Cumbria Constabulary v Wright & Anor

For a closure order under section 2(3) of the Anti-Social Behaviour Act 2003, the drug-related use of premises must be associated with the disorder or serious nuisance relied upon. A direct causal link is unnecessary, but some association must be proved. The statutory three-month relevant period in section 1(10) does not restrict evidence on an application for a closure order. The magistrates must instead be satisfied that a current state of affairs exists and that an order is necessary to prevent its recurrence. Historic and undated evidence may be considered. Home Office guidance may assist as persuasive authority, but it has no special legal status and cannot determine Parliament’s intention.

The Chief Constable appealed by way of case stated against the refusal of the Whitehaven Justices to make a closure order concerning premises at 57 Crummock Avenue under section 2 of the Anti-Social Behaviour Act 2003. The justices found class A drug-related use and disorder or serious nuisance, but concluded that the statutory requirements were linked and that there was insufficient evidence of relevant disorder or nuisance within the preceding three months. They also concluded that an order was unnecessary.

The appeal concerned the weight to be given to Home Office guidance, whether section 2(3)(b) required an association between the drug-related use and the disorder or nuisance, and whether evidence had to relate to the three-month period in section 1(10).

1. Home Office guidance. The court, per Mr Justice Lloyd Jones, held that courts interpret legislation, not the executive. Official guidance may be considered as persuasive authority on statutory meaning, but it has no particular legal status and does not create a presumption that its views are correct. The guidance could not be treated as an indication of Parliament’s intention. The analogy with Parliamentary Explanatory Notes was unsound, and those Notes also have important limits.

2. Required association. Section 2(3) imposes cumulative conditions. The reference in section 2(3)(b) to “the use of the premises” refers back to the drug-related use described in section 2(3)(a). The disorder or serious nuisance must therefore be associated with that use. The statute does not require proof of a strict or direct causal link. Association is a wider concept, and may be established by reasonable inference, hearsay evidence and the civil standard of proof. An entirely unrelated nuisance would not satisfy the provision.

3. Relevant period and current state of affairs. The three-month period in section 1(10) applies to the drug-related use relevant to the issue of a closure notice. It is not imported into section 2(3). Evidence of past events is admissible without a temporal restriction, including evidence of incidents that cannot be precisely dated. However, the magistrates must be satisfied that the drug-related use is currently associated with disorder or serious nuisance and that an order is necessary to prevent its future occurrence. A brief temporary hiatus need not defeat an application, but permanent cessation would do so. Historic evidence may illuminate the present position, although its relevance normally diminishes with time.

4. The magistrates erred by treating the three-month period as determinative. Nevertheless, on the evidence they were entitled to find that no continuing state of affairs made a closure order necessary. The appeal was dismissed. The appellant’s publicly funded costs were assessed.

1. Whitehaven Justices: On 21 March 2006, refused the application for a closure order under section 2 of the Anti-Social Behaviour Act 2003 and stated three questions for the opinion of the High Court.
2. High Court (Administrative Court): On 20 November 2006, dismissed the appeal. The justices had erred regarding the three-month period but had been entitled to conclude that a closure order was unnecessary.