London Borough of LEWISHAM v ELIAS
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 09 May 2003 |
| Neutral Citation | [2003] EWHC 1184 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/110/2003 |
| Date | 09 May 2003 |
[2003] EWHC 1184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Scott Baker
Mr Justice Pitchford
CO/110/2003
MR T SPENCER (instructed by London Borough of Lewisham Legal Services) appeared on behalf of the CLAIMANT
MS A SLATER (instructed by Collisons & Co) appeared on behalf of the DEFENDANT
Friday, 9th May 2003
This is a prosecutor's appeal by way of case stated from a decision of the District Judge sitting at Marylebone on 3rd October 2002, when she ordered that the prosecution of the interested party, Warren Elias, should be stayed on the ground that the process of the court was being abused.
On 9th April 2001 Mr Elias was served with a noise abatement notice under section 80 of the Environmental Protection Act 1990. He did not appeal that notice, as he could under section 80(3). The notice related to number 77 Laleham Road, London SE6. Alleged against Mr Elias by informations were three breaches of the notice contrary to section 80(4) of the Act occurring on 7th October 2001, 12th December 2001 and 24th January 2002.
Next door to number 77 Laleham Road was a public house, the Dartmouth Hotel. On 25th June 2002 Mr Elias served a defence case statement pursuant to the Criminal Procedure and Investigations Act of 1996. Since this was a summary trial of a summary offence he was not bound to do so, but chose to serve such a statement. In it he disclosed that his defence would be that he was not responsible for noise nuisance on any of the alleged days. He admitted, however, that he and friends had been playing a keyboard, guitar and a drum kit, but, he claimed, without amplification. He would contend at his trial that any noise for which he was responsible could not have constituted a nuisance. His case would be that any noise nuisance was caused by the occupants of the public house next door.
The service of the defence case statement triggered the operation of section 7(2)(a) of the Act of 1996, requiring the prosecutor, Lewisham Borough Council, to make what is called secondary disclosure. That is disclosure of any material not already disclosed "which might be reasonably expected to assist the accused's defence as disclosed by the defence statement".
It is conceded in the skeleton argument submitted by Mr Spencer on behalf of the prosecutor that the documents subsequently disclosed could properly be described as material inspected by the prosecution in connection with the case for the prosecution for the purposes of section 7. No such disclosure was made at the time.
On 1st October, the first day of the hearing, the prosecutor adduced evidence from six Environmental Health Officers and a neighbour of Mr Elias' on the other side at number 75. Most of the witnesses were cross-examined by counsel for the interested party to the effect that there had been problems with noise from the public house. They gave evidence that having attended the street outside number 77, they had satisfied themselves that the noise emanated from those premises and not from the Dartmouth Hotel. On the face of it, the evidence appears to have been impressive.
In her statement of case at paragraphs 14 to 16 the District Judge described her impressions of that evidence:
"14. Although the Environmental Health officers, save for Mr Cooper, were cross-examined about the pub and about music in relation to the pub, they were not asked specifically
(a) if any abatement notice had been served on the pub licensee, or
(b) if any cautions had been administered to the pub licensee.
15. None of the Environmental Health Officers mentioned or gave any intimation that there had been any complaints or problems relating to noise from the Dartmouth public house. None of them mentioned that there had been a noise abatement notice served on those premises in June 2000 or that the landlady had been cautioned for breach of it on 17.1.01.
16. The impression that I received from the evidence of the Appellant's witnesses was that so far as the Environmental Health Officers were concerned there had been no problems in respect of noise emanating from the pub."
The interested party opened his case. With the permission of the District Judge, four witnesses were called before Mr Elias himself was to give evidence. It was apparent that the trial could not be completed in a day and it was convenient for the defence witnesses, other than Mr Elias, to give their evidence on the first day. Their evidence was to the effect that on each occasion loud music was emanating from the Dartmouth Hotel while unintrusive music was being played at number 77.
Following the adjournment on 1st October, the interested party sought from the prosecutor specific disclosure of any complaints of noise nuisance made against the Dartmouth Hotel. It emerged, in summary, that the following information was available. Mr Moon, one of the prosecution witnesses and a neighbour, had made a complaint about noise emanating from the pub on 1st April 2002. Between May 2000 and September 2002 the Environmental Health Department had received 22 complaints of loud music emanating from the pub, most of them related to times after 10 pm and seven were logged after midnight. None of those complaints related to the dates in question in the trial. Indeed, it is right to say that the three informations concerning the dates to which I have already referred fell between complaints relating to the pub on 27th July 2001 and 1st April 2002. In other words, the informations fell within what I could describe as a quiet period so far as complaints went. Between May 2000 and September 2002 there had been 12 attendances at the pub by prosecution witnesses, Environmental Health Officers. A noise abatement notice had been...
To continue reading
Request your trial
-
R (Hart District Council v ((1) The Secretary of State for Communities and Local Government (2) Luckmore Ltd (3) Barratt Homes Ltd) v ((1) Tayor Wimpey Developments Ltd (2) Natural England Interested Parties
...Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staassecretaris van Landbouw, Natuurbeheer en Visserij, [2004] Env LR 14. 43 The ECJ dealt with the meaning of the words “likely to have a significant effect” on a protected site under the Habitats Directive in ......
-
R (on the application of “G”) v Thanet District Council
...site, with no reasonable scientific doubt remaining about the absence of such effects; regulation 64 (5) and Waddenzee (C-127/02) [2004] Env LR 14 at [59]. Any mitigation measures must have a high degree of certainty regarding their outcome, “guaranteeing beyond all reasonable doubt that th......
-
The Queen (on the application of Clive Stephen Townley) v National Resources Wales
...principle. This has been stated and reiterated in a large number of cases, including in particular Waddenzee (Case C-127/02) [2004] Env LR 14 and the Dutch Nitrogen case. In Waddenzee, Advocate General Kokott stated that the burden on the competent authority was to prove that there would be......
-
Scientific Uncertainty And The Precautionary Principle
...the precautionary principle underlies the Habitats Directive, although it is not explicitly mentioned therein. See Case 127/02 Waddenzee [2004] Env LR 14. 77 Downs v Secretary of State for the Environment, Food and Rural Affairs [2008] EWHC 2666. 78 The requirements of EC Directive 91/414/E......