Closure orders and Article 6 ECHR

Local authorities often use closure orders to tackle anti-social / nuisance behaviour. This involves working with the police to shut down premises which are causing problems for the community.

In Chief Constable of Humberside Police v Kelly Morgan [2024] EWHC 2859 (Admin) the High Court issued a significant judgment which will have major consequences for those involved in this field. The case may have consequences for civil appeals more widely, particularly where Article 6 ECHR is engaged.

The key legal issues

There were three main questions before the High Court:

1. Whether challenges to closure orders become academic once the Crown Court has ruled on an appeal.
2. Whether magistrates have the power to suspend a closure order pending appeal.
3. Whether Article 6 ECHR means that the Crown Court has the power to suspend closure orders pending an appeal to it.

The Judgment

Issue 1: Issues Not Academic

The High Court concluded that the issues in the case were not academic, despite the Crown Court already having dismissed the Appellant’s appeal. That was because the case raised significant legal issues and full legal argument had been provided. Given that Crown Court appeals are typically resolved faster than High Court matters, the High Court might never address the arguments unless it did so in Morgan.

Issue 2: Magistrates Have No Power to Suspend Their Own Order

The High Court rejected the Appellant’s argument that s.62(2) of the Magistrates’ Court Act 1980 gives magistrates’ the power to suspend closure orders pending an appeal to the Crown Court.

Section 62(2) of the 1980 Act allows magistrates to suspend certain kinds of orders unless enforcement of those orders is addressed by another piece of legislation. The Anti-social Behaviour, Crime and Policing Act 2014 Act addresses the enforcement of closure orders in sections 84 – 85 in a section headed ‘enforcement’. The High Court therefore ruled that the suspensive power in s.62(2) of the 1980 Act did not apply.

The High Court ruled that magistrates can postpone the start of a closure order, for example to allow a teenager to complete their GCSEs. However, this power cannot be used to delay enforcement until a Crown Court appeal is resolved as that would effectively grant magistrates a suspensive power ‘by the back door’.

Issue 3: Article 6 ECHR Means the Crown Court Can Suspend

Finally, the court determined that Article 6 ECHR means the Crown Court must have the power to suspend a closure order pending an appeal. The relevant power arises from s.48 of the Senior Courts Act 1981 (which grants the Crown Court powers relating to ‘all other matters incidental to its jurisdiction’), when read alongside s.6 of the Human Rights Act 1998 (the interpretative obligation).

Fordham J explained that Article 6 ECHR requires that appeals must be ‘practical and effective’, and not ‘theoretical and illusory’. The legislative regime is designed to ensure a fair and effective judicial protection by way of an appeal.

The High Court clarified that Article 6 ECHR does not mandate the suspension of closure orders pending appeal in all cases. Fordham J highlighted that:

• The court’s discretion should only be exercised in ‘exceptional cases’ (see Crocker).
• The closure order regime already incorporates substantive ECHR compliance.
• Expediting the Crown Court appeal may be a viable alternative to suspending the order.
• If an appeal would be heard so late that it might undermine the right of appeal itself, the Crown Court should explore practical solutions before suspending the closure order.
• The expiration of a closure order does not render an appeal irrelevant; that is because a closure order can serve as mandatory grounds for possession proceedings. It would therefore be difficult for appellants to claim their appeal rights were fundamentally compromised.

Practical implications for local authorities

1. Arguments in the Magistrates’ Court

Morgan clearly establishes that Magistrates’ Courts do not have the power to suspend closure orders pending an appeal to the Crown Court. This will no doubt be a relief to those representing LAs, who might otherwise have faced such arguments on a regular basis.

However, those acting for local authorities should also be ready to address arguments that the closure order should not begin straight away – e.g. because a teenager has exams to complete.

2. Arguments that the Crown Court should suspend the closure order

It is likely that those acting for Respondents will seek to argue that the Crown Court should suspend the closure order until it has given judgment on the appeal. Morgan demonstrates that such a course should only ‘exceptionally’ be adopted and there are a range of alternative options – including expediting the appeal.

Authorities should work closely with legal representatives to robustly justify continuing the closure order whilst the Crown Court appeal is ongoing.

3. Risk of broader legal challenge

The ruling raises questions about whether other civil orders, such as anti-social behaviour injunctions, can be suspended pending an appeal. It is entirely possible that lawyers will attempt to use Morgan to submit that other kinds of civil protective orders can also be suspended.

To what degree this ruling applies to other areas of civil law will no doubt be subject to future litigation. 

Conor Monighan, who acted for the Chief Constable, is a barrister at 5 Essex Chambers who specialises in judicial review and human rights claims – including for local authorities and private bodies.