England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice
		21st March 2018

MR JUSTICE HOLGATE:

1. This is an appeal by way of case stated from the decision of the Ealing Magistrates' Court on 25^th May 2017 to acquit Mr Aslim, the respondent, of two charges contained in an information.
2. Mr Aslim ran the Yankees Hair Studio at 109 High Street, Hounslow. He was the holder of a licence granted by the appellant, the London Borough of Hounslow, under s.6 of the London Local Authorities Act 1991 for the period from 1^st April 2016 to 31^st March 2017. The licence authorised the premises to be used as an "establishment for special treatment", which included the provision of body-piercing services.
3. The first offence alleged was that on 16^th August 2016 the respondent, as the holder of the licence, failed to act in accordance with the terms, conditions or restrictions to which the licence was subject, by failing to obtain written consent from a parent or guardian to carrying out body piercing on a child aged 14. The child had her belly pierced by an employee of the studio.
4. The second offence alleged was that between 1^st April 2016 and 14^th September 2016, the defendant, as the holder of the licence, failed to act in accordance with the terms, conditions or restrictions to which the licence was subject, by failing to keep complete and proper records for all treatments provided, namely the name and address of each person receiving treatment, the person who provided the treatment and written consent from a parent or guardian to carrying out body piercing on a child aged under 16 years. Each of these offences was said to be contrary to s.14(2) of the 1991 Act.
5. According to the case stated, the magistrates made the following findings of fact:

(1) It was agreed that at the time of the alleged offences the respondent held a special treatment licence in respect of Yankees Hair Studio. The licence authorised the provisions of treatment including body piercing;

(2) The child in question was aged 14 at the time of the offence;

(3) The child had told the respondent that she was 16 and produced a photo card indicating that she was aged over 16. The respondent was satisfied that the card showed the child to be that age;

(4) The child had arranged for a friend to pretend to be her father in a telephone conversation with the respondent to confirm to the latter that she was aged over 16. The respondent rang the number given to him by the child in order confirm her age, and was indeed told that she was aged 16;

(5) The child received belly button piercing;

(6) Senior health and safety officers employed by the appellant visited the licensed premises and seized documents, which included a consent form stating "dad called Yankee to give permission;"

(7) The officers seized 120 records or forms from the premises. The appellant stated that 50 of these forms did not comply with the licence conditions, but only 21 were produced in court and not all the forms were for treatments within the scope of the licencing regime.

6. The justices referred to two of the standard conditions imposed by the appellant upon licences. One condition allowed piercings, but not nipple or genital piercing, on children under the age of 16, provided that written parental consent was obtained. Another allowed piercings, but not genital piercings, on children aged between 16 and 18, provided that either parental consent or valid photographic identification, such as a passport or driving licence, was obtained.
7. In para.6 of the case stated, the justices said:

"We were of the opinion that

(a) having looked at the London Borough of Hounslow's Special Treatments Regulations paragraph 8 subsections (2) and (3), that in the case of a 16-18-year-old either valid identification or parental consent suffices (subsection (3)). [The child] had produced photo ID card 16+. Mr Aslim took additional steps to ensure that [the child] was 16 or over by double checking with a person he was led to believe was her father who stated that [the child] was 16 and gave consent for the body piercing procedure. The case did not fall within subsection (2) requiring written parental consent because Mr Aslim did all that was required within subsection (3).

(b) Mr Aslim produced a record book for the 16^th August and that the form regarding [the child] is sufficient record keeping. The prosecution have not satisfied us beyond reasonable doubt regarding the status of the incomplete forms and whether they related to licensed procedures.

(c) The prosecution had not satisfied us beyond reasonable doubt and we accordingly dismissed both charges."

8. The magistrates have stated two questions for the opinion of this court. In relation to the first charge, the question is:

"Were we correct to find that the case did not fall within section 14(2) of the London Local Authorities Act 1991 and to acquit Mr Aslim because he took all reasonable steps to ensure [the child] was 16 or over or is section 14(2) an offence of strict liability?"

In relation to the second charge the question is:

"Were we correct to find that the case did not fall within section 14(2) of the London Local Authorities Act 1991 and acquit Mr Aslim because the incomplete records evidenced did not specify the kind of treatment provided to others?"

