Fiona Ford, R (on the application of) v Coventry Magistrates' Court

Neutral Citation Number: [2025] EWHC 843 (Admin) IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT AT BIRMINGHAM Case No: AC-2024-BHM-000225 Birmingham Civil Justice Centre Priory Court 33 Bull Street Birmingham B4 6DS Date of hearing: 26 th March 2025 Before: MR JUSTICE EYRE - - - - - - - - - - - - - - - - - - - - - Between: THE KING on the application of FIONA FORD - and – Claimant COVENTRY MAGISTRATES’ COURT Defendant - and – WARWICK DISTRICT COUNCIL Interested Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ramby de Mello, Errol Robinson and Susana Ferrin (instructed by McGrath & Co) for the Claimant The Defendant did not appear and was not represented. Philip Dayle (instructed by Stratford upon Avon Shared Legal Services) for the Interested Party. - - - - - - - - - - - - - - - - - - - - - JUDGMENT (Approved Transcript) Digital Transcription by Marten Walsh Cherer Ltd., 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. DX 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court Mr Justice Eyre: Introduction. 1. 2. 3. 4. On 7th August 2024 the Coventry Magistrates’ Court made a closure order in respect of 44 Crompton Street, Warwick pursuant to section 80 of the Antisocial Behaviour Crime and Policing Act 2014 (“the 2014 Act”). The order had been made on the application of the Interested Party, Warwick District Council. It related to the property of which the current Claimant, Miss Fiona Ford, was the tenant and of which she and her two sons were the occupants. The Magistrates’ Court made that order having earlier that day refused the Claimant’s application for an adjournment. The Claimant seeks judicial review of that decision pursuant to permission granted on one ground by HH Judge Richard Williams. The sole ground on which permission was granted was ground 2, namely that the decision not to adjourn was unreasonable and/or constituted a breach of the Claimant’s Article 6 rights. Judge Williams expressly left open the issue of whether, even if the claim was otherwise meritorious, relief should be refused on the footing that the Claimant has an adequate alternative remedy by way of an appeal to the Crown Court. The Factual Background. The Claimant became the tenant of 44 Crompton Street on 8th April 2024. As I have already said the property was occupied by the Claimant and her two sons: one born in 2006 and the other who was aged 15 in 2024. In her witness statement the Claimant said that she “suffers with mental health problems, namely severe anxiety and depression, for which I have been receiving medication since 2016”. Although no medical evidence has been put before the court it is not disputed that the Claimant does have such difficulties. Concerns arose in respect of the behaviour of the Claimant’s sons and of others attending at the property. Those concerns are summarised in the skeleton argument of Mr Dayle who appears for the Interested Party thus at paragraph 8 of his skeleton argument he says: “The Interested Party had received complaints from neighbours and intelligence reports from Warwickshire Police that the property was being used as a hub for drug dealing. The police entered the property and seized a quantity of class A drugs therein. There were intelligence reports that the Claimant was in a relationship with someone who had been dealing drugs from the property and who was involved in county lines drug dealing”. A closure notice was served on the Claimant on 5th August 2024. The closure notice was on the basis that there were said to be reasonable grounds to believe “that the use of the particular premises had resulted in a nuisance to members of the public or that there had been disorder near the premises associated with the use of the premises”. The notice was signed by the authorising officer at 2 p.m. on 5th August (albeit having been dated as 5th July in error). The closure notice in this case prohibited access to the Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court 5. 6. 7. 8. property by anyone other than representatives of the County and District Councils, emergency services operatives, or the Claimant or her two sons. On the afternoon of 5th August 2024 the Claimant received a telephone call from her son telling her that representatives of the District Council and police officers had attended at the property. The Claimant then returned to home and was at that stage served with the notice. The Claimant says that although she read the notice it did not make much sense to her and that she did not agree with the allegation of antisocial behaviour. In any event, that afternoon she contacted a firm of solicitors seeking advice and assistance. Those solicitors said they were not able to help with this kind of matter but referred her to a specialist firm, McGrath & Co. The Claimant contacted them on the morning of the next day 6th August. There are two statements from employees of the firm of McGrath & Co: Nerissa John, an administrator in the criminal department administrator, and Lauren Clark, a solicitor. Miss John explains that at 9.23am on 6th August Miss Ford had phoned asking for representation. Miss John said that after she had passed matters on to one of her colleagues she was asked to contact the court to check the listing for the matter. Miss John phoned the court, but was told by the court that they could not find the matter on their court lists. The Claimant then sent further documents to the solicitors. They phoned the court again at 3.15pm on 6th August saying that they (the solicitors) had got