Barking and Dagenham v Christodoulou

Where an advertisement gives publicity to a person’s goods, trade or business, Town and Country Planning Act 1990 deems that person to display the advertisement. The prosecution therefore need not prove the person’s actual knowledge of, or consent to, its display to establish a case under section 224(3). The person can avoid liability under section 224(5)(b) only by proving that the advertisement was displayed without knowledge or consent. At the no-case stage, evidence that advertisements publicise the defendant’s business is sufficient to require the case to proceed. The court made only provisional observations that the reverse evidential burden appeared reasonable and proportionate for the purposes of Article 6.

The local authority appealed by case stated from the acquittal of a nightclub director by justices. The respondent was charged with displaying advertisements for his nightclub in contravention of the Town and Country Planning (Control of Advertisements) Regulations 1992, contrary to section 224(3) of the Town and Country Planning Act 1990.

The advertisements had been placed around the borough. The defence relied on evidence that promoters, rather than the respondent, were responsible for publicity and that the respondent had prohibited fly-posting. The justices concluded that the prosecution had not shown that the posters were displayed with his knowledge or consent. The central issue was whether that approach applied the statutory deeming and reverse-burden provisions correctly.

1. Appeal allowed. The case was remitted to the magistrates, preferably a fresh bench, for rehearing.
2. Under section 224(3) of the Town and Country Planning Act 1990, a person is guilty if he displays an advertisement in contravention of the regulations. Section 224(4)(b) provides that a person is deemed to display an advertisement where it gives publicity to his goods, trade, business or other concerns. The respondent’s nightclub was the subject of the advertisements, so the statutory deeming provision applied.
3. Section 224(5)(b) creates a reverse burden. A person whose goods, trade or business are publicised avoids guilt only if he proves that the advertisement was displayed without his knowledge or consent. The prosecution was not required, as part of its case, to prove actual knowledge or consent.
4. The justices therefore applied the wrong test in treating the absence of evidence that the respondent knew of the telephone call, letter or posters as requiring dismissal. The invoices and the evidence concerning promoters might bear on the statutory defence, but they did not mean that there was no case to answer. Their relevance to whether the respondent was actually aware of the advertisements was in any event very limited.
5. The court made no ruling on the compatibility of the reverse burden with Article 6 because the respondent was unrepresented and no specific submissions had been made on the accepted evidential burden. Lord Justice Auld agreed with the judgment and with the general observations concerning the reverse burden. The court observed provisionally that the burden appeared reasonable and proportionate, having regard to the public interest in controlling advertisements and the relative ease with which a defendant could prove absence of knowledge or consent on the balance of probabilities.
6. No order for costs was made.

• Magistrates for the North East London Commission Area: acquitted the respondent on 27 September 2002, finding that the prosecution had not adduced sufficient evidence of knowledge or consent.
• High Court (Administrative Court): allowed the local authority’s case-stated appeal and remitted the matter for rehearing by a fresh bench.