The statutory framework

9. Part II of the Local Authorities Act 1991 deals with "special treatment premises". Section 4 defines an "establishment for special treatment" as any premises in the borough used, intended to be used, or represented as being used for the reception or treatment of persons requiring various services, including "cosmetic piercing". There are a number of exclusions which did not apply in this case. Section 6(1) provides that no premises in the borough may be used as an establishment for special treatment "except under and in accordance with a special treatment licence granted under this section by the borough council". Section 6(2) empowers the council to grant to an applicant a licence "on such terms and conditions and subject to such restrictions" as may be specified. Section 6(3) provides that without prejudice to the generality of section 6(2), those conditions may relate to such matters as "the maintenance of public order and safety" and "the manner in which the establishment is operated". These matters indicate certain objectives of this legislation.
10. Section 7 deals with the making of an application for a special treatment licence. Section 10 provides:

"(1) The borough council may make regulations prescribing standard conditions applicable to all, or any class of, licences, that is to say terms, conditions and restrictions on or subject to which licences, or licences of that class, are in general to be granted, renewed or transferred by them.

(2) Where the borough council have made regulations under this section, every licence granted, renewed or transferred by them shall be deemed to have been so granted, renewed or transferred subject to any standard conditions applicable to it unless they have been expressly excluded or amended."

Section 13 provides a right of appeal against a refusal to grant a licence or against the terms upon which a licence has been granted.

11. Section 14 deals with the enforcement of Part II of the 1991 Act. Section 14(1) makes it a criminal offence for any occupier or other person concerned in the conduct or management of premises to use them as an establishment for special treatment or to represent them as being so used, or to allow them to be so used unless they are currently licensed by the borough council under Part II. In the event of a summary conviction, such a person is liable to a fine not exceeding level 4 on the standard scale. Section 14(2) provides that:

"If any premises in respect of which a licence is in force are used as an establishment for special treatment otherwise than in accordance with the terms, conditions or restrictions on or subject to which the licence is held, then the holder of the licence [...] or other person concerned in the conduct or management of the premises shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale."

The Council's standard terms and conditions

12. The Council made regulations under section 10 of the 1991 Act prescribing standard terms and conditions. The introduction states that "These Standard Terms and Conditions are applicable to all premises [...] offering special treatments". "Special treatment" is defined so as to include skin piercing and tattooing.
13. Section 2 in Part II of the standard terms and conditions sets out a number of "responsibilities" imposed on the licence holder. The first is that the licence holder is "directly responsible" for "the need to ensure that these [conditions] are complied with". Paragraph 8 in this section provides:

"The licensee shall ensure that complete and proper records are maintained of ALL treatments provided and a record made of the person providing the treatment and shall retain all records for the duration required under the Standard Terms and Conditions of the licence." (Emphasis in original)

14. Section 13, entitled "Record Keeping", states that:

"The licensee MUST maintain and make available to an officer at his/her request copies of their clients records." (Emphasis in original)

15. Part III of the standard terms and conditions contains additional conditions for specific types of treatment. Section 8 deals with body piercing. The following paragraphs are relevant:

"(2) Piercings with the exception of nipple and genital may be carried out with written parental consent under the age of 16.

(3) Piercing with the exception of the genitals may be carried out on 16/18 year olds with either parental consent or a valid photographic identification e.g. passport or driving licence.

(4) Any piercing may be carried out on anyone over the age of 18 with a valid photographic identification e.g. passport or driving licence.

(5) Prior to treatment every client or parent/guardian shall read and sign a consent form, which contains details of name, address, age etc. These records shall be kept for at least 3 years and be available for inspection at the premises. A specimen consent form is attached at Appendix B."

The standard terms and conditions imposed similar requirements for tattooing.

16. The form at appendix B requires the name and address of the premises to be given. The client is then asked to give their full consent to the treatment identified in the form, and to confirm that the information given by them on the form is true to the best of their knowledge. Clients are required to declare whether they are suffering from any one of a number of medical conditions and to confirm their understanding that no form of anaesthetic would be used during the procedure. The name of the person carrying out the treatment has to be recorded. There then follows a section in which the client consents to treatments specified in the form. The form requires the full name and address of the client to be given and their age and date of birth if under 18. The form must then be dated and signed by the client, or, in the case of a person under the age of 16, by their parent or guardian.

