Qin & Ors, R (On the Application Of) v The Commissioner of the Police for the Metropolis & Anor

Compensation under section 90 of the Anti-Social Behaviour, Crime and Policing Act 2014 is distinct from costs. The costs principles protecting public authorities from a chilling effect do not apply because compensation is paid from central funds. There is no presumption that compensation follows when the statutory conditions are met, but a court refusing compensation must explain why. The court must consider each applicant and the particular loss claimed. A challenge to the validity of a closure notice is ordinarily for judicial review, not the magistrates determining a closure-order application. Failure to inform affected persons under section 76(6) did not invalidate the notices here because there had been substantial compliance and no substantial prejudice. Costs could be assessed en bloc, but compensation required separate consideration.

The Commissioner applied for closure orders concerning six massage parlours suspected of operating as brothels. The applications were refused by Hammersmith Magistrates’ Court because the statutory test for closure orders was not satisfied. The magistrates nevertheless refused costs and compensation. The applicants brought judicial review proceedings and an appeal by way of case stated.

The central issues were whether the magistrates had applied the correct test for compensation, whether failure to comply with section 76(6) affected costs or compensation, and whether costs and compensation could properly be determined en bloc.

1. Compensation. The magistrates erred by applying the principles in Bradford Metropolitan District Council v Booth and R (Perinpanathan) v City of Westminster to compensation. Those principles concern costs and the potential chilling effect of financial liability on public authorities. Compensation under section 90 is paid from central funds, so the public authority does not bear the relevant financial prejudice. The starting point is therefore not that no compensation should be ordered.
2. Section 90(5) confers a discretion. Satisfaction of paragraphs (a) to (c) does not create a presumption that compensation must be awarded. The court must consider all the circumstances and, if it refuses compensation despite those conditions being met, explain why. The magistrates had focused on the Commissioner’s reasonable conduct rather than identifying circumstances relating principally to the applicants or their losses. The compensation decision was quashed and remitted.
3. Validity of closure notices. The magistrates correctly treated the validity of the closure notices as a judicial-review issue. Their jurisdiction to decide whether to make closure orders was triggered by the issue of a notice and did not require them to determine its public-law validity. In the absence of a prosecution for breach of a notice, validity was not a matter for collateral challenge in the closure-order proceedings. The magistrates were also correct not to adjourn the proceedings pending judicial review.
4. Section 76(6) requires reasonable efforts to inform affected persons that a notice is going to be issued; it does not impose an additional duty to consult. Section 76(7) expressly addresses consultation. On the facts, all affected persons knew of the closure-order application, attended the hearing and had an opportunity to make representations. There was therefore substantial compliance and no substantial prejudice. Matters concerning validity were not relevant to the magistrates’ costs assessment.
5. En bloc assessment. The magistrates were entitled to assess costs overall because the premises formed part of one operation, the notices and applications were materially similar, and the police conduct was essentially the same. Compensation was different. Section 90(5) required the position of each applicant and each particular loss to be considered separately. The first judicial review was refused permission; the second succeeded on the compensation ground; compensation was remitted for reconsideration.

• Hammersmith Magistrates’ Court: Closure-order applications were refused on 2 November 2016. Costs and compensation were subsequently refused.
• High Court (Administrative Court): The compensation decision was quashed and remitted. The challenge concerning section 76(6) and costs was dismissed. Permission was refused in respect of the First JR.