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For educational use only
*155 Westminster City Council v Croyalgrange Ltd. and
Another
Ct) Mixed Judicial Consideration
Court
House of Lords
Judgment Date
15 May 1986
Report Citation
(1986) 83 Cr. App. R. 155
House of Lords
( Lord Bridge of Harwich , Lord Brightman , Lord Mackay of Clashfern , Lord Ackner and Lord Oliver of Aylmerton ):
April 10, May 15, 1986
Licensing—Sex Establishment—Knowingly Using or Causing or Permitting Use of Premises as Sex Establishment Without
Licence—Exception Where Licence Applied for Before Appointed Day—Whether Knowledge that No Licence Applied For
Ingredient of Offence— Local Government (Miscellaneous Provisions) Act 1982(c.30), 8.48, Sch.3, paras. 6(1), 20(1)(a) .
Section 48 of and Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 introduced a code which a local
authority could adopt by */56 resolution for the control within their area by means of a licensing system of what were called
in the Schedule “sex establishments”.
By paragraph 6(1) of Schedule 3 : “Subject to the provisions of this Schedule, no person shall in any area in which this Schedule
is in force use any premises ... as a sex establishment except under and in accordance with the terms of a licence granted under
this Schedule by the appropriate authority.”
By paragraph 20(1): “A person who, (a) knowingly uses, or knowingly causes or permits the use of, any premises ... contrary
to paragraph 6 above ... shall be guilty of an offence.”
To constitute an offence contrary to paragraph 20(1)(a) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act
1982 it is necessary for the prosecution to prove that the defendant knew that the use which he was making of the premises
himself (or the use which he was causing or permitting others to make of the premises) was in contravention of the prohibition
imposed by paragraph 6 of the said Schedule 3, i.e. , that not only that the premises were used as a sex establishment but also
that they were being so used without a licence. Such knowledge may be proved on evidence that the defendant had deliberately
shut his eyes to the obvious or that he had refrained from inquiry because he suspected the truth but did not want to have his.
suspicion confirmed.
Decision of the Queen's Bench Divisional Court [1985] I All E.R. 740, affirmed .
Appeal from the Divisional Court of the Queen's Bench Division.
This was an appeal by the Westminster City Council by leave of the House of Lords from the decision of the Divisional Court
of the Queen's Bench Division (Robert Goff L.J. and McCullough J.) [1985] 1 All E.R. 740 on November 29, 1984 dismissing an
appeal by the couneil by case stated from the dismissal by Ronald David Bartle, a metropolitan stipendiary magistrate sitting at
Bow Street Magistrates' Court, on December 29, 1983, of two informations laid against each of the defendants, Croyalgrange
Ltd. and Charles Grech, by the council.
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The two informations laid against each of the defendants by Terence Frank Neville, City Solicitor, acting for and on behalf of the
Westminster City Council alleged, against Croyalgrange Ltd. (i) that on February 8, 1983 they had knowingly permitted the
use of premises at 4, Peter Street, London W1 as a sex establishment without the grant of a licence by the ¢ouneil under Schedule
3 to the Local Government (Miscellaneous Provisions) Act 1982 , contrary to F section 2 of and Schedule 3, paragraphs 6(1)
and 20(1)(a) , to the Act; (ii) a like offence on February 24, 1983; against Charles Grech (iii) that the offence set out in (i) had
been committed with his connivance, he being a director of @royalgrange Ltd., whereby he, as well as the body corporate,
was guilty of the offence, contrary to section 2 of and Schedule 3, paragraphs 6(1), 20(1)( a ) and 26(1) to the Act; (iv) a like
offence in relation to (ii).
