London Borough of Newham v Iqbal

For premises with a roof or ceiling, the question under regulation 2 of the Smoke-free (Premises and Enforcement) Regulations 2006 is whether less than half of the perimeter consists of relevant openings. Openings remain part of the perimeter when calculating the total area. The provision does not require a fine comparison between the area of openings and only those parts of the perimeter capable of being walls.

In an appeal by case stated, the High Court determines the application of law to the facts specified by the inferior court. It must not conduct a fresh factual assessment. A magistrate may form a provisional view that there is no case to answer, but must hear the prosecution’s submissions with a genuinely open mind before ruling. Technical evidence such as plans, measurements or video is not invariably required.

The London Borough of Newham prosecuted the respondent, a director of a company operating a commercial shisha lounge, for failing to cause a person to stop smoking in smoke-free premises, contrary to section 8 of the Health Act 2006. A Deputy District Judge at Waltham Forest Magistrates’ Court ruled at the close of the prosecution case that there was no case to answer.

The prosecutor appealed by way of case stated. The issues included the proper construction of regulation 2 of the Smoke-free (Premises and Enforcement) Regulations 2006, whether the judge had acted procedurally improperly by ruling before hearing submissions, and whether the evidence described in the case stated was sufficient to require an answer from the defendant.

1. Appeal dismissed. The court held that regulation 2 of the Smoke-free (Premises and Enforcement) Regulations 2006 requires the relevant openings to be assessed by reference to the perimeter of the premises. Where premises have a roof or ceiling, the premises are substantially enclosed if less than half of that perimeter consists of relevant openings. Openings remain part of the perimeter for the calculation. The court rejected the suggested fine calculation based only on the area of existing walls. This construction accorded with the statutory purpose of reducing passive-smoking risks and enabling practical compliance and enforcement.
2. The explanatory note to the Regulations was a proper aid to construction, although it did not form part of the Regulations.
3. The magistrate acted irregularly by ruling before hearing submissions. A judge may indicate a provisional view that a case should be stopped, but the prosecution must have a fair opportunity to address that view. The error was immaterial because the judge subsequently heard the prosecution’s submissions and considered them with a genuinely open mind.
4. An appeal by case stated is determined on the facts specified by the inferior court. It is not an opportunity for the parties to redeploy evidence and invite the High Court to form a primary factual view. The court therefore assessed whether the decision was one to which the magistrate was entitled on the evidence recorded in the case stated.
5. Applying the second limb of R v Galbraith [1981] 1 WLR 1039, the magistrate was entitled to conclude that the evidence was too vague to establish beyond reasonable doubt that the premises were substantially enclosed. Plans, measurements, video or other technical evidence are not invariably required; the method of proof remains for the prosecuting authority.

• High Court (Administrative Court): The prosecutor’s appeal by case stated from the ruling of Deputy District Judge Aujla at Waltham Forest Magistrates’ Court was dismissed.