High Court issues ruling on burden of proof in disputes over whether permission obtained to place adverts on sites

Mr Justice Choudhury said in his judgment that the appellant company could easily have secured details of who purportedly gave consent for the advertisements when challenged by the London Borough of Redbridge.

The company operates a travelling circus and posts local advertisements for which it should have the permission of the site owner or someone else entitled to grant permission.

Redbridge brought a prosecution contending the required permissions were not obtained.

The company's director appealed and argued that it was for the prosecution to prove to the criminal standard that the necessary permission had not been obtained.

The council said instead it was for the company to prove on the balance of probabilities that permissions had been obtained.

Both magistrates and, on appeal, the Crown Court found that the burden lay on the company and it was thus convicted of displaying advertisements in contravention of section 224(3) of the Town and Country Planning Act 1990.

The appeal to the High Court by case stated asked: “Where an offence relating to a Class 3F advertisement is alleged under section 224(3) of the TCPA 1990, were we correct to find that the burden of proof on the balance of probabilities lay upon the appellant to show that it had permission from the owner of the site or any other person with an interest in the site entitled to grant permission, rather than on the respondent to prove to the criminal standard of proof that it did not?”

HHJ Choudhury was told that in September 2023, the company's director placed advertisements on park railings at Cranbrook Road, Ilford, park railings in Barkingside Park and railings outside Barkingside Police Station.

He claimed that he had obtained permission from a householder in Cranbrook Road whom he believed owned the railings, from a Barkingside park ranger and from an officer in the police station car park but had no written record of these.

HHJ Choudhury said that only a “relatively modest inroad into the presumption of innocence” was made by the burden of proof falling on the alleged offender rather than the prosecution, but against that must be weighed that the regulations “seek to achieve a valuable aim in preserving the visual amenity of a site and protecting the rights of site owners against trespass and interference with quiet enjoyment”.

He noted the offence is only punishable by a fine and “there is no risk to loss of liberty, and the risk of stigma is minimal”.

HHJ Choudhury explained: “If the burden of proof were not shifted, it would make the task of enforcement very difficult for the prosecution: an unscrupulous travelling circus operator could flood an area with posters on every available railing or fence in a locality without taking adequate steps to obtain consent, safe in the knowledge that the authority would not be able or have the resources to prove that, in every case, consent had not been obtained from the appropriate person.”

He said reversal of the burden of proof was therefore justified and was a proportionate interference with article 6 rights to a fair trial.

The judge said keeping records of permission would not be onerous and would add “little more to the burden than that which already exists of having to seek and obtain consent”, even if they had to be kept for three years under the regulations.

Keeping of a note of the person who granted consent for an advertisement might involve little more than a name and contact details, he noted.

Permission could be given orally and “all that is required on the defendant's part is a record of who gave that permission”.

Mark Smulian