Question 1

17. The essential question to be determined is whether the first alleged offence, namely the respondent's failure to act in accordance with the standard terms and conditions by not obtaining written consent from the child's parent or guardian to body piercing, is a strict liability offence.
18. The offence is defined by s.14(2) of the 1991 Act as applied to the relevant conditions of the licence. It comprises three elements, namely on the relevant date (1) a licence under s.6 was in force for the premises; (2) the premises were used as an "establishment for special treatment"; (3) that use was "otherwise than in accordance with," or in breach of the terms or conditions of, the licence.
19. In the present case, the respondent did not deny that points (1) and (2) were satisfied. On 16^th August the premises were subject to a licence under section 6 and were used to carry out a special treatment, namely body piercing.
20. The relevant condition, paragraph 8 in section 2, allows the carrying out of piercings other than nipple or genital piercings on a child aged under aged 16, subject to obtaining written parental consent to that treatment. It is plain from the findings of the justices that the respondent was aware of the age restrictions in the conditions of the licence, and knew that he had not obtained any parental consent in writing. The decision to acquit turned on the findings by the justices that (a) the child had produced a photo ID giving her age as over 16; (b) the respondent had checked that the child was over 16 by speaking over the telephone to a person he was led to believe was her father; and (c) the respondent had taken all reasonable steps to ensure that the child was over 16. Thus, the magistrates decided to acquit the respondent on the basis that it was insufficient for the prosecution to show that as a matter of fact the child was less than 16 years old at the time of the treatment. Instead, the prosecution had to prove that the respondent had failed to take all reasonable steps to ascertain her true age. The issue is whether strict liability applies to that element of the offence.
21. In Gammon (Hong Kong) Limited v The Attorney General (Hong Kong) [1985] AC 1 at p.14B, the Privy Council summarised the principles to be derived from the case law on when an offence, or element of an offence, should be treated as a matter of strict liability:

"(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

(2) the presumption is particularly strong where the offence is "truly criminal" in character;

(3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;

(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;

(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

22. As to the second principle, the offence in question was not "truly criminal" in character. The requirement that body piercing should not be carried out on children under 16 without written parental consent is a prohibition of a regulatory nature accompanied by a penalty (Sherras v De Rutzen [1895] 1 QBD 918, 921; Sweet v Parsley [1970] AC 132, 149). The offence can only be dealt with summarily. It cannot be punished by imprisonment and it is not a type of offence which will attract stigma to any substantial degree.
23. As to the fourth principle, both s.14(2) and the condition which is the subject of the alleged offence raise matters of social concern, in that they are directed at protecting public safety and health and the interests of children and young persons.
24. As to the fifth principle, it is undoubtedly the case that the imposition of strict liability on compliance with the Council's standard terms and conditions on age restrictions and written parental consent would promote the objects of the statutory regime by encouraging greater vigilance by those responsible for establishments providing "special treatments". That was the position in the analogous case of Harrow LBC v Shah [2000] 1 WLR 83, which was concerned with a prohibition on the sale of National Lottery tickets to persons under 16. The argument is all the more compelling in the present case given the health and safety issues involved.
25. The third principle raises the question whether the presumption in favour of requiring mens rea to be established is displaced clearly or by necessary implication by the effect of the 2011 Act. In B (a minor) v Director of Public Prosecutions [2000] 2 AC 428 at p.464A, Lord Nicholls stated:

"'Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence."

26. There is nothing in the 2011 Act, particularly in s.14(2), to indicate that a licence holder's reasonably held belief that he is complying with the terms of the licence may afford a defence. Such an approach would seriously weaken the regulatory efficacy of this scheme. That applies a fortiori to the protection of young persons and children by the regulations which s.10 allows local authorities to make, such as the standard terms and conditions in this case.
27. Accordingly, in the circumstances described in the case stated, and for the reasons already set out above, I conclude that the presumption in favour of applying a mens rea requirement in relation to the age restriction is displaced by necessary implication. The justification for that implication is "compellingly clear".
28. For these reasons, I would answer question 1 in the negative. Whether or not the respondent took all reasonable steps to ensure that the client was aged over 16 is irrelevant to whether or not he was guilty of the first offence under s.14(2) contained in the information. On the issue of age, it was sufficient for the prosecution to prove that the client was in fact aged under 16. On that basis, and given the other findings made by the justices, I would allow the appeal in relation to question 1 and remit the matter to the magistrates' court with a direction to convict the respondent on the first offence charged in the information.

