Rare High Court judgment on Closure Orders

Chief Constable of Humberside Police -v- Kelly Morgan [2024] EWHC 2859 (Admin)

Executive Summary

In a rare case on closure orders, the High Court determined that the start date of a closure order can be deferred.

Background 

On 28 November 2023, District Judge Daley, sitting at Hull Magistrates Court granted a full closure order for a three-month period over property occupied by Ms Morgan and her two children.

Ms Morgan appealed the closure order and invited the Judge to suspend the order during the intervening period otherwise she and her daughters would be homeless, the Council could apply for a possession order and the appeal might not be heard for some time.

The Judge suspended the Closure Order pending appeal to the Crown Court so as to preserve the status quo since, otherwise, the appeal might become academic if Ms Morgan was disposed of their home. The Judge also relied on section 63(2) of the Magistrates’ Court Act 1980 (‘the 1980 Act’) which permits a court to suspend an order made.

The Chief Constable appealed by way of case stated, the key question being:

Does section 63(2) of the 1980 Act empower Magistrates Courts to suspend a Closure Order pending an appeal the crown court? 

Law

Closure Orders

Chapter 3 of Part 4 of the Anti-social Behaviour Crime and Policing Act 2014 (‘the 2014 Act’) describes the process by which the police or a local authority can apply to the courts to close a property following reports of criminal behaviour, anti-social behaviour or nuisance. They are intended to provide a fast and flexible remedy in cases of substantial nuisance or disorder. The effect can be draconian as a closure order could prevent people living in their own homes for up to three months.

Power to suspend

Section 63 of the 1980 Act concerns orders other than for payment of money. Section 63(1) provides the Magistrates Court with a power to make such an order. Section 63(2) permits such an order to be suspended or rescinded. Section 63(5) states that section 63 shall not apply to an order if another enactment describes how it is enforced.

Sections 85-86 of the 2014 Act describe how to enforce a closure order (and the consequences of failing to comply). The heading at section 85 is also ‘enforcement’.

Appeal

An appeal against the making of a closure order is to the Crown Court.
For the appeal (and any hearing) to be fair in accordance with Article 6 of the ECHR, fairness must be “practical and effective, and not theoretical and illusory”. In this context, an appeal should have the ability of challenging the closure order (which may only be in place for three months) otherwise the appeal would be theoretical and illusory.

Decision

The Court said no, section 63(2) of the 1980 Act does not empower the Magistrates Court to suspend a Closure Order because sections 85-86 of the 2014 Act set out the enforcement provisions.  This meant that section 63(5) of the 1980 Act was applicable.

The Court rejected the Police’s submissions – that a Closure Order must start immediately – because what was necessary required consideration of the occupier’s Article 8 rights. There may be occasions when a Closure Order should commence from a later date – for example if a child is midway through their school exams, it may be appropriate for the Closure Order to begin once their exams have concluded.

However, a deferred start date of the Closure Order cannot be used simply because an appeal in the Crown Court is pending; that would give the magistrates a power to suspend by the “back door” and would be inviting the Magistrates to build in a start-date designed to accommodate a view which they do not hold.

The Court considered the impact of Article 6. Whilst the Crown Court has the power to suspend a Closure Order pending an appeal, there were sufficient “safety nets” meaning the Magistrates’ powers were compatible with Article 6; these being:

1. Substantive ECHR-compatibility is “baked-in” to the closure order regime.
2. The Crown Court could expedite an appeal instead of suspending the Closure Order.
3. If there is no prospect of the appeal being heard for a significant period of time (perhaps due to lengthy court lists) the court should consider the practical steps it could take to remedy the issue.
4. Even if a Closure Order has expired, an appeal to the Crown Court is not academic (because the Closure Order can be used as mandatory ground for possession proceedings or, may result in compensation being paid if financial loss has been suffered).

Comment

This is a rare case that deals with the Magistrates Courts civil preventative powers. The discussion around Article 6 is also essential reading as it defines the scope of the courts’ powers, which will apply to the other types of orders regularly made in the Magistrates Courts (e.g. Sexual Harm Prevention Orders, Stalking Protection Order and Domestic Abuse Protection Orders).

For the first time, Morgan also makes clear that Closure Orders do not need to take effect immediately. Whilst this case only dealt with Closure Orders, one can readily see that arguments will be advanced for other similar-type orders made in the Magistrates Court to have a delayed start-date.