Fantasia Productions Ltd v London Borough of Redbridge

Introduction

The appellant is a company that operates a travelling circus. It attracts customers by placing advertisements on various sites in the locality in which it intends to perform. There are, as one would expect, rules governing the placement of publicly visible advertising material. One such rule states that no advertisement is to be displayed without the permission of the owner of the relevant site or of any other person with an interest in the site entitled to grant permission.

The respondent local authority brought a prosecution contending that the required permission was not obtained by the appellant. The appellant raised an issue as to where the burden of proof lay. Was it, as the appellant contends, for the prosecution to prove to the criminal standard that the necessary permission had not been obtained, or was it, as the respondent authority contends, for the appellant to prove on the balance of probabilities that it had? The Magistrates' Court, and, on appeal, the Crown Court below, found that the burden lay on the appellant and that it had not been discharged. Accordingly, the appellant was convicted of the offence of displaying advertisements in contravention of section 224(3) of the Town and Country Planning Act 1990 (" TCPA 1990 ").

"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?"

The appellant runs travelling circuses nationwide. Its founder and sole director is Matthew John Wingate. Mr Wingate is the travelling officer for the Association of Circus Proprietors, which (I am told) is the regulatory body for travelling circuses. The appellant’s circus is a traditional one, with clowns, jugglers and acrobats but without animals.

In early to mid-September 2023, Mr Wingate placed advertisements for the appellant's travelling circus at three locations in the Ilford/Barkingside area in East London. These were the park railings opposite Cranbrook Road in Ilford, the park railings in Barkingside Park and the railings outside Barkingside Police Station. Mr Wingate claimed that he had obtained permission to place the advertisements in each case: in respect of Cranbrook Road from a householder, whom he believed to be the owner of the railings; in respect of Barkingside Park from a park ranger; and in respect of the police station from an officer in the police car park. Mr Wingate kept no written record of any permission granted.

The appellant was convicted by the North London Magistrates' Court on 30 April 2024 and ordered to pay a fine and the prosecution's costs. The appellant appealed to the Crown Court and the matter came before Mr Recorder Etherington KC, sitting with two justices of the peace, on 13 March 2025.

In an admirably clear and concise oral judgment on a preliminary issue of law, the Crown Court found in favour of the prosecution, in that the burden of proof in respect of establishing that permission had been obtained lay on the appellant on the balance of probabilities. The Crown Court then went on to consider the appeal as a whole. In the event, the Crown Court dismissed the charge in respect of the Cranbrook Road site as it was not satisfied that the charge correctly described the railings on which the advertisements were said to have been placed.

Legal framework

"…(3) Without prejudice to any provisions included in such regulations by virtue of subsection (1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding on the standard scale and, in the case of a continuing offence, on the standard scale for each day during which the offence continues after conviction.

(a)he is the owner or occupier of the land on which the advertisement is displayed; or

(a)the advertisement was displayed without his knowledge; or

he took all reasonable steps to prevent the display or, after the advertisement had been displayed, to secure its removal.

Proceedings (or an offence under subsection (3) may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor's knowledge.

Subsection (7) does not authorise the commencement of proceedings for an offence more than 3 years after the date on which the offence was committed."

"Deemed consent for the display of advertisements .

the standard conditions; and

in the case of any class other than Class 12, the conditions and limitations specified in that Part in relation to that class.

Part 2 of Schedule 3 applies for the interpretation of that Schedule".

"An advertisement relating to the visit of a travelling circus, fair or similar travelling entertainment to any specified place in the locality".

"3F— (1) No advertisement may exceed 0.6square metre in area.

No advertisement may be displayed earlier than 14 days before the first performance or opening of the entertainment at the place specified.

The advertisement shall be removed within 7 days after the last performance or closing of the specified entertainment.

At least 14 days before the advertisement is first displayed, the local planning authority is to be notified in writing of the first date on which, and of the site at which, it is to be displayed.

Illumination is not permitted.

No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control".

No advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission .

endanger persons using any highway, railway, waterway, dock, harbour or aerodrome (civil or military);

obscure, or hinder the ready interpretation of, any traffic sign, railway signal or aid to navigation by water or air; or

hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle. 3. Any advertisement displayed, and any site used for the display of advertisements, shall be maintained in a condition that does not impair the visual amenity of the site.

Any structure or hoarding erected or used principally for the purpose of displaying advertisements shall be maintained in a condition that does not endanger the public.

Where an advertisement is required under these Regulations to be removed, the site shall be left in a condition that does not endanger the public or impair visual amenity".

" Onus of proving exceptions, etc.

Ground 1 - statutory interpretation . It is contended that, as a matter of ordinary interpretation of section 224(3) TCPA 1990 , the absence of permission is an element of the offence that must be proved by the prosecution to the usual criminal standard and that there is nothing in the wording of that section or elsewhere in TCPA 1990 to suggest otherwise.

the principles which it establishes are derived from cases in the licencing context;

it deals with a different class of advertisement under an earlier set of regulations and/or

the application of the Human Rights Act 1998 (" HRA 1998 "), which postdates the decision in O'Brien, precludes an interpretation of section 224(3) TCPA 1990 that imposes any burden of proof on the defendant.

