| CRIME — Crime and disorder — Closure order — Criterion for extension — Human Rights Act 1998, Sch 1, Pt I, art 8 — Anti-social Behaviour Act 2003 (as amended by Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (SI 2006/987) art 4(2)), s 5
R (Smith) v Crown Court at Snaresbrook [2008] EWHC 1282 (Admin); [2008] WLR (D) 185
DC: Latham LJ and Underhill J: 10 June 2008
The only criterion for the making of an order under s 5(4) of the Anti-social Behaviour Act 2003 extending the period of a closure order was whether the extension was necessary to prevent the occurrence of disorder or serious nuisance.
The Divisional Court of the Queen’s Bench Division so held when dismissing an application by the claimant, Derek Smith, for judicial review of an order made by the Crown Court at Snaresbrook on 13 December 2007, dismissing the claimant’s appeal against the decision of Thames Magistrates’ Court, dated 16 October 2007, to extend by a further three months, pursuant to s 5 of the 2003 Act, a closure order that had been made in respect of a flat in which the claimant resided.
UNDERHILL J said that the court accepted the propositions of counsel for the claimant with regard to the draconian nature of the powers conferred by Part 1 of the 2003 Act, in that an occupier might be excluded from his home, by a summary process, for as much as three months in the first instance, in circumstances where he was likely to find it difficult to obtain other accommodation and where he was likely to remain financially liable for his tenure of the property. That being so, art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms was engaged, and in deciding whether to make an order and, if so, for how long, the magistrates’ court must apply the principle of proportionality, as outlined by May LJ in R (Cleary) v Highbury Corner Magistrates’ Court [2007] 1 WLR 1272, para 7. These propositions applied equally to an application to extend a closure order. The Crown Court had been correct to hold that the only criterion for the making of an extension order under s 5(4) was whether it was necessary to prevent the occurrence of disorder or serious nuisance (being disorder or serious nuisance associated with the drug-related use of the premises as in s 2(3)) for a further period, up to a maximum of three months. The submission of counsel for the claimant that there had to be “something more” to justify an extension than the evidence on the basis of which the original order had been granted (such as evidence that the previous occupier was intending to resume drug-related use of the premises when the order expired) was unpersuasive. Courts should approach the prescribed test without any presumptions as to the statutory intention beyond what appeared in the actual words of the subsection. Beyond that, everything would depend on the facts of the particular case.
Latham LJ gave a concurring judgment. |