documents showing that the matter was listed for 7 th August. The court staff responded saying that the case was not listed as they had not received papers from the Council. McGrath & Co, sensibly, told the Claimant that she should, nonetheless, attend at court on the 7th. The solicitors explain that unless and until they were able to point to an entry on the court list they were not in a position to apply for and, therefore, to obtain legal aid to represent the Claimant. On 7th August the Claimant, attended at Coventry Magistrates’ Court, and found the case was listed for hearing that morning. At 9.50 a.m. she telephoned McGrath & Co telling them that the matter was listed at 10 o’clock. She then passed her phone to an usher at the court and there was a conversation between Miss Clark and the usher. Miss Clark told the usher that she was travelling from Birmingham to the court in Coventry; that she would get there as soon as she could; but that it would take her longer than ten minutes to make that journey. As matters transpired, Miss Clark arrived at the court at 11.10am. By then the hearing had already started. It appears from the court legal adviser’s manuscript note of the hearing that the court had waited until 11 o’clock to start but had then started the hearing at 11.03am. If that is right matters then moved speedily because by the time Miss Clark arrived at 11.20am the case had been opened on behalf of the Council and Mr Cortez, the witness for the Council, had begun to give his evidence-in-chief. There is a slight difference between the note and Miss Clark’s evidence as to when she arrived at the court but that may very well be due to the difference between actually arriving at the court building and getting into the court where the hearing was being heard. 9. In any event, when she got into the court room Miss Clark asked for an adjournment on behalf of the Claimant. She explained that the solicitors had not been able to get public funding because of the absence of appearance on the list and she asked for an adjournment so that funding could be obtained so that the Claimant could be Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court represented. The legal adviser’s note explains that the Council opposed that application saying that the evidence had already been adduced; that there was an appeal process (presumably indicating that if the Claimant lost in front of the magistrates without representation she would be able to appeal); and saying that there had been serious antisocial behaviour. The note then simply records that advice was given under section 81 of the 2014 Act “re adjournment for up to 14 days” (that being reference to the power to adjourn for 14 days which I will consider below). The note then says: “Magistrates decide will not adjourn the case today”. At that point, not being in receipt of funds, Miss Clark perfectly properly withdrew. The hearing then continued with the Claimant representing herself and herself conducting cross- examination and giving oral evidence. It is not clear from the legal adviser’s manuscript note whether, the Claimant, made submissions at the close of her evidence or whether what is recorded is simply all her evidence in answer to questions and by way of evidence-in-chief. The outcome of that hearing was that the Defendant made a closure order prohibiting anyone other than representatives of the District or County Councils or emergency services professionals from remaining in or entering on 44 Crompton Street at risk of arrest. The order was stated to remain in force for a period of three months from its date, namely until 6th November 2024. On 13th September 2024 the claim commencing these judicial review proceedings was filed at court. On 16th September HH Judge Simon gave interim relief. In part Judge Simon’s order provided that the closure order was to be suspended pending determination of the application for judicial review and said at (6): “The Claimant and her two sons shall be permitted to continue in occupation of the property subject to the suspended closure order, but the suspension does not permit any other person to enter or reside therein”. Permission was considered by Judge Williams at a hearing on 9th October 2024 with an order sealed on 11th October 2024. Permission was given on ground 2 but Judge Williams varied the suspensory order of Judge Simon to the extent of providing that the Claimant’s oldest son was to vacate the property and was to be prohibited from entering or residing there pending determination of the claim. The Legal Framework. 10. 11. 12. 13. The starting point is section 76 of the 2014 Act which provides for the power to issue closure notices. Section 76(1) authorises: “A police officer of at least the rank of inspector, or the local authority, may issue a closure notice if satisfied on reasonable grounds – (a) that the use of particular premises has resulted, or … is likely soon to result, in nuisance to members of the public, or Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court (b) that there has been, or … is likely soon to be, disorder near those premises associated with the use of those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring (2) A closure notice is a notice prohibiting access to the premises for a period specified in the notice”. 