| CRIME – Crime and Disorder – Closure order – Application for extension of closure order in respect of premises – Magistrates’ court failing to issue and serve summons as prescribed – Hearing of application in absence of defendant - Whether general procedural requirements ousted or modified by specific statutory procedure – Whether court’s ability to hear complaint fettered – Whether extension of closure order nullity or procedural irregularity – Whether magistrates’ court have power to set aside its decision in civil proceedings – Magistrates’ Courts Act 1980, s 55(3) – Anti-social Behaviour Act 2003, s 5(3) – Magistrates’ Courts Rules 1981, r 99
R (Longato) v Camberwell Green Magistrates’ Court [2009] WLR (D) 104
QBD: Mitting J: 18 March 2009
The statutory procedure for an application to extend a closure order, set out in s 5(3) of the Anti-social Behaviour Act 2003, which provided that within a reasonable time before the hearing of an application a summons might be issued by a justice of the peace to the former occupier of the premises, did not oust or modify the general procedural requirements of the Magistrates’ Courts Act 1980 or r 99 of the Magistrates’ Courts Rules 1981; if the court failed to issue and serve the summons in the manner prescribed, its ability to hear the complaint was fettered.
Mitting J so held when granting the claimant, Samantha Longato, judicial review by way of an order to quash an order made by the district judge at Camberwell Green Magistrates’ Court to extend, pursuant to s 5 of the 2003 Act, a closure order relating to premises formerly occupied by the claimant. The original closure order had been made in October 2008 for three months on the grounds that the address was a disorderly crack house. The police had contemplated the renewal of the order and the claimant had instructed solicitors who had applied to the magistrates’ court for an order to permit her to be represented by them in relation to the anticipated application. The court had granted the representation order but had failed to serve it on the claimant’s solicitors until after the hearing of the police’s application to the district judge, who had granted an extension. The claimant had not been present at that hearing and it was common ground that she had never been given notice of it.
MITTING J said that on those simple facts there arose a number of procedural questions of no little difficulty. The statutory procedure for an application to extend a closure order, set out in s 5(3) of the 2003 Act, envisaged that an application to renew would be made by complaint by a police officer to an appropriate justice of the peace who might issue a summons directed to the former occupier of the premises requiring such person to appear before the magistrates’ court to answer to the complaint. However, the 2003 Act did not oust or modify the general procedural requirements of the 1980 Act or r 99 of the 1981 Rules. S 55(3) of the 1980 Act specified that, if a defendant was not present at the hearing of a complaint, before the hearing began it had first to be proved to the court’s satisfaction that the summons had been served on the defendant within what appeared to the court to be a reasonable time before the hearing. R 99 of the 1981 Rules provided for the various means by which a summons might be served. The object of those provisions was self-evident: to ensure that the person against whom the orders were made was given proper notice of the application and the hearing and an opportunity to make his or her views known to the district judge or magistrate who would decide. The evidence established beyond argument that, far from satisfying those provisions, service had not been effected at all and it seemed that neither s 55(3) nor r 99 had been drawn to the attention of the district judge when he had agreed to conduct the hearing in the absence of the claimant. Where, as here, a complaint had been made seeking an extension of a closure order, it was incumbent on the court to issue and serve a summons in the manner prescribed. However the proceedings were not a nullity; rather, they were tainted with irregularity and had resulted in real injustice to the claimant by shutting her out of the opportunity to be heard, whatever the merits of her case. The police submission that the extension order should not be quashed was not persuasive. The fact that, after the order had been made, the magistrates’ court, having been informed of the claimant’s wish to participate, had suggested that it would reconsider the application, giving the claimant the opportunity to be heard, raised the vexed question of what power the magistrates’ court had to put right an error which did not result in the order being a nullity. In R (Mathialagan) v Southwark London Borough Council [2005] RA 43 Waller LJ had concluded that the provisions of s 142(1)(2) of the 1980 Act were concerned with the justices’ criminal jurisdiction and not their civil jurisdiction: Parliament had intentionally not given a general power to justices to reopen civil proceedings, and it would be wrong of the justices to regard themselves as having power to set aside their own decisions, merely because of the existence of grounds which might support an claim for judicial review. That applied with force in the instant case, and the claimant should not be deprived of the ordinary remedy available to her in the circumstances, to have the order quashed. |