The magistrate heard the informations on December 29, 1983, the defendants having each entered pleas of not guilty to each
information, and found the following facts. At all material times ( ie. April 10, 1981 to June 22, 1983) no licence for the
premises in question had been applied for or had been in effect. At all material times the premises had been used by the tenant
Charles Buttigieg as a sex establishment within the meaning of the Act of 1982, Croyalgrange Ltd. had been the freehold
owner of the premises and Grech had been a director of Croyalgrange Ltd. The defendants had been notified on March 4, 1982
and November 26, 1982 that the premises were being used as a sex shop and that on the latter date an enforcement notice had
been served on them; Croyalgrange */57 Ltd. had appealed against the notice but had withdrawn its appeal on September
8, 1983. Throughout the material times the premises in question had been let by Grech on behalt of Croyalgrange Ltd. to
Buttigieg (who had been convicted of using the premises without a licence) by a series of six-monthly agreements the first of
which had been dated April 10, 1981. The agreements dated April 10, 1981, October 12, 1981 and April 12, 1982 had required
the tenant to use the premises only for the sale of sexual aids, videos and books. In the agreement dated April 12, 1982 there
had been inserted a clause forbidding activity that would jeopardise (sic) “any forthcoming sex establishment laws”; that clause
had been repeated in the agreement dated October 11, 1982. On September 5, 1982 Buttigieg had written to Croyalgrange Ltd.
seeking consent to sub-let the premises to one Thomas and on September 9, 1982 Grech had written to Buttigieg indicating
that there was no objection to the proposed sub-letting of the premises provided that Buttigieg ensured that his agreement with
Thomas covered all the requirements set out in the then current agreement between Croyalgrange Ltd. and Buttigieg, which
requirements, inter alia , provided that the premises should continue to be used for the sale of sexual aids, videos and books
whilst forbidding any activity that would “jeopardise” any forthcoming sex laws. The agreement dated October 11, 1982 had
purported to change the use of the premises from the sale of sexual aids, videos and books to that of peep-show, bar and club for
which no licence would have been required; that agreement had not been drawn up by Croyalgrange Ltd.'s solicitors. During
an interview with Detective Constable Brian Dowling on February 28, 1983 Grech had asserted that he was not aware that
pornographic material was being sold in the premises and that he had not been to the premises for about two years; he had
further asserted that since February 1, 1983 a clause had been inserted in the lease specifying that the premises should not be
used for immoral or illegal purposes and that the purpose of that clause was to enable the occupants of the premises to apply for
a licence. During the interview held on February 28 Grech had admitted that “girlie” magazines and books like Penthouse and
Mayfair were on sale at the premises, On March 9, 1983 Grech had written to Gideacrest Ltd. (a company run by Buttigieg)
indicating his (Grech's) concern that the premises were being used as a cinema and requesting written confirmation that the
appropriate licence had been applied for and on March 11, 1983 Buttigieg had written to Croyalgrange Ltd. reminding them
that he had sub-let the premises and informing them that the present tenant had assured him that the necessary licence had been
applied for. By a letter dated June 22, 1983 addressed to Buttigieg, Grech had purported to confirm a verbal agreement of the
same date that the premises would be closed by June 27, 1983.
It had been put by the prosecutor in opening that there were two alternative interpretations of the relevant statutory provision
relating to knowledge, viz. , that to establish knowledge (i) it was sufficient to show that the defendants had known that the
premises were at all material times a sex establishment within the meaning of the Act of 1982; (ii) it had to be shown that the
defendants had known that no licence to operate the premises as a sex establishment had been granted or applied for. It was
contended that the first of those interpretations was the correct one. The magistrate took the view that the interpretations were
not mutually exclusive and that absence of knowledge that a licence had not been applied for would amount to a defence if the
defendants could show that they had taken all reasonable steps to ensure that the licensing requirements were met by the lessees.
*158
At the end of the prosecution case a submission was made on behalf of the defendants that there was no case to answer. The
magistrate found that the facts presented by the prosecution amounted to a prima facie case that on February 8 and 24, 1983 the
premises had been used as a sex establishment and it was therefore for the defence to establish by evidence absence of knowledge
that a licence had not been applied for. The case for the defendants rested on the proposition that, in view of the agreements
dated April 12 and October 11, 1982 and the correspondence referred to they had been entitled to assume that the sub-tenant had
applied to the appropriate authority for the requisite licence when such requirement had come into force on February 1, 1983.
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The issues for the magistrate to decide, as he saw it, were (a) was it proved that after February 1, 1983, the date from which a
licence had been obligatory Croyalgrange Ltd. with knowledge, actual or constructive, had permitted the use of the premises
as a sex establishment without a licence, or without application in proper form having been made to the appropriate authority
for the grant of a licence; (b) if so, had Grech connived at the same. He was of the opinion that, although considerable suspicion
existed, it had not, as a matter of fact, been proved beyond a reasonable doubt that on February 8 and 24, 1983 either defendant
had had the requisite knowledge to constitute the offences charged. For that reason he dismissed all four informations.
