A London borough recently successfully defended two claims for judicial review of decisions it made against directors of property companies operating, and owners of property, in its area. Simon Kiely, Aleksandra Wolek and Christos Paphiti explain how the ruling will help local authority housing departments and prosecutors.
In Mohamed & Lahrie v London Borough of Waltham Forest and Secretary of State for Housing, Communities and Local Government  EWHC 1083 (Admin) the High Court handed down a Judgment in both claims brought by Mr Mohammed and Mrs Lahrie (the 'Claimants') addressing, amongst other issues, the mental elements of the offence of failing to license a house in multiple occupation (‘HMO’) under section 72(1) of the Housing Act 2004 (the ‘HA’).
In particular, the Court considered whether there was a requirement to prove that a landlord knew the property they had control of or managed was an HMO. The Court ruled that there was no such requirement.
The Judgment also addressed whether the offence under section 72(1) was a ‘continuing’ offence, therefore whether the summonses against the Claimants were out of time, and the steps which a magistrates’ court legal adviser is required to take before issuing a summons based on informations laid by a local authority prosecutor.
Background and facts
Properties owned by the Claimants were subject to council inspections. It transpired that one of the properties was let out to multiple unrelated adults or households and therefore was an HMO. It was, however, not licensed as such.
In January 2017, the council laid informations before Thames Magistrates’ Court alleging section 72 HA 2004 offences involving several properties owned by the Claimants; summonses for these offences were subsequently issued three days later. In July 2017, the council invited one of the Claimants to an interview under caution in respect of a further alleged offence under the HA 2004.
The first claim was brought on behalf of the Claimants challenging the decision by the council to invite the Claimants to be interviewed and seeking a declaration from the Court “as to the mens rea required of an offence under section 72(1)” of the Housing Act 2004 (the ‘HA 2004’).
A separate claim for judicial review was subsequently brought by the Claimants in relation to whether the summonses alleging offences under the HA 2004 had been lawfully issued. The Claimants had raised preliminary issues in the criminal proceedings that there had been a failure by the council to provide sufficient information to the magistrates’ court with the informations in January 2017 such that the proceedings were a nullity, and also that the informations had been laid out of time. In January 2019, District Judge Sweet sitting at Wimbledon Magistrates’ Court heard these preliminary issues and held that the summonses had been lawfully issued, and that even if there had been a failure to provide sufficient information, the criminal proceedings would not have been a nullity. It was also held that the informations were laid in time because the offence under section 72(1) of the HA 2004 was a continuing offence being committed each day the person who has control or who is managing the HMO does not have the required licence.
Issues for High Court
The Court considered the following issues:
- Whether sufficient information was provided by the council to Thames Magistrates’ Court to justify the issue of the summonses against the Claimants and if not, whether the summonses should be quashed (‘Issue 1’);
- What are the mental elements of the offence of managing or controlling an unlicensed HMO contrary to section 72(1) of the HA 2004 (‘Issue 2’); and
- Whether informations laid against the Claimants were laid in time (‘Issue 3’).
The Court held that the council had provided sufficient information to Thames Magistrates’ Court to justify the issuing of the summons. The Court found that where summonses were issued and information provided was insufficient, the summonses could be quashed, but that this was not, however, true in the Claimants’ case. The Court was satisfied that the council had provided sufficient information to justify the issue of a summons by Thames Magistrates’ Court because the schedule to the informations described the offences charged in ordinary language and gave such particulars as were necessary to give reasonable information of the nature of the charge, as required by the Criminal Procedure Rules 2015. The Court further confirmed that even if the information provided by the council had been insufficient, the Court would have not quashed the decision to issue the summons because further information supporting the charges was also provided by the council later in the course of the criminal proceedings.
Section 72(1) of the HA 2004 provides that ‘a person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (…) but is not so licensed’. A person who commits an offence under sections 72(1) or 72(2) is liable on summary conviction to a fine (see section 72(7)).
The Claimants argued that the offence under section 72(1) of the HA 2004 required mens rea. The Court stated that the question of what, if any, mental element is required to be shown in order to prove any criminal offence created by statute is one of statutory interpretation. Commonly, it is presumed that mens rea is required before a person can be found guilty of a criminal offence. Such presumption, the Court said, can be displaced where the statute relates to an issue of ‘social concern’ such as public safety or involves ‘less serious offences’ which are ‘quasi-criminal’ in areas such as licensing. The effect of the authorities considered by the Court was that the presumption of a mental element to the offence is weaker in regulatory licensing offences such as those contained in HA 2004.
The Claimants submitted that in order to prove an offence under section 72(1) of the HA 2004, it was necessary to show mens rea and ‘guilty managing’ of the subject HMO. The Court held that there was no requirement to prove that the Claimants knew that the property they had control of or managed was an HMO, and therefore was required to be licensed as such.
The definition of a “person having control” and a “person managing” in section 263 of the HA 2004, according to the Court, does not require to show the landlord’s state of mind about the way the property is occupied. Actual knowledge of the nature of the occupation of the property “is not required”.
The Court quoted section 249A of the HA 2004 which creates a system for the imposition of civil penalties for offences, amongst others, under section 72(1) of the HA 2004 in circumstances where the local housing authority is ‘satisfied, beyond reasonable doubt, that the person’s conduct amounts to the offence’. The Court confirmed that the presumption that mens rea will apply, relied on by the Claimants, does not apply to the civil enforcement regime.
The Court also confirmed that the existence of the statutory defence to the section 72(1) HA 2004 offence, as set out in section 72(4) of the HA 2004, lessens the need to have the mental element as part of the offence. The defence is that of a ‘reasonable excuse’ for not knowing of the requirement to license the property in question, because, for example, it is let through a respectable agency. Therefore, the absence of such knowledge may allow the landlord to rely on the section 72(4) defence. This is incompatible with the Claimant’s argument that the landlord’s knowledge of an HMO required to be licensed must be proved to establish the section 72(1) offence in the first place.
The Court found that the section 72(1) offence was a continuing one. This meant that the offence was committed each and every day that the Claimants continued managing or being in control of the HMO when it was required to be licensed but was not so licensed. Therefore, the Court concluded, the information was laid in time.
The Court’s decisive Judgment on all three issues will offer comfort not only to local authority housing departments seeking to enforce HMO offences under the HA 2004, but their decision on issue one will also more widely assist all local authority prosecutors who are regularly laying informations in the magistrates’ court.