Chance to Appeal a Premises Closure Order is Open for 21 days only

Article

21 July, 2009

An appeal has recently been heard in the High Court concerning individuals seeking a review into the making of a premises closure order (PCO). In Hampshire Police Authority v Gail Smith [2009] EWHC 174, it was held that an appeal must be issued within 21 days in order for it to be deemed as valid. Additionally, it was stated that there are no powers to extend such time limits.

Individuals and organisations directly concerned with the creation and use of PCOs are advised to be fully aware of the decision and its ramifications.

The Facts

Smith (S) was the occupant of a property which had a PCO made against it in August 2007 at Aldershot Magistrates' Court. The grounds for doing so were that the premises were being used in connection with the unlawful use and/or supply of Class A drugs and that it was generally associated with occurrences of disorder and serious nuisance.

In October 2007, S decided to appeal against the decision. A notice of appeal was issued 39 days after the PCO was first made. She sought to explain that the delay was due to her solicitors not being in receipt of public funding, that she did not understand the terms of the PCO and that she did not attend the hearing in Aldershot because her daughter was in hospital at the time.

At Winchester Crown Court, leave to appeal was granted. This was said to have been done because the Judge erroneously believed that he was dealing with an appeal against a conviction and consequently, he had the power to extend the amount of time available. At the appeal hearing, S was granted an extension in which to bring an appeal. Hampshire Police Authority consequently decided to appeal this decision.

The Issues

One of the particular issues that the High Court had to determine was the meaning of section 6(2) of the Anti Social Behaviour Act 2003 which states that: "An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made." S had issued her notice of appeal 18 days after this time period had ended.

Secondly, the Crown Court had held that pursuant to rule 7(5) of the Crown Court Rules 1982, it had the power to extend the time for appealing under section 6(2).

The High Court was required to consider whether the Crown Court Rules 1982 did apply to appeals against PCOs, in addition to whether the appeal merely had to be lodged within the 21 day period or had to be heard by its expiry.

The High Court Decision

On the first matter, it was held that the application of the rule in question was limited to the legislation listed within Schedule three of the Crown Court Rules. Because of the Anti Social Behaviour Act 2003 was not one of them, it was the High Court's view that it did not apply to appeals against PCOs.

In the context of whether the appeal process had to be completed within the 21 day period, the court's view was clear. It stated that the phrase "must be brought" was not the most apt expression that could be used in the circumstances, given the ambiguity that had arisen. There was therefore, a respectable argument which could be made to support the view that the hearing must take place within 21 days. Given that a PCO could last for a maximum of three months and the effects were draconian in nature, it was obviously desirable for any appeal in these circumstances to be heard as quickly as possible.

The court ruled however, that such an interpretation of the Act would mean there would be no time limit in which a notice of appeal must be brought. This would inevitably lead to considerable uncertainty for all parties concerned. An example forwarded by the court was an appellant may issue a notice to appeal shortly before the period for the hearing was due to expire, which would place considerable and unfair pressure upon the responding police authority to react. It may also be difficult logistically for a hearing to take place so soon, particularly if the courts are particularly busy.

The Police Authority's appeal was allowed and it was therefore held that the correct interpretation of section 6(2) of the Anti Social Behaviour Act was that an individual seeking to appeal a PCO had 21 days from the date of the order to issue their appeal.

Conclusion

All parties involved in managing properties and the prevention of anti social behaviour are advised to be fully aware of the consequences of this decision and the newly defined time frames in which PCO appeals must be brought.

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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