Question 2

29. The combined effect of the standard conditions dealing with record keeping to which I have previously referred is clear. They require records to be kept of all body-piercing treatments carried out, the name and address of the client, his or her age (if under 18), the signature of the client, parent or guardian, and the name of the person carrying out the treatment. Other conditions impose similar requirements for other forms of "special treatment", such as tattooing.
30. Mr Graham Bellamy, a senior health and safety officer employed by the appellant, provided a witness statement under s.9 of the Magistrates' Courts Act 1980. Paragraph 3 of the case stated records that this statement was agreed. Mr Bellamy visited Yankees Hair Studio on 14^th September 2016 and asked the respondent for all client records and consent forms kept by him since 1^st April 2016. The respondent said that the only "special treatments" carried out were tattooing and body piercing. The respondent provided Mr Bellamy with 92 original "tattooing and piercing consent forms", and stated that these were the whole of the relevant records covering the period from 1^st April to 14^th September 2016. However, Mr Bellamy went on to find a further 28 such forms covering the same period, making 120 in all.
31. Mr Bellamy produced a selection of these records to the magistrates to show that they related either to body piercing or tattooing and that they did not in all cases contain the full names or addresses of the client or the name of the person carrying out the treatment. It is also troubling to see that in three cases where piercing was to be carried out, the forms recalled that someone in the studio spoke to the client's mother on the telephone for her consent to be given, but there is no record of parental consent having been given in writing, nor the age of the child.
32. The appellant therefore provided agreed evidence to the justices of plain breaches of the conditions laying down requirements for proper record keeping. However, in para.6(b) of the case stated the justices said that:

"The prosecution had not satisfied us beyond reasonable doubt regarding the status of the incomplete forms and whether they related to licensed procedures."

The case stated does not identify any specific defence advanced by the respondent to explain why Mr Bellamy's evidence did not suffice to establish breaches of the conditions on record keeping. The justices did not supply any further reasoning to deal with that crucial point.

33. In their second question to this court, the justices ask whether they were entitled to acquit the respondent because the "incomplete records evidenced did not specify the kind of treatment provided to others". This question should be answered in the negative. The forms relied upon by the appellant before the justices plainly identified the type of "special treatment" provided. There was no doubt as to the "status of the forms". The agreed evidence of Mr Bellamy showed that the respondent produced the forms in order to comply with the licensee's obligations under the standard terms and conditions on record keeping. The respondent's failure to comply with those obligations in relation to such matters as full names and addresses of clients and the names of the persons carrying out the treatments is plain from the evidence placed before the justices.
34. Paragraph 6(b) of the case stated refers to a record book which the respondent produced for 16^th August 2016, but there was no suggestion or finding that that document overcame or undermined the evidence on the failures----
(Proceedings interrupted) (A short adjournment)

LORD JUSTICE TREACY:

35. Mr Aslim, who has attended court after a judgment had been started in this hearing, has applied for an adjournment on the basis that some ten days ago he instructed solicitors to ask them to represent him at this hearing, and that they have applied for legal aid and that at present there has been no decision in relation to that.
36. What appears to have triggered Mr Aslim's contact with his proposed legal representatives was receipt of the hearing bundle some days ago. But it is apparent from information provided that Mr Aslim was made aware of the decision by the London Borough of Hounslow to make an appeal by way of case stated before Christmas 2017. He appears, therefore, not to have taken any step in the interim, notwithstanding the fact that he had legal representation at the time of the hearing below.
37. In those circumstances, for him to have acted in the way which he did only ten days ago, is simply far too late. He should have acted promptly to seek legal representation if he wanted that, when he had notice of the proceedings.
38. Accordingly, we refuse this application for an adjournment, and I will invite Mr Aslim now to make any submissions that he wishes to make for the court's consideration.
(Submissions heard) (A short adjournment)

LORD JUSTICE TREACY: We had reached the position whereby my Lord was giving a judgment. I will ask him to continue giving his judgment, which will take account of the matters raised by Mr Aslim before the court rose.

MR JUSTICE HOLGATE: I will return to the judgment.

39. Paragraph 6(b) of the case stated refers to a record book which the respondent produced for 16^th August 2016, but there was no suggestion or finding that that document overcame or undermined evidence of the failures revealed by Mr Bellamy's agreed witness statement.
40. As I was in the middle of giving judgment, Mr Aslim came into court. He applied for this appeal to be adjourned. We refused that request for reasons given in the judgment of my Lord, Treacy LJ, but we gave him the opportunity to address us on the points raised by the justices in the case stated for the opinion of this court.
41. In relation to the first charge, Mr Aslim stated that he had taken all reasonable steps to ascertain the child's age. His points accorded with the findings of the justices. For the reasons already given in my judgment, that submission cannot affect the court's conclusion that on a correct construction of the relevant legislation he was guilty of that particular offence.
42. As to the second charge, Mr Aslim complained that the Council's officers had not done their job properly. He said that the forms they produced at the magistrates' court were not the special treatment forms. He also referred to a book. This, however, is entirely inconsistent with the statement of Mr Bellamy, read as agreed evidence at a time when Mr Aslim was legally represented. For the avoidance of doubt, I will refer to the relevant passages in that statement:

"On 14^th September 2016, Mr Kasapi and I visited Yankees, accompanied by the Council's Policing Team. I approached Mr Aslim, the current licensee, and asked him for all the client records and consent forms for Yankees since 1^st April 2016. Mr Aslim claimed that the only Special Treatments he carried out at Yankees were tattooing and piercing and he gave me 92 original copies of completed 'Tattoo and Piercing Consent Forms' from 1^st April 2016 to the current date. I asked Mr Aslim whether this was all the records for this period and he said they were. I explained to Mr Aslim that I would take these records to copy them and then return them to him without delay; I gave him a receipt with reference 1468 for these records. I continued my investigation at the salon and removed documents from beneath the reception desk and found a further 28 'Tattoo and Piercing Consent Forms' for this period. I told Mr Aslim I would take and return these as well and gave him a receipt with reference 1469 for these records. Mr Kasapi and I left after about 2 hours.

On returning to the Civic Centre, I gave the total 120 consent forms to the Departmental Business Support Team and asked them to copy them all."

Later on in his statement he said this:

"I exhibit a selection of client records that have no full names, addresses or the person carrying out the treatment and 2 records with photo ID was attached [...]."

He produced two exhibits.

43. It follows that Mr Aslim has sought to advance before us a factual case which is wholly inconsistent with the agreed evidence put before the justices, evidence with which, as I have explained, they failed to deal. None of the points he made provides any basis for sustaining his acquittal on the second offence, since the function of this court is to deal with the case stated for its opinion.
44. The relevant part of the case stated is deficient in two respects. Firstly, the justices considered the record book referred to by Mr Aslim solely in relation to the incident concerning the child on 16^th August, whereas the second charge and Mr Bellamy's evidence concerned record keeping over the period 1^st April to 14^th September 2016. Secondly, the justices' uncertainty as to the status of the documents produced by Mr Bellamy was wholly inconsistent with his clear and agreed evidence to which I have already referred. Accordingly, the submissions of Mr Aslim made to us this morning do not upset the conclusions set out earlier in this judgment.
45. For these reasons, I would allow the appeal in relation to question 2 and remit the matter to the magistrates' court with a direction to convict the respondent on the second offence charged in the information. In relation to both offences, there will therefore need to be a hearing concerning sentence. At that time, Mr Aslim will be able to advance such mitigation as he wishes.

LORD JUSTICE TREACY:

46. I agree.

MR CHARALAMBIDES: My Lords, thank you. If I may make just one brief request given that this wasn't contested legally, it is a matter that is of interest to local authorities and I'd ask that the judgment could be certified so that it could be relied upon, although there wasn't full legal argument opposing it.

LORD JUSTICE TREACY: Yes.

MR CHARALAMBIDES: I'm grateful. Thank you.

LORD JUSTICE TREACY: You have no other application?

MR CHARALAMBIDES: No.

LORD JUSTICE TREACY: No. Thank you.

Mr Aslim, do you understand? We have held that, notwithstanding what you said to us, we have considered fully the points you made to us, that the appeal made by the local authority is a good one and that therefore the justices will have to convict in this case.

You will have an opportunity at a hearing before the justices to put forward mitigation to the justices who will have to consider what sentence they wish to pass on you, and no doubt you will wish to draw their attention to particular matters to invite them to pass an appropriate penalty on you which represents your blameworthiness. All right? Thank you.

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