Mayor & Burgesses of the London Borough of Newham v Osmar
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Wilkie |
| Judgment Date | 27 October 2015 |
| Neutral Citation | [2015] EWHC 3800 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 October 2015 |
| Docket Number | CO/3579/2015 |
[2015] EWHC 3800 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Wilkie
CO/3579/2015
Mr James Partridge appeared on behalf of the Appellant
Mr Andrew Ukima (pupil barrister) appeared on behalf of the Respondent
This is an appeal by way of case stated from the decision of the East London Justices, sitting at the Waltham Forest Magistrates' Court, on 8 April 2015. The Justices (Messrs Briggs and Latif and Mrs Tuckey) dismissed an information laid by the appellant, the London Borough of Newham, against Oscar Emmanuel Osmar the respondent. The information was laid by the appellant on 5 February 2015. It alleged that between 1 January 2013 and 18 November 2014 the respondent failed to obtain an appropriate licence for rented residential property at 176 Masterman Road, East Ham.
Part 3 of the Housing Act 2004 requires a person who has control of or is managing property to require such a licence. Such licences are required as part of a statutory framework enabling local authorities to designate all or part of their areas as selective licensing of private rented accommodation as a means of tackling ineffective management by a significant minority of landlords which give rise to problems of anti-social behaviour.
The respondent appeared before Thames Magistrates' Court on 19 March 2015 and entered a not guilty plea. The issue to be determined at the trial was identified by the court, after an expansion at the suggestion of counsel for Newham, as "defendant asserts has a reasonable excuse — was not aware of requirement to get a licence". On that occasion the respondent was represented by a barrister.
It was decided at that hearing that the evidence of the two witnesses for the prosecution, Miss Amanda Amafor (the Senior Environmental Health Officer for the appellant) and Mr Naveed Ahmed (who had been the tenant at 176 Masterman Road since October 2011), should be read to the court pursuant to Section 9 of the Criminal Justice Act 1967. Mr Ahmed's evidence and statement is irrelevant for present purposes, but Miss Amafor's is contained in two statements respectively dated 18 November 2014 (before the information was laid) and 25 March 2015 (six days after the respondent's appearance before Thames Magistrates' Court when he pleaded not guilty). That statement was served on 27 March. There was no notice of objection to that evidence by the respondent, perhaps because after the appearance by the directly-instructed barrister he was not represented and did not know that, absent an objection, the evidence would be admitted as uncontroversial pursuant to Section 9 of the Criminal Justice Act.
On 19 March the trial date was set for 8 April at the Waltham Forest Magistrates' Court. Paragraph 5 of the case stated summarises the contents of Miss Amafor's evidence as follows:
"5) Miss Amafor in her statement exhibited a copy of the caution letter and licence application form sent on 4 September 2014 to Flat 19 Gainsfield Court, 18 Cathall Road, London E11 ….. and to 176 Masterman Road East Ham ….. These documents have a case reference number on the top left-hand corner."
(This reflects paragraph 7 of Miss Amafor's first statement and paragraph 2 of her second statement.) Paragraph 5 of the case stated continued:
"5) These documents [the caution letter and the licence application form] had a case reference number on the top left-hand corner. A paper licence application form dated 14 February 2015 bearing this case reference number was received at the Newham offices with a cheque for £500. Miss Amafor claims that this demonstrates Mr Osmar's awareness of the licence requirement."
This also reflects paragraph 3 of Miss Amafor's second statement.
Paragraph 6 of the case stated deals with the respondent's evidence. [Paragraphs 6, 7 and 8 read as follows]:
"6) Mr Osmar gave evidence and stated that he had lived at various addresses for the period from 2012 until the present day. For the period alleged in the information he had lived at specified addresses in Ilford and Enfield before moving to Dunstable Bedfordshire in March 2013. He stated that he collected a letter from the council when he visited Masterman Road in January 2015. This dealt with registration for a licence and he then phoned the Council Offices. He did not accept that the envelope also contained a letter accompanying the application form. When cross-examined on this point he stated that the envelope was sealed and contained only the application form with a reference number written on the top. Upon taking further instructions from Miss Amafor it was put to Mr Osmar that the envelope was a window envelope with the address visible and he maintained that it was an envelope containing only the application from. He stated that his address was written on the envelope and contained the form inside with the reference number written on the top.
7) At the conclusion of the defence evidence the prosecutor stated that 'it seems some things have been agreed which should not have been' when the defendant was represented on the previous occasion. He sought to 'recall' Miss Amafor whose evidence had been read to the Court so that he could put two questions to her which should have been put in cross-examination by the defendant. We refused this application stating that it would not make a material difference to the outcome of the case.
8) We announced our decision as the following:
Mr Osmar relies on the defence of reasonable excuse for his failure to obtain a licence for 176 Masterman Road, E6 following changes in the legislation. We listened to Mr Osmar's account and his various addresses in and out of London (which we found to be with good reason). The Local Authority used various methods to ascertain his address except for the obvious one which was to visit the property in question to ascertain his whereabouts way before deciding to prosecute. On receipt of the paperwork from the Local Authority he acted in a responsible manner returning the application and £500 for the fee — albeit the form was completed incorrectly due to misunderstanding of the form.
We found Mr Osmar's account was very credible and truthful. We therefore find that Mr Osmar is not guilty of the offence."
The questions for the opinion of this court are whether the justices erred in law in (1) not allowing the prosecution to "recall" Miss Amafor who, in fact, attended court having already heard written evidence of the documents posted on 4 September 2014 and after Mr Osmar had given evidence and had been cross-examined on this issue; (2) only addressing their minds to the matter at issue from the Preparation for Effective Trial form which asserted "reasonable excuse". In a further paragraph beginning "Per curiam", a third question is asked. It is this — "If a court has heard evidence — Section 9 — which was accepted at the case management hearing when the defendant was represented, can it then find a defendant credible if he appears to contradict that evidence in some way?"
On behalf of the appellant, Mr Partridge submitted that the justices should either have rejected the respondent's evidence which contradicted Miss Amafor's statement or allowed the appellant to recall her so she could respond to what the respondent had stated when giving evidence in...
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