Cleary, R (on the application of) v Highbury Corner Magistrates' Court & Ors

Closure-order proceedings under the Anti-social Behaviour Act 2003 are civil proceedings, but the court must be satisfied strictly that each statutory condition is met and that closure is necessary and proportionate under Article 8. Fairness normally requires the police to serve written evidence sufficiently before the hearing, with further evidence served well before any adjourned hearing. Hearsay is admissible, but anonymity and hearsay do not remove the need to provide reasonable particulars or permit meaningful challenge. The court must assess reliability and may give hearsay no weight. Disclosure should include documents that materially damage the police case or support the defendant’s case, while avoiding wide-ranging fishing requests. These requirements must be applied flexibly within the legislation’s short timetable.

The claimant sought judicial review of procedural decisions made by Highbury Corner Magistrates’ Court during an application for a closure order concerning her flat. The police relied on complaints, hearsay and other material alleging Class A drug activity and associated disorder or serious nuisance. The claimant argued that late and inadequate service of evidence, defective hearsay notice and insufficient disclosure denied her a fair hearing under Articles 6 and 8 of the European Convention on Human Rights.

The closure-order hearing had been adjourned but no closure order had yet been made. The court therefore considered the general procedural guidance required for future applications and whether any specific order was necessary.

1. Guidance and disposition. The court declined to make a specific order. The judicial review was nevertheless used to provide flexible guidance because the legislation contains very short time limits and lacks detailed procedural rules.
2. Applications for closure orders are civil proceedings. The police bear the burden of satisfying the magistrates’ court, applying the civil standard of proof. Under section 2(3) of the Anti-social Behaviour Act 2003, an order may be made only if the premises were connected with unlawful Class A drug activity, that activity was associated with disorder or serious nuisance, and closure was necessary to prevent it. Article 8 requires necessity and proportionality.
3. Fairness normally requires written versions of the evidence intended to be adduced to be served sufficiently before the hearing. An overview statement may identify the police case but will ordinarily not replace the evidence. If evidence is not fully served by the first 48-hour hearing, it should generally be served at least seven days before the adjourned hearing. Short adjournments during the hearing will not usually provide a meaningful opportunity to respond.
4. Hearsay is admissible under the Civil Evidence Act 1995, subject to notice and reasonable particulars. The identity of an anonymous maker should not be withheld as a routine matter. The court must consider reliability and may give hearsay no weight. Direct, complete evidence and evidence capable of being tested in cross-examination are materially preferable.
5. Wide-ranging disclosure is generally inconsistent with the statutory timetable. As a flexible guide, the police should disclose documents that clearly and materially affect their case adversely or support the defendant’s case. Requests should be specific and relevant, not fishing expeditions.

Not stated in the judgment.