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Borough council wins appeal over ‘continuing offence’ in HMO case

A ‘continuing' offence is not time-barred from prosecution by when it was first noted, the High Court has said in an appeal brought by Luton Borough Council.

The council on 15 November 2017 laid informations against Altavon Luton, its alleged director Sajid Sayed and an alleged officer Kate Bukrashvilli.

Luton Magistrates had heard that the date of the alleged offences upon which the informations were based was 16 May 2017.

The council alleged that the company and the two people had control of a house in multiple occupancy where four offences had arisen contrary to regulations of the Management of Houses in Multiple Occupation (England) Regulations 2006 and section 234 (3) of the Housing Act 2004 and one offence contrary to section 72(1) of the Housing Act 2004.

District Judge Dodd had decided in the magistrates court that Luton’s officer Paul Fountain was aware of the offences at latest by 12 May 2017, and that Section 127 of the Magistrates' Court Act 1980 required a case to be heard within six months of when the information was laid.

She said the six months should run from when the local authority became aware of the offences, which was when Mr Fountain first knew of them in April 2017, and not from May as Luton claimed.

Judge Dodd concluded that the informations laid by Luton were therefore out of time.

Luton asked the High Court to decide whether Judge Dodd wrongly direct herself on the law regarding the nature of a 'continuing offence case' and particularly a daily offence being repeated.

It also challenged whether Judge Dodd erred in not allowing date-stamped photographs to be admitted in legal argument, and whether she wrongly direct herself in ruling on questions of 'fact' about the date concerned that should have been determined at trial in light of all the evidence, rather than limiting her ruling to a matter of 'law' as to whether the limitation was applied correctly.

Luton argued that the offences were continuing ones and that four of the five informations identified regulation offences, the evidential detail of which would not have been known to Mr Fountain until he inspected the property on 16 May.

Giving judgment in Luton Borough Council v Altavon Luton Ltd & Ors [2019] EWHC 2415 [the judgment for which was published on Bailii this week] Nicola Davies LJ, who heard the case with Mr Justice Goss, said that the offences were continuing until Mr Fountain's entry into the property on 16 May 2017.

The information had to be laid within six months from the time when the offence was committed in order to comply with section 127(1).

“As these were continuing offences, as a matter of fact the offending continued until 16 May 2017 when Mr Fountain visited,” she said.

“Knowledge gained by him prior to that date was relevant in so far as it enabled him to place himself in a position whereby he had sufficient information/grounds to enter the property.

“Further, we accept the point made by [Luton] that the entry into and inspection of the property was necessary for the identification and detail of the breaches of the regulatory offences contained within the four informations alleging regulatory breaches.

“Accordingly, we conclude that the information laid on 15 November 2017 was not time barred. It was brought within the six-month time limit prescribed by section 127.”

Mark Smulian

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