Barking and Dagenham v Christodoulou

Monday, 16th June 2003

1. MR JUSTICE GOLDRING: On 27th September 2002, the respondent was acquitted of 14 alleged contraventions of the Town and Country Planning (Control of Advertisements) Regulations by the Justices for the North East London Commission Area sitting at Barking. The London Borough of Barking appeals by way of case stated against that decision.

2. Each summons was in a similar form. The date and/or place of the offence alleged differed in each. The dates encompassed 4th February 2002 to 11th March 2002. I shall simply take one as an example. It is alleged:

"that on 12 . . . February 2002 at Heathway Shopping Parade you did display an advertisement concerning Secrets Night Club in contravention of the Town and Country Planning (Control of Advertisements) Regulations 1992 contrary to section 224(3) of the Town and Country Planning Act 1990".

3. The Magistrates decided there was no case to answer. The issue is whether they were right to do so. The respondent is not represented before us, although there is some correspondence from his solicitor, which I have taken into account.

4. The findings of fact are set out in the case. I shall summarise what seem to me relevant for this appeal.

5. The respondent is one of two directors of a company called Free Trade (Romford) Limited. He is the only director with an address in Romford. Free Trade (Romford) is the proprietor of The Secrets Night Club. That is located at 1 Angel Way, Romford, Essex. On 1st October 2001, five different entertainment licences were granted in respect of the night club to the respondent. His address is given, both in respect of those entertainment licences and as a director as 48 High Street, Romford, Essex. In broad terms, those licences permitted music, dancing and entertainment and extended hours for drinking.

6. Mr Clarke was the enforcement officer of the appellants. He and a colleague took some 68 photographs of fly posting advertising different events at the Secrets Night Club. We have, as did the Magistrates, those photographs. Suffice it to say they reveal large and striking stickers. It is from looking at them difficult to identify who was responsible for them.

7. On 30th November 2002, Mr Clarke telephoned the night club. From Companies House records, he knew who the directors were. He did not ask to speak to a director. He spoke, apparently, to a manager. He "explained" about fly posting. The manager "did not seem sympathetic to his cause, even after it was explained to him the effect it was having on the borough in general. [The manager] . . . explained it was down to sub contractors and not him".

8. On 18th February 2002, Mr Clarke wrote a letter addressed to: "The Directors. Secrets Night Club, 1 Angel Way, Romford" (the address of the night club). It is headed:

"S 10, London Local Authorities Act 1995

S 224 Town and Country Planning Act 1990

Re: Fly Posting

A recent investigation has shown that your company, or agent, has been illegally erecting posters and advertisements on street furniture throughout this Borough. These posters advertise forthcoming attraction and entertainment at the above premises.

It is an offence to erect or display such posters and advertisement, publicising goods, a trade or business without permission or authority, in contravention of the regulations.

Furthermore, such actions are totally contrary to the values currently being promoted by this Council of a 'Cleaner Greener Safer Environment'. If these values are to be achieved there must be strict control over this type of activity, commonly known as 'fly posting'.

As the controlling body in this manner of advertising, it is your responsibility to direct how and where such posters or advertisements should be displayed. I have enclosed photographs of your posts currently displayed at one cross roads within the Borough at, Heathway junction with Oxlow Lane.

This Council requires the removal of these, and any other posters displayed within the Borough of Barking and Dagenham, within 21 days of the date of this letter otherwise they will be removed by the Council and you may be liable for the costs involved.

If they are not removed, or further posters are illegally erected within this Borough, we will have no alternative but to instigate formal proceedings under the above legislation. A conviction for this offence renders you liable to a fine".

9. On 9th May 2002, six summonses were served upon the respondent. The remainder were sent on 28th June 2002. The posters were removed between 9th May and 28th June.

10. On 21st May 2002, solicitors acting for the respondent wrote to the appellants. The letter was in fact addressed to solicitors at what I take to be Canning Town Hall. Among other things, that letter says:

"Our client instructs us and we understand that it is common practice, for nightclubs such as Secrets to hire out their venue on specific evenings to a promoter. It is the promoter who is then responsible for the publicity for the particular event that he or she is promoting.