The questions for the opinion of the High Court were (i) whether, Creyalgrange Ltd. having admitted [permitted] and/or been
proved to have permitted the use of premises at 4, Peter Street as a sex establishment at all materials times prior to February 1,
1983, it had in law permitted the continued use thereof as a sex establishment without a licence on February 8 or 24, 1983, and,
if so, (ii) whether Grech had connived at the commission of such offences by Creyalgrange Ltd.
The Divisional Court certified that the following point of law of general public importance was involved in their decision:
“To constitute an offence contrary to paragraph 20(1)(a) of Schedule 3 to the Local Government
(Miscellaneous Provisions) Act 1982 is it necessary for the prosecution to prove that the defendant
knew that the use which he was making of the premises himself (or the use which he was causing or
permitting others to make of the premises) was other than under and in accordance with the terms of
a licence granted under the said Schedule 3?”
but refused the council leave to appeal. On February 4, 1985, the Appeal Committee of the House of Lords (Lord Fraser of
Tullybelton, Lord Keith of Kinkel and Lord Brightman) allowed a petition by the couneil for leave.
The appeal was argued on April 10, 1986, when the following cases were cited in argument in addition to those referred to in
Lord Bridge's opinion: Edwards (1974) 59 CrApp.R. 213; [1975] O.B. 27 ; Hunt (Richard) (1986) 82 CrApp.R. 244; [1986]
1 All E.R. 184 and Roper ¥. Taylor's Central Garages (Exeter) Ltd. [1951] 2 T.L.R. 284.
John E. A, Samuels Q.C. and Roger McCarthy for the eouneil.
John W. Rogers Q.C. and Pamela Shaw for the defendants.
Their Lordships took time for consideration. May 15. The following opinions were read.
LORD BRIDGE OF HARWICH:
My Lords, The defendants were accused of offences alleged to have been committed in February 1983 under Schedule 3 to the
Local Government (Miscellaneous Provisions) Act 1982 (“the Act”). They were tried at Bow Street Magistrates' Court by Mr.
Ronald Bartle, a metropolitan stipendiary magistrate, on December 29, 1983 and acquitted. The council appealed by case stated
to the Divisional Court (Robert Goff L.J. and McCullough J.) [1985] I All E.R. 740who on November 29, 1984 dismissed the
appeal but certified that a point of law of general public importance was involved in their decision. I will refer to the certified
question later. The Couneil now appeal by leave of your Lordship's House. They have made clear that, having regard to the
nature of the case and the lapse of time since the alleged offences were committed, your Lordships would not be asked, if the
appeal were successful, to remit the case for the defendants to be convicted. The sole purpose of the appeal, so it is said, is to
clarify the law for the future. The House will not, of course, entertain appeals on academic questions, but since the issue of
costs remains at large, it cannot be said that there is no lis sufficient to keep the appeal alive.
Before turning to the facts of the case and the issues of law which arise for consideration, it will be convenient to give some
account of the statutory machinery with which the case is concerned. The Act by section 48 and Schedule 3 introduced a code
which a local authority could adopt by resolution for the control within their area by means of a licensing system of what are
called in the Schedule “sex establishments.” Section 48 requires that the local authority's resolution to apply the Schedule to
their area should be appropriately advertised in local newspapers before the date on which the Schedule will come into force.
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The following paragraph references are all references to paragraphs of Schedule 3. Paragraph 2 defines “sex establishment” as
meaning a “sex cinema” or a “sex shop” which are then elaborately defined by paragraphs 3 and 4. I think it will be sufficient
for present purposes to say that “sex cinema” means premises “used to a significant degree for the exhibition of what the layman
would call pornographic films and “sex shop” means premises “used for a business which consists to a significant degree of
selling, hiring, exchanging, lending, displaying or demonstrating” what the layman again would call pornographic material
generally, including pornographic books, magazines, video cassettes and records and articles designed for use as stimulants in
the course of sexual activity.
Paragraph 6(1) contains the prohibition of unlicensed user in the following terms:
“Subject to the provisions of this Schedule, no person shall in any area in which this Schedule is in
force use any premises, vehicle, vessel or stall as a sex establishment except under and in accordance
with the terms of a licence granted under this Schedule by the appropriate authority.”
