Dumble v The Commissioner of Police for the Metropolis

A closure order under section 2 of the Anti-social Behaviour Act 2003 may be made despite a temporary cessation of disorder or serious nuisance after service of the closure notice. The magistrates must assess whether the problem has permanently ceased, or whether the apparent cessation is a temporary hiatus caused by the notice. They should consider the whole evidential picture, including the previous pattern of disturbance and the likelihood of recurrence. Because a closure order interferes with occupation of a home, Article 8 requires necessity and proportionality. However, an express recital of Article 8 is not essential where the evidence shows overwhelming reasons for the order.

This was an appeal by way of case stated from justices sitting at Thames Magistrates’ Court. The justices had made a three-month closure order in respect of the appellant’s flat under section 2 of the Anti-social Behaviour Act 2003. They found that the premises had been used in connection with Class A drugs and that the use was associated with disorder or serious nuisance to other residents.

The appellant argued that the statutory conditions were not satisfied because there had been no further incidents during the period between service of the closure notice and the hearing. She also contended that an order was unnecessary. The central issues were whether the temporary cessation prevented satisfaction of section 2(3)(b), and whether the order was necessary under section 2(3)(c).

1. Appeal dismissed. The justices were entitled to answer both questions in the affirmative and to make the closure order.
2. Under section 2(3) of the Anti-social Behaviour Act 2003, the court must be satisfied that the premises were used in connection with the unlawful use, production or supply of a Class A controlled drug; that the use was associated with disorder or serious nuisance to members of the public; and that the order was necessary to prevent its occurrence during the specified period.
3. The absence of incidents after service of a closure notice does not necessarily prevent satisfaction of section 2(3)(b) or (c). The relevant question is whether the disorder or nuisance has permanently ceased. A temporary hiatus caused by the closure notice may be disregarded. The magistrates must use their good sense and evaluate the continuing position on the whole evidence, including the previous pattern of incidents and evidence indicating likely recurrence.
4. The court adopted and applied the approach in Chief Constable of Cumbria Constabulary v Wright and Another [2006] EWHC 3574 (Admin). A short interruption caused by an identified and limited event does not necessarily deprive magistrates of power to make an order.
5. Article 8 was engaged because closure interfered with occupation of the appellant’s home. The order therefore had to be necessary and proportionate to the legitimate aim of preventing drug-related disorder or serious nuisance. On the facts, the reasons for closure were overwhelming, and the interference with the appellant’s occupation was outweighed by the necessity of the order. The failure expressly to recite Article 8 was not fatal.
6. The respondent was awarded costs, not to be enforced without leave of the court. The publicly funded appellant’s costs were directed to detailed assessment.

• Thames Magistrates’ Court: made a three-month closure order under section 2 of the Anti-social Behaviour Act 2003.
• High Court (Administrative Court): dismissed the appeal by way of case stated and upheld the justices’ decision.