Mohamed & Anor, R (on the application of) v London Borough of Waltham Forest

Factual and Procedural Background

This judgment arises from claims for judicial review concerning the mental elements of the offence of controlling or managing a house in multiple occupation ("HMO") requiring a licence but lacking one, contrary to section 72(1) of the Housing Act 2004 ("the 2004 Act"). The Appellants, a married couple and directors of property companies in the London Borough of Waltham Forest, faced summonses issued by the local housing authority ("the council") alleging such offences in relation to several properties they owned and managed.

Summonses were initially issued by Thames Magistrates' Court and later transferred to Wimbledon Magistrates' Court. The Secretary of State for Housing, Communities and Local Government intervened to make submissions on the relevant statutory provision. The council conducted an audit inspection revealing that one property was let as an HMO without the mandatory licence. Correspondence ensued between the parties, with the Appellants' legal representatives challenging the council's prosecution approach and asserting the Appellants’ lack of knowledge regarding the HMO status.

The council invited the Appellants to a formal interview under caution, which was challenged by the Appellants via a pre-action protocol letter threatening judicial review on grounds including the mental element of the offence. Judicial review proceedings were initiated challenging the invitation to interview and seeking clarification on the mens rea required under section 72(1). Earlier judicial review claims challenging the summonses were refused on grounds of time limits and jurisdiction.

A preliminary hearing before a District Judge considered whether the summonses were lawfully issued and in time. The judge held the summonses were lawfully issued and that the offence was continuing, thus not time-barred. The Appellants sought judicial review of this decision, and permission was granted on two grounds: the lawfulness of the summons issuance and timeliness.

Legal Issues Presented

1. Whether sufficient information was provided by the council to Thames Magistrates' Court to justify the issue of the summonses against the Appellants, and if not, whether the summonses should be quashed;
2. The mental elements ("mens rea") required to prove the offence of managing or controlling an unlicensed HMO contrary to section 72(1) of the 2004 Act;
3. Whether the informations (charges) against the Appellants were laid within the statutory time limits (in time).

Arguments of the Parties

Appellants' Arguments

• The council assumed criminal liability without proper investigation, contrary to tenancy agreements;
• The offence under section 72(1) requires proof of "guilty managing," meaning knowledge that the property was an HMO requiring a licence;
• The council failed to disclose evidence supporting the summonses;
• The Appellants were experienced landlords who deliberately avoided letting properties as HMOs and were not obliged to monitor tenants’ occupation continuously;
• The council should enforce lease covenants rather than prosecute;
• The summonses were not lawfully issued and were out of time.

Council's Arguments

• Sufficient information was provided to justify the issue of summonses;
• The offence under section 72(1) does not require proof that the defendant knew the property was an HMO requiring a licence;
• The offence is a continuing offence, so the informations were laid in time;
• The prosecution's approach aligns with the statutory framework and objectives of the 2004 Act.

Secretary of State's Arguments

• Made submissions concerning the interpretation of section 72(1) of the 2004 Act, particularly regarding the mental element required for the offence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first assessed whether the council provided sufficient information to Thames Magistrates' Court to justify issuing summonses. Applying statutory provisions from the Magistrates' Court Act 1980, Magistrates' Court Rules 1981, and Criminal Procedure Rules 2015, the Court found the schedule of offences adequately described the charged offence in ordinary language, identified the relevant legislation, and gave reasonable particulars of the charge. The Court noted that although the Appellants complained about lack of evidence disclosure, subsequent proceedings provided sufficient information to ensure fairness, thus any initial insufficiency did not render proceedings a nullity.

Regarding the mental element of the offence under section 72(1) of the 2004 Act, the Court undertook statutory interpretation considering the Act's text, legislative context, and relevant authorities. The Court observed that:

• The definitions of "person having control" and "person managing" in section 263 focus on objective control arrangements without requiring proof of knowledge of the property's occupation status;
• The presence of the word "knowingly" in related offences under section 72(2) indicates Parliament's deliberate distinction between offences requiring mens rea and those that do not;
• The civil penalty regime under section 249A does not require mens rea, suggesting consistency with the criminal offence;
• The statutory defence of reasonable excuse in section 72(5) allows a defendant to assert lack of knowledge as a defence, reducing the need for mens rea as an element of the offence;
• The offence is regulatory and licensing in nature, where presumption of mens rea is weaker;
• Requiring mens rea would undermine the statutory objectives of ensuring proper licensing and tenant protections.

Therefore, the Court concluded that the prosecution need not prove the defendant knew the property was an HMO requiring a licence. Knowledge or lack thereof is relevant only to the defence of reasonable excuse.

Finally, on the issue of time limits, the Court accepted that the offence under section 72(1) is a continuing offence, meaning each day without a licence constitutes a new offence. Hence, the informations were laid within the six-month statutory time limit, making the summonses timely.

Holding and Implications

The Court DISMISSED the applications for judicial review.

The direct effect is that the summonses issued against the Appellants are upheld as lawfully issued and timely, and the offence under section 72(1) of the 2004 Act does not require proof of the defendant's knowledge that the property was an unlicensed HMO. This clarifies the mental element of the offence, reinforcing that lack of knowledge may be a defence but is not an element the prosecution must prove. No new precedent altering existing legal principles was established beyond the court’s interpretative confirmation.