There are three situations where the use of premises as a sex establishment in an area to which the Schedule applies will not
contravene this prohibition. The first is where the use is “under and in accordance with the terms of a licence” granted by the
ing from the opening words “Subject to the provisions of this Schedule” and from paragraph
local authority. The second, a
7, is where the local authority have waived the requirement of a licence. The third, arising from the same opening words and
from paragraph 28, is where a person who was using premises as a sex establishment immediately before the first advertisement
of the local authority's resolution to apply the Schedule to their area applied for a licence before the Schedule came into force
and that application has not been determined.
*160
There are elaborate provisions governing the procedure for the determination of applications for the grant, renewal or transfer
of licenses, the grounds on which such applications may, or in some cases must, be refused, and the conditions which may be
imposed on licenses. Nothing turns on these provisions. By paragraph 14 a licence is required to be exhibited “in a suitable
place to be specified in the licence,” presumably a prominent place on the licensed premises.
The relevant paragraphs creating offences are paragraphs 20(1) and 26(1). Paragraph 20(1) provides:
“A person who, ( a ) knowingly uses, or knowingly causes or permits the use of, any premises,
vehicle, vessel or stall contrary to paragraph 6 above; or ( b ) being the holder of a licence for a
sex establishment, employs in the business of the establishment any person known to him to be
disqualified from holding such a licence; or ( c ) being the holder of a licence under this Schedule,
without reasonable excuse knowingly contravenes, or without reasonable excuse knowingly permits
the contravention of, a term, condition or restriction specified in the licence; or (d ) being the servant or
agent of the holder of a licence under this Schedule, without reasonable excuse knowingly contravenes,
or without reasonable excuse knowingly permits the contravention of, a term, condition or restriction
specified in the licence, shall be guilty of an offence.”
Paragraph 26(1) provides:
“Where an offence under this Schedule committed by a body corporate is proved to have been
committed with the consent or connivance of, or to be attributable to any neglect on the part of, any
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director, manager, secretary or other similar officer of the body corporate, or any person who was
purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence.”
The informations against the defendants related to the use of premises at 4 Peter Street, Soho (“the premises”). They alleged two
offences by the first defendant (“the company”) on February 8 and 24, 1983 under paragraph 20(1)( a) of knowingly permitting
the use of the premises as a sex establishment contrary to paragraph 6 and two offences by the second defendant (“the director”),
as a director of the company, under paragraph 26(1) of conniving at the commission of the offences by the company.
The case stated is drafted in such a way as to obscure, rather than clarify, the real issue for decision. Saying this implies no
criticism of the stipendiary magistrate. It is to be assumed that, in accordance with the usual practice, the parties' advisers agreed
the form of case and submitted it for his signature. By ignoring irrelevant material, ferreting out from the case and the annexed
exhibits that which is relevant and supplementing this by inference and by reference to some general background information
provided by counsel which is not in any way controversial it is possible to arrive at a distillation of the essential facts.
1. The couneil resolved, pursuant to section 48 of the Act, that Schedule 3 should apply to their area, which includes Soho. The
resolution was duly advertised. Schedule 3 came into force in the area on February 1, 1983.
2. The company was the freehold owner of the premises.
3. The premises were continuously used as a sex establishment by one Thomas, as sub-tenant, from a date immediately before
the first advertisement of the ¢ouneil's resolution that Schedule 3 should apply to their area until a date after February 24, 1983.
That use was permitted by the company.
*161
4. No licence to use the premises as a sex establishment had ever been granted.
5. No application for a licence to use the premises as a sex establishment had been made by or on behalf of Thomas before
February 1, 1983.
None of these facts was disputed, nor was it disputed that all the facts recited in paragraphs I to 4 were well known to the
director, whose knowledge was properly imputed to the company. The only issue of fact was whether the director, and through
him the company, knew the fact recited in paragraph 5. The ¢ounceil as prosecutor invited the magistrate to infer this knowledge.
The defendants' case rested on the contention that the director, and therefore the company, honestly believed that application for
a licence had been made by or on behalf of Thomas in due time and had not been determined. If this was indeed the defendants!
state of mind, then, on the facts as the defendant believed them to be, there would have been no contravention of the prohibition
imposed by paragraph 6(1); the legality of the use would have been saved by paragraph 28.
