Smith, R (on the application of) v Snaresbrook Crown Court & Ano

Applications to extend premises closure orders must be determined by applying the statutory test in section 5(4) of the Anti-Social Behaviour Act 2003. The court must ask whether extension is necessary and proportionate to prevent further drug-related disorder or serious nuisance, and, if so, for how long.

There is no presumption that three months is the normal maximum period, nor any requirement to prove continuing disorder during the original closure. The previous drug-related use and nuisance may provide a sensible starting point for assessing future risk, but the result depends on the particular facts. Extensions must not be granted routinely. Fair procedure and prompt appeals remain important, given the serious impact of closure on occupiers.

The claimant’s premises had been closed under Part 1 of the Anti-Social Behaviour Act 2003 following evidence of drug-related use associated with serious nuisance. The magistrates’ court later extended the closure order for a further three months under section 5.

The claimant appealed to the Crown Court. Bean J, sitting with two justices, dismissed the appeal. The claimant sought judicial review, challenging the interpretation of section 5(4), the alleged failure to apply the correct test, and the adequacy of the Crown Court’s reasons. By the time of the judicial review, the extension had expired. The central issue was the proper approach to an application for extension.

1. The claim was dismissed. The court declined to investigate further whether the Crown Court’s particular reasoning was defective, because the extension had expired and the available record was an unapproved combined note of the judgment.

2. Section 5(4) requires the court to decide whether extension of the closure order is necessary to prevent the occurrence of further drug-related disorder or serious nuisance. It does not require proof of continuing or resumed disorder during the original closure. The conditions in section 2(3)(a) and (b), which justify the original order, cannot be imported into section 5(4).

3. The court must approach section 5(4) without a presumption that three months is the normal maximum period or that extension is exceptional. It must assess necessity and proportionality on the facts, and determine the appropriate duration. The previous drug-related use and associated nuisance will generally justify starting from the common-sense position that recurrence may follow if the order ends, but that starting point is not determinative.

4. Relevant circumstances may include the responsible person’s imprisonment or departure, evidence of changed behaviour, a change of occupation, or any other circumstance making extension unnecessary or disproportionate. Extensions should not be sought or granted automatically.

5. The proportionality guidance in R (Cleary) v Highbury Corner Magistrates Court [2007] 1 WLR 1272 applies to extensions, with particular force given the serious consequences of excluding an occupier from his home. The court noted that more than one extension is legally possible within the overall six-month limit, although the contrary view in Chief Constable of Merseyside Police v Harrison [2007] QB 79 was obiter.

6. The Crown Court appeal should have been heard promptly. The court also stressed the importance of obtaining the trial judge’s approval of any note of reasons. Without an approved note, it would be difficult to conclude that the Crown Court had misdirected itself or failed to give adequate reasons.

• Thames Magistrates’ Court: made the original closure order under section 2 and later extended it under section 5 of the Anti-Social Behaviour Act 2003.
• Snaresbrook Crown Court: Bean J, sitting with two justices, dismissed the claimant’s appeal against the extension.
• High Court (Administrative Court): dismissed the judicial review claim.