The Community Protection Order (closure)
In February 2011, the Home Office initiated a consultation on wide-ranging proposals to address anti-social behaviour and this included a review of the various existing powers available to the authorities to close residential and commercial premises.
Following on from the consultation responses, the Government issued a White Paper in May 2012 ('Putting Victims First: More Effective Responses to Anti-Social Behaviour') in which they stated their intention to issue a draft Bill for 'pre-legislative scrutiny'. The draft Anti-Social Behaviour Bill has now been issued, which broadly contains provisions outlined in the White Paper.
The purpose of this briefing note is to summarise the proposals on closure powers under the new 'Community Protection Order' once the Bill is enacted. We should explain that the Government intends to simplify 19 existing 'enforcement powers' reducing them to just six. The effect of this would be to consolidate the following existing closure powers into a single order.
Community protection – closure notices
The proposed new order (or 'notice' to be exact) is intended to be 'simpler' and allow the police or local authority to close any property for up to 48 hours in the following circumstances:
- If the use of the premises has resulted, or is likely soon to result, in nuisance to members of the public or
- There has been, or is likely soon to be, disorder near those premises associated with the use of those premises" and
- The notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring.
The new power has similarities to the existing Closure Order power under s.161 Licensing Act 2003. In the case of a police officer of at least the rank of Superintendent, he may order the closure for up to 48 hours. In the case of an officer of at least Inspector rank, the maximum closure period is 24 hours although this may be extended by a further 24 hours by a Superintendent or above.
In the case of a closure notice issued by the local authority, the chief executive officer or a person delegated by him may order closure for up to 48 hours. Any authorised officer of the local authority may order closure for up to 24 hours and in this case the chief executive or his delegated officer may authorise a further 24 hour extension.
It is curious that the closure notice power for disorder, unlike the existing s.161 power, does not appear to include disorder actually on the premises. It may be semantics but the section only specifies "…disorder near those premises and we expect that this will change during the legislative scrutiny period."
The closure notice can be specific as to who is excluded from the premises and for what purposes and the times it applies, although access by the owner or person resident there cannot be prohibited.
The provisions in the Bill also state that 'reasonable efforts' must be made to inform any person who has responsibility for, or an interest in, the premises, or who lives there, of the intention to issue a notice and the officer or authority must first consult with any body or individual they "think appropriate". This does of course give the police or local authority wide discretion as to how they satisfy this requirement.
The provisions allow for cancellation or variation of closure notices; powers of entry for officers and the enforcement provisions create an offence for breach of the terms of the notice.
Community protection – closure orders
An application must be made for a closure order by the police or local authority who issued the closure notice. This application must be heard by the Magistrates' Court not later than 48 hours after the closure notice has been served. Unlike the similar provisions for s.161 closure orders, there does not appear to be any provision to extend this time limit (for example, if the court is not sitting). The strict time limit could lead to difficulties, not only for the Courts but also the authorities and operators, and surely will be amended during the scrutiny of the Bill.
The Court has the power to make a closure order prohibiting access to the premises for a period not exceeding three months, if they are satisfied:
- That a person has been engaged, or is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or
- That the use of the premises has resulted, or is likely to result, in serious nuisance to members of the public, or
- That there has been, or is likely to be disorder near those premises associated with the use of those premises, and
- The order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.
The provisions allow the Court to specify the terms of the exclusion from the premises including which part it applies to and there is also a power to order a temporary closure of the premises for up to 48 hours on the same grounds available to the police or local authority for issuing a closure notice.
There is also a power for the police or local authority to apply to the court for an extension of the closure order and the court may extend the order for up to a further three months, on the same grounds as would apply to an original order. It should be noted that the existing closure powers of the Court under s.165 Licensing Act 2003 do not actually specify a maximum time limit, but in effect leave this to be determined by the local authority as a closure order will automatically 'trigger' a review of the licence. The Bill currently does not include any provision for the 'new-style' closure order to 'trigger' a review of the licence and in our view this would no longer occur unless the Bill is amended.
One odd and concerning feature of the closure powers available to the magistrates under the Bill is they make an order based on not just 'disorder near the premises', but also 'disorderly, offensive or criminal behaviour on the premises'. The inclusion of 'offensive or criminal behaviour' (undefined) would give much broader powers to make a closure order than the reasons for the police or local authority making the original closure notice and surely must be challenged as part of the pre-legislative scrutiny of the Bill.
There are provisions which allow the police, local authority, or a person who was served with the closure notice or who has an interest in the premises to apply to the court for an early discharge of the closure order. An appeal may be made to the Crown Court within 21 days either against the making of an Order or the refusal to make one by a relevant party.
It is an offence to breach a closure order or to obstruct a police officer or local authority employee acting under their powers to serve or fix notices and secure the closure of premises.
As already stated, the Bill is in draft form and we would expect the anomalies we have identified will be addressed under the pre-legislative scrutiny, although perhaps this should not be assumed. In reality, there are close similarities with the existing closure powers available to the police and local authorities. The closure powers form just one part of the Anti-Social Behaviour Bill and the main purpose behind the simplification of these powers is to make it easier for the police and authorities to apply a consistent approach when taking enforcement action.