The magistrate proceeded on the footing that the onus lay on the prosecution to prove not only that the company permitted and
the director connived at the use of the premises as a sex establishment, but also that the director, and through him the company,
knew that the use contravened the prohibition imposed by paragraph 6, which in this case required proof of knowledge that no
application for a licence had been made by or on behalf of Thomas in due time under paragraph 28. The magistrate rejected a
submission at the close of the case for the prosecution that there was no case for the defendants to answer, which must mean that
he considered that there was evidence from which, prima facie, he could infer the requisite guilty knowledge. He concluded,
however, on the totality of the evidence:
“that although considerable suspicion existed it had not, as a matter of fact, been proved beyond a
reasonable doubt that on February 8, 1983 and February 24, 1983 either defendant had the requisite
knowledge to constitute the offences charged.”
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The council's submission is that, in order to prove an offence under paragraph 20(1)( a ), all the prosecution needs to establish is
that the defendant knowingly used, or knowingly caused or permitted the use, of premises as a sex establishment. The onus will
then lie on the defendant under section 101 of the Magistrates’ Courts Act 1980 to prove that the use was in fact exempt from
the prohibition imposed by paragraph 6 by showing: (1) that the use was “under and in accordance with the terms of a licence
granted” by the local authority; or (2) that the local authority had waived the requirement of a licence; or (3) that an application
for a licence had been made in circumstances attracting the protection of paragraph 28 and had not yet been determined. If the
defendant proves none of these exemptions, he must then, it is submitted, be convicted.
The first point to be observed is one to which McCullough J. drew attention, if I read his judgment correctly almost as an
afterthought, remarking that it had not been referred to in argument. It is the contrast between the offences under paragraph
20(1)( a) and (c ). Under (¢ ) a defendant charged with knowingly contravening or permitting the contravention of a term,
condition or restriction specified in the licence must be shown to have acted without reasonable excuse. But if the offence under
(a) is committed when a licence has been granted, but the use is not “in accordance with the terms” of the licence, this would
enable the prosecution, by proceeding under (a ), to deprive the defendant of the */62 defence of reasonable excuse under (
¢ ). This cannot have been intended. It follows that prosecution under paragraph 20(1)( a ) must be limited to cases where no
licence has been granted. If one then contrasts (a ) with (c ) it is a curious anomaly if the only mens rea required under (a ) is
knowledge that the premises are used as a sex establishment, whereas the mens rea required under paragraph (c ) must clearly
be knowledge that the use is in breach of the terms of the licence.
Quite apart, however, from this anomaly, it seems to me that the word “knowingly” in paragraph 20(1)( a ) cannot sensibly
have been introduced merely to apply to the use which the defendant is making, or causing or permitting another to make, of
premises as a sex establishment. I can conceive of no circumstances in which a person could be said to be using premises,
still less of causing or permitting them to be used, “to a significant degree for the exhibition” of pornographic films or “for a
business which consists to a significant degree” of the sale of pornographic material if that person were ignorant of the nature
of the offending use. If the argument for the €uinéil is right, the word “knowingly” is tautologous.
Moreover, the reliance on section 101 of the Act of 1980 is quite misconceived. That section places the onus of proof on
a defendant who relies for his defence on “any exception, exemption, proviso, excuse or qualification, whether or not it
accompanies the description of the offence ... in the enactment creating the offence ...” The exceptions and exemptions under
Schedule 3 to the Act qualify the prohibition created by paragraph 6, not the offence created by paragraph 20(1)( a ).
Since we are here concerned with a penal statute, any ambiguity in the provision creating the offence would need to be resolved
in favour of the defendants. But I do not believe there is any ambiguity. If the argument for the council were accepted, it would
lead to the conclusion that paragraph 20(1)( a ) had in effect created an offence of strict liability. The offence would consist in
the unlawful use of premises as a sex establishment and even an honest belief in facts which, if true would make the use lawful
would afford no defence. It is trite law that the legislature's intention to create an offence of strict liability must be signified
by clear language. To find such an intention in paragraph 20(1)( a ) with its iteration of the word “knowingly” is obviously
impossible. The only meaning of which the language is reasonably capable makes knowledge that the use of premises as a sex
establishment is in contravention of the prohibition imposed by paragraph 6 a necessary ingredient of the offence.
