Neutral Citation Number: [2009] EWHC 2820 (Admin)

CO/8119/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 13 October 2009
 
B e f o r e:

LORD JUSTICE PILL 

MRS JUSTICE RAFFERTY 
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Between: 
THE LONDON BOROUGH OF HARINGEY 
Claimant

v 

MR KANKU TSHILUMBE 
Defendant 
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Mr Tobias Eaton (instructed by London Borough of Haringey) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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J U D G M E N T
1.	LORD JUSTICE PILL:  This is a prosecution appeal by way of case stated against a decision of the Justices for the Local Justice Area of Haringey in respect of a decision made at Tottenham Courthouse on 3 December 2008.  
2.	At the close of the prosecution case brought by the London Borough of Haringey (the appellants), they found that there was no case to answer on two charges against the respondent, Mr Kanku Tshilumba.  The defendant/respondent has not appeared at court today.  He appeared in person before the magistrates.  The appellants have notified the respondent of today's hearing.  He has also been notified by the court by letter dated 5 October 2009.  We proceed to hear the appeal, Mr Eaton appearing for the appellant.  
3.	The relevant charge for present purposes is the second of the charges stated in the case, that the respondent did: 
"... on 14 2008 fail to comply with a Hygiene Emergency Prohibition Notice dated 14 August 2008, which had, on that same date, been affixed to the premises known as Rush Hour 1 located at 78 West Green Road, London, N15 5NS.  That Notice specifically stated that he was to stop using the premises as a food business and on 14 August 2008 he was found to be operating the premises as a food business, contrary to Regulation 8(5) of the Food Hygiene (England) Regulations 2006."  
That information was laid on 18 August 2008.   
4.	Regulation 8(5) provides: 
"(5) As soon as practicable after the service of a hygiene emergency prohibition notice, an authorised officer of an enforcement authority shall affix a copy of the notice in a conspicuous position on such premises used for the purposes of the food business as he considers appropriate; and any person who knowingly contravenes such a notice shall be guilty of an offence." 
5.	The first of the charges related to the alleged removal of a Hygiene Emergency Prohibition Notice bearing the same date, which had been affixed to the premises.  That notice was served under regulation 8(1), which provides: 
"If an authorised officer of an enforcement authority is satisfied that the health risk condition is fulfilled with respect to any food business he may by a notice served on the relevant food business operator (in these Regulations referred to as a "hygiene emergency prohibition notice") impose the appropriate prohibition." 
6.	Both charges were dismissed by the magistrates as described in circumstances which I shall briefly mention.  There is no appeal against the finding on the first charge.
7.	The justices found the following facts: 
"a.  On 13 August 2008 Mr Simon Thomas, a Senior Environmental Health Practitioner for the London Borough of Haringey had attended the premises known as Rush Hour 1 at 78 West Green Road.  He conducted a search of the kitchen area and found evidence of rodent activity, an absence of hot water and a low standard of cleanness.  
b.  The owner of Rush Hour 1, Mr Kwartang, was not in the country at this time and the respondent identified himself as being responsible for opening and closing the premises and handling monies.  Mr Thomas spoke to the respondent and told him that he would be serving a Hygiene Emergency Prohibition Notice on the premises.  He explained the effect of the Notice to the respondent and stated that the Notice should not be moved or removed.  
c.  On 14 August at approximately 12 noon Mr Thomas   had affixed a Hygiene Emergency Prohibition Notice dated 14 August 2008 to the metal shutters of Rush Hour 1.
d.  Mr Thomas returned to the premises at approximately 6pm on 14 August 2008.  The metal shutters were raised and the front door open, so that the Hygiene Emergency Prohibition Notice was not visible.  People inside the premises were seated around a table on which were plates of food and cans of drink.  
e.  The cans had been given to the occupants by the respondent free of charge."  
8.	I refer to the summary of the evidence which follows those findings insofar as is material: 
"Mr Thomas returned to the premises at approximately 6pm on 14 August 2008.  The metal shutters were raised and the front door opened so that the Hygiene Emergency Prohibition Notice was not visible.  Around five people were inside the premises and sat around a table that had around five plates of food and five cans of drink on it.  Mr Thomas asked the occupants where the food had come from and asked to speak to the owner.  He started to take photographs and make notes but the occupants started to shout at him so he called the police.  
The respondent arrived later and was cautioned by Mr Thomas.  
