Mohamed & Anor, R (on the application of) v London Borough of Waltham Forest

A summons issued on insufficient information does not automatically render subsequent criminal proceedings a nullity. Later disclosure may remedy the deficiency, although the court may quash the summons where sufficient information could never be provided.

Section 72(1) of the Housing Act 2004 does not require the prosecution to prove that a person knew that premises under the defendant’s control or management constituted an HMO requiring a licence. The statutory definitions, the contrast with the express knowledge requirement in section 72(2), the reasonable-excuse defence and the regulatory purpose of the legislation all support that conclusion. The offence is continuing, so proceedings are in time if an offence was committed within six months before the information was laid.

The claimants sought judicial review in two linked proceedings. The first challenged the council’s decision to invite them to interview under caution concerning alleged offences under section 72(1) of the Housing Act 2004. The second challenged a magistrates’ court ruling that summonses concerning alleged unlicensed HMOs were lawfully issued and were not out of time.

The Divisional Court considered whether the informations contained sufficient particulars, what mental element section 72(1) required, and whether the informations were laid within the statutory limitation period.

1. Summonses. The schedule of offences described the alleged conduct in ordinary language, identified the statutory offence and gave reasonable information about the charge. It therefore supplied sufficient information to justify issuing the summonses.
2. Even if the original information had been insufficient, the criminal proceedings would not thereby have become a nullity. Following Nash v Birmingham Crown Court, later provision of sufficient information may remedy the earlier deficiency and permit a fair trial. The court may quash the summons where sufficient information could never be provided, as illustrated by Johnson v Westminster Magistrates’ Court.
3. Mental element. Section 72(1) requires proof that the defendant had control of or managed, within section 263, an HMO required to be licensed under sections 55 and 61, and that it was unlicensed. It does not require proof that the defendant knew the property was an HMO or knew that it required a licence.
4. The objective wording of section 263, the express use of “knowingly” in section 72(2), the civil penalty regime, the reasonable-excuse defence in section 72(5), the regulatory character of the offence and the statutory purpose of promoting housing standards all supported that interpretation. Lack of knowledge may nevertheless be relevant to reasonable excuse.
5. Limitation. The offence is continuing. Each day on which a person manages or controls an HMO requiring a licence while it remains unlicensed constitutes a new offence. Under section 127(1) of the Magistrates’ Court Act 1980, the informations were therefore in time because offences were alleged within six months before they were laid.
6. The applications for judicial review were dismissed.

The judgment describes earlier proceedings before Thames Magistrates’ Court and Wimbledon Magistrates’ Court, including the magistrates’ court decision challenged in the second claim. The Divisional Court dismissed both judicial review applications.