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London borough wins appeal over body piercings and underage clients

Carrying out body piercings on someone under the permitted age is a strict liability offence, the Divisional Court has said in a case punctuated by an unusual interruption by the respondent.

Ealing Magistrates had held that Abbey Love Aslim, owner of a shop licensed by the London Borough of Hounslow to perform body piercings, had not committed an offence when he carried out a stomach piercing on a 14-year-old girl.

Magistrates heard that Aslim was told by the girl that she was 16 and shown a photo card indicating this.

The girl had arranged for a friend to impersonate her father in a telephone conversation, who also confirmed her age to Aslim.

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They acquitted Aslim on the grounds that he had taken reasonable steps to establish the girl’s age.

Hounslow also argued that Aslim had failed to keep complete and proper records for all treatments provided, but the magistrates said they were not satisfied beyond reasonable doubt regarding the status of these records.

The council appealed to the Divisional Court in the High Court. The case was heard by Mr Justice Holgate and Lord Justice Treacy and concerned two questions stated by the magistrates.

In relation to the first charge, the question was:

"Were we correct to find that the case did not fall within section 14(2) of the London Local Authorities Act 1991 and to acquit Mr Aslim because he took all reasonable steps to ensure [the child] was 16 or over or is section 14(2) an offence of strict liability?"

In relation to the second charge the question was:

"Were we correct to find that the case did not fall within section 14(2) of the London Local Authorities Act 1991 and acquit Mr Aslim because the incomplete records evidenced did not specify the kind of treatment provided to others?"

In London Borough of Hounslow v Aslim [2018] EWHC 733 (Admin) Mr Justice Holgate said: “There is nothing in the 2011 Act, particularly in s.14(2), to indicate that a licence holder's reasonably held belief that he is complying with the terms of the licence may afford a defence.

“Such an approach would seriously weaken the regulatory efficacy of this scheme. That applies a fortiori to the protection of young persons and children by the regulations which s.10 allows local authorities to make, such as the standard terms and conditions in this case.”

He added: “I conclude that the presumption in favour of applying a mens rea requirement in relation to the age restriction is displaced by necessary implication.”

Mr Justice Holgate said that whether or not the respondent took all reasonable steps to ensure that the client was aged over 16 was irrelevant to whether or not he was guilty of the first offence under s.14(2) contained in the information.

"On the issue of age, it was sufficient for the prosecution to prove that the client was in fact aged under 16," he said, adding he would allow the appeal and remit the matter to the magistrates' court with a direction to convict the respondent on the first offence charged in the information.

As Holgate J turned to the second question, Aslim arrived and asked for an adjournment.

Treacy LJ said: “Mr Aslim, who has attended court after a judgment had been started in this hearing, has applied for an adjournment on the basis that some ten days ago he instructed solicitors to ask them to represent him at this hearing, and that they have applied for legal aid and that at present there has been no decision in relation to that.”

The judges said though that Aslim was made aware of the appeal before last Christmas and having taken no steps in the interim it was now too late, though they invited him to make submissions after which Holgate J continued with his judgment.

Aslim said the forms produced by council officers at the magistrates' court were not the special treatment forms required, but Holgate J said this was inconsistent with agreed evidence given earlier.

“It follows that Mr Aslim has sought to advance before us a factual case which is wholly inconsistent with the agreed evidence put before the justices, evidence with which, as I have explained, they failed to deal,” the judge said.

He said magistrates had considered record keeping solely as it related to the girl’s case, whereas officers said a five-month period was involved.

Holgate J noted: “The justices' uncertainty as to the status of the documents produced by [Hounslow] was wholly inconsistent with clear and agreed evidence to which I have already referred.”

The judge said he would also allow the appeal in relation to question 2 and remit the matter to the magistrates' court with a direction to convict the respondent on the second offence charged in the information.

"In relation to both offences, there will therefore need to be a hearing concerning sentence. At that time, Mr Aslim will be able to advance such mitigation as he wishes," he noted.

The judges agreed the judgment could be certified and relied upon by other local authorities.

Mark Smulian

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