure orders threaten to trample on defendants’ Article 8 rights and defendants may be vulnerable and unrepresented’. Notwithstanding the threat to Article 8 rights, in a case preceding Cleary, the High Court in Chief Constable of Merseyside v Harrison [2006] EWHC 1106 (Admin) ruled that the civil standard of proof applied in closure order cases, distinguishing them from the ASBO regime.

The court in Cleary identified a number of difficulties with the legislation: the legislation does nothing to spell out the means whereby the magistrates’ court are to be satisfied, nor, importantly, the steps which must be taken to ensure that Article 6 of the ECHR is complied with, so that defendants, who may be at risk of losing their home, have a fair hearing. Particular problems arise because the statutory time limits are very short; there is routine reliance on hearsay evidence and the rules of court governing the use of hearsay evidence are in direct conflict with the 14-day time limit.

In seeking to resolve these issues, and to interpret the statute in a way that was compatible with the ECHR, the court underlined the importance of early disclosure of all material evidence.

The police in Cleary argued that it was disproportionate and impractical to provide disclosure to a defendant before the first hearing. The court disagreed.

Notwithstanding the real problems identified in Cleary, the Criminal Justice and Immigration Bill envisages expanding the range of premises to which closure orders should apply (i.e. not just premises associated with class-A drug use).

The new closure orders will apply if an officer has reasonable grounds for believing (a) that a person has engaged in anti-social behaviour on the premises and (b) the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public.

Sanctions for breach are as per the current regime. There is no proposed change to the procedure despite Cleary and despite the fact that a much larger group of people are likely to be made homeless or go to prison.

Maya Sikand is a barrister at Garden Court Chambers.