Temporary pause in Anti-Social Behaviour not long enough to prevent Closure Order

Article

11 February, 2009

In light of the recent introduction of premises closure orders (PCO) to the 'toolkit' for preventing anti-social behaviour, there have been a number of instances where the courts have sought to establish their use and how they can properly function. One such instance is the High Court's ruling in Dumble v Commissioner of Police of the Metropolis which considered whether a period of 16 days could satisfy the requirement of permanent cessation in order to prevent a PCO being granted. Rulings such as this will have a considerable influence on how this new device will operate.

The Facts

Dumble (D) appealed by way of case stated against a decision by the magistrates' court to allow an application for a PCO by the police commissioner in respect of premises occupied by D as a tenant.

The premises consisted of a particular flat located within a three storey block of six flats. The magistrates' court found that the flat in question had been used in connection with the unlawful use of Class A drugs, with a number of people visiting at all hours of the day and night. Drug paraphernalia had been found in the stairwell of the block and members of the public had been subjected to disorder and nuisance. As a consequence, the police commissioner had served a closure notice on the premises and subsequently applied to the court for a PCO under the Anti-Social Behaviour Act 2003, section 2.

It was noted by the magistrates' court that since the closure notice had been served, there had been no further incidents. However, the court judged that on the evidence before it, the terms of the Act had been satisfied and that it was appropriate to make a PCO.

D appealed and the issues for the High Court to address were whether on the finding of fact and evidence submitted it was reasonable to conclude that the premises was associated with occasions of disorder or serious nuisance, and whether it was reasonable to conclude that a PCO was necessary to prevent the occurrence of such behaviour.

The Appeal to the High Court

D contended that the magistrates' court had erred in finding that the terms of section 2(3)(b) and 2 (3)(c) were satisfied. The section states that:

"The magistrates' court may make a closure order if and only if it is satisfied that each of the following paragraphs applies-

(b) the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public;

(c) the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order.

D submitted that these terms had not been satisfied as there had been no further incidents since the closure notice had been served, that the period of 16 days between the service and the court hearing was more than a temporary hiatus from the previous circumstances and that irrespective of this, the making of the PCO was not necessary for the protection of the public.

The High Court dismissed D's appeal. They held that in determining whether the terms of section 2(3)(b) were satisfied, three principles should be considered; if the disorder or serious nuisance had permanently ceased, the terms could not be satisfied; a pattern of disorderly use and disturbance was likely to be material; a temporary hiatus would not deprive the court of the power to make a PCO.

It was further stated by the High Court that although there had been no further incidents, it was highly likely that following the service of the PCO the situation would improve as anyone who entered the premises, other than the owner or occupier, would be committing a criminal offence. The 16 day period was no more than a passing state of affairs so, therefore, the making of the PCO was justified and it was appropriate to find in favour of the Police Commissioner on both points.

Conclusion

The decision reached by the High Court in this case gives a wider scope for the potential use of PCOs to prevent anti-social behaviour. Those wishing to prevent the implementation of such methods will now have to show to a court a greater length of time than 16 days where no anti-social behaviour has taken place, in order to prevent a PCO being granted. The result may be an increase in the overall use of PCOs in the future.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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