Imran Khan QC and Paul O’Donnell suggest that the Divisional Court in R (Mohamed) v Waltham Forest LBC, Secretary of State for Housing, Communities and Local Government (HCLG) intervening and R (Mohamed) v Wimbledon Magistrates' Court, Waltham Forest LBC et al, Secretary of State for HCLG intervening  EWHC 1083 (Admin), has wrongly lowered the threshold for the issue of a summons in private prosecutions and they call for clarity on the issue of mens rea in criminal offences. Please see the full judgment here.
The prosecution of a citizen for a criminal offence is one that should be subject, both at its inception and during the proceedings, to stringent safeguards because, of course, it can end in severe punishment as well as social stigma and disgrace. The process can ruin lives. These two issues, of significant public importance, came to be considered in a landmark ruling of the Divisional Court. The first matter to be considered was the issuing of a summons for a criminal offence.
Until late in the 19th century prosecutions were brought almost entirely by the victims of the alleged crimes or, if they were dead, by their kinsmen (R (on the application of Gujra) (FC) (Appellant) v Crown Prosecution Service (Respondent)  UKSC 52 per Lord Wilson). Nowadays, it is the Crown Prosecution Service, with the Director of Public Prosecutions at its head, which acts on behalf of the State to prosecute citizens who are deemed to have acted illegally. However, the right to bring a private prosecution by the laying of an information before a Magistrates’ Court remains. The institution of a public prosecution is regulated by the Code for Crown Prosecutors so that a charge can only be brought if it meets the evidential and public interest tests. The laying of an information in a private prosecution and the subsequent issuing of a summons is not so regulated and came to be considered by the Divisional Court in the joined cases of R (Mohamed) v Waltham Forest LBC, Secretary of State for Housing, Communities and Local Government (HCLG) intervening and R (Mohamed) v Wimbledon Magistrates' Court, Waltham Forest LBC et al, Secretary of State for HCLG intervening  EWHC 1083 (Admin).
On 07 May 2020, a Divisional Court remotely delivered judgment having earlier heard the cases by Skype owing to restrictions associated with the COVID-19 pandemic. The case involved the issuing of summonses by Thames Magistrates’ Court on the laying of information by a Local Authority in relation to a number of different properties for offences under section 72(1) of the Housing Act. Sharpe Pritchard, acting as legal representatives for the London Borough of Waltham Forest, emailed the Court an information which consisted solely of a schedule of the offences under section 72(1), and nothing more. An authorised legal adviser duly issued the summonses which meant that the Claimants faced a criminal prosecution in the Magistrates’ Court. The Claimants sought to challenge the decision to issue the summonses on the basis that the legal test for the lawful issuing of a summons as set out at Criminal Procedure Rule 7.3, Rule 100(1) of the Magistrates’ Court Rules 1981 and in R v West London Metropolitan Stipendiary Magistrate, Ex Parte Klahn  1 WLR 933, was not met. Whilst the summonses were issued in January 2017, it was not until, because of an unfortunate history of the proceedings, the 4th September 2019 that permission to judicially review the decision to issue the summonses was granted by Supperstone J. The case was heard by Lord Justice Dingemans and Mrs. Justice Laing.
