QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE ROYCE
|WESTMINSTER CITY COUNCIL||Appellant|
|PRIAN BRUNO MCDONALD||Respondent|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR E RISSO-GILL (instructed by Messrs Janes Solicitors, London W1S 4LJ) appeared on behalf of the Respondent
Crown Copyright ©
"(1) ... the following matters constitute 'statutory nuisances' for the purposes of this Part, that is to say—
(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street; ...
And it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint."
"(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ('an abatement notice') imposing all or any of the following requirements—
(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes
And the notice shall specify the time or times within which the requirements of the notice are to be complied with
(2) The abatement notice shall be served—
(a) ... on the person responsible for the nuisance; ...
(3) The person served with the notice may appeal against the notice to a magistrates' court within the period of twenty-one days beginning with the date on which he was served with the notice.
(4) If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.
(5) ... a person who commits an offence under subsection (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction."
"'Whether, in order to establish that noise amounting to a nuisance ('noise nuisance') has occurred or recurred in contravention of the requirement of a statutory notice served under s.58 of the Control of Pollution Act 1974, the prosecution must prove that a particular occupier of property has actually suffered interference with his reasonable enjoyment of his property.'
The answer to that, in my judgment, is, no, they do not have to do that. Whether on the facts of a particular case the justices are satisfied so that they are sure that the nuisance has occurred is a matter, of course, for them. There is no pre-requisite as to the type of evidence which they must hear.
Likewise question (ii):
'Whether the occurrence or recurrence of a noise nuisance can be proved by other evidence including expert evidence in the absence of admissible evidence of such noise nuisance given by the particular occupier himself.'
In my judgment, the answer to that question is plainly, yes. Whether in the circumstances of a particular case they are so satisfied, as I say, is a matter of fact for them."
"It would be wrong for the Justices to refuse to convict of an offence under section 80(4) and (5) merely on the basis that no reliable acoustic measurement evidence had been adduced. That, to my mind, would be a wrong approach. The Justices are perfectly entitled, should they think fit, to convict absent such evidence. They may rely upon the evidence of an environmental enforcement officer or on the evidence of any other lay witnesses, but they cannot require the production of acoustic measurement evidence as a precondition for conviction. That is plain if only by reference to the Noise Act 1996, where such evidence is necessary should a local authority have adopted the provisions of the 1996 Act in respect of their area. Of course, there may be cases where the Justices are not convinced to the required standard of proof absent such evidence, but the way this case stated was drafted gives rise to a fear that the only basis for rejecting a conviction was the absence of acoustic measurement."
"Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.
A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element of the alleged offence; (b) where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."
"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."
The contention advanced is that it is necessary for there to be certainty in order for an offence to be validly charged and pursued. It is extremely difficult for this court in these circumstances to deal in vacuo with a proposition such as this before the full facts have been found. I will return to that aspect shortly.
"The second question can be dealt with more shortly. Mr Hale ... challenges the validity of the abatement notice, a challenge which he accepts is made the more difficult by the terms of the Court of Appeal's judgment in Ex p South West Water Ltd. But what he advances by way of submission is this: a mere requirement to abate the nuisance, without saying what should be done to achieve that result is inadequate and renders the notice invalid. The defendant could not know whether the level at which the music was being played in his premises would be such as to be heard, and if so to what extent, in the premises of his neighbour. Furthermore, Mr Hale submits that there is a want of precision in the abatement notice which causes it to fall foul of the provisions of Article 7 of the European Convention on Human Rights. As to that alleged want of precision, Mr Hale took us to Kokkinakis v Greece (1994) 17 EHRR 397 and, in particular, to paragraphs 51 and 52 of the judgment of the court. Paragraph 52 refers to the principle that only the law can define a crime and an offence must be clearly defined in law:
'This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court's interpretation of it, what acts and omissions will make him liable.'
Mr Hale submits that the present abatement notice does not provide any indication of the act or omission which will expose the defendant to criminal sanction. Mr Hale also took us through SW v UK (1995) 21 EHRR 363 and, in particular, to paragraphs 34 and 35 of the judgment which again emphasise that an individual is entitled to know what acts and omissions will make him criminally liable.
Mr Thomas on the other hand, submits that Budd v Colchester BC  JPL 717 is indistinguishable from the present case. In that case an abatement notice was served in relation to a statutory nuisance identified as 'dog barking' and requiring abatement within 21 days. Mr Thomas submits that by reference to the English authorities and the decisions of the European Court of Human Rights what is required in identifying a criminal offence is reasonable certainty and that is to be considered in the light of judicial interpretation of the statute. In the present case such interpretation is provided, he submits, in the Court of Appeal's decision in Murdoch v Glacier.
Furthermore, Mr Thomas took us to Steel v UK (1999) 28 EHRR 603 a case involving a breach of the peace. In paragraph 5 of the court's judgment it was held that, by virtue of the decisions of the English courts, it is now sufficiently established that a breach of the peace is committed only when an individual causes harm or appears likely to cause harm to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. In paragraph 75 and 76 of the judgment the court concluded that the national law was formulated with sufficient precision reasonably to allow the applicants in that case to foresee the consequences of their actions and it was sufficiently clear that the applicants were being requested to agree to refrain from causing further similar breaches of the peace.
Mr Thomas submits that the present circumstances are indistinguishable from those in Steel. This defendant was required to abate the nuisance by noise identified in the abatement notice, that nuisance being further identified in Murdoch v Glacier.
In my judgment, again, the submissions of Mr Thomas are to be preferred. It seems to me that there is nothing in the decisions at Strasbourg, to which our attention has been drawn, which is in any way inconsistent with the approach of the Court of Appeal in Ex p South West Water Ltd."
"... whether I was correct to dismiss the information (of my own motion) at the close of the Prosecution case, having found that there was no case for the Respondent to answer?"
The answer to that question, in my judgment, is "no".