14. Section 80 of the 2014 Act insofar as material addresses the power to make closure orders thus: “(1) Whenever a closure notice is issued an application must be made to a magistrates’ court for a closure order (unless the notice has been cancelled under section 78). … (3) The application must be heard by the magistrates’ court not later than 48 hours after service of the closure notice. … Subsection (5) sets out the circumstances of which the court must be satisfied before making a closure order. Then subsection (6) says: “A closure order is an order prohibiting access to the premises for a period specified in the order. The period may not exceed 3 months”. 15. Section 81 under the heading “Temporary orders” provides as follows: “(1) This section applies where an application has been made to a magistrates’ court under section 80 for a closure order. Subsection (2) addresses power to continue the closure notice in force for a period of not more than 48 hours if satisfied of particular matters if the court does not make a closure order. Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court “(3) The court may adjourn the hearing of the application for a period of not more than 14 days to enable – (a) the occupier of the premises, (b) the person with control or responsibility for the premises, or (c) any other person with an interest in the premises, to show why a closure order should not be made. (4) If the court adjourns the hearing under subsection (3) it may order that the closure notice continues in force until the end of the period of the adjournment”. 16. Section 84 provides for appeals: “An appeal against a decision to make or extend a closure order may be made by – (a) a person on whom the closure notice was served under section 79; (b) anyone else who has an interest in the premises but on whom the closure notice was not served” Subsection (4) provides that the appeal is to be to the Crown Court and subsection (6) provides that on an appeal under this section the Crown Court may make whatever order it thinks appropriate. 17. Section 54(1) of the Magistrates’ Court Act 1980 provides: “(1) A magistrate’s court may at any time, whether before or after beginning to hear a complaint, adjourn the hearing, and may do so, notwithstanding anything in this Act, when composed of a single justice”. As was explained by HH Judge Gosnell, sitting as a Judge of the High Court, in the case of R (Rayner) v Leeds District Magistrates’ Court [2021] EWHC 1964 (Admin) at [9] the power to adjourn under section 54 can also be used in respect of applications for closure orders under the 2014 Act. Judge Gosnell explained that this followed from the explanation given by Mitting J in Commissioner of the Police of the Metropolis v Hooper [2005] EWHC 340 (Admin). 18. It is also necessary to have regard to provisions of the Housing Act 1985. Section 84A of that Act provides for the circumstances in which there is an absolute ground for possession and subsection (1) says: Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court “If the court is satisfied that any of the following conditions is met, it must make an order for the possession of a dwelling house let under a secure tenancy”. Subsection (2) says that that only applies where the landlord has complied with its obligations under section 85Z including a review of the decision to seek possession. “(6) Condition 4 is that – (a) the dwelling house is or has been subject to a closure order under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014, and (b) access to the dwelling house has been prohibited (under the closure order or under a closure notice for … for a continuous period of more than 48 hours”. 19. Section 83ZA of the 1985 Act provides: “(1) This section applies in relation to proceedings for possession of a dwelling house under section 84A”. It provides at subsection (2) that the proceedings cannot be entertained until the landlord has served on the tenant a notice under that section. “(3) The notice must – (a) state that the court will be asked to make an order under section 84A for the possession of the dwelling house” and “(7) A notice which states that the landlord proposes to rely upon condition 4 in section 84A – (a) must also state the closure order concerned, and (b) must be served on the tenant within – (i) the period of 3 months beginning with the day on which the closure order was made, or (ii) if there is an appeal against the making of the order, the period of 3 months beginning with the day Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court on which the appeal is finally determined, abandoned or withdrawn”. The Parties’ Contentions. 20. 21. The Claimant’s case, in summary, is that the refusal to grant her an adjournment was unfair. This was because of the effect on the Claimant of the risk of loss of her property and the fact that it was not her fault that she was without representation. In addition, it is said that that unfairness was compounded by the fact that some of the evidence in the case was hearsay and potentially inadmissible hearsay. That is a reference to the material which was described as being the police intelligence. It is said that an appeal to the Crown Court would not be an adequate alternative remedy because the Crown Court has no power to suspend a closure order pending appeal or at least there is no certainty the Crown Court has such a power. For the Interested Party Mr Dayle points to the need for expedition under the 2014 Act. He points to the wide discretion the Magistrates’ Court has in considering whether to grant an adjournment and he says that the decision to decline an adjournment was not unfair. Mr Dayle expanded on this in his oral submissions but the crux of the matter is at paragraph 9 of his skeleton argument when, having referred to the basis on which the closure order was sought, he