During cross‑examination Mr Thomas said that, although he saw food on the plates, the respondent was not present.  He was unable to ascertain whether the food had been prepared on the premises." 
9.	I say now what is necessary about the first charge not subject to appeal, which alleged the removal of the notice.  That was not pursued by the appellants.  The notice had been fixed to shutters so that when the shutter was put up into its revetment it was not visible.  It may be that environmental health officers in future will realise the possibility of that and place notices in a position, such as on the door or window of the premises, where they cannot disappear in the way this one did.  No query is raised as to whether the appellants were the authorised authority for enforcing the hygiene regulations or about Mr Thomas's position as an authorised officer as defined in the regulations.  
10.	Regulation 7(2)(c) provides that the health risk condition is fulfilled if the state or condition of the premises or the equipment used for the purposes of the business is such that it involves risk of injury to health.  Regulation 7(3)(c) provides that where the health risk condition is fulfilled, there should be a prohibition on the use of the premises or the equipment for the purposes of any food business.
11.	There is no doubt that the premises had been operated as a food business as defined in the Food Safety Act 1990 ("the 1990 Act").  In section 1(3): "'food business' means any business in the course of which commercial operations with respect to food or food sources are carried out ..."  
12.	Section 1(1) provides that "food" means food including drink; and section 1(3)(a) that "commercial operation" includes selling, possessing for sale and offering, exposing or advertising sale.  
13.	The magistrates were referred by their legal adviser to those provisions.  There is, however, no reference in the case stated to section 2(1)(a) of the 1990 Act, which provides that "sale" extends to the supply of food, otherwise than on sale, in the course of a business.  Regulation 11 provides a due diligence test to which it will be necessary to refer only very briefly.  It places a burden of proof on a defendant.  I add that regulation 2(2) provides that the terms used in the regulations shall have the meaning given to them in the 1990 Act, so that the definitions to which I have referred can be transposed from the Act.
14.	In the case stated, the justices set out the submissions made to them, and came to their conclusion on the substance of the matter at paragraph 6c: 
"c.  Although it was agreed that food and drink were on the table in the premises, the appellant had produced no evidence that these had been provided to the occupants by the respondent in the course of a food business within the meaning of the Food Safety Act 1990.  There was no evidence suggested that the food was provided by the respondent.  
d.  The appellant had failed to prove a vital element of the offence, namely that the respondent was operating the business as a 'food business' within the meaning of the Food Safety Act 1990."  
15.	The questions posed for the opinion of this court are: 
"a.  Did we act in excess of our jurisdiction in making a finding of fact that cans of drink had been given to the occupants by the respondent free of charge, a matter that was elucidated from the respondent during the course of his putting his case to the appellant, when trying to formulate his cross‑examination of Mr Simon Thomas, when, in fact, the respondent did not give evidence, as we found there was no case to answer? 
b.  Were we wrong in finding there was no case to answer on Charge 2 by virtue of not having heard any direct evidence from the appellant of food being provided, or should we have inferred that the respondent had been using the premises as a food business by virtue of the fact that people were eating and drinking at premises under his management?" 
16.	To explain the wording of the first question it is necessary to consider the procedure followed.  The course taken by the legal adviser, in an attempt to assist in the interests of justice, was to speak to the defendant, while the prosecution witness was giving evidence, to see what it was that, in the defendant's view, should be challenged in that evidence.  On that issue, they expressed their opinion in these terms:  
"Our legal adviser was entitled to assist the unrepresented respondent to put his case as effectively as he could.  In order to do this, the legal adviser would need to elucidate from the respondent the general nature of his case, and, in particular, his defence ... When this occurs, the court, or the legal adviser, can often convert the statement the respondent is making into a question to put to the witness.  In allowing the respondent to make a statement, we were not permitting him to give his evidence during the case for the appellant.  We were, with our legal adviser, merely attempting to establish what questions the respondent might properly put to the witness for the appellant."  
17.	That is a procedure which, in general terms, is approved in Part 37 of the Criminal Procedure Rules 2005 (SI 2005/384).  Rule 37.2 provides a procedure where an accused is not legally represented.  It provides: 
"If an accused who is not legally represented, instead of asking a witness in support of the charge questions by way of cross‑examination, makes assertions, the court shall then put to the witness such questions as it thinks necessary on behalf of the accused and may for this purpose question the accused in order to bring out or clear up any point arising out of such assertions."
