Mohamed Lahrie Mohamed & Shehara Lahrie v Mayor and Burgesses of the London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans |
| Judgment Date | 07 May 2020 |
| Neutral Citation | [2020] EWHC 1083 (Admin) |
| Date | 07 May 2020 |
| Docket Number | Case Nos: CO/5141/2017 & CO/1068/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1083 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
and
Mrs Justice Elisabeth Laing
Case Nos: CO/5141/2017 & CO/1068/2019
Regina on the application of
and
Regina on the application of
and
and
Imran Khan QC and Paul O'Donnell (instructed by Imran Khan and Partners Solicitors) for the Claimants
Ashley Underwood QC and Dean Underwood (instructed by Sharpe Pritchard LLP) for the Defendant and the First Interested Party
Andrew Byass (instructed by Government Legal Department) for the Intervener
Hearing dates: 22 April 2020
Approved Judgment
Introduction
This is the judgment of the Court, to which we have both contributed. These claims for judicial review raise, among other issues, an issue about the mental elements of the offence of having control of or managing a house in multiple occupation (“HMO”) which is required to be licensed but which is not so licensed, contrary to section 72(1) of the Housing Act 2004 (“the 2004 Act”).
The Claimants in both actions, Mohamed Lahrie Mohamed and Shehara Lahrie (“Mr Mohamed and Ms Lahrie”), are husband and wife and directors of property companies operating, and owners of property, in the London Borough of Waltham Forest. The Mayor and Burgesses of the London Borough of Waltham Forest (“the council”) are the local housing authority for the London Borough of Waltham Forest and responsible for, among other matters, the prosecution of offences under the 2004 Act relating to HMO's.
Summonses alleging offences against Mr Mohamed and Ms Lahrie were issued in the Thames' Magistrates Court, and proceedings were later transferred to Wimbledon Magistrates' Court, which explains why both of the Courts are named in the proceedings. Neither Court has been represented or taken any part in the proceedings before us. The Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) appeared as an intervener to make submissions about section 72(1) of the 2004 Act.
The facts
On 6 January 2017 the council laid informations before Thames Magistrates' Court alleging section 72(1) offences in relation to several properties owned by Mr Mohamed and Ms Lahrie. The informations consisted of a schedule of offences. The Magistrates' Court, acting by the Legal Team Manager using delegated powers under rule 5 of the Justices Clerks Rules 2005, granted the summonses on 6 January 2017 and issued them to the council on 9 January 2017.
There was correspondence between Mr Mohamed and Ms Lahrie and the council, although we have not been provided with copies of all of the correspondence. On 13 June 2017, Mr Beach, Head of Selective Licensing and Regulation of the council, wrote to Mr Mohamed. He referred to a recent audit inspection of 24 Eastfield Road (‘the property’). This had been done to check the property, which was the subject of a current application for a selective licence under Part 3 of the 2004 Act. The inspection had revealed that the property was ‘currently let out to multiple unrelated adults or households’ and was therefore a HMO. The letter told Mr Mohamed that the property must have a mandatory HMO licence. The council said that an urgent application had to be submitted. The legal obligation to do this rested with both the owner of the property and any agent who received rent from tenants in the property. The letter stated that Mr Mohamed had ‘demonstrable prior knowledge of mandatory HMO licensing provisions, being associated with several HMO licence applications over a number of years’. The letter noted that investigations would continue and a prosecution might follow, even if there was an application for a licence. It was noted that on conviction a person was liable to an unlimited fine, or the Council might impose a financial penalty of up to £30,000. Mr Beach asked for an urgent response.