said: “The magistrates were aware of the background when faced with an application for an adjournment from the Claimant. The court was no doubt mindful that the critical elements in the proper operation of closure orders are speed and dispatch. These are necessary tools afforded to the police by the closure order regime to prevent disorder and significant nuisance to the public. The matters for which the closure order was sought were serious, but not legally complex. The Claimant would have understood the essential thrust of the case being presented against her. In all the circumstances the magistrates’ decision to refuse the application to adjourn was not unreasonable”. In addition, the Interested Party’s case is that an appeal to the Crown Court would have been an adequate remedy. However, it is right to note that Mr Dayle focused on the fairness of the decision and the scope of the magistrates’ discretion and , rightly, did not take a strong point on issues as to forum. Is the Claim academic? 22. The first question I propose to address is whether the claim is academic. This was the consideration which caused Judge Gosnell to refuse relief in the case of Rayner. There the closure order had expired and not been renewed and the time for a notice under section 83ZA of the Housing Act had passed. Those matters caused Judge Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court 23. Gosnell to conclude that the appellant in that case, who was appealing by way of case stated, was not affected by the closure order. Here the closure order expired on 6th November 2024. The parties accept that Judge Simon’s order suspending the closure order did not keep it alive in some form of suspended animation or in the sense of prolonging it so that it would reactivate on the determination of these judicial review proceedings, even if that happened after 6 th November 2024. Initially I had some reservations about that agreement but on reflection I concluded that it was right. The order is expressed to last until 6th November 2024 and so is covering the property for a particular period of time identified by a start and end date rather than a period of time identified by its duration. It is of note that although Judge Simon suspended the closure order he, in effect, kept the closure notice in continued operation. That is because he made it clear that his suspension of the closure order did not permit anyone other than the Claimant or her two sons to enter or reside in the property. 24. The effect, therefore, given that I am deciding this matter on 26 th March 2025, is that if the claim were to be dismissed neither the Claimant nor the property would be subject to the closure order. It also follows that the time for relying on the closure order by way of an absolute ground for possession pursuant to the Housing Act has also passed. 25. Mr De Mello for the Claimant says that there is nonetheless an effect on the Claimant by virtue of the stigma of the order having been made and by the presence of the order on the Claimant’s housing record. I have considerable doubt as to the force of that argument. That is because even if the closure order is quashed or set aside in some way the District Council’s records will clearly contain the Council’s record of their view of the Claimant’s actions and those matters will remain on the housing record in any event. Subject to that reservation I accept that there is some potential force in Mr De Mello’s submission in this regard. 26. What is more significant, in my view, is that it cannot be said that the claim was academic at the time when the proceedings were started. At that time the closure order remained in force and the period to 6th November 2024 had not yet expired. It follows that at the time of commencement of proceedings and the time of the grant of permission it could not properly have been said that the claim was academic. It follows that it was entirely right that the Claimant was not declined permission on the grounds of being academic. 27. The fact that the passage of time now means that the closure order has no effect and that there cannot be reliance on the Housing Act might well be relevant to relief. It may also be relevant to the potential costs orders to be made, depending on the outcome of the hearing. It does not, however, render the claim academic in such a way as to make it inappropriate to decline to deal with the issues at this stage or to move to consideration of relief if the claim is otherwise found to be meritorious. 28. Mr De Mello sought to persuade me that the claim was not academic in another sense, namely that any decision would be of general significance. That contention might have had considerably more force if permission had been given on ground one, which contended that there was a systemic deficiency in the system in the magistrates’ courts and/or by way of the legal aid system when dealing with closure orders. In Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court light of what I have already said about proceeding to determine the matter I am not going to address the question of whether the significance of the matter is such that it would otherwise have been justified to determine the claim even if the matter were academic as between the parties. Did the Claimant have an adequate alternative Remedy? 