Chief Constable of Humberside Police v Kelly Morgan

A magistrates’ court has no power under section 63 of the Magistrates’ Courts Act 1980 to suspend a Closure Order pending an appeal under section 84 of the Anti-Social Behaviour, Crime and Policing Act 2014. Section 63(5) excludes its application where another enactment makes provision for enforcement. Sections 85 and 86 of the 2014 Act provide that enforcement framework.

The statutory scheme reconciles the need for swift protection from nuisance or disorder with effective judicial protection. Expedition of the Crown Court appeal may provide the necessary safeguard. The 2014 Act also protects against possession proceedings on an absolute ground while the appeal is pursued. A deferred commencement date cannot be used as a disguised suspension pending appeal.

The Chief Constable appealed by way of case stated against a decision of District Judge Daley at Hull Magistrates’ Court. The District Judge had made a three-month Closure Order under section 80 of the Anti-Social Behaviour, Crime and Policing Act 2014 and then suspended it pending Kelly Morgan’s statutory appeal to the Crown Court.

The suspension was granted under section 63(2) of the Magistrates’ Courts Act 1980, partly because it was thought that immediate eviction might become irreversible before the appeal. The High Court was asked whether section 63(2) conferred that power, in what circumstances it should be exercised, and whether it had been lawfully exercised.

1. The appeal was allowed. Section 63(2) of the Magistrates’ Courts Act 1980 did not empower magistrates to suspend a Closure Order pending an appeal to the Crown Court.

2. Section 63(5), read with sections 85 and 86 of the Anti-Social Behaviour, Crime and Policing Act 2014, excludes the powers in section 63(1)–(4) where another enactment makes provision for enforcement of the relevant prohibitory order. Sections 85 and 86 provide for entry and securing of premises, and criminal offences for contravening a Closure Order. Part 4, Chapter 3 is therefore not self-contained for every procedural matter, but section 63 is expressly precluded.

3. The statutory purpose is not limited to speedily closing premises. It also includes fair, just and effective judicial protection, including an effective Crown Court appeal compatible with Article 6. Those purposes are reconciled principally through expedition. The appeal should be heard as soon as possible where delay might make the right of appeal practically ineffective.

4. The District Judge made a material error by treating eviction on an absolute ground as potentially irreversible. Sections 94–95 and 97 of the 2014 Act provide a statutory shield: the making of a Closure Order does not trigger possession on the relevant absolute ground while the appeal is pursued, and the required notice in secure-tenancy cases cannot be issued until the appeal is determined, abandoned or withdrawn.

5. A Closure Order may, in principle, specify a deferred start date because section 80 permits flexibility as to the persons, times and circumstances to which the prohibition applies. But magistrates cannot defer commencement until after the Crown Court appeal. That would amount to a disguised suspension and would undermine the respective statutory functions of the two courts.

6. If necessary to prevent an Article 6 right of appeal being defeated, the Crown Court may have power to suspend the order under section 45(4) of the Senior Courts Act 1981, interpreted compatibly under section 3 of the Human Rights Act 1998. The High Court also retains judicial review jurisdiction as a safety net.

7. The questions whether the power should be exercised and whether it was lawfully exercised did not arise once the answer to the first question was no. There was no order as to costs, save for detailed assessment of the respondent’s publicly funded costs.

1. High Court (Administrative Court) — The appeal by way of case stated was allowed. The High Court answered that section 63(2) of the Magistrates’ Courts Act 1980 did not empower the magistrates’ court to suspend the Closure Order pending the Crown Court appeal.

2. Hull Magistrates’ Court — District Judge Daley made a Closure Order under section 80 of the Anti-Social Behaviour, Crime and Policing Act 2014 and suspended it pending appeal.