In determining whether the legal test was met, the Court stated that ‘the council provided sufficient information in this case to justify the issue of summonses by Thames’ Magistrates Court. This is because the schedule described the offence charged in ordinary language and gave such particulars as were necessary to give reasonable information of the nature of the charge.’ In this case, the allegation relating to each offence consisted of less than 50 words. It had been the Claimant’s submission that the judicial decision making process, which was required before a summons was issued, of establishing whether the essential ingredients of the offence were prima facie present could not have been apparent from what was, essentially, a schedule setting out a simple recitation of the offence. This was particularly so, when section 72(1) required the ascertaining, when considering the ‘essential ingredients of the offence’, whether each of the properties was actually an HMO (‘House in Multiple Occupation’) that was required to be licensed and was not so licensed; whether the Claimants were ‘persons having control’ of each of the properties or whether they were ‘managing’ each of the properties. Each of these elements of the offence was defined elsewhere in the Housing Act 2004 and could not have been identified as having been met by the material placed before Thames Magistrates’ Court. The authorities have repeatedly emphasised the fact that the issuing of a summons is a judicial exercise and one which requires the decision-maker ‘to identify from the supporting material what allegations precisely were made and whether they amounted to the offence alleged’ (see, for example, R (Director of Public Prosecutions) v Sunderland Magistrates’ Court  EWHC 613 (Admin)). The fact that this is a high threshold test was most recently established in a case involving the Prime Minister in R v Westminster Magistrates’ Court ex parte Alexander Boris De Pfeffel  EWHC 1790 (Admin) when the District Judge’s decision to issue a summons against Mr Johnson was quashed. The Court noted the observation in Sunderland that a ‘rigorous analysis’ was required and that this ‘level of analysis is particularly important now that indictable offences are sent direct to the Crown Court…’ If such an analysis is not required and a summons can be issued by the laying of an information which simply recites the offence alleged, as in this case, and nothing more, magistrates’ courts could potentially be inundated with such applications and have little discretion but to accede to them. In the past, the CPS has often taken over private prosecutions, or the potential defendant against whom a summons has been issued, has protected him or herself from an improper or vexatious prosecution by way of challenge to the Administrative Court. There are now new Criminal Procedure Rules which require a private prosecutor to provide much more information to a court when seeking to issue a summons so as to ensure that there is a proper legal basis for the issuing of the summons and that it is not improper, vexatious or an abuse of process to do so. This change reflected the approach the Courts had taken (see R (Kay) v Leeds Magistrates’ Court  EWHC 1233 (Admin)) so that the case law was codified in an effort to assist prospective applicants and Magistrates’ Courts.
The Rules have not, however, changed for local authorities who do not have to provide the additional material that a private prosecutor does. They do, nonetheless, remain subject to ensuring that when they lay an information before a magistrates’ court, the decision maker is able to exercise his/her judicial mind when issuing the summons requested. In this case the Divisional Court determined that the informations which comprised simply of a schedule of offences were sufficient to meet the legal test which lowers the high threshold that is necessary to issue a summons and permits it to be issued ‘on the nod’. It seems that a summons can now be issued simply by setting out the particulars of the offence, without any explanation of the evidential basis for the charge; the likely issues in the criminal prosecution, or the defendant’s likely position. It is unclear how any magistrate can properly assess whether a prima facie case is made out in such circumstances. It is doubly unclear why this approach is justified in circumstances in which other prosecutors, such as private prosecutors, now have an enhanced duty to put material before a magistrate when seeking a summons: Criminal Procedure Rules 2015 (as amended), rr.7.2-7.4. Furthermore, and by way of comparison, when a potential prosecutor seeks a search warrant, they are under a duty to make full, complete, and frank disclosure to the magistrate, including telling the magistrate anything that might weigh against making an order (R v Crown Court at Lewes, ex p. Hill  93 Cr App R 60). A grant of a summons has more serious consequences than a grant of a search warrant: it opens a citizen up to prosecution and potential imprisonment. It is illogical and unfair for a lower threshold to apply to applications for a summons than to applications for a search warrant.
Given the increasing number of criminal offences that local authorities can now prosecute and the grave consequences of such prosecutions to many thousands of individuals, the process of issuing a summons by such institutions now appears to lack the judicial scrutiny and rigorous analysis that it should have. Furthermore, unlike the CPS, which is accountable for its actions by reference to a Code that determines which cases it can and should prosecute, there is no such safeguard for local authorities. The facts of this case revealed that prosecutions by local authorities for breaches of the Housing Act occur on a daily basis with the laying of an information at a local Magistrates’ Court in the way that occurred with these Claimants. This leaves open the very real possibility of prosecutions being instigated by local authorities without sufficient judicial scrutiny. Whilst the ability of a private individual to prosecute in the criminal courts should remain, particularly in circumstances when the State does not or will not do so, the process should have sufficient safeguards to avoid abuse. Unfortunately, the judgment in this case is not a helpful development in this regard.
The second issue that was considered was whether the rebuttable presumption of mens rea that applies to any offence for which a person may be punished in a criminal court should apply to the offence alleged in this case. As with the commencement of a criminal prosecution the consequences to a citizen being convicted and punished on the basis that s/he had no mens rea when committing an act is a grave one. As Lord Reid sated in the case of Sweet v Parsley  AC 132 ‘…there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.’ In the context of section 72(1) the offence initially carried a specified fine on conviction which was later removed. Conviction also raised the possibility of confiscation proceedings and needless to say, the label of being a ‘rogue landlord’.