29. The next potential bar to the grant of relief is the question of whether the Claimant had an adequate alternative remedy. The general rule is that the court will not grant relief by way of judicial review where a Claimant had an adequate alternative remedy. That is because the general starting point is that judicial review is to be a remedy of last resort. The court does, however, retain the power to grant relief by way of judicial review even if a party had an alternative remedy and even if that remedy would otherwise be seen as being adequate. Stanley Burnton J, as he then was, put it thus in R (Brighton and Hove City) v Brighton and Hove Justices at [24]: “However, this Court retains power, in the exercise of its judicial review jurisdiction, to quash a decision of justices that is unlawful. Judicial review proceedings are most appropriate where it is alleged that there has been a procedural impropriety on the part of the justices”. The judge there refers to the decision in R (Rowlands) v Hereford Magistrates Court [1998] QB 110, to which I will turn in a moment. I should explain that Stanley Burnton J had made those comments against the background of having said in the preceding paragraph that the appropriate procedure for challenge of the decision in that case was an appeal by way of case stated. He then explained that although such an appeal was the normally appropriate course, the court retained power to grant relief by way of judicial review. The judge concluded paragraph 24 by saying: “The High Court may refuse relief in judicial review proceedings on the ground that proceedings by way of case stated were appropriate, but the bar is discretionary, not mandatory”. 30. I turn, therefore, to the decision in the Hereford Magistrates Court case, a decision of a Divisional Court composed of the then Lord Chief Justice, Lord Bingham, and Moses J, as he then was. The judgment of the court was delivered by Lord Bingham. There were three cases were before the court. Two of them concerned instances where the magistrates’ court had declined to grant adjournments where the subsequent claimants had sought time to obtain extra witness evidence and related matters. At page 117F Lord Bingham said this: “These three applications for judicial review arise on quite different facts. But common to each is a question of considerable legal and practical significance concerning the use of RSC Order 53 to challenge (on Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court grounds of procedural impropriety, unfairness or bias) decisions of magistrates’ courts where the applicant has a right to re-trial (or, if he had exercised it in time, would have had a right to re-trial) in the Crown Court”. The court then went on to consider the circumstances in which it would or would not be appropriate for there to be proceedings by way of judicial review where a party before the magistrates’ court could appeal to the Crown Court against any conviction in the magistrates’ court. At page 120D to E Lord Bingham said: “In a number of cases, of which some are cited in Dowler … the courts have stated that a remedy by way of judicial review should not be granted where an alternative remedy exists. An applicant is expected to exhaust all other remedies open to him before seeking judicial review; otherwise, the court may in the exercise of its discretion deny relief. For many years, however, it does not appear to have been argued that defendants complaining of unfairness and procedural irregularity in magistrates’ courts should exhaust their right of appeal in the Crown Court before seeking relief under Order 53”. 31. The court then turned to the question of whether that was the correct position in the light of the decision in Dowler. It concluded that notwithstanding Dowler where there was procedural unfairness or impropriety in the magistrates’ court it remained open to a party to seek relief by way of judicial review from the High Court rather than seeking to appeal to the Crown Court. At page 125 from C to G the following is of note: “While we do not doubt that Dowler was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates’ court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates’ courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates’ courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained. Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates’ court. Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates’ courts as of all other court. This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all. The need for an applicant to make full disclosure of all matters relevant to the exercise of discretion should require no emphasis. We do not, however, consider that the existence of a right of appeal to the Crown Court, particularly if unexercised, should ordinarily weigh against the grant of leave to move for judicial review, or the grant of substantive relief, in a proper case”. 32. 33. 34. The position, therefore, is that procedural impropriety, including impropriety and unfairness arising from the refusal of an adjournment can warrant redress by way of judicial review even if a party has an alternative remedy by way of an appeal. There is a further factor in the current case which is that it is debatable whether an appeal to the Crown Court would in fact be an adequate alternative remedy in the circumstances here. The question arises as follows. The 2014 Act gives a right of appeal to the Crown Court. The Claimant says that the Crown Court does not have the power to suspend the closure order pending determination of the appeal. By way of contrast this court patently does have such a power and it was exercised in this case by Judge Simon. In that regard it is necessary to consider the recent decision of Fordham J in the case of Chief Constable of Humberside Police v Kelly Morgan [2024] EWHC 2859 (Admin). That was an appeal by way of case stated by the Chief Constable from a decision of the magistrates’ court sitting in Hull. There the district judge in the magistrates’ court had suspended the relevant closure order. The core issue which Fordham J was addressing was whether the magistrates’ court had that suspensory power. Fordham J held that the magistrates’ court did not have that power. He said there was no reason for the magistrates’ court to be taken to have that power because of the scope for an appeal to the Crown Court. Fordham J did consider the possible suspension of a closure order by the Crown Court pending appeal. He did so in the context of considering the question of whether the absence of a suspensory power in Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court the magistrates’ court meant that the regime of the 2014 Act was not compliant with the Human Rights Act and, in particular, with the relevant Article 6 rights. 35. Fordham J set out his consideration of that question at [59] – [66]. I am not going to quote that part of the judgment in ful but the relevant points are these. At [59] Fordham J said: “If there were an issue of Article 6 incompatibility so far as the suspension powers of the magistrates are concerned, the question would be whether it is ‘possible’ to read s.63(5) of the 1980 Act as follows: ‘Except where necessary to prevent a contravention of Convention rights, the preceding provisions of this section shall not apply to any order for the enforcement of which provision is made by any other enactment’.” He then explained why, in his view, that issue did not arise, because there were other ways of meeting the need to be compliant with Article 6. At [61] he said: “The first point is that expedition may supply the answer”, by that he was making the point that the need for Article 6 compliance could be achieved if there was an expeditious arrangement for the hearing of an appeal. 36. At [62] Fordham J said: “The second point is that an expired period of a Closure Order does not make the appeal academic” He then said that an appeal can still involve live issues affecting the rights of the parties and, therefore, there would remain something to which the Article 6 rights could attach. At [63] he did say this: “The third point is that the Crown Court would, in my judgment, itself have a power to suspend a Closure Order pending appeal, if it were persuaded that such an order were necessary to ensure that the right of appeal is not ‘defeated’ and its very ‘essence’ is not ‘infringed’.” Then in the balance of [63] through to [65] Fordham J explained what he meant by that. He explained that it was his assessment that if the absence of a power to suspend would deprive an appeal of any utility then the Crown Court would have a suspensory power. Finally, at [66] the judge said this: “The fourth point is that, even if the third point is wrong, there is no doubting that the High Court would have jurisdiction by way of judicial review. That was Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court the safety net in Trinity Mirror. It is the protection which was invoked in ABC. If suspension were necessary to ensure the right of appeal is not ‘defeated’ and its very ‘essence’ is not ‘infringed’, and if the Crown Court can neither expedite nor suspend, the High Court would have jurisdiction and would need to consider its exercise. I am not saying that these routes will prove necessary. What I am saying is that they are safety nets which mean there is no question of any Article 6 incompatibility arising from my analysis of the magistrates’ court’s powers; so that I do not need to address whether there is an alternative possible interpretation of the statutory powers pursuant to HRA s.3”. 37. 38. 39. It is to be noted that Fordham J’s dictum that the Crown Court would potentially have a suspensory power was obiter and avowedly expressed in somewhat tentative terms. It was, moreover, avowedly expressed on the footing that the High Court would nonetheless have a supervisory jurisdiction which would kick in and would enable the High Court to act to suspend an order where necessary. In light of that, I do not need to make a definitive determination as to whether the Crown Court has a suspensory power in the context of appeals under the 2014 Act. It suffices to say that there is at least scope for debate about the point. There is, at least, scope for legitimate concern as to whether the Crown Court has a suspensory power. In those circumstancs it cannot be said that appeal to the Crown Court coupled with an application for suspensions is necessarily an adequate alternative remedy. There is a further and more important point namely the significance of the approach which was enunciated by Lord Bingham in the Hereford Justices case. I have already quoted the passage at page 125 where his Lordship emphasised the importance of the High Court’s supervisory jurisdiction of the magistrates’ courts and the exercise of that jurisdiction to address problems of unfairness or procedural impropriety in those courts. I am satisfied that if I conclude that the decision in the magistrates’ court amounted to a procedural failing such as to make the proceedings there unfair it would not be appropriate to refuse relief at this stage on the footing that the Claimant had an alternative remedy by way of appeal. I should emphasise that as I noted earlier Mr Dayle, rightly, placed little weight on this point. Rather he took his stand firmly on fairness and rationality and it is to those questions that I will turn. Fairness and Rationality. I deal, first, with the principles governing adjournment. The crucial points are that a court dealing with a case has a wide discretion as to whether or not to adjourn in particular circumstances. Account is to be taken of that wide discretion and the court considering, on appeal or review, an earlier decision to adjourn must have regard to the context in which the decision was made and the particular circumstances of the court below. It must do so remembering that the court below may well have had an understanding of what was actually happening in the hearing and of what was needed in the particular circumstances which may not be obtained from consideration of the papers alone. Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court 40. The test ultimately is one of fairness. That will be fact specific and specific to the circumstances of the particular proceedings and the particular court. As was pointed out by Nugee LJ in Bilta (UK) Ltd v Tradition Financial Services Ltd [2021] EWCA Civ 221 at [49(3)] “It should not be assumed that only one outcome is fair”, by which it follows that in a particular case there may be a number of different outcomes or approaches each of which will be fair. I have regard to the summary of the applicable principles which Nugee LJ set out in Bilta at [30] and also to the need for caution which Lord Bingham enunciated in the Hereford case. However, it is to be noted that the Hereford case expressly proceeded on the footing that a refusal to grant an application to adjourn can result in the proceedings becoming unfair. 41. Mr Dayle strongly argued that the question was one of whether the magistrates’ decision was Wednesbury unreasonable in the sense of being “beyond the pale” of potential decisions. I have some reservation as to whether that is strictly the right test. That is because, as Nugee LJ explained in Bilta at [49(2)], there is a distinction between the issues of whether a decision is unreasonable or irrational on the one hand and of whether the decision results in unfairness on the other. There is a distinction between the former issue where the court on review or appeal is assessing whether the decision below was reasonable and the latter issue where the court is considering whether the proceedings below were objectively fair. In the circumstances here, nothing turns on the distinction. In my judgement, however, the correct position is as follows. If the court on a judicial review or on appeal concludes that the decision below meant that the proceedings were unfair then the decision below cannot stand and it is for the court in such a case to determine for itself whether the decision below resulted in unfairness. Procedural unfairness is a different ground of challenge from that of irrationality. There is a difference even though the two will be very closely connected in many cases and even though in most cases the difference in the approach will not lead to any difference in result. That is because when deciding whether there was unfairness below the court on appeal or review must have regard to the width of the discretion of the court below. It must also remember that it cannot be assumed that there is necessarily only one fair outcome. It is, moreover, hard to envisage circumstances in which a decision below is found to have been rational and properly within the scope of the decision maker’s discretion but nonetheless found to result in procedural unfairness. That is particularly so in light of the caution enunciated by Lord Bingham and bearing in mind also, as his lordship explained, that minor deviations from ideal practice do of themselves not mean that proceedings are unfair. 42. 43. I turn then to consider whether the refusal of the adjournment here was such as to render the proceedings in the magistrates’ court unfair. The factors standing in favour of the adjournment and in favour of a conclusion that a refusal was unfair are in short as follows. a) An explanation was given of why the Claimant was not represented. That was in large part the consequence of the combination of her own financial circumstances and the interrelation between (i) the Legal Aid Rules governing the circumstances in which funding would be granted and (ii) the arrangements as to whether and when particular cases appeared on the Defendant’s court list. Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court b) c) d) e) f) g) There had been no delay or inaction on the part of the Claimant. She had commendably acted promptly and with energy to seek to obtain legal representation. Similarly, her solicitors had acted energetically. Miss Clark had moved to travel from Birmingham to Coventry. She had arrived at court slightly later than she had expected to arrive but only by a matter of less than ten minutes or so. Moreover, she had come to court in in circumstances where there was no guarantee that her trip would be remunerated. Account also must be taken of the importance of this matter to the Claimant. The closure order, if made, have the effect of removing her from her home for a period of three months. In addition the operation of the Housing Act could mean that it would lead to a total removal from her home. The factual circumstances were not deeply contentious but Mr De Mello is right to say that some of the evidence was arguably inadmissible hearsay. The admissibility of that evidence was a matter in respect of which the Claimant and, indeed, the magistrates would have been assisted by having legal representations and legal argument. It is also of particular note