Commissioner of the Metropolitan Police v Hooper

Proceedings for a closure order under section 2 of the Anti-social Behaviour Act 2003 are civil proceedings, although Articles 6 and 8 of the Convention may be engaged. The statutory adjournment power permits one or more adjournments, but the total period must not extend beyond 14 days after the closure-order application was made.

Section 2(6) does not impliedly exclude the general statutory power in section 54 of the Magistrates' Courts Act 1980. That power may be used only in exceptional circumstances, where no other course avoids a breach of Convention rights, and consistently with the statutory purpose of speedy closure. The court should consider whether another bench can continue the hearing.

The Commissioner appealed by case stated against two decisions of the Thames Magistrates' Court adjourning an application for a closure order concerning residential premises. The first adjournment enabled the tenant to consider undisclosed evidence. The second followed the tenant's robbery and hospital treatment, which prevented her participation.

The magistrates asked whether section 2(6) of the Anti-social Behaviour Act 2003 permitted repeated adjournments or an adjournment extending beyond 14 days, and whether they had an inherent or extra-statutory power to adjourn. The closure-order application was later dismissed for want of prosecution, a decision not in issue.

1. Nature of proceedings. Proceedings under section 2 of the Anti-social Behaviour Act 2003 are civil, not criminal. The determination of the occupier's right to occupy premises engages Article 6, and a closure order may also engage Article 8 and Article 1 of the First Protocol. The Act must therefore be read, so far as possible, compatibly with Convention rights under section 3(1) of the Human Rights Act 1998 (paras 12–16).
2. Section 2(6). The application must ordinarily be determined within 48 hours, subject to an adjournment requested to enable an interested person to show why an order should not be made. The power may be exercised once or more than once, but the total period cannot extend beyond 14 days after the application was made. The magistrates therefore exceeded their powers by adjourning to 15 July, although not merely because the adjournment was a second one (paras 17–20, 26).
3. Section 54 power. Section 2(6) does not impliedly exclude section 54 of the Magistrates' Courts Act 1980. In exceptional circumstances, that statutory power may be used to avoid a breach of Convention rights. The court rejected the need to decide whether any equivalent inherent power existed and expressed doubt that magistrates' courts possess inherent powers beyond staying proceedings for abuse of process (paras 19–21).
4. Exercise of the power. An adjournment under section 54 must not frustrate the statutory purpose of speedy closure. It should be made only where no other course is available to protect the relevant Convention right. The court must consider the loss of the power under section 2(7) to continue the closure notice during the adjournment, and should consider transferring the matter to another bench where that would permit earlier determination (paras 22–25).
5. The magistrates failed to consider the effect of section 2(7), the statutory purpose, and the possibility of another bench. Their decision was therefore legally flawed. No criticism was made of the adjournment on 15 July insofar as it protected the tenant's Convention rights while she was medically incapacitated (paras 26, 36–39). The questions were answered accordingly, with no further declaration or substantive relief.

High Court (Administrative Court): Determined an appeal by case stated from two adjournment decisions of the Thames Magistrates' Court. The questions were answered as set out in the judgment.