The question of law certified by the Divisional Court was in the following terms:
“To constitute an offence contrary to paragraph 20(1)(a) of Schedule 3 to the Local Government
(Miscellaneous Provisions) Act 1982 is it necessary for the prosecution to prove that the defendant
knew that the use which he was making of the premises himself (or the use which he was causing or
permitting others to make of the premises) was other than under and in accordance with the terms of
a licence granted under the said Schedule 3?”
Ihave no doubt that this formulation of the question reflects the way in which the case was presented and argued in the Divisional
Court. But the fuller consideration which it has been possible for your Lordships to give to the issues, as appears from what I
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have already said, reveals that the question is too narrowly stated. I would propose to amend the question by deleting the words
“other than under and in accordance with the terms of a licence granted under */63 the said Schedule 3?” and substituting the
words “in contravention of the prohibition imposed by paragraph 6 of the said Schedule 3?” For the reasons already indicated,
I would answer the question as so amended in the affirmative.
Strictly speaking that would be sufficient to dispose of the appeal. But it would be unsatisfactory not to address a further aspect
of the matter which, although not arising directly for decision, is of great practical importance in relation to the enforcement of
licensing control under Schedule 3 to the Act and which explains the anxiety of the couneil as an authority responsible for such
enforcement which has prompted them to pursue this appeal to your Lordship's House. The main thrust of the argument for the
council was not that the relevant statutory language unambiguously bore the meaning contended for. Indeed I understood their
counsel to accept that it was at least ambiguous. He nevertheless boldly submitted that it should be construed as they propose
to avoid frustrating the policy of the Schedule and to enable authorities who have adopted the Schedule to maintain effective
control of sex establishments. The typical sex establishment, so it is said, is operated by “front men” who are here today and
gone tomorrow. The real controllers hide in the shadows and behind corporate identities. It will put an impossible burden on the
controlling authorities, the council submit, if they are required to prove against those who use, or permit the use of, premises as
sex establishments that they knew that the use was unlicensed. What is said about the manner in which this somewhat unsavoury
trade is carried on may well be true, but I doubt if your Lordships are permitted to take judicial notice of it. In any event, if the
problem of controlling sex establishments is so acute as to require the creation of an offence of strict liability, it is, of course,
for Parliament, not for your Lordships, exercising the judicial function of the House, to take that step.
The difficulties, however, of proving the necessary element of knowledge, which, in accordance with the view I have expressed,
is a necessary ingredient of the offence under paragraph 20(1)( a ), should not be exaggerated. Questions in relation to the
burden of proving this ingredient may arise at two stages. At the conclusion of the case for the prosecution it will have been
established by evidence or admission: (1) that the authority resolved that Schedule 3 should apply to their area and that the
resolution was duly advertised; (2) that the premises, the subject of the alleged offence, were used as a sex establishment; (3)
that the defendant was so using the premises or that he caused or permitted the use; (4) that no licence for the use had been
granted and the requirement of a licence had not been waived; (5) in a case where applications for licences made before the
Schedule came into force in the area had not all been determined before the date of the alleged offence, that no such application
had been made in respect of the relevant premises. If all these facts are proved and nothing more, I can see no reason in logic or
in justice why the court should not hold that a sufficient prima facie case has been established on the basis that the defendant's
knowledge of the true position in regard to the licensing of the use of the premises can properly be inferred. If the defendant
himself is using the premises as a sex establishment, he is in the best position to know whether application for a licence or for
waiver of the requirement of a licence was made by him or on his behalf, whether the application has been determined and in
what sense. If the defendant is causing or permitting another to use the premises as a sex establishment, he likewise has the
means of knowledge readily available to him. The second stage will only arise if there is some evidence to suggest that the
defendant held or may have held a mistaken but honest belief that a licence had been granted, that the requirement of a licence
had been waived or, in */64 circumstances to which paragraph 28 applies, that an application for a licence had been duly
made but not determined. If at the second stage the court is not satisfied beyond a reasonable doubt that the defendant held no
such belief, the prosecution will have failed to prove a necessary ingredient of the offence and the defendant must be acquitted.
