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By SW
08/08/2021

The Queen(o.a.o Rayner) v Leeds Magistrates Court: closure orders, legal aid reviews and adjournments

In this recent judicial review (2021) EWHC 1964 (Admin) H.H. Judge Gosnell addressed interesting questions around closure orders, adjournments, Article 6(1) rights, and the refusal of the Magistrates Court to state a case.  He declined to grant relief because the issue had become academic, but if that had not been the case he would have found for the Claimant.  Leeds City Council, the Claimant’s landlord, were an Interested Party in the JR, took a neutral position and were not represented.  Leeds District Magistrates Court, the Defendant, did the same, the usual approach where a court is challenged.

The Facts
The case concerned a partial premises Closure Order sought by the Interested Party against the Claimant, one of its secure tenants.  The Claimant has paranoid schizophrenia and had been detained under the Mental Health Act 1983 on two previous occasions.  The Claimant’s neighbours complained of anti-social behaviour at his property, including noise, drug taking and the dumping and burning of rubbish.  The Interested Party sought the order to permit access to the property by the Claimant and a small group of friends and family, but restrict it to others, including those who might seek to exploit him.  A Closure Notice was served on the Claimant on 26th January 2020, and he was advised to get legal advice.  The first hearing took place on 28th January 2020 which was the date the Claimant first sought advice.  The application was adjourned until 12th February 2020 and the Claimant’s solicitors applied for legal aid funding.  Criminal legal aid funding was not available and the Claimant’s solicitor had to apply for exceptional case funding (ECF).  ECF may provide a route to legal aid where failure to fund would result, among other things, in a breach of a Convention right.  Funding was refused on 7th February 2020 and the Claimant’s solicitors sought a review of that decision.  On 12th February 2020 the Claimant’s solicitors sought a further adjournment so that the review could be completed, and the Claimant could be represented at trial.  The Claimant was vulnerable and illiterate, and would not have been able to participate in proceedings without representation.

The Defendant refused the application for an adjournment and the Claimant’s solicitors withdrew.  In fact they did hear later that morning that the review had been successful and funding was granted, but by then the court had granted the partial premises Closure Order for three months, and it seems that the Claimant consented to this.

On 3rd March 2020 the Claimant applied for the Defendant to state a case for the opinion of the High Court, to ask whether an adjournment had been necessary to protect the Applicant’s human rights, and, if not, were the magistrates correct to refuse to adjourn because it was in the best interests of justice to proceed?    The Defendant refused the application, and by certificate issued on 17th June 2020 said the refusal was due to the request being “frivolous” under s.111(5) of the Magistrates Court Act 1980.  The Claimant then brought a judicial review of the Defendant’s decision.

The Law
The power to make Closure Orders is set out in the Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act).  Section 80 provides:

(1)Whenever a closure notice is issued an application must be made to a magistrates’ court for a closure order (unless the notice has been cancelled under section 78).

(3)The application must be heard by the magistrates’ court not later than 48 hours after service of the closure notice.


(5)
The court may make a closure order if it is satisfied—

(a)that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or

(b)that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or

(c)that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises,

and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.

(6)A closure order is an order prohibiting access to the premises for a period specified in the order.

The period may not exceed 3 months.

(7)A closure order may prohibit access—

(a)by all persons, or by all persons except those specified, or by all persons except those of a specified description;

(b)at all times, or at all times except those specified;

(c)in all circumstances, or in all circumstances except those specified.

(8)A closure order—

(a)may be made in respect of the whole or any part of the premises;

(b)may include provision about access to a part of the building or structure of which the premises form part.

(9)The court must notify the relevant licensing authority if it makes a closure order in relation to premises in respect of which a premises licence is in force.

The power to adjourn, and make temporary orders is contained in s.81(3)-(4):

(3)The court may adjourn the hearing of the application for a period of not more than 14 days to enable—

(a)the occupier of the premises,

(b)the person with control of or responsibility for the premises, or

(c)any other person with an interest in the premises,

to show why a closure order should not be made.

(4)If the court adjourns the hearing under subsection (3) it may order that the closure notice continues in force until the end of the period of the adjournment.

