Housing – House in multiple occupation – Licensing – Defendant local authority laying informations against claimants alleging offences of having control of or managing unlicensed house in multiple occupation – Magistrates’ court issuing summonses – District judge determining as preliminary issue that summonses lawfully issued – Claimants applying for judicial review – Whether offences requiring proof of claimants’ knowledge that property used as HMO to justify issue of summonses – Application dismissed
The claimants were husband and wife and directors of property companies operating, and owners of, property in the London Borough of Waltham Forest. The defendant was the local housing authority responsible for, among other matters, the prosecution of offences under the Housing Act 2004 relating to houses in multiple occupation (HMOs).
The defendant laid informations against the claimants, alleging offences contrary to section 72(1) of the Housing Act 2004 of having control of or managing an HMO which was required to be, but was not, licensed. The magistrates’ court issued summonses. A district judge determined, on the trial of a preliminary issue, that the summonses had been lawfully issued.
The claimants applied for judicial review of that decision seeking, among other things, a declaration as to the mens rea (culpable mental state) required of an offence under section 72(1) of the 2004 Act. They contended that it was necessary to show that a defendant, who had control of or managed an HMO, knew that he was managing or controlling an HMO which was required to be licensed. They argued that they had no such knowledge as they were responsible landlords who had let properties in good faith to single households, with covenants intended to ensure that the occupancy remained that of single households, notwithstanding that the defendant had found that the properties were being occupied as HMOs. In any event, the informations had not been laid in time.
The secretary of state for housing, communities and local government intervened.
Held: The application was dismissed.
(1) The question of what, if any, mental element was required to be shown to prove any criminal offence created by statute was one of statutory interpretation. There was a presumption of law that a culpable mental state was required before a person could be found guilty of a criminal offence. The presumption could be displaced where the statute related to an issue of social concern such as public safety or involved less serious offences which were quasi-criminal in the areas of public health, licensing and industrial legislation. The presumption that there would be a mental element to the offence was less strong in regulatory licensing offences such as those contained in the 2004 Act.
It was plain that there was no requirement to prove that the defendant knew that the property he had control of or managed was an HMO, and therefore was required to be licensed. There was a comprehensive and full definition of a “person having control” and a “person managing” in section 263 of the 2004 Act. It was no part of the definition to show the defendant’s state of mind about the way in which the property was actually occupied. The whole of the definition section referred to the objective arrangements by which the defendant had control of or managed the HMO for the purposes of the 2004 Act. Actual knowledge of the nature of the occupation of the property, which meant that the property was an HMO which therefore needed to be licensed, was not required.
(2) Section 249A of the 2004 Act created a system for the imposition of civil penalties for, among others, offences under section 72(1) of the 2004 Act in circumstances where the local housing authority was satisfied, beyond reasonable doubt, that the person’s conduct amounted to the offence. If the mental element of the offence were required to be proved, it would also need to be proved for the civil enforcement regime. It was common ground that the presumption that mens rea would apply did not apply to the civil enforcement regime.
(3) There was a defence in section 72(5) of the 2004 Act for the defendant to prove that he had a reasonable excuse for having control of or managing an HMO which was required to be licensed. In those circumstances if a defendant did not know that there was an HMO which was required to be licensed, for example because it was let through a respectable letting agency to a respectable tenant with proper references who had then created the HMO behind the defendant’s back, that would be relevant to the defence. The existence of the statutory defence and the fact that a reasonable excuse for not having a licence could be made out lessened the need to have the mental element as part of the offence. The fact that an absence of knowledge might be relevant to the defence of reasonable excuse was incompatible with a requirement to prove knowledge that there was an HMO requiring to be licensed. The absence of a requirement for a mental element of the type proposed by the claimants would promote the objects of the 2004 Act by ensuring that those who control or manage a property which was an HMO take reasonable steps to ensure that their properties were registered as HMOs where necessary. That promoted proper housing standards for tenants living in HMOs.
Accordingly, the prosecution was not required to prove that the relevant defendant knew that he had control of or managed a property which was an HMO, which therefore was required to be licensed.
(4) Section 127(1) of the Magistrates’ Court Act 1980 provided that a magistrates’ court must not try an information or hear a complaint unless the information was laid, or the complaint made, within six months of the time when the offence was committed, or the matter of complaint arose. The offence under section 72(1) of the 2004 Act was a continuing offence: every day that a person was managing or in control of an HMO which required to be licensed but was not licensed was a new offence. In the present case, the judge had been right to refuse the application to dismiss the criminal proceedings on the basis that they were out of time generally.
Imran Khan QC and Paul O’Donnell (instructed by Imran Khan and Partners) appeared for the claimants; Ashley Underwood QC and Dean Underwood (instructed by Sharpe Pritchard LLP) appeared for the defendant; Andrew Byass (instructed by the Treasury Solicitor) appeared for the intervener.
Eileen O’Grady, barrister