 (formerly rule 13A of the Magistrates' Court Rules 1981.) 
18.	It is not suggested that the procedure followed was improper or unfair.  It appears to me to have been properly applied by the justices and their legal adviser in this case.  Care, however, is required when that procedure is followed, because, as the justices recognise, what the defendant says at that stage is not evidence in the case; it is merely an aid to the legal adviser, in the interests of justice, to put questions to probe the case against the defendant.  
19.	Where, however, in my judgment the justices erred is, on the basis of such questions, to make the finding of fact I have cited: "The cans had been given to the occupants by the respondent free of charge".  Mr Eaton claims that there had been an admission in the course of the proceedings to that effect.  No such admission appears, however, in the case stated, either in the findings of fact or in the statement of evidence.  There was no evidence to justify that finding of fact, and the justices should not have made it.  I say in passing, however, that if the finding of fact had properly been made, it would have assisted the prosecutor.  That is because of the wording of section 2(1) of the 1990 Act, which provides that the sale of food in section 1 extends to the supply of food, otherwise than on sale, in the course of a business.  
20.	An admission that drink, which comes within the definition of food, was supplied by the respondent to those present in the premises would have demonstrated, subject to any issue about "the course of a business", that there was a breach of the prohibition.  Since we accept Mr Eaton's submission that the finding of fact should not have been made, it is not open to the appellants on the hearing of this appeal to seek to rely upon that fact in establishing their case.  
21.	I turn to the central issue in the case, which is whether the justices were entitled to make the finding that there was no case to answer and to dismiss the charge. 
22.	On that question, Mr Eaton relies on the decision of the Court of Appeal in Jabber [2006] EWCA Crim 2694.  The leading case in this area is of course that of Galbraith [1981] 1 WLR 1039.  Lord Lane CJ, presiding, stated: 
"How then should the judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred."
That test also applies in the Magistrates' Court, though of course it will be the justices taking the final decision.
23.	Consideration was given to the nature of that test in Jabber.  The court stated: 
"The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference.  To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence.  But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion."
24.	Mr Eaton submits that, within hours of the Prohibition Notice being posted, Mr Thomas appeared at the premises to find them apparently operating normally as a restaurant.  The regulations, and the European Directive on which they are based, plainly envisage a situation in which the public interest must be protected, and drastic action may be taken by an enforcement officer on finding such dangers as the enforcement officer found in the present case.  
25.	I have referred to the findings of fact and to the evidence summarised by the justices in the Case.  Five people were present.  They had their food on plates.  Each of them had a plate and each of them had a can of drink.  No innocent explanation was tendered.  That being so, in my judgment a fact‑finding Tribunal would be entitled to draw the inference that the offence in regulation 8(5) had been committed.  Of course, the respondent should have an opportunity to explain the situation and to explain how the presence of the food and drink in those circumstances did not constitute a breach of the regulation.  He may have sought to rely, and in this respect the burden of proof would have been on him, on the due diligence regulation to which I have referred.  
26.	I am in no doubt, however, that this was not a case in which the justices were entitled to stop the case at the close of the prosecution and find that there was no case to answer.  There was a case.  It may be that their apparent unawareness of section 2(1) of the 1990 Act contributed to their error.  To adopt the words the justices themselves used in posing the question, it could be inferred from the circumstances that the premises were being used as a food business within the meaning of the regulations.  
27.	Accordingly, I would answer both questions in the affirmative.  In answering the second in the affirmative, I am not limiting the possibilities to those posed in the question.  Any fact‑finding tribunal must of course have regard to all the circumstances. 
28.	Accordingly, I would allow the appeal and invite submissions from Mr Eaton as to what course should now be followed.  
29.	MRS JUSTICE RAFFERTY:  I agree.
30.	LORD JUSTICE PILL:  Yes, Mr Eaton? 
31.	MR EATON:  My Lord, in my submission, the appropriate course would be to send the case back to the Magistrates' Court for re‑hearing because this defendant is entitled to have his case heard.
32.	LORD JUSTICE PILL:  Should it be a re‑hearing de novo or should the same bench simply carry on where they were? 
33.	MR EATON:  I would suggest, my Lord, a hearing de novo.
34.	LORD JUSTICE PILL:  And could the same bench hear it or should it be a different bench? 
35.	MR EATON:  It might be appropriate for a different bench to hear it, my Lord.
36.	LORD JUSTICE PILL:  Yes, we accede to those submissions.  The case will be remitted to the Haringey Justices to re‑hear the case afresh, and the case should be heard by a differently constituted bench of justices.  Do you have any other application? 
