London Borough of Haringey v Tshilumbe

On a submission of no case to answer, the court must consider the prosecution evidence at its highest. The case should be stopped where a properly directed tribunal could not properly convict. It should continue where the evidence, viewed in any realistic way, could support a conviction, even though the tribunal may ultimately reject it.

A tribunal may draw a reasonable adverse inference from a combination of circumstances. An unrepresented defendant’s assertions elicited to assist cross-examination are not evidence and cannot themselves support findings of fact. Food supplied free of charge may constitute a commercial operation in the course of a business.

The London Borough of Haringey brought a prosecution concerning alleged breach of a hygiene emergency prohibition notice at food-business premises. The magistrates dismissed the charge at the close of the prosecution case, finding that there was no evidence that the defendant had operated the premises as a food business.

The local authority appealed by case stated. The issues were whether the magistrates had improperly treated statements elicited from the unrepresented defendant as evidence, and whether the evidence that people were eating and drinking at premises under the defendant’s management was sufficient to justify continuation of the charge.

1. Appeal allowed. The magistrates were wrong to find that there was no case to answer. The case was remitted to the Haringey Justices for a rehearing afresh before a differently constituted bench.
2. The procedure under rule 37.2 of the Criminal Procedure Rules 2005 permits the court or legal adviser to question an unrepresented accused in order to clarify assertions and put appropriate questions to a prosecution witness. Such assertions are not evidence in the case. They are only an aid to cross-examination. The magistrates therefore had no evidential basis for finding that the defendant had supplied the cans of drink.
3. That error did not determine the appeal. If the finding had properly been made, the supply of drink free of charge could have assisted the prosecution because section 2(1)(a) of the Food Safety Act 1990 extends sale to supply otherwise than on sale in the course of a business.
4. The governing approach to a submission of no case is that stated in Galbraith [1981] 1 WLR 1039, which applies in the Magistrates’ Court. The court must stop the case if there is no evidence of the alleged offence, or if the prosecution evidence taken at its highest could not properly support a conviction. Where the strength of the evidence depends on matters such as reliability, or where on one possible view of the facts a properly directed tribunal could convict, the case should continue.
5. Under Jabber [2006] EWCA Crim 2694, a reasonable tribunal may draw an adverse inference from a combination of factual circumstances. Here, five people were present with plates of food and cans of drink shortly after the prohibition notice had been affixed. In the absence of an innocent explanation, a fact-finding tribunal could infer that the premises were being used as a food business and that the prohibition had been contravened. The defendant remained entitled to explain the circumstances and rely, where appropriate, on the due-diligence defence.
6. Costs of £1,500 were awarded against the respondent in respect of the appeal only.

• High Court (Administrative Court): allowed the prosecution appeal by case stated from the decision of the Haringey Justices dated 3 December 2008. The charge was remitted for a rehearing before a differently constituted bench.