that the 2014 Act when giving a power to adjourn expressly provides for a short period of adjournment and for a closure notice to be kept in place. It was, therefore, open to the magistrates to adjourn while keeping the closure notice in place. It would also have been open to them to adjourn for a shorter period than 14 days. It is also relevant that the hearing on 7th August was the very first hearing of this matter. It is right that proceedings under the 2014 Act have to be dealt with expeditiously. Nonetheless, the hearing began at 11.03am on 7th August when it had been only at some point after 2.00pm on 5th August that the notice had been served on the Claimant. Matters might well have been very different if there had been legitimate cause for concern that the application for an adjournment was some form of stringing matters out but that simply could not be said to have been the position here. 44. There are a number of factors that go the other way. a) b) c) The Magistrates’ Court had a wide discretion. Not every deviation from the ideal amounts to a hearing being unfair. Proceedings under the 2014 Act have to be dealt with expeditiously. Parliament has expressly provided for fast action with the matter coming before the court within 48 hours and with a limited period of time for adjournment. However, as I have already noted, the need for expedition and the impact on the public of the alleged behaviour are Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court d) e) f) balanced to some extent by the provision for a closure notice to be kept in force during the period of adjournment. It is relevant that the hearing had started. That can be a significant consideration where a matter has to be adjourned part heard part way through a hearing. Its weight will depend on the nature of the hearing and how far matters have progressed. Here, the hearing is recorded by the magistrates’ legal adviser’s note as having begun at 11.03am and it was at 11.20am that Miss Clark arrived seeking an adjournment. It looks as if matters had moved quite quickly. Nonetheless there had only been been opening of the case and some evidence-in-chief and no cross-examination. In those circumstances, even if an adjournment had meant that it had been necessary to constitute a new bench and to forego what had happened that could only be a factor of very limited weight. I have to remember that, although not represented, the Claimant was present at the hearing. She was able to ask questions and able to give evidence. In that regard I have to remember that magistrates and their legal advisers are skilled and experienced in dealing with unrepresented parties; skilled and experienced in assisting them to put their points properly; and skilled and experienced in guarding against jumping to conclusions against unrepresented parties. Nonetheless, there is a difference between an unrepresented lay person with no legal knowledge presenting his or her own case and the presentation of a case by a skilled advocate with knowledge of the relevant law. Mr Dayle pointed to the strength of the case against the Claimant and the fact that the issues were really matters of fact. However, the court has to exercise considerable caution before attaching too much weight to that. In the well-known words of Megarry J in John v Rees [1971] CH 345 at 402D: “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events”. 45. The last part of that quotation leads into the next consideration which is a potent factor in favour of the conclusion that the refusal of the adjournment was unfair. The Judgment Approved by the court for handing down R (Ford) v Coventry Magistrates’ Court need for fairness in procedure is an important requirement in addition to and separate from the objective of getting the right outcome. Fair procedures are more likely to result in an objectively right determination but that is not the sole reason why it is necessary for procedures to be fair. The need for procedures to be fair is also an aspect of paying respect to the rights of those subject to legal processes. It is also a requirement of the rule of law that decisions are taken as a result of fair processes. No one of the factors for or against adjournment is conclusive by itself. However, looking at matters in the round I have no doubt that in this case the refusal to grant an adjournment resulted in proceedings that were unfair. The effect, in short, was that a party at risk of losing her home was forced to act without a lawyer in proceedings brought at short notice where she had done all she could to obtain legal representation; where her inability to obtain such representation was in part a consequence of the court’s own arrangements; and where the court had available to it steps to minimise the risks which might flow from the delay which would be caused by an adjournment. The same result is achieved if one looks at the matter through the lens of rationality. I am satisfied that the decision to decline an adjournment in these circumstances was outside the range of decisions open to the magistrates acting rationally. I note in that regard that the legal adviser’s note does not record any reasoned decision. It is not clear whether the magistrates simply said “An adjourned is declined” or gave reasons for refusing an adjournment but it rather looks as if it was the former. That of itself is a factor, albeit one of limited weight, adding to the assessment of rationality. 46. 47. It follows in those circumstances that the decision cannot stand and the closure order is, therefore, to be quashed. - - - - - - -