Merseyside Police v Harrison & Anor

Applications for closure orders under the Anti-Social Behaviour Act 2003 are civil proceedings. The allegations required by section 2(3)(a) and (b) are therefore proved on the balance of probabilities. The criminal standard applied to anti-social behaviour orders does not automatically extend to closure orders, since the statutory schemes, consequences and Parliamentary context differ. The civil standard remains a single standard, although the seriousness of an allegation affects the strength and quality of evidence required. The necessity requirement in section 2(3)(c) involves evaluation and judgment, rather than a standard of proof. An unequivocal ministerial statement made during the passage of the relevant Bill may assist statutory interpretation where the statute is silent, but later submissions made in different proceedings do not establish Parliamentary intention.

The Chief Constable appealed by way of case stated from a preliminary ruling of the Crown Court in Liverpool concerning a closure order made in respect of premises occupied by Michelle Harrison. The closure order had been made under Part I of the Anti-Social Behaviour Act 2003, which addresses premises associated with the unlawful use, production or supply of Class A drugs and disorder or serious nuisance.

The Crown Court held that, although proceedings under section 2 were civil, the criminal standard of proof applied exceptionally to the statutory criteria. The Divisional Court considered whether the reasoning in McCann should apply to closure orders, whether the court could rely on ministerial statements made during the passage of the Bill, and whether it could rely on submissions made by counsel in McCann. The central issue was the standard of proof applicable to section 2(3)(a) and (b).

1. Outcome. The appeal was allowed to the extent that the Crown Court’s decision was quashed. The case was to be remitted to the Crown Court. The court made no order for costs.
2. Proceedings for a closure order under section 2 of the Anti-Social Behaviour Act 2003 are civil proceedings. The first two criteria in section 2(3), concerning use of the premises in connection with Class A drugs and association with disorder or serious nuisance, must be established on the civil standard: the balance of probabilities.
3. The third criterion, whether making the order is necessary to prevent the relevant disorder or serious nuisance during the specified period, is not subject to a standard of proof. It requires evaluation and judgment.
4. The decision in McCann did not require the criminal standard to be used for closure orders. Although McCann identified both pragmatic and principled reasons for applying that standard to anti-social behaviour orders, closure orders are materially different. They concern premises rather than a named individual, are generally shorter in duration, and carry different consequences and penalties. The impact on residents, including vulnerable residents, did not justify transferring the criminal standard.
5. The flexibility of the civil standard lies in the strength and quality of evidence required in the circumstances, not in changing the degree of probability required. The formulation in R (on the application of AN) v Mental Health Tribunal (Northern Region) was endorsed as useful guidance.
6. Where legislation is silent, an unequivocal ministerial statement made during the passage of the Bill may properly assist interpretation under Pepper v Hart. The ministerial statement here supported the civil standard. Submissions made by counsel for the Secretary of State in McCann provided no assistance because they reflected a later ministerial preference and concerned a different statute.

1. High Court (Administrative Court): The Divisional Court quashed the Crown Court’s preliminary decision and remitted the case. It answered that the standard of proof under section 2(3)(a) and (b) was the civil standard, namely the balance of probabilities.
2. Crown Court in Liverpool: The Crown Court had held that the proceedings were civil but that the criminal standard of proof applied exceptionally.