Leary, R (on the application of) v West Midlands Police

A closure order under the Anti-social Behaviour Act 2003 does not require the police or housing authority first to try every less intrusive measure. The court must instead decide whether the statutory conditions are proved to the civil standard and whether closure is necessary and proportionate under Article 8 where the premises are a home. Guidance suggesting that alternative remedies should be considered reflects good practice, not an additional statutory condition. A closure order closes the premises to all persons. It cannot preserve a tenant’s right to enter or continue living there, although the court may make appropriate arrangements for access, such as collecting belongings.

The claimant appealed by way of case stated from a Crown Court decision upholding a closure order made under section 2 of the Anti-social Behaviour Act 2003. The order concerned his flat, which had been used in connection with the unlawful use of class A drugs and was associated with disorder or serious nuisance.

The Crown Court found that all three statutory conditions were satisfied and that Article 8 was engaged but that closure was necessary and proportionate. The High Court was asked whether less intrusive measures had to be attempted first and whether an order could exclude visitors while allowing the tenant to enter.

1. Appeal dismissed. The three conditions in section 2(3) of the Anti-social Behaviour Act 2003 had to be proved to the civil standard: the premises had been used in connection with unlawful class A drug activity; that use was associated with disorder or serious nuisance to members of the public; and closure was necessary to prevent its occurrence for the specified period.
2. Where the premises comprise a person’s home, Article 8 is engaged. The order must therefore be necessary and proportionate to the legitimate aim of preventing disorder or crime and protecting others’ rights. Article 8 does not impose a separate requirement that the police and housing authority demonstrate that all less draconian measures have first been considered and tried. Alternative remedies may be relevant as a matter of good practice and may assist the court’s assessment of necessity, but they are not additional statutory preconditions.
3. Under section 2(4), a closure order closes the premises to “all persons”. The distinction between a closure notice, which restricts access by non-residents and non-owners, and a closure order was material. Section 2(5) permits appropriate provision for access to part of the building, including practical arrangements for collecting belongings, but does not permit an exception allowing the tenant to enter or remain living at the premises.
4. Section 4, concerning a reasonable excuse for entering or being on closed premises, did not enlarge the power under section 2(5) or create the wider tenant-access exception advanced by the claimant.

The Crown Court’s answers to both questions were therefore upheld. Costs of £2,100 were ordered in favour of the respondent, while the claimant’s costs were subject to legal aid taxation.

• Crown Court: On 5 August 2010, the Crown Court dismissed the claimant’s appeal from the District Judge’s closure order and stated two questions for the High Court.
• High Court (Administrative Court): The appeal by way of case stated was dismissed.