If authority to support this analysis is required, I find it in the speech of Lord Diplock in Sweet #. Parsley (1969) 53 CrApp.R.
221, 248, [1970] A.C. 132, 164 where he said:
“ Woolmington ¥, Director of Public Prosecutions (1935) 25 CrApp.R. 22; [1935] A.C. 462 affirmed
the principle that the onus lies upon the prosecution in a criminal trial to prove all the elements of
the offence with which the accused is charged. It does not purport to lay down how that onus can
be discharged as respects any particular elements of the offence. This, under our system of criminal
procedure, is left to the common sense of the jury. Woolmington's case did not decide anything so
irrational as that the prosecution must call evidence to prove the absence of any mistaken belief by
the accused in the existence of facts which, if true, would make the act innocent, any more than it
decided that the prosecution must call evidence to prove the absence of any claim of right in a charge
of larceny. The jury is entitled to presume that the accused acted with knowledge of the facts, unless
there is some evidence to the contrary originating from the accused who alone can know on what belief.
he acted and on what ground the belief, if mistaken, was held. What Woolmington's case did decide
is that where there is any such evidence the jury after considering it and also any relevant evidence
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called by the prosecution on the issue of the existence of the alleged mistaken belief should acquit the
accused unless they feel sure that he did not hold the belief or that there were no reasonable grounds.
upon which he could have done so.”
In the light of D.P-P. & Morgan (1975) 61 CrApp.R. 136; [1976] A.C. 182 the passage cited may require modification by deleting
the concluding words “or that there were no reasonable grounds upon which he could have done so.” With this modification and
with the substitution of references to the magistrate for references to the jury this passage fully supports the way in which the
stipendiary magistrate approached the issue of knowledge in the instant case. He cannot in any way be faulted. But it is perhaps.
worth remarking, in the hope that it may further allay the anxiety of the council about the enforcement of licensing control of
sex establishments, that it is always open to the tribunal of fact, when knowledge on the part of a defendant is required to be
proved, to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained
from inquiry because he suspected the truth but did not want to have his suspicion confirmed.
For the reasons I have indicated I would dismiss the appeal.
LORD BRIGHTMAN:
My Lords, I am in entire agreement with the speech of my noble and learned friend Lord Bridge of Harwich.
On the true construction of paragraph 20(1)(a ) of Schedule 3 to the Act it is clear that knowledge on the part of the defendant
is an ingredient of the offence created by that sub-paragraph: knowledge not only that the premises, vehicle, vessel or stall were
being used as a sex establishment, but also knowledge that they were being so used contrary to paragraph 6, that is to say, in
the absence of a licence, or of a waiver under paragraph 7 or a pending application under paragraph 28.
*165
But although such knowledge is an ingredient of the offence under paragraph 20(1)( a), and although the onus of establishing all
the ingredients of the offence must lie on the prosecution, this does not impose on the prosecution an undue burden: if (1) all the
other ingredients of the offence are proved, and (2) the defendant (or the responsible officer of a corporate defendant) chooses
not to give evidence of his absence of knowledge, and (3) there are no circumstances which sufficiently suggest absence of
knowledge, the court may properly infer without direct evidence that the defendant did indeed possess the requisite knowledge.
For this reason the fear expressed by the cotineil that Parliament's intention to establish an effective licensing system will be
frustrated by the severity of the onus of proof burdening the prosecution, is I think groundless.
My Lords, I agree that the certified question should be amended in the manner proposed by my noble and learned friend, and
that such question should be answered in the affirmative, and that subject to such amendment this appeal should be dismissed.
LORD MACKAY OF CLASHFERN:
My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich,
and for the reasons which he gives I too would dismiss this appeal.
LORD ACKNER:
My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich,
and for the reasons which he gives I too would dismiss this appeal.
LORD OLIVER OF AYLMERTON:
RLIT0000518
RLIT0000518
Westminster City Council v Croyalgrange Ltd, (1986) 83 Cr. App. R. 155 (1986)
My Lords, I agree that this appeal should be dismissed for the reasons given in the speech to be delivered by my noble and
learned friend, Lord Bridge of Harwich.
Representation
Solicitors: G. Matthew Ives , for the appellant council. Irwin Shaw , for the respondent defendants.
Appeal dismissed.