The promotion or hiring agreement between our client and the promoter specifically prohibits --

1. Bill postering on private property.

2. Flying with intent to cause nuisance or littering of public or private property.

Our client instructs us that he has encountered difficulties with promoters in the past . . .

On behalf of our client we enclose herewith the relevant invoices relating to the alleged offences occurring on 8th, 12th and 26th of February and 4th, 11th of March 2002, detailing the relevant promoters.

The posters that offend were put up without the knowledge or consent of [the respondent]. He was not the person spoken to on the telephone referred to in Mr Clarke's statement. However, whoever it was would simply have been echoing advice given to the club by the similar Local Authority Officer in Havering.

Our client cannot therefore be said to be in anyway 'responsible' for the posters referred to in the statement of David Clarke, within the meaning of the Town and Country Planning Act 1990 . . . "

11. The letter concludes:

"In all the circumstances, we suggest that the summons' [sic] served upon our client alleging contraventions of Section 224(3) of the Town and Country Planning Act 1990 should be issued against those names detailed on the enclosed invoices, and ask that you revert to the London Borough of Barking and Dagenham for instructions to withdraw the summonses . . . and re-issue against the relevant promoters".

12. Mr Murphy, on behalf of the appellants, has shown the court a copy of an example of the invoices. Part of it states:

"Rules. Secrets Nightclub Does Not Permit The Following

1. Bill postering on private property.

2. Flying with intent to cause a nuisance or littering of public or private property".

13. Those invoices were of course before the Justices.

14. On the basis of the evidence, which I have summarised, the defence submitted that there was no case to answer. Reliance was placed on the second limb of _Galbraith_, 73 Cr App R 73. It was submitted:

1. There was no evidence that the respondent knew of the telephone call of 30th November 2001;

2. There was no evidence that the respondent knew of the letter of 18th February 2002; and

3. There was no evidence that the respondent knew of the problem of posters before proceedings were issued on 9th May 2002.

15. The appellant's response, according to the case stated, appears to have been in these terms:

1. There was _prima facie_ evidence that the respondent did know of the posters;

2. In any event, it was not necessary under section 224 for the prosecution to prove knowledge. He was by that section "deemed" to have such knowledge.

16. Paragraph 8 of the case says this:

"We were of the opinion that:

i) It had to be shown [by the appellant] under s 224(3) of the Town and Country Planning Act 1990 that ['the respondent'] had either the knowledge or given his consent for the posters to be put up.

ii) We believe that it cannot be shown that [the respondent] had knowledge of either the telephone call on 30th November 2001 or the letter sent on 18th February 2002, as it was not directed to his home address, neither to any of the other Directors' home addresses.

iii) The Defence had put forward in cross-examination invoices from Secrets Night Club which suggested a clear policy not to allow fly posting, and had provided evidence of individual promoters, that should have been followed up by [the appellant].

iv) Once details of the summonses had come to the attention of [the respondent], he had taken steps to have the posters removed.

v) The local authority should have advised the Directors of the problem directly of fly posting, once they became aware of the home addresses.

vi) The Magistrates dismissed the informations against the Defendant for the aforementioned reasons".

17. As to the question by the magistrates, it is in these terms:

"The question for the opinion of the High Court is whether on the facts of the case we were correct in finding there was no case to answer on the basis that the Prosecution had not adduced sufficient evidence to satisfy us that the posters had been displayed with the knowledge or consent of [the respondent]".

18. The relevant statutory provisions are set out in Chapter III of the Town and Country Planning Act 1990. The Secretary of State is obliged to make regulations for restricting or regulating the display of advertisements (see section 220). Section 224 deals with the enforcement of control of advertisements. Section 224(3) provides that a person is guilty of an offence and liable to a fine "if he displays an advertisement in contravention of the regulations".

19. Section 224(4) provides as follows:

"Without prejudice to the generality of subsection (3), a person shall be deemed to display an advertisement for the purposes of that subsection if --

(a) he is the owner or occupier of the land on which the advertisement is displayed [not material for present purposes]; or

(b) the advertisement gives publicity to his goods, trade, business or other concerns".

