Cleary, Regina (on the Application of) v Highbury Corner Magistrates’ Court and others: Admn 26 Jul 2006

The police sought the closure of premises under an anti-social behaviour order.
Held: A body seeking such an order had an obligation to serve written copies of the evidence upon which they wished to rely on the proposed respondent. The respondent had therefore been entitled to the adjournment he sought but was refused by the magistrates when such evidence was not served.
May LJ referred to the legislative intention that closure orders should be dealt with speedily. In that context, it was obviously important that the police provide affected persons with all the information that they should fairly have, in sufficient time for the hearing to be completed within the period contemplated.
As to disclosure he said: ‘I have said that the police should serve in advance written versions of the evidence that they propose to adduce. The claimant in the present proceedings maintains that the police should also, on request, make further wide-ranging disclosure of material which they may not wish to adduce, but which may be generally relevant. This, in my view, is generally too broad and would tend to frustrate the statutory expectation that applications for closure orders should be dealt with expeditiously.
The Civil Procedure Rules do not specifically apply in magistrates’ courts. But CPR r 31(6) seems to me to be a good guide to what is necessary and proportionate. This provides that standard disclosure requires a party to disclose only the documents on which he relies and documents which adversely affect his own case or support another party’s case. The Commissioner is concerned that a requirement such as this would be imprecise so as to frustrate the statutory purpose. He suggests that there should be no initial duty to disclose in advance of a written statement on behalf of the defendant of the nature of his defence and a specific request for particular admissible documents relevant to that defence. I have some general sympathy with this, in that disclosure under the CPR supposes that the parties have exchanged pleadings crystallizing the issues. Requests for documents should certainly be for specific relevant documents and not a fishing expedition. But applications for closure orders threaten to trample on defendant’s article 8 rights and defendants may be vulnerable and unrepresented. I think, therefore, that the police should disclose documents which clearly and materially affect their case adversely or support the defendant’s case.’
May LJ continued: ‘In my view, it is not appropriate for this Court to address and decide questions of disclosure at a detailed level. We should be prepared to give some general guidance. In doing so, I note and respect submissions to the effect that judicial review applications of procedural decisions of magistrates’ courts should not normally be entertained. I generally agree with and endorse this. Such applications are normally unnecessary and disruptive. It is normally preferable for the proceedings to continue and for any surviving challenge to be made on appeal or otherwise after the magistrates have made a substantive decision . . ‘


May LJ, Langstaff J


[2006] EWHC 1869 (Admin), Times 12-Sep-2006, [2007] 1 WLR 1272, [2007] 1 All ER 270




Anti-Social Behaviour Act 2003

Cited by:

CitedNewman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Magistrates

Updated: 07 July 2022; Ref: scu.243422