Longato, R (on the application of) v The Commissioner of Police of the Metropolis

When a closure-order extension is sought, the Anti-Social Behaviour Act 2003 does not displace the ordinary summons and service requirements governing magistrates’ court complaints. A court may hear the complaint in the defendant’s absence only where the statutory conditions for doing so are met. Failure to provide the required notice is an irregularity, not automatically a nullity, but a serious procedural injustice may justify quashing the order on judicial review. The claimant should not be forced to rely on an uncertain power of the magistrates’ court to reopen a non-null order.

The claimant sought judicial review of a District Judge’s decision to extend a closure order concerning residential premises. She had instructed solicitors and obtained a representation order, but the police’s application for extension was heard without notice to her and without service of a summons. The District Judge granted the extension on 21 January 2009. The central issues were whether the statutory closure-order scheme displaced the ordinary requirements under the Magistrates’ Courts Act 1980 and the Magistrates’ Courts Rules 1981, whether the resulting defect made the order a nullity, and whether the order should be quashed.

1. The claim succeeded and the extension of the closure order was quashed. The interested party was ordered to pay the claimant’s costs, subject to detailed assessment.

2. The application to extend a closure order under section 5 of the Anti-Social Behaviour Act 2003 is made by complaint. Although that Act provides for the issue of a summons and notice, it does not expressly modify or exclude the general procedural requirements of section 55 of the Magistrates’ Courts Act 1980 and rule 99 of the Magistrates’ Courts Rules 1981.

3. Where the person against whom the complaint is made is absent, the court may begin to hear it only if service of the summons within a reasonable time is proved, or the person has previously appeared to answer the complaint. Where the summons has not been served, the court’s ability to hear the complaint in the person’s absence is fettered.

4. The failure to comply with those requirements did not make the extension a nullity. Parliament did not intend procedural irregularity alone to make an otherwise available closure order ineffective, since that could expose the premises to immediate reoccupation and undermine the criminal prohibition in section 4 of the 2003 Act.

5. The defect nevertheless caused real and serious procedural injustice. The claimant intended to resist the extension and had obtained legal representation. It was unjust to shut her out without an opportunity to be heard. The court could take that injustice into account when exercising its discretion to quash, together with the limited adverse impact on neighbours and the public that quashing would cause before the statutory power to extend expired.

6. The court did not decide whether a magistrates’ court has an inherent power to reopen a non-null civil order. The observations in Liverpool City Council v Pleroma Distribution Ltd were treated as undermined by the approach in R (on the application of Mathialagan) v London Borough of Southwark, namely that magistrates should not assume a power to set aside their own decisions merely because grounds for judicial review may exist.

Not stated in the judgment.