Westminster City Council v McDonald

J U D G M E N T

1. LORD JUSTICE KENNEDY: Mr Justice Royce will give the first judgment.

2. MR JUSTICE ROYCE: This is an appeal by way of case stated against the decision of District Judge Keating at Horseferry Road Magistrates' Court on 29th August 2002, dismissing an information laid by the appellant against the respondent alleging breach of an abatement notice, contrary to section 80(4) and (5) of the Environmental Protection Act 1990. At the end of the prosecution case the District Judge of her own motion considered whether there was a prima facie case and determined that there was not.

3. The evidence that she set out in the statement of case indicated that three witnesses were called on behalf of the prosecution. The first, a Mr Rigabie, who was an Environmental Health Enforcement Officer employed by the appellants since 1997. He had a BSc in Environmental Health. On 19th May 2001 he had dealings with the respondent. He was playing music on the north side of Leicester Square, opposite the Swiss Centre and directly opposite Leicester Place. The music was loud. The council had had complaints in the past relating to music at that location. The music was audible up to 20 metres away in Leicester Place. He was satisfied that the music played by the defendant amounted to a statutory nuisance. He approached the defendant. He explained to him that he was causing a statutory nuisance and he served him with an abatement notice and gave him a copy. The respondent stopped playing after service of the notice. He was not the only busker there, but he was, according to Mr Rigabie, by far the loudest. Mr Rigabie indicated that they had never restricted the respondent from playing in Leicester Square, and he had done since at levels that did not amount to a nuisance. He pointed out that there were residential premises in Leicester Square, hotels there which are classed as residential premises, and he was aware of at least one residential building in Leicester Place.

4. Mr Wilkinson was also an Environmental Health Enforcement Officer. He had obtained a diploma in Environmental Health in 1978. On 21st May 2002 he was in Leicester Square just after 16.09. He was with John Pierce, another Environmental Health Enforcement Officer. Mr Wilkinson went firstly to the security office, then went to listen to Mr McDonald, the respondent. He was playing an electrically amplified guitar and singing using an electrically amplified microphone. At 16.45 he went to the ground floor reception of an office block premises at Queen's House, 7-9 Leicester Square. He listened to see how loud the music from the respondent was. The glass outer door of the premises was opening and closing. The distance from him to the respondent was approximately 30 yards. He was confident the noise was coming from the respondent, as it was the same number that he was doing. The receptionist, according to Mr Wilkinson, was finding it difficult to hear. He said that they also heard the music and in his view it was a statutory nuisance. He said it was not a marginal decision. He tried to put himself in the position of an ordinary person and he said that if there was a material discomfort to persons there, such as not being able to do work, then it was a statutory nuisance. He pointed out that the human voice carried extremely well. The noise was not measured by equipment. He went to speak to Mr McDonald. He told him that he had breached the abatement notice and that he intended to pursue a prosecution report. He gave Mr McDonald a copy of the abatement notice.

5. Mr Pierce was the third witness to be called. He also was an Environmental Health Enforcement Officer. He qualified in that capacity in 1970. On 21st May he was present at Leicester Square at about 16.30 in company with Mr Wilkinson. They drove into Leicester Square by car opposite to where the defendant was playing. He then went to the reception area of Queen's House, where he listened to music being played by the respondent. It was an amplified guitar. The level of amplification was such as to amount to a statutory notice. The level of noise amounted to an interference with work practice at Queen's House, which was conversation. The receptionist was there. He said he could not say what actual song or music was playing, but the loud amplified music was causing a disturbance in the building in the reception areas of the building making life difficult for the staff. He said that they were in the premises for five to ten minutes, and people were coming to the counter to comment on the noise. They then went to speak to the respondent.

6. There was no challenge on the part of the respondent to the fact of the service of the abatement notice by Mr Rigabie; secondly, his identification as the person responsible for the relevant noise on the date of the alleged offence; and thirdly, the qualifications and experience outlined by the witnesses for the appellant.

7. Section 79 of the Environmental Protection Act 1990 provides as follows:

"(1) ... the following matters constitute 'statutory nuisances' for the purposes of this Part, that is to say—

...

(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street; ...

And it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint."

8. Section 79(7) provides that "'equipment' includes a musical instrument" and that "'prejudicial to health' means injurious, or likely to cause injury, to health."

9. Section 80 provides, so far as relevant as follows:

"(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ('an abatement notice') imposing all or any of the following requirements—

(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes

And the notice shall specify the time or times within which the requirements of the notice are to be complied with

(2) The abatement notice shall be served—

(a) ... on the person responsible for the nuisance; ...

(3) The person served with the notice may appeal against the notice to a magistrates' court within the period of twenty-one days beginning with the date on which he was served with the notice.

(4) If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.

(5) ... a person who commits an offence under subsection (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction."

10. In analysing what amounts to a nuisance for these purposes, Mr Seymour, on behalf of the appellant, accepts the analysis proffered by Mr Risso-Gill, for the respondent, which amounts to this: was the noise an unreasonable and material interference with the use and enjoyment of neighbouring properties, taking into account the nature of the area and judged by the standards of the reasonable man?

11. It is necessary to consider the basis of the District Judge's conclusion that there was no evidence sufficient to amount to a prima facie case. He advanced four reasons. Firstly, the absence of any evidence from any witness who worked in Queen's House. In Cooke v Adatia and others (1988) 153 JP 129, this court considered whether there was any necessity to call evidence from witnesses occupying potentially affected properties. Stuart-Smith LJ at page 132E posed the question and went on to give an answer. The question was:

"'Whether, in order to establish that noise amounting to a nuisance ('noise nuisance') has occurred or recurred in contravention of the requirement of a statutory notice served under s.58 of the Control of Pollution Act 1974, the prosecution must prove that a particular occupier of property has actually suffered interference with his reasonable enjoyment of his property.'

The answer to that, in my judgment, is, no, they do not have to do that. Whether on the facts of a particular case the justices are satisfied so that they are sure that the nuisance has occurred is a matter, of course, for them. There is no pre-requisite as to the type of evidence which they must hear.

Likewise question (ii):

'Whether the occurrence or recurrence of a noise nuisance can be proved by other evidence including expert evidence in the absence of admissible evidence of such noise nuisance given by the particular occupier himself.'

In my judgment, the answer to that question is plainly, yes. Whether in the circumstances of a particular case they are so satisfied, as I say, is a matter of fact for them."

12. The second reason advanced by the District Judge was the absence of any scientific evidence. In London Borough of Lewisham v Hall [2002] EWHC 960 Admin, CO/413/2002, Moses J considered the acquittal of a defendant of offences under this section of the Act where no evidence of acoustic measurement was called. At paragraph 11 of his judgment he said this:

"It would be wrong for the Justices to refuse to convict of an offence under section 80(4) and (5) merely on the basis that no reliable acoustic measurement evidence had been adduced. That, to my mind, would be a wrong approach. The Justices are perfectly entitled, should they think fit, to convict absent such evidence. They may rely upon the evidence of an environmental enforcement officer or on the evidence of any other lay witnesses, but they cannot require the production of acoustic measurement evidence as a precondition for conviction. That is plain if only by reference to the Noise Act 1996, where such evidence is necessary should a local authority have adopted the provisions of the 1996 Act in respect of their area. Of course, there may be cases where the Justices are not convinced to the required standard of proof absent such evidence, but the way this case stated was drafted gives rise to a fear that the only basis for rejecting a conviction was the absence of acoustic measurement."

13. The third reason advanced by the District Judge was the fact that there was evidence from two witnesses, Mr Wilkinson and Mr Pierce, limited to observations from premises for no more than ten minutes. It was not suggested that the time the officers were there was so limited as to prevent them properly assessing the volume and impact of the noise emanating from the respondent. The mere fact that their observations were relatively short and from one location was not, in my judgment, a proper basis for not accepting what they had to say.

14. The fourth reason advanced was that the evidence was too vague. On the face of it, the evidence was not vague. On the contrary, it was clear. No particulars were given by the District Judge to indicate the alleged vagueness.

15. Our attention has been drawn to the Practice Note of Lord Parker CJ, in [1962] 1 All ER 448, where he said this:

"Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element of the alleged offence; (b) where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

16. Mr Risso-Gill points out that expert evidence does not necessarily have to be accepted. He is right. On the other hand if it is to be rejected, valid reasons have to be advanced to justify such a course.

17. In my judgment, the reasons advanced by the District Judge in this case were wholly insufficient to justify her rejection of the conclusions reached by the two environmental health officers on the day of the alleged offence. But Mr Risso-Gill advances two further matters. First of all, he contends that there was no evidence before the court in relation to the surroundings in Leicester Square. He advances the proposition that a noise can only be a nuisance if the interference which it causes is unreasonable in the context of the surrounding area. He cites in support of that proposition Murdoch and Murdoch v Glacier Metal Co Ltd .

18. The proposition that he advances is one that, for my part, I find entirely acceptable. It does not, however, in my judgment begin to mean that in this case it was not at least implicit in the evidence of the environmental health officers that they must have taken that into account. It seems to me they are bound to have done so and there is no suggestion in the summary of their evidence that that was not the case. In my judgment, therefore, this additional ground does not advance the respondent's contentions.

19. The other ground of substance advanced by Mr Risso-Gill relies on Article 7 of the European Convention on Human Rights, which provides that:

"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."

The contention advanced is that it is necessary for there to be certainty in order for an offence to be validly charged and pursued. It is extremely difficult for this court in these circumstances to deal in vacuo with a proposition such as this before the full facts have been found. I will return to that aspect shortly.

20. However, if one considers this point on its merits, an analogous argument was considered by this court in Godfrey v Conwy County Borough Council [2001] Env LR 38 674 Queen's Bench Division. The judgment of Rose LJ at page 681 deals with the matter in this way:

"The second question can be dealt with more shortly. Mr Hale ... challenges the validity of the abatement notice, a challenge which he accepts is made the more difficult by the terms of the Court of Appeal's judgment in Ex p South West Water Ltd. But what he advances by way of submission is this: a mere requirement to abate the nuisance, without saying what should be done to achieve that result is inadequate and renders the notice invalid. The defendant could not know whether the level at which the music was being played in his premises would be such as to be heard, and if so to what extent, in the premises of his neighbour. Furthermore, Mr Hale submits that there is a want of precision in the abatement notice which causes it to fall foul of the provisions of Article 7 of the European Convention on Human Rights. As to that alleged want of precision, Mr Hale took us to Kokkinakis v Greece (1994) 17 EHRR 397 and, in particular, to paragraphs 51 and 52 of the judgment of the court. Paragraph 52 refers to the principle that only the law can define a crime and an offence must be clearly defined in law:

'This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court's interpretation of it, what acts and omissions will make him liable.'

Mr Hale submits that the present abatement notice does not provide any indication of the act or omission which will expose the defendant to criminal sanction. Mr Hale also took us through SW v UK (1995) 21 EHRR 363 and, in particular, to paragraphs 34 and 35 of the judgment which again emphasise that an individual is entitled to know what acts and omissions will make him criminally liable.

Mr Thomas on the other hand, submits that Budd v Colchester BC [1999] JPL 717 is indistinguishable from the present case. In that case an abatement notice was served in relation to a statutory nuisance identified as 'dog barking' and requiring abatement within 21 days. Mr Thomas submits that by reference to the English authorities and the decisions of the European Court of Human Rights what is required in identifying a criminal offence is reasonable certainty and that is to be considered in the light of judicial interpretation of the statute. In the present case such interpretation is provided, he submits, in the Court of Appeal's decision in Murdoch v Glacier .

Furthermore, Mr Thomas took us to Steel v UK (1999) 28 EHRR 603 a case involving a breach of the peace. In paragraph 5 of the court's judgment it was held that, by virtue of the decisions of the English courts, it is now sufficiently established that a breach of the peace is committed only when an individual causes harm or appears likely to cause harm to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. In paragraph 75 and 76 of the judgment the court concluded that the national law was formulated with sufficient precision reasonably to allow the applicants in that case to foresee the consequences of their actions and it was sufficiently clear that the applicants were being requested to agree to refrain from causing further similar breaches of the peace.

Mr Thomas submits that the present circumstances are indistinguishable from those in Steel . This defendant was required to abate the nuisance by noise identified in the abatement notice, that nuisance being further identified in Murdoch v Glacier .

In my judgment, again, the submissions of Mr Thomas are to be preferred. It seems to me that there is nothing in the decisions at Strasbourg, to which our attention has been drawn, which is in any way inconsistent with the approach of the Court of Appeal in Ex p South West Water Ltd."

21. Mr Risso-Gill sought to distinguish Godfrey v Conwy , recognising that it was a hurdle for him. He maintained that the distinction lay in that authority dealing with an abatement notice rather than the concept of nuisance as such as a criminal offence. In my judgment, that in the context of this case is a distinction without a difference. The principles considered in Godfrey's case clearly cover the situation arising here.

22. Secondly, he alleges that the respondent here has not had the advantage of previous breach proceedings and that is a further distinction. In my judgment, that difference is insufficient in the context of this case to justify any departure from the conclusions reached in Godfrey . I return to the aspect that I adverted to earlier in this judgment. The plain fact of the matter is that it is too early to seek to determine this particular issue under Article 7. In my judgment, this is a matter that has been raised in this appeal too late. It does not arise on the facts of the case as stated and does not properly, therefore, fall for our consideration.

23. I conclude that in this case there was a clear prima facie case on the evidence that was called. It emanated from experienced environmental health officers, well qualified to assess whether noise amounted to a nuisance or not. Their expertise was not challenged. The District Judge put forward no valid reason for not accepting their evidence. The question posed by the District Judge for our opinion is:

"... whether I was correct to dismiss the information (of my own motion) at the close of the Prosecution case, having found that there was no case for the Respondent to answer?"

The answer to that question, in my judgment, is "no".

24. LORD JUSTICE KENNEDY: I agree. In my judgment also there was a clear case to answer and that has to be said even taking into account the existence of Article 7. What arguments could have been deployed at the end of a complete hearing is quite another matter. But there is nothing which would enable me to answer the question posed in any way other than that indicated by my Lord, and the matter must therefore be sent back.

25. We understand that in fact the District Judge who dealt with this matter is no longer well. It will therefore be sent back for hearing by a different District Judge.

26. MR SEYMOUR: My Lord, I am very grateful for that. My Lord, a schedule of costs has been served on my learned friend relating to the appellant's costs in bringing this matter to this court. I understand that the respondent has the benefit of a representation order. Can I therefore seek an order for summary assessment of those costs on the basis of the schedule which I can hand up.

27. LORD JUSTICE KENNEDY: I have not seen the schedule as yet, I do not think.

28. MR SEYMOUR: Albeit that I --

29. LORD JUSTICE KENNEDY: If he has the benefit of a representation order, do you not have to in any event go for detailed assessment? I am not sure that we have power to carry out a summary assessment in relation to --

30. MR SEYMOUR: My Lord, so be it.

31. LORD JUSTICE KENNEDY: -- to a respondent who has the benefit of legal aid, effectively.

32. MR SEYMOUR: My Lord, unless I can assist any further?

33. MR RISSO-GILL: My Lord, may I simply ask for taxation of the costs on the respondent's side.

34. LORD JUSTICE KENNEDY: You may certainly have that.

35. MR RISSO-GILL: I am most grateful, my Lord.

36. LORD JUSTICE KENNEDY: So far as you are concerned, Mr Seymour, what you really want is you want an order in your favour so far as costs are concerned, detailed assessment to be carried out by the taxing judge and the taxing judge will assess the extent to which, if at all, any of the costs may be borne by the respondent.

37. MR SEYMOUR: My Lord, I am very grateful for that.

38. MR RISSO-GILL: My Lord, may I briefly raise one further point. Simply as regards the returning of the matter to the Magistrates' Court. I hope your Lordship says that the order should be that it should be returned for a retrial. I simply wanted to raise two points on that to --

39. LORD JUSTICE KENNEDY: She cannot continue the hearing, she is not well.

40. MR RISSO-GILL: I understand that. It has got to be either a retrial or nothing at all in this case. There may be, it is for your Lordship to consider whether it is necessary to have a retrial in this instance, only because the notices outstanding, there are also outstanding proceedings on a similar almost identical notice which this particular respondent faces. It may be in the circumstances, having rehearsed many of the arguments on this particular instance of noise nuisance, that it would be to some extent unfair to retry this case, particularly when there is another opportunity for the council to make their case on the separate incident which they no doubt will pursue. The other incident of noise nuisance is presently before Horseferry Road pending --

41. LORD JUSTICE KENNEDY: I think it is very difficult for us to make a value judgment. I hear entirely what you say and it may be that those responsible for the prosecution will take the view there is no reason to take any further step in relation to this matter. We would not regard that as in any way inappropriate. But so far as formality is concerned, I think it should be in the form that we have indicated because we do not hold the balance and we do not know what the evidence is in relation to the other matter or anything of that kind. I am merely concerned to some extent about venue. It did come from Horseferry Road Magistrates' Court.

42. MR RISSO-GILL: It did indeed.

43. LORD JUSTICE KENNEDY: Is that agreed by everyone to be the appropriate venue if it goes back?

44. MR SEYMOUR: My Lord, it is the location to which the majority of Westminster City Council's prosecutions by matter of administrative arrangement go from the central London area. I understand in fact that the District Judge no longer is at work at all at the moment. So I certainly do not perceive any request on our part to be moved simply because of the District Judge's approach in this matter, of course. I do not think the court would need to actually address the questioning of listing date. Myself and my learned friend can each get in contact with the court and invite them to re-list the matter forthwith for a pre-trial review, if on reflection the council take the view, which I suspect they will, that they wish to pursue further this matter.

45. LORD JUSTICE KENNEDY: We leave it where we have.

46. MR RISSO-GILL: I am reminded on costs to ask your Lordship whether you agree to make the order in fact no order as to costs. I am not entirely clear what the position is in relation to the respondent, but certainly if it is to be that the order is not to be enforced without leave of the court, he has been publicly funded so far. Therefore the practical result may be that he does not end up paying costs, but in my submission it would not be fair for him to end up paying the costs when he did in fact make the submission in the first instance. It was something which the District Judge took of her own accord and therefore this particular case may not be the case for no order as to costs rather than even in principle, costs in favour.

47. LORD JUSTICE KENNEDY: Elegantly done, Mr Risso-Gill, but on the other hand he did appear by counsel in this court. If he had not appeared I would have thought there was force in the argument. The order will stay where it was.

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