Errington, R (on the application of) v Metropolitan Police Authority

Under Part 1 of the Anti-social Behaviour Act 2003, the magistrates’ jurisdiction to determine an application for a closure order requires an application under section 2 and the existence of a closure notice, but not a notice that is valid in every respect. The magistrates must determine whether the statutory conditions for a closure order are met and must ensure that affected persons have been properly notified. Defects in the notice may affect its use in criminal proceedings under section 4, but do not necessarily remove the court’s jurisdiction to hear the application.

The authorising officer must have reasonable grounds for believing the relevant matters. Suspicion is a materially different and lesser standard. The relevant three-month period applies to drug use, not to the associated disorder or nuisance, which must be continuing. Relevant hearsay may be considered.

The claimant was a secure tenant of premises alleged to have been used in connection with the unlawful use or supply of Class A drugs and associated disorder or serious nuisance. A closure notice was authorised and a magistrates’ court made a closure order. The claimant appealed to the Crown Court, which adjourned the appeal and referred issues concerning the validity of the notice to the Administrative Court.

The notice stated that there were reasonable grounds for suspecting drug use, although the authorisation itself stated that there were reasonable grounds for believing it. The questions concerned the relationship between the validity of the notice and the magistrates’ jurisdiction, the court’s power to determine notice defects, and whether the notice was valid.

1. Judicial review and appellate procedure. The Crown Court should have determined the factual and legal issues for itself. Judicial review before the final decision was particularly inappropriate where the statutory scheme required speed and continuing protection of the public. Appeals against closure orders should be listed promptly.
2. Jurisdiction and notice. The magistrates’ jurisdiction depends on an application under section 2 and the existence of a closure notice. It does not depend on the notice being valid in every respect. The magistrates must verify that the mandatory service and notification requirements in section 1(6) have been met. If necessary, they may adjourn under section 2(6) so that proper notification can be completed.
3. Effect of defects. A defective notice may be incapable of supporting criminal proceedings under section 4. The validity of the notice may therefore be considered in criminal proceedings. That does not prevent the magistrates from deciding whether the evidence satisfies section 2(3), namely that the premises were used in connection with Class A drug activity, that the use was associated with disorder or serious nuisance, and that closure was necessary to prevent its occurrence.
4. Authorisation standard. Section 1(1) requires reasonable grounds for believing the relevant matters. Belief is more positive than suspicion. The error in the notice was not fatal here because the underlying authorisation correctly applied the statutory test and the notice was held valid.
5. Evidence and time period. The authorising officer could rely on relevant hearsay and other material, assigning such weight as appropriate. The three-month relevant period applies to the drug use in section 1(1)(a). It does not restrict the associated disorder or nuisance under section 1(1)(b), nor the evidence that the magistrates may consider under section 2(3). A continuing pattern of use and disturbance may be relevant.
6. Disposition. The judicial review claim was dismissed. The closure order had expired, so no further order was required. Any Crown Court appeal was effectively withdrawn, and costs were subject to the usual protection applicable to legally aided proceedings.

The magistrates’ court made a closure order on 12 October 2005. The claimant appealed to the Crown Court, but the appeal was adjourned and the issues were referred to the Administrative Court. The closure order expired before this judgment.