The Claimants asserted that the presumption of mens rea should apply to section 72(1) and that significant weight should be attributed to that presumption. The Divisional Court disagreed and determined that the alleged offence was one of strict liability. This will undoubtedly make it more difficult for landlords to defend themselves against serious charges. It also represents an enlargement of the approach in previous authorities as regards the presumption of mens rea in so-called “regulatory” offences. This issue is clearly important, as recognised by the grant of permission to the Supreme Court in another recent case involving an ostensibly “regulatory”, offence (R (Highbury Poultry Farm Produce Ltd) v Crown Prosecution Service (UKSC 2018/0231).
The Judgment of the Divisional Court also does not quite resolve the ambiguity that prevails in relation to strict liability. The dicta predating R v Muhammad  EWCA Crim 1856 wrestled with the application of the presumption of mens rea by seeking to classify offences as ‘truly criminal’, ‘quasi criminal’, ‘regulatory’ and of ‘social concern’. The decision in Muhamad appeared to cut through this earlier dicta by establish a new approach that ‘any offence in respect of which a person may be punished in a criminal court is, prima facie, sufficiently "criminal" for the presumption to apply. But the more serious the offence, the greater the weight to be attached to the presumption, and conversely, the less serious the offence…’ Whilst acknowledging the criticism of trying to classify offences in order to determine if the presumption should be displaced, the Judgment included reference to and reliance on the earlier dicta and the Divisional Court determined, amongst other reasons, that because the section 72(1) ‘offence is a regulatory licensing offence…it is easier to displace the presumption that mens rea will apply to the statutory offence’. The Divisional Court placed significant weight on the fact that other offences in the Housing Act 2004 require a mens rea. This approach is wrong in law. Lord Reid was clear in Sweet v Parsley that the fact that other sections of the act specify a mens rea was not sufficient to suggest the offence was absolute. The same applied in B (A Minor) v DPP  2 AC 428 and in R v K  1 AC 462. In K, the House of Lords considered a single statutory provision that created some offences with a mental element and some without but still found that the presumption of mens rea applied. The approach of the House of Lords ought to have been followed in this case but was not.
Moreover, in finding that the absence of a mental element would promote the objects of the Housing Act 2004 the Divisional Court applied the wrong test. The fact that the statute may have an important purpose is a point that could be made in respect of almost all criminal offences. The same argument arose in B, in which the House of Lords held that the fact that the offence was aimed at the important policy objective of tackling sexual exploitation of minors was not enough to disapply the presumption of mens rea. To find that the presumption of mens rea does not apply does not merely require showing that this would be helpful, but that this is necessary (see R v Taylor (Jack)  1 WLR 500).
Since Sweet v Parsley, there has been an incremental growth in criminal offences which could be described as regulatory in nature. Many are open to prosecution by public authorities and often seek to respond to pressing, contemporaneous social concerns. The Housing Act 2004, for example, was introduced to regulate the housing industry and, with its requirement for licensing of certain types of properties, could be said to fall neatly into the ‘regulatory’ category of offences. Despite an offence under the Housing Act being seen as ‘regulatory’ in nature, the distinction between that and other offences is likely to be lost on the public at large. In the present case, the Claimants would be considered, to all intents and purposes, convicted criminals, despite them not knowing that the property they were renting out was occupied in breach of the Housing Act 2004, whilst the actual perpetrators of the offence could go completely unpunished.
Furthermore, the danger inherent in determining that offences of a ‘regulatory’ nature or those that are introduced because of a particular ‘social concern’, is that whilst the offences would have been introduced as measures to combat immediate social ills, they would remain on the statute books well beyond the period of their need and criminalise those that were not originally the intended target of the legislation. In any event, as the Divisional Court recognised, all criminal offences, by their very nature, deal with ‘social concerns’.
The need for the Courts to provide a definitive exposition in relation to strict liability has never been clearer and there is a pressing need for Parliament to state outright, when creating an offence, that mens rea has been specifically excluded and that strict liability applies. In the absence of such a clear statement, an offence should be deemed as requiring mens rea as long as it can be prosecuted in the criminal courts. This would bring clarity and certainty to the criminal law and avoid the semantic gymnastics that often have to take place when arguing the issue in Court.