On 7 July 2017, Cavendish Legal (“Cavendish”), who were then representing Mr Mohamed in the criminal proceedings, wrote to Mr Beach replying to two letters which are not before us. It appears from the text of this letter that Mr Beach had sent Cavendish a redacted application for an HMO licence for the property. Cavendish made complaints that the council was not following its own prosecution policy, repeated requests to be given the evidence on which the council relied, and asserted that the council was not treating Mr Mohamed as ‘innocent until proven guilty’ by assuming that he was in control of and/or managing an HMO which was not licensed and that it was for him to show that he had reasonable excuse for failing to license the property. Cavendish said it was wrong to assert that Mr Mohamed was an experienced HMO landlord as he was an experienced landlord but ‘specifically and deliberately avoids letting properties as HMOs’. The copy of the licence application was consistent with the letting of the property to, and its continued occupation by, a single household. Cavendish stated that Mr Mohamed was not obliged ‘to continuously monitor and police his tenants’ occupation of’ the property.
The letter went on to refer to many other properties which Mr Mohamed owned and operated in partnership with his wife Ms Lahrie. Cavendish said that Mr Mohamed and Ms Lahrie also owned a company, LMSL Limited, which owned ‘a number of other properties’ in Waltham Forest. Mr Mohamed and Ms Lahrie were experienced landlords, but they were also responsible landlords. The property and another property at 57 Oakdale were ‘simply the two most recent examples of properties which our clients have let in good faith to single households, having discharged their extensive statutory duties as landlords on letting and with covenants intended to ensure that the occupancy remains that of single households, but which the council upon later inspection, has asserted or found to be being occupied as HMOs’. Cavendish asserted that the Council should instead work with Mr Mohamed and Ms Lahrie to enforce the covenants in the leases. Cavendish repeated demands that the council should undertake not to prosecute Mr Mohamed and Ms Lahrie. Cavendish threatened to apply to bring proceedings for judicial review.
It appears that by letter dated 21 July 2017, Mr Beach of the council indicated an intention to invite Mr Mohamed and Ms Lahrie to an interview under caution in respect of an offence under the 2004 Act. By letter dated 9 August 2017 Mr Beach said he was writing further to an earlier letter, in which he had advised that Mr Mohamed would be given the opportunity to attend a formal interview under caution in relation to the failure to license the property under Part 2 of the 2004 Act. He invited Mr Mohamed to an interview on 25 August 2017. He confirmed that ‘the purpose of the interview is to obtain information formally, to consider any defence and to give you the opportunity for comments to be made in respect of … A failure to licence the above property as a ‘mandatory HMO’ in accordance with the provisions of part 2 of the Housing Act 2004’. Mr Beach said that Mr Mohamed was entitled to be legally represented at the interview, and that it would be conducted in accordance with the provisions of the Police and Criminal Evidence Act 1984, using tape recording equipment. The letter continued that if Mr Mohamed declined ‘the opportunity of stating [his] case, the matter may be referred for legal proceedings without further notification’, or the council might issue a financial penalty of up to £30,000.
Imran Khan & Partners Solicitors (‘IKP’) responded on 24 August 2017 with a pre-action protocol letter, threatening an application for judicial review to challenge the decision to invite Mr Mohamed to a formal interview under caution. This letter asserted that the council appeared, in the letter dated 13 June 2017, to have assumed that Mr Mohamed was criminally liable without approaching him to find out if he knew what was going on, ‘contrary to the express terms of the tenancy agreement’. It was asserted that such an approach could not be right. It would allow the council to prosecute any landlord whose property was being unlawfully sub-let without the knowledge of the landlord, and it was said that Mr Mohamed and Ms Lahrie had already made clear that they did not know that the property was being occupied as an HMO. It was said that it was clear from the invitation to the interview that the Council was treating the section 72(1) offence as an offence of strict liability which it was said was wrong. The letter raised the issues of the elements of the offence of section 72(1) of the 2004 Act.
Proceedings for judicial review, CO/5141/2017, were brought challenging the decision by the council to invite Mr Mohamed and Ms Lahrie to be interviewed and seeking a declaration of the Court “as to the mens rea required of an offence under section 72(1)” of the 2004 Act. No further progress was made with the criminal proceedings in the Magistrates' Court.
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