Tiernan Fitzgibbon, acting for the London Borough of Haringey, succeeded in an application for a closure order under the Anti-Social Behaviour, Crime and Policing Act 2014 brought to prevent criminal behaviour and/or serious public nuisance arising from breaches of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (the “Regulations”).
The Defendant is the owner of Zone Gym and had continued to operate in breach of Regulation 16 which requires all businesses to close for the duration that the Regulations are in force. The Defendant had been issued with a Prohibition Notice as well as Fixed Penalty Notices amounting to £67,000. However, the Defendant ignored those measures which forced Haringey to issue a closure notice and pursue a closure order on the grounds of criminal behaviour resulting from breaches of Regulations 5, 8 and 16 and/or serious public nuisance arising from said breaches.
At a hearing on 12 November 2020, the magistrates adjourned until 17 November 2020 in order to allow the Defendant to show why the closure order should not be made but allowed the closure notice to continue in force for the duration of the adjournment.
28 Day Ban on Proceedings Related to Fixed Penalty Notices
The Defendant argued that the application was premature due to Regulation 21(4)(a) which states in relation to Fixed Penalty Notices that “no proceedings may be taken for the offence before the end of the period of 28 days following the date of the notice”. The magistrates agreed with Haringey that the 28 day ban only related to proceedings “taken for the offence” i.e. the Fixed Penalty Notices and did not apply to the application for a closure order.
Criminal Behaviour Arising from Breaches of the Regulations
The Defendant argued that he fell within an exception to Regulation 16 under Regulation 17(6)(c) as a gym that trains ‘elite sportspersons’, a term that is defined in Regulation 3 as those who “derive a living” from competing in a sport or are considered to be candidates to represent the UK at elite competitions such as the Olympics or Commonwealth Games. If that was the case, then it could not be said that there was any criminal behaviour arising under the Regulations. Moreover, the Defendant argued that there was a burden on Haringey to prove that the Defendant did not fall within any exceptions to Regulation 16 and that this burden had not been satisfied.
Haringey successfully argued, however, that the Defendant’s attempt to reverse the burden of proof were unreasonable as it would require Haringey to prove a negative i.e. that there were no exceptions which the Defendant could rely upon before acting on Regulation 16. The magistrates agreed that if the Defendant wished to rely on an exception to Regulation 16, it was the Defendant’s burden to prove that he fell within any such exception.
As proof of such, the Defendant claimed that a number of his clients are professional body builders who earn money from competing. Haringey successfully argued, however, that even if some of the Defendant’s clients earned money from body building (a point which had been asserted rather than proved), merely earning some money does not equate to “derive a living” as required by Regulation 3(1)(a) and so he had not actually satisfied the exception claimed.
Serious Public Nuisance Arising from Breaches of the Regulations
The Defendant sought to establish that there was no serious public nuisance arising from the Defendant’s actions on the basis that no risk assessment had been taken in respect of the Defendant’s gym. The Defendant pointed to the fact that other establishments were allowed to continue to open such as schools and workplaces, thus proving that merely being open did not amount to a serious public nuisance.
Haringey successfully argued that the requirement that the Defendant’s gym be closed was not conditional on an individual risk assessment having been carried out as that assessment had been carried out at a national level by Parliament in passing the Regulations. Although exceptions to Regulation 16 are provided for, outside of those exceptions it was reasonable to hold on the balance of probabilities that the continued operation of Zone Gym would lead to alarm amongst Haringey’s residents in terms of the risk arising from community transmission of the Coronavirus. That risk is a serious public nuisance that justified the application for a closure order.
It was also argued that the Defendant had displayed contempt for the Regulations having failed to abide by them until issued with a closure notice and by having ripped up a number of Fixed Penalty Notices in a video posted to his social media. Haringey argued that such contempt demonstrated the risk he would continue to ignore the Regulations if the closure order was not granted.
The magistrates found for Haringey on all points, and it was ordered that Zone Gym be closed until 2 December 2020 and that access be prohibited to all persons except for the Defendant, Haringey’s officers, and the emergency services. The Defendant was also ordered to pay £9,000 towards Haringey’s costs.
The case has attracted significant media attention including the following reports: