Fantasia Productions Ltd v London Borough of Redbridge

MR JUSTICE CHOUDHURY:

The appellant is a company that operates a travelling circus. It attracts customers by placing advertisements on various sites in the locality in which it intends to perform. There are, as one would expect, rules governing the placement of publicly visible advertising material. One such rule states that no advertisement is to be displayed without the permission of the owner of the relevant site or of any other person with an interest in the site entitled to grant permission.

The respondent local authority brought a prosecution contending that the required permission was not obtained by the appellant. The appellant raised an issue as to where the burden of proof lay. Was it, as the appellant contends, for the prosecution to prove to the criminal standard that the necessary permission had not been obtained, or was it, as the respondent authority contends, for the appellant to prove on the balance of probabilities that it had? The Magistrates' Court, and, on appeal, the Crown Court below, found that the burden lay on the appellant and that it had not been discharged. Accordingly, the appellant was convicted of the offence of displaying advertisements in contravention of section 224(3) of the Town and Country Planning Act 1990 ("TCPA 1990").

This is an appeal by way of case stated against that conviction. The question posed by the Crown Court in the case stated is as follows:

The appellant runs travelling circuses nationwide. Its founder and sole director is Matthew John Wingate. Mr Wingate is the travelling officer for the Association of Circus Proprietors, which (I am told) is the regulatory body for travelling circuses. The appellant’s circus is a traditional one, with clowns, jugglers and acrobats but without animals.

In early to mid-September 2023, Mr Wingate placed advertisements for the appellant's travelling circus at three locations in the Ilford/Barkingside area in East London. These were the park railings opposite Cranbrook Road in Ilford, the park railings in Barkingside Park and the railings outside Barkingside Police Station. Mr Wingate claimed that he had obtained permission to place the advertisements in each case: in respect of Cranbrook Road from a householder, whom he believed to be the owner of the railings; in respect of Barkingside Park from a park ranger; and in respect of the police station from an officer in the police car park. Mr Wingate kept no written record of any permission granted.

The appellant was convicted by the North London Magistrates' Court on 30 April 2024 and ordered to pay a fine and the prosecution's costs. The appellant appealed to the Crown Court and the matter came before Mr Recorder Etherington KC, sitting with two justices of the peace, on 13 March 2025.

In an admirably clear and concise oral judgment on a preliminary issue of law, the Crown Court found in favour of the prosecution, in that the burden of proof in respect of establishing that permission had been obtained lay on the appellant on the balance of probabilities. The Crown Court then went on to consider the appeal as a whole. In the event, the Crown Court dismissed the charge in respect of the Cranbrook Road site as it was not satisfied that the charge correctly described the railings on which the advertisements were said to have been placed.

In respect of the remaining two charges, the Crown Court was not satisfied, on the balance of probabilities, that Mr Wingate had, in fact, been given permission by a park ranger or indeed by a police officer. The Crown Court was particularly struck by Mr Wingate's failure even to take basic measures to record to whom it was that he spoke in order to obtain permission or of what was said. Accordingly, the appeal against conviction was dismissed. Permission was granted to appeal to the High Court by way of case stated.

It is an offence under section 224(3) of the TCPA 1990 for a defendant to display an advertisement in contravention of regulations set out in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the 2007 regulations"). Section 224 TCPA 1990, so far as relevant, provides:

Regulation 4 of the 2007 regulations stipulates that no advertisement may be displayed unless consent for its display has been granted. Consent may either be "express" or "deemed". Express consent, as the term suggests, is where the relevant local authority or the Secretary of State has granted consent on an application. As to deemed consent, regulation 6 of the 2007 regulations provides:

One of the classes specified in part 1 of schedule 3 is that in class 3 F:

The conditions and limitations set out in respect of that class are as follows:

As required by regulation 6(1)(a) of the 2007 regulations the "standard conditions" must also be met. These are set out in schedule 2 to the 2007 regulations and provide:

It is standard condition 1 ("SC1") that lies at the heart of this appeal. It is also relevant to note section 101 of the Magistrates' Court Act 1980 ("MCA 1980"), which deals with the burden of proof where a defendant relies on "any exception, exemption, proviso, excuse or qualification" (“the exceptions etc.”). Section 101 provides:

There are two grounds of appeal.

I shall deal with each ground in turn.

In clear and cogent submissions, Mr Keating, who appears for the appellant, as he did below, submits that the wording of section 224(3) which defines the offence by reference to a contravention under the 2007 regulations and provides for no "exception, exemption, proviso, excuse or qualification" means that section 101 of the MCA 1980 does not apply. Furthermore, he says that the absence of any express reference to any shift in the burden of proof and the application of ordinary principles of construction lead to the conclusion that the burden remains with the prosecution. It is said that, if a different approach is to be taken in respect of the requirement to obtain permission under SC1, then the same must apply to the other standard conditions; thus, it must fall to the defendant to prove, for example, under the third standard condition, that the advertisements "hinder the operation of any device used for the purposes of security or surveillance or for measuring the speed of any vehicle". On the Crown's case, submits Mr Keating, it could simply assert such hindrance, and it would then be for the defendant to establish, on the balance of probabilities, that there was none: a burden that would be oppressive and difficult to discharge.

The appellant's contention that the burden remains at all times on the prosecution is supported, he says, by the fact that TCPA 1990 provides for express defences under sections 224(5) and (6). If it had been Parliament's intention to impose a reverse burden of proof, it could have similarly made express provision for that in the 2007 regulations.

Mr Jeyes, for the respondent, submits that, once the actus reus of displaying an advertisement in contravention of the regulations is proved, then the existence or otherwise of permission operates as an "exception, exemption, proviso, excuse or qualification" within the meaning of section 101 MCA 1980. That has the effect of placing the burden on the person relying on any of those matters. Whether permission has been obtained is a matter that is peculiarly within the knowledge of the person seeking it and it does not impose an unreasonable burden on the defendant to establish that they had it.

The fact that section 224 of TCPA 1990 does not expressly provide for a shift in the burden of proof is relevant, but not decisive. Depending its terms, a statutory provision establishing an offence can, on its true construction, shift the burden of proof even if not stated expressly. As stated by the House of Lords in R v Hunt [1987] AC 352 at 374, after a review of the authorities:

Section 101 MCA 1980 expressly provides for the shifting of the burden where a defendant relies on any "exception, exemption, proviso, excuse or qualification". A similar provision has existed in the legislature since the Summary Jurisdiction Act 1879 (42 & 43 Vict. C. 49): see R v Hunt at 372. Section 101 MCA 1980 is said to set out the common law rule in statutory form: see R v Edwards (1975) QB 27 at 36G.

The authorities were reviewed subsequently in O'Brien, where the issue was whether a business had either express or deemed consent in respect of a 48-sheet poster panel advertisement attached to a hoarding on a wall in High Street, Potters Bar. The offence being prosecuted in that case was the same one under section 224(3) TCPA 1990 as in the present case, although the relevant regulations were then contained in the Town and Country Planning Act (Control of Advertisements) Regulations 1992 ("the 1992 regulations"). Regulation 5 of the 1992 regulations was in similar but not identical terms as regulation 4 of the 2007 regulations.

As to where the burden of proof lay, the court in O’Brien stated as follows:

The issue, therefore, is whether the TCPA 1990 on its true construction places on the defendant the burden of establishing deemed consent arising out of the obtaining of permission. A key consideration in that regard will be the "ease or difficulty that the respective parties would encounter in discharging the burden."

Mr Keating's first point is that as section 224(3), TCPA 1990 defines the offence by reference to a contravention of the 2007 regulations, it is not a provision to which section 101 MCA 1980 can apply. However, the offence established by section 224(3), TCPA 1990 can plainly only be properly understood by reading that provision with the 2007 regulations. One cannot, therefore, view section 224(3) in isolation in order to determine whether the offence, as defined, is subject to any exceptions etc. that would bring s.101, MCA 1980 into play. One must also have regard to the 2007 regulations.

When one turns to those regulations, it becomes apparent that they may be contravened in the case of class 3F advertisements by a failure to satisfy the conditions for there to be deemed consent for the displayed advertisement. One such condition is that which appears under SC1. That provides that no advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission. That, on the face of it, is a "qualification" within the meaning of s.101, MCA 1980.

Mr Keating submits that there is nothing in the wording of the TCPA 1990 or the 2007 regulations to support the contention that the burden of proof in respect of SC1 should be any different from that in respect of the other conditions to be satisfied in order for there to be deemed consent. However, it is clear from the authorities above and from the terms of s.101, MCA 1980 that, if the true effect of a statutory provision concerning an offence is that it provides for an "exception, exemption, proviso, excuse or qualification", then the absence of express wording setting out such exception etc. will not preclude the defendant from relying upon it. Where the defendant does so rely, however, the burden will be on the defendant to establish it on the balance of probabilities.

This interpretation is supported by the practical considerations involved in establishing that the requisite permission had been obtained. If the burden were to lie solely on the prosecution for this aspect of the case, then it would not only have to prove a negative, but it would have to do so in respect of a large class of persons, the identities of whom would be far from clear or readily ascertainable in many cases.

Whilst the owner of a site could, with reasonable diligence, be identified, the category of persons who have an interest in the site and who are entitled to grant permission to display advertisements would be far wider. If a travelling circus were to place its posters on every railing in a locality, the list of potential persons that could have provided permission could be vast. Even in respect of a typical household or business, those that could provide consent could include a long list of residents or occupants who have no ownership rights. For the prosecution to prove the negative would require approaching each such person to establish to the criminal standard that consent was not provided. That would be a hugely burdensome task, if not in many cases wholly impractical.

By contrast, the person placing the posters will have sought and, if acting lawfully, obtained permission from a specific person, having satisfied themselves that that person was entitled to grant it, and would thereby be in a position to identify that person should he be required to do so. The facts will be peculiarly within that person's knowledge. Mr Keating submits that that, too, would be an onerous task. I do not agree. True it is that a record would need to be kept, but that adds little more to the burden than that which already exists of having to seek and obtain consent. The fact that those records may need to be kept for three years, given the period during which proceedings may be commenced (see s.224(8), TCPA 1990) does not, in my judgment, substantially increase the burden. As Mr Jeyes submitted, a business like the appellant's would have to keep many records for several years; the keeping of a note of the person who granted consent in respect of an advertisement may involve little more than a name and contact details against the site on which the advertisement was placed and, if appropriate, the basis on which they are entitled to grant consent. I also do not agree that this amounts to a requirement that written consent be obtained in every case. The permission may be given orally. All that is required on the defendant's part is a record of who gave that permission. Of course, the obtaining of written consent would place a defendant in an even better position, but it is not a requirement that necessarily emerges from the reversed burden.

Mr Keating also argued that, if the reversed burden of proof applied in respect of permissions obtained, then it would have to apply also to the other standard conditions and the Class 3F conditions. However, that does not follow: the reason that SC1 can be interpreted as being one where the burden shifts is because of its terms. The other standard conditions – for example, the condition not to hinder any surveillance equipment – cannot be regarded as an "exception, exemption, proviso, excuse or qualification" within the meaning of section 101 MCA 1980. Even if it could, it is clear that these other conditions create no difficulty for the prosecution in having to prove them. It will be apparent upon observation whether a poster causes a hindrance, obstruction or danger etc. Establishing an offence in those cases will not involve either proving a negative or having to make enquiries of a large number of unspecified and unknown persons. Mr Jeyes fairly accepted that, in those other cases, the burden would indeed fall on the prosecution.

Mr Keating's final point is that the existence of express defences under section 224(5) and (6) of the TCPA 1990 precludes other defences. However, it is clear that section 101 of the MCA 1980 can apply to any offence where reliance is placed on exceptions etc. within the meaning of that provision. That is so irrespective of whether there are express defences under the Act.

For these reasons, ground 1 fails and is dismissed.

Mr Keating submits that O'Brien ought not to be followed because the case of R v Turner (1816) 5 M&S 206, from which the principle of the shifting burden of proof derives, is a case where the "qualification" relied upon was a "defence", whereas SC1 cannot be said to be a defence in the same way.

In R v Turner¸ a carrierwas prosecuted for having game in his possession, whilst not at the time "being a person in any manner qualified or authorised by the laws of this realm to kill game". The issue for the court was whether the onus of proving that the carrier was qualified lay with the person asserting the qualification or upon the informer who denied the qualification. The court held that, given the near impossibility of disproving the existence of the many ways in which a person could be qualified, it was for the party asserting the qualification to prove it. The terms of the relevant statute, insofar as they can be gleaned from the brief report of this old case, did not expressly provide that the qualification was a "defence"; rather, the court (Lord Ellenborough CJ) described, it in these terms:

Thus, where in the concurring judgment of Holroyd J in R v Turner, it is said that, if a person establishes one of the qualifications ,"it will be a defence", that was simply to describe the effect of the provisions rather than to state that there was an express defence defined in the statute in those terms. In any case, whether or not the defence is provided for expressly or by implication, the principle that the burden of proof falls on the person who asserts the qualification will still apply. There is nothing in the authorities or, indeed, in the terms of section 101 MCA 1980, to suggest otherwise. It is noteworthy in this context that section 101 MCA 1980 operates:

Mr Keating's second point under this head is that O'Brien is based on a line of authority dealing with licencing rather than permission or consent and, therefore, does not apply to the present case. I disagree: what is permission but a form of licence? Whilst the licencing cases will involve a licence being obtained upon application with a formal document or stamp of some sort being issued, there is little difference in substance between such a case, where authorisation is the subject of a formal record, and a ‘permission’ case where the authorisation may be informal. In any event, the fact that, even in licencing cases, the authorities have held that the matters relied upon by way of defence are peculiarly within the knowledge of the defendant, supports the view that in the present case, where permission is not the subject of a formal record, the relevant knowledge is even more peculiarly that of the defendant. After all, in a licencing case, the prosecution could take steps to approach the appropriate licencing authority to establish whether the accused possessed the requisite licence. Doing so would be a far easier task than trying to identify which person with an interest in the site might have granted permission to display advertisements, there being no central register of such persons.

