There have been two recent cases on closure orders of passing interest. The first, less important case was reported in The Guardian’s Society pages. The hearing appears to have been an amusing event, attended by “a large group of sex workers and their maids”, at which the police officer giving evidence could give no direct evidence that the premises were associated with the occurrence of disorder or serious nuisance to members of the public, because there was no such record on the police computer. Not surprisingly, the judge refused to confirm the Closure order. After the hearing, apparently one of the maids asked the police sergeant “I don’t want to rub it in, but when can we have our keys back?”. One does feel for the local priest, though, who has had to put extra bars on the church doors to stop drug dealing (closure order on the church, anyone?).
More importantly, though, in Hampshire Police Authority v Smith [2009] EWHC 174 (Admin), the Divisional Court held that an appeal against a closure order has to be issued within 21 days from the date of the closure order. It does not have to be heard within that timeframe. Section 6(2), Anti-Social Behaviour Act 2003, says that “An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made”. Although s 6(2) is not particularly clear, and the closure order only lasts for three months, Wyn Williams J said that the contrary result, where the whole thing would have to be wrapped up within 21 days, would lead to practical problems.
The Crown Court Rules 1982 apply to such civil appeals and there is power under those rules to grant leave to appeal out of time (r 7(5)). The further question raised in the case was whether that power applied to closure orders. It was held that it did not. The policy of the 2003 Act was clear on this issue, particularly when one compares the closure order provisions with those of graffiti removal notices (s 51) and high hedges (s 71), both of which have express powers for appeals to be made out of time (which are not included in the closure order provisions): “If Parliament had intended there to be such a power it would have said so expressly” (at [29]).
All of this is fine and makes sense (at least, it’s difficult to disagree on the face of the provisions). But one must feel for Ms Smith whose family can’t access their property and whose reason for seeking leave to appeal out of time was that her solicitors had not been in receipt of public funding. And she hadn’t attended the original hearing because she hadn’t understood the closure notice as well as being with her one of her children who was in hospital at the time of the hearing.
Surely Article 6 is engaged here, given that there is an interference with Article 8. It seems wrong that there is no discretion to have the appeal heard out of time in domestic cases.
The good, if harrassed, father was giving evidence in support of the brothel, which had apparently seen considerably less drug dealing than the Church. But one doesn’t mess with a determined maid:
“One time a man pulled a gun on a girl. I went in, jumped on his back and stopped him. The fact that we’re there makes the girls feel safe.” I can see that.
On Marcin’s Art 6 point, this is outside my turf, but given the interference with Art 8, proportionality of the interference would surely support an Art 6 argument. The respondent did not appear and was not represented, so I doubt a further appeal on those grounds will happen in this case.
Why can’t you seek judicial review of the decision of the Mags to grant the order, notwithstanding the failure to lodge an appeal in time? In seeking permission, you’d have to explain the reasons for not taking the statutory appeal and, of course, if those reasons are poor, then you won’t get permission.
But I don’t see why there is an Art. 6 issue. There is no reason to suppose that the hearing before the Mags would violate Art. 6. It is not a requirement of Art. 6 that there be a right of appeal, merely that, if a right is granted, the appeal must also comply with Art. 6. There is a right of appeal in a closure order case and it can’t be an Art. 6 violation to impose a time limit on when the appeal is brough.
Lodging an appeal in time is also very, very easy. All you have to do is lodge the formal notice (which is merely a statement of intent to appeal – you don’t need Grounds!), you don’t, for example, have to supply your witness statements or skeleton argument.
As I said, this is not my turf, but a complete absence of judicial discretion on appeal out of time where so much is at stake – Art 1 as well as Art 8 – surprises me. Given the importance, is an absolute limit on time to appeal proportionate? (when offending hedges do get discretion.)
JR would surely be a higher hurdle than an appeal – the Mag’s decision would have to be not just wrong but unreasonable.