20. Subsection (5) provides:

"A person shall not be guilty of an offence under subsection (3) by reason only --

. . .

(b) of his goods, trade, business or other concerns being given publicity by the advertisement.

If he proves that it was displayed without his knowledge or consent".

21. Mr Murphy, in helpful submissions, submits that the Magistrates essentially misunderstood the provisions of sections 224(4) and (5). He submits that they are quite clear. On the facts of this case, the respondent is deemed to be responsible for the posters.

22. It is not necessary, he submits, for the appellant to adduce evidence that he knew of or consented to their display. It is insufficient, he submits, to rebut such a suggestion by putting in cross-examination, as was done in this case, the letter of the solicitors of 21st May 2002 and, more particularly, the invoices to which I have referred. Too much regard was paid, he submits, to those invoices by the Magistrates.

23. He has also addressed the court on the possible impact of Article 6 of the Convention, given the reverse burden of proof in this section. I shall, albeit very briefly, encompass his submissions in that regard in my conclusions.

24. I have concluded that the Magistrates here did fall into error. There were no fewer than 68 different advertisements all about Barking; some, we are told, three or four miles from Romford. They advertised the respondent's night club. He was a director of it. The manager, who was not sympathetic to what was told to him, was employed, one assumes, by the respondent.

25. The fact that invoices which may be said to be self-serving were put in cross-examination does not affect that position. When regard is had to the reverse burden of proof within section 224, it seems to me that Mr Murphy is plainly right in his submissions. It could not be said, having regard to the reverse burden, that there is no case against the respondent.

26. Indeed, it may be said that the invoices have very limited relevance as to whether the respondent was actually aware of these advertisements.

27. As I have indicated, Mr Murphy has already addressed us on the impact of Article 6, having regard to the reverse burden of proof. He has not made any specific submissions as to the effect of what he accepts is an evidential burden. As we have no submissions from the respondent, it is inappropriate to make any ruling regarding the reverse burden. I simply make these observations.

28. It does, on the face of it, seem to me reasonable and proportionate to place a burden on a person whose trade or business is being given publicity by such advertisements. As this case shows, there is a real public interest in controlling such advertisements. Enforcement again, as this case suggests, is difficult. It is, on the face of it, easy enough if the burden of proof is on the balance of probabilities for a defendant to prove that he does not know of, or consent to, the display of such advertisements.

29. I finally return to the question posed by the Magistrates. It follows from what I have said that I would answer their question in the negative. I would allow this appeal and remit the case to the Magistrates, in the circumstances, it may be thought, to a fresh bench, for this matter to be heard.

30. LORD JUSTICE AULD: I agree with my Lord for the reasons that he has given.

31. I also agree with his general observations on the issue of the reverse burden of proof which may arise for consideration on the rehearing, which I agree with my Lord should take place.

32. The appeal will therefore be allowed. The matter will be remitted for rehearing by a fresh bench.

33. MR MURPHY: My Lord, I would ask for an order for costs against the respondent.

34. LORD JUSTICE AULD: A solicitor on his behalf made a submission and the Magistrates, applying the wrong test, agreed with it.

35. MR MURPHY: It was ultimately the court's decision, but I do not know if your Lordships have had a chance to read the correspondence? We say a decision made at the invitation of the respondent --

36. LORD JUSTICE AULD: It may be the view they took was they had achieved enough by way of cross-examination to put in evidence, which would have discharged the reverse burden of proof, but that is not how the Magistrates approached it in their reasoning.

37. MR MURPHY: My Lord, that is correct.

38. LORD JUSTICE AULD: That is the problem, is it not?

39. MR MURPHY: My Lord, yes.

40. LORD JUSTICE AULD: Is there anything else you would like to say about costs?

41. MR MURPHY: We have served a summary assessment on the other side, so they are aware of the position, and there is a copy for your Lordships to consider, if it is appropriate.

42. LORD JUSTICE AULD: My Lord and I will talk about the principle first.

(Pause).

43. We make no order for costs, Mr Murphy. We are very grateful to you for your oral and written submissions. They have been most helpful.

44. MR MURPHY: Thank you very much.