Mr Keating's next point under this head is that O'Brien may be distinguished because it was not concerned with Class 3F advertisements. He submits that a travelling circus, like the appellant's, will put up dozens of temporary advertisements, unlike the defendant in O'Brien who appears only to have put up one and did so in circumstances requiring express consent.

In my judgment, the fact that a travelling circus may put up more posters than a different category of business to which a different class under schedule 3 to the 2007 regulations might apply is not a distinguishing feature, as far as the applicability of O'Brien is concerned. It is clear from the review of the authorities on which the decision in O'Brien was based that the principles therein restated were ones of general application and not confined to the facts of that case. In any case, whilst it is not absolutely clear from the report of O'Brien which class of advertisement was in question, there is no doubt that the principles espoused were in relation to the burden of proof in respect of both deemed and expressed consent. As stated at page 268 of O'Brien, "There is nothing in the Acts or the Regulations to distinguish between express and deemed consent".

As such Mr Keating's argument that one can put O'Brien to one side because it concerns a different class of advertisement to which express consent applies, largely falls away.

It is also submitted that the particular nature of the advertisements in question under class F – small numerous and temporary – is a distinguishing factor, given the enormous task of recording the potentially large number of persons from whom permission may be obtained. However, it seems to me that the bulk of that task, namely identifying the appropriate person who is entitled to grant permission, would have to be done in any event in the course of complying with SC1. Thereafter, there would be the relatively small additional task of recording the basic details of the person concerned.

Mr Keating expressed concern as to the position where, by the time of any prosecution, which could be up to three years after the event, the person from whom permission was obtained may no longer be available to provide a witness statement, if required. However, it seems to me that, in those circumstances, the defendant would probably be able to rely on the written record of the person granting permission and he would have the benefit of the lower standard of proof in establishing the position.

Mention was made of the potential data protection concerns of keeping such records. This point was not developed, but the likelihood is that exceptions in the relevant legislation for the purposes of complying with a legal obligation would apply.

Mr Keating's first point on this aspect of ground two is that O'Brien is no longer binding because it was decided before HRA 1998 came into force. However, the mere fact that O’Brien predates the coming into force of HRA 1998 does not diminish its authority: the real question is whether, in light of HRA 1998, the decision in O'Brien involves a disproportionate interference with a Convention right and, in particular, article 6 and the right to a fair trial.

I was referred to the judgment of the House of Lords in Sheldrake v DPP [2004] UKHL 4 in which Lord Bingham said as follows:

"21.

From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

Much of Mr Keating's argument in this regard is based on the notion that the reverse burden of proof imposes a disproportionate and unfair burden on the defendant to a charge under section 224(3) TCPA 1990 and risks criminalising defendants who have acted entirely properly.

For reasons already considered above, that burden is, in my judgment, neither unreasonable nor unfair. Whilst it is correct to say that the precise limits of who might be said to have an interest in a site and entitled to grant permission are somewhat indistinct in the abstract, they are not so in application. The person putting up posters for a travelling circus will be the one obtaining consent from persons appearing to have an interest, as Mr Wingate purported to do in this case. In each such case, it was for him to satisfy himself, in order to comply with SC1, that the person was entitled to grant permission. The fact that one cannot identify in advance all such persons does not render the task for the defendant overly burdensome or difficult, and it has not been asserted that the obtaining of permission is of itself burdensome.

Against the relatively modest inroad into the presumption of innocence that the reverse burden of proof entails, in this statutory context, must be weighed the following factors:

Taking all of these matters into account, it can be seen that the infringement of the presumption of innocence, caused by the reverse burden of proof, amounts to a proportionate interference with the article 6 right and is, therefore, justified.

For all of these reasons, ground 2 also fails. O'Brien is an authority stating a very well-established principle decided under statutory provisions that were materially similar to those applying in this case; it was clearly binding on the court below.

For the reasons set out above, and notwithstanding Mr Keating's excellent submissions to the contrary, the answer to the question posed in the case stated is

That concludes this judgment.