There is also a general power for a Magistrates Court to adjourn any hearing under s.54 of the Magistrates Court Act 1980 (the 1980 Act):

(1)A magistrates’ court may at any time, whether before or after beginning to hear a complaint, adjourn the hearing, and may do so, notwithstanding anything in this Act, when composed of a single justice.

(2)The court may when adjourning either fix the time and place at which the hearing is to be resumed or, unless it remands the defendant under section 55 below, leave the time and place to be determined later by the court; but the hearing shall not be resumed at that time and place unless the court is satisfied that the parties have had adequate notice thereof.

The judge concluded from the above that closure applications should be dealt with within 48 hours of an application, but there is a power to adjourn for a further 14 days under s.81(3).  He also found that Magistrates Courts retain the power to adjourn further under s.54 of the 1980 Act, as Mr Justice Mitting found in Commissioner of the Police of the Metropolis v Hooper (2005) EWHC 340 (Admin).

Where a party is unhappy with the decision of the Magistrates Court they can appeal to the Crown Court under s.84(4) of the 2014 Act on the merits.  They can also appeal by way of case stated to the High Court, on the grounds that the decision was wrong in law or done in excess of jurisdiction.  The Claimant chose this route, which engages s.111 of the 1980 Act:

s.111(1)Any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31st December 1879 is final.
….
(5)If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused; but the justices shall not refuse to state a case if the application is made by or under the direction of the Attorney General.

(6)Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case.

The judge also reviewed the law on absolute grounds for possession under s.84A of the Housing Act 1985 (the 1985 Act).  Where a dwelling-house: “is or has been subject to a closure order”, the landlord has an absolute ground for seeking possession of the property.  This only applies providing the landlord has complied with the review requirements under s.83ZA of the 1985 Act.  In this case, the Closure Order expired without the Interested Party having served the required notice on the Claimant under s.84ZA within three months of the date of granting of the Closure Order or within 3 months of the determination or withdrawal of any appeal.  As a consequence, the judge found that any right the Interested Party had to commence possession proceedings had now expired.  There was discussion with the Claimant’s counsel about whether there was any appeal outstanding and whether this might become an issue again following the conclusion of the JR. At the time of the hearing, no Appellant’s Notice had been filed, and could not be unless the Defendant agreed to or were ordered to state a case.

The Decision
The judge found that the reasons given by the Claimant for seeking an adjournment were cogent and the Defendant’s refusal was flawed.  The Defendant had to exercise its discretion in making the decision, but that judgment could be challenged, and the Defendant could not have regard to irrelevant factors and fail to consider relevant ones in its exercise of that discretion, as held by Mr Justice Mitting in Commissioner of Police of the Metropolis v Hooper. The Defendant was aware that the Legal Aid Agency had undertaken to reach their decision on funding on the morning of the hearing, so a short adjournment to await that decision would clearly have been reasonable.

The Defendant had claimed that there had been a reasonable opportunity for the Claimant to get legal aid, but this was not a conclusion that could properly be reached on the facts of this case.  The Claimant’s solicitor had applied for legal aid promptly, and had appealed the refusal promptly.  To conclude otherwise was an error of law which clearly had a material effect on the decision to dismiss the application for an adjournment.

The Claimant’s Article 6(1) ECHR rights were engaged and the complexity of the matters before the Court, the Claimant’s mental health problems and his illiteracy meant that, without legal representation, he would not be able to safeguard those rights.  The Defendant’s approach to making the decision, where it sought to balance the Claimant’s Article 6(1) rights with the need to ensure the trial progressed was flawed, the real issue was whether the Claimant could present his case with no obvious unfairness.

Comment
This does seem a fair outcome for the Claimant, in circumstances where the Defendant does not appear to have engaged with the practical difficulties faced by Mr Rayner’s solicitors, instructed very near to the first hearing, who then acted promptly to secure funding for him.  The judge in the JR emphasised that challenging the exercise of the Defendant’s discretion in refusing the adjournment was an uphill struggle, but this was possible in limited circumstances.  The vulnerability of the tenant and the fact that the decision on the Legal Aid funding had been imminent at the time the adjournment was refused does make the Defendant’s decision appear unreasonable.

 

W is a housing solicitor with a firm in south London

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