Westminster City Council v McDonald

At the close of the prosecution case, a tribunal should dismiss an information only where an essential element is unsupported, or the evidence is so discredited or unreliable that no reasonable tribunal could safely convict. A statutory noise nuisance may be proved by environmental health officers or other witnesses. Evidence from an affected occupier and acoustic measurement are not prerequisites. The assessment remains whether the noise materially and unreasonably interfered with the use and enjoyment of neighbouring premises, having regard to the character of the locality and the reasonable person. An Article 7 of the European Convention on Human Rights challenge should not ordinarily be determined abstractly before the facts are fully established.

Westminster City Council prosecuted Prian Bruno McDonald for allegedly contravening an abatement notice under sections 80(4) and (5) of the Environmental Protection Act 1990. The notice concerned amplified music played in Leicester Square. At the close of the prosecution case, the District Judge dismissed the information of her own motion, finding no case to answer. The Council appealed by way of case stated. The issues included whether the evidence required testimony from an affected occupier, acoustic measurement, longer observation, or more precise particulars, and whether the alleged offence lacked the certainty required by Article 7 of the European Convention on Human Rights.

1. Disposition. The appeal was allowed. The District Judge’s answer was incorrect: there was a clear case to answer. The matter was remitted to Horseferry Road Magistrates’ Court for a retrial before a different District Judge.
2. No case to answer. The proper question at the close of the prosecution case was whether the evidence was such that a reasonable tribunal might convict. Dismissal was appropriate where an essential element had not been proved, or where the prosecution evidence had been so discredited or was so manifestly unreliable that no reasonable tribunal could safely convict.
3. Evidence of nuisance. Following Cooke v Adatia and others (1988) 153 JP 129, there was no requirement to call evidence from an occupier of affected premises. Following London Borough of Lewisham v Hall [2002] EWHC 960 (Admin), acoustic measurement was not a precondition to conviction. The evidence of experienced environmental health officers could establish the nuisance.
4. The relatively short duration of the officers’ observations and their observation from one location did not, without more, justify rejecting their evidence. Nor was the evidence vague. Their assessment implicitly took account of the surroundings in Leicester Square and the character of the locality.
5. The court accepted the general approach that nuisance involved an unreasonable and material interference with the use and enjoyment of neighbouring property, judged by the reasonable person in context. The reasoning in Godfrey v Conwy County Borough Council [2001] Env LR 38 674 applied to the Article 7 of the European Convention on Human Rights argument. The suggested distinctions were immaterial. In any event, the Article 7 issue was raised too late and did not arise on the case stated.
6. Costs were to remain subject to detailed assessment, with taxation of the respondent’s costs as appropriate.

• Horseferry Road Magistrates’ Court: On 29 August 2002, the District Judge dismissed the information of her own motion at the close of the prosecution case, finding no case to answer.
• High Court (Administrative Court): The Divisional Court allowed the appeal by way of case stated and directed that the matter be returned for a retrial before a different District Judge.