37.	MR EATON:  I have an application for costs, my Lord.  The local authority have not managed to provide a schedule or a break‑down because of the last minute nature of the notice of the hearing.  The officer in the case has been away on leave right until today, and also, although an hourly rate has been agreed with myself, my Lord, there is not a full break‑down.  There is an application for a contribution, and they say the real figure is going to be considerably higher, but they are asking for costs of £6,500.  A break‑drown can be provided.
38.	LORD JUSTICE PILL:  Is that here and below? 
39.	MR EATON:  That is below.  That is here ‑‑ it does not include the hearing in the Magistrates' Court, but it is everything thereafter in preparation for this appeal.
40.	LORD JUSTICE PILL:  If we are prepared to give costs but not in a sum, it will go to a costs officer.  Are we empowered under the present regulations to make an order for costs without specifying a sum? 
41.	MR EATON:  I do not believe ‑‑ 
42.	LORD JUSTICE PILL:  We are very reluctant to specify a sum in the absence of the respondent. 
43.	MR EATON:  My clients would be more than content for it to go to a costs officer.  That would give them a bit more time to go over everything.  The only issue is, is the costs awarded against the defendant or central funds, because the defendant really has not done much wrong, save for the original allegation against him.  He has not caused this to come up to this court.
44.	LORD JUSTICE PILL:  What are you asking us to do? 
45.	MR EATON:  I am asking you to award it from central funds to the local authority.
46.	LORD JUSTICE PILL:  What are our powers to do that? 
47.	MR EATON:  I have a copy of Stone's Justices' Manual, and it says costs from central funds for a private prosecutor can be awarded and should be made, except where there is a good reason for not doing so, for example where proceedings were instituted or continued without good cause.
48.	LORD JUSTICE PILL:  Does that apply to appeals by case stated? 
49.	MR EATON:  That does apply to appeals by way of case stated, but I have not had an opportunity to look at the definition ‑‑ 
50.	LORD JUSTICE PILL:  Does an amount have to be stated? 
51.	MR EATON:  It does not provide for an amount to be stated, but it would go to taxation, in any event.  Any costs order from central funds now goes to an administration centre in Nottingham in any criminal proceeding, except, I think, when it is under £1,000.
52.	LORD JUSTICE PILL:  Do we not have power to award them against the defendant? 
53.	MR EATON:  You do have power to award them against the defendant, and my Lord and my Lady may feel it is more appropriate.
54.	LORD JUSTICE PILL:  Out of protection of central funds, should we consider that possibility?  It is public money otherwise.
55.	MR EATON:  Yes, if I could just take one moment. (Pause)
56.	My Lord, my client is happy to leave it in your hands, but they do incline slightly towards the defendant.
57.	LORD JUSTICE PILL:  They incline to what?
58.	MR EATON:  Towards the award being made against the defendant.
59.	LORD JUSTICE PILL:  Even though they may not be able to enforce it? 
60.	MR EATON:  My Lord, indeed.  
61.	LORD JUSTICE PILL:  Can we do without specifying a figure? 
62.	MR EATON:  Yes, because against the defendant ‑‑ no, I think it has to be specified.
63.	LORD JUSTICE PILL:  There has to be a figure?
64.	MR EATON:  I believe so.  There has to be a figure in respect of the defendant; not from central funds because it goes to external taxation.  
65.	LORD JUSTICE PILL:  The sum you mentioned is a large one.  We may be thinking in far more modest terms.  A defendant, about whose means we know nothing, and who was not, it appears, the owner of the premises, someone running it for the owner in the owner's premises ‑‑ 
66.	MR EATON:  My Lord, I can instructions on the sum.  I am sure they would be content to ask for a smaller sum if it is going to be awarded against the defendant.  (Pause)
67.	My Lord, I am asked to ask for the sum of £1,500 against the defendant.
68.	LORD JUSTICE PILL:  £1,500.  We will retire to consider that application.  
 (Short Adjournment)
69.	LORD JUSTICE PILL:  The appellants have been successful in this appeal, and we award them costs against the respondent.  These will be limited to the sum of £1,500.  They relate to the appeal.  We do not attempt, if we could, to make any order for costs below.  
70.	Does anything else arise? 
71.	MR EATON:  No, my Lord.