Significant Article 6 ECHR Decision on Courts’ Ability to Suspend Orders Pending Appeal

The High Court has handed down its judgment in Chief Constable of Humberside Police v Kelly Morgan [2024] EWHC 2859 (Admin). This is a significant human rights case which concerns whether the Crown Court has the power to suspend orders made by the lower court pending an ongoing appeal.

For those involved in making civil applications on behalf of local authorities and/ or the police it is an essential read.

Summary of the Core Issues

The human rights arguments related to the closure order regime. Such orders are made by magistrates’ courts (pursuant to s.80 of the Anti-Social Behaviour, Crime and Policing Act 2014). The High Court described the orders as “draconian” because closure orders can exclude people from their own home.

There were three main issues:

1. Was the public law challenge academic (because the Crown Court had already rejected the Appellant’s appeal)?
2. Whether the magistrates’ court has the power to suspend its own closure order pending an appeal to the Crown Court. If not, individuals could be excluded from their homes without the ability to appeal the order before it comes into effect.
3. Whether the Crown Court has the power to suspend the lower court’s order during the lifetime of an appeal to it. The arguments focused on Article 6 ECHR.

The Judgment

Issue 1: Issues Not Academic

The High Court concluded that the issues in the case were not academic, despite the fact that the Crown Court had already refused the Appellant’s appeal. The questions raised were important, there had been full legal argument about them, and it was almost inevitable that any public law challenge on these issues would be academic because Crown Court appeals are (generally) heard more quickly than appeals to the High Court.

Therefore, unless the High Court resolved the issues in this case it was unlikely there could ever be a case where they could be properly considered.

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 gave magistrates’ the power to suspend a closure order which they had just made pending an appeal to the Crown Court.

Section 62(2) of the 1980 Act provides, in short, that magistrates may suspend certain orders unless another piece of statute provides for enforcement of that order. The High Court held that the 2014 Act does deal with the enforcement of closure orders, namely in sections 84 – 85 in a section headed ‘enforcement’.

However, the High Court held that magistrates do have the power to defer the start date of a closure order. For example, if a teenager was mid-way through their GCSEs a court might decide the closure order should begin after the relevant exams have concluded. Such a power cannot, however, be used to defer a closure order until the determination of a Crown Court appeal; that would give magistrates a suspensive power ‘by the back door’.

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

Finally, the court concluded that the impact of Article 6 ECHR meant the Crown Court has the power to suspend a closure order pending an appeal. The relevant power is to be found within to 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 reasoned that Article 6 ECHR requires that appeals must be ‘practical and effective’, and not ‘theoretical and illusory’. In addition, the legislative regime is designed to ensure a fair and effective judicial protection by way of an appeal.

However, the High Court warned that Article 6 ECHR does not require closure orders to be suspended pending an appeal in every case. Fordham J noted:

• The court’s discretion is to be exercised in ‘exceptional cases’ (see Crocker).
• Substantive ECHR compatibility is ‘baked-in’ to the closure order regime already.
• Expediting the Crown Court appeal may be a suitable alternative to suspending the order.
• If there is a suggestion that the appeal would be heard so late that the right of appeal would be ‘defeated’ and its ‘very essence is infringed’ then the Crown Court should consider what practical steps could be taken to remedy the issue.
• The fact that a closure order has expired does not make the appeal academic, because the existence of such an order can be used as a mandatory ground for possession proceedings. That matter alone would make it hard for an appellant to successfully argue that the essence of the appeal right would be infringed were the order not suspended.

Comment

On any view this is a significant case. It shows the power of Article 6 ECHR to define the scope of courts’ powers and its direct impact on members of the public. Some will argue that the court’s comments give rise to the question of whether all civil orders, which are used by the police and local authorities to protect the public (e.g. Stalking Protection Orders), can be suspended pending an appeal to the Crown Court.

In terms of closure orders, Morgan establishes for the first time that magistrates’ may defer the start date of a closure order – though not pending an appeal to the Crown Court.

Although Appellants are likely to use Morgan to argue their closure order should be suspended pending an appeal, the judgment is clear that this power should only be taken in ‘exceptional’ circumstances. The Crown Court must consider practical alternatives – including expediting the appeal. In addition, in many cases Article 6 will not be infringed by a decision not to suspend the closure order because such orders can be used as a mandatory ground for taking possession of a person’s property.

Finally, it is notable that the court felt Article 6 ECHR, combined with s.6 HRA 1998, required the High Court to read a suspensive power into s.48 of the Senior Courts Act 1981. The key question before exercising any such power is whether the case is sufficiently exceptional, such that the ‘very essence’ of the appeal right would be infringed if the closure order were not suspended.

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

John-Paul Waite, who acted as leading counsel, is an expert in public law, employment and civil claims.

Conor Monighan is a barrister who specialises in judicial review and human rights claims – including for private bodies and public authorities.

Both acted for the Chief Constable.