Ground 1 - statutory interpretation

In clear and cogent submissions, Mr Keating, who appears for the appellant, as he did below, submits that the wording of section 224(3) which defines the offence by reference to a contravention under the 2007 regulations and provides for no "exception, exemption, proviso, excuse or qualification" means that section 101 of the MCA 1980 does not apply. Furthermore, he says that the absence of any express reference to any shift in the burden of proof and the application of ordinary principles of construction lead to the conclusion that the burden remains with the prosecution. It is said that, if a different approach is to be taken in respect of the requirement to obtain permission under SC1, then the same must apply to the other standard conditions; thus, it must fall to the defendant to prove, for example, under the third standard condition, that the advertisements "hinder the operation of any device used for the purposes of security or surveillance or for measuring the speed of any vehicle". On the Crown's case, submits Mr Keating, it could simply assert such hindrance, and it would then be for the defendant to establish, on the balance of probabilities, that there was none: a burden that would be oppressive and difficult to discharge.

The appellant's contention that the burden remains at all times on the prosecution is supported, he says, by the fact that TCPA 1990 provides for express defences under sections 224(5) and (6). If it had been Parliament's intention to impose a reverse burden of proof, it could have similarly made express provision for that in the 2007 regulations.

Ground 1 - discussion

'There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there'.

Section 101 MCA 1980 expressly provides for the shifting of the burden where a defendant relies on any "exception, exemption, proviso, excuse or qualification". A similar provision has existed in the legislature since the Summary Jurisdiction Act 1879 (42 & 43 Vict. C. 49): see R v Hunt at 372. Section 101 MCA 1980 is said to set out the common law rule in statutory form: see R v Edwards (1975) QB 27 at 36G.

The authorities were reviewed subsequently in O'Brien, where the issue was whether a business had either express or deemed consent in respect of a 48-sheet poster panel advertisement attached to a hoarding on a wall in High Street, Potters Bar. The offence being prosecuted in that case was the same one under section 224(3) TCPA 1990 as in the present case, although the relevant regulations were then contained in the Town and Country Planning Act (Control of Advertisements) Regulations 1992 ("the 1992 regulations"). Regulation 5 of the 1992 regulations was in similar but not identical terms as regulation 4 of the 2007 regulations.

'I have always understood it to be a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the affirmative.’

The issue, therefore, is whether the TCPA 1990 on its true construction places on the defendant the burden of establishing deemed consent arising out of the obtaining of permission. A key consideration in that regard will be the "ease or difficulty that the respective parties would encounter in discharging the burden."

Mr Keating's first point is that as section 224(3) , TCPA 1990 defines the offence by reference to a contravention of the 2007 regulations, it is not a provision to which section 101 MCA 1980 can apply. However, the offence established by section 224(3) , TCPA 1990 can plainly only be properly understood by reading that provision with the 2007 regulations. One cannot, therefore, view section 224(3) in isolation in order to determine whether the offence, as defined, is subject to any exceptions etc. that would bring s.101 , MCA 1980 into play. One must also have regard to the 2007 regulations.

When one turns to those regulations, it becomes apparent that they may be contravened in the case of class 3F advertisements by a failure to satisfy the conditions for there to be deemed consent for the displayed advertisement. One such condition is that which appears under SC1. That provides that no advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission. That, on the face of it, is a "qualification" within the meaning of s.101 , MCA 1980 .

Mr Keating submits that there is nothing in the wording of the TCPA 1990 or the 2007 regulations to support the contention that the burden of proof in respect of SC1 should be any different from that in respect of the other conditions to be satisfied in order for there to be deemed consent. However, it is clear from the authorities above and from the terms of s.101 , MCA 1980 that, if the true effect of a statutory provision concerning an offence is that it provides for an "exception, exemption, proviso, excuse or qualification", then the absence of express wording setting out such exception etc. will not preclude the defendant from relying upon it. Where the defendant does so rely, however, the burden will be on the defendant to establish it on the balance of probabilities.

This interpretation is supported by the practical considerations involved in establishing that the requisite permission had been obtained. If the burden were to lie solely on the prosecution for this aspect of the case, then it would not only have to prove a negative, but it would have to do so in respect of a large class of persons, the identities of whom would be far from clear or readily ascertainable in many cases.

Whilst the owner of a site could, with reasonable diligence, be identified, the category of persons who have an interest in the site and who are entitled to grant permission to display advertisements would be far wider. If a travelling circus were to place its posters on every railing in a locality, the list of potential persons that could have provided permission could be vast. Even in respect of a typical household or business, those that could provide consent could include a long list of residents or occupants who have no ownership rights. For the prosecution to prove the negative would require approaching each such person to establish to the criminal standard that consent was not provided. That would be a hugely burdensome task, if not in many cases wholly impractical.

By contrast, the person placing the posters will have sought and, if acting lawfully, obtained permission from a specific person, having satisfied themselves that that person was entitled to grant it, and would thereby be in a position to identify that person should he be required to do so. The facts will be peculiarly within that person's knowledge. Mr Keating submits that that, too, would be an onerous task. I do not agree. True it is that a record would need to be kept, but that adds little more to the burden than that which already exists of having to seek and obtain consent. The fact that those records may need to be kept for three years, given the period during which proceedings may be commenced (see s.224(8) , TCPA 1990 ) does not, in my judgment, substantially increase the burden. As Mr Jeyes submitted, a business like the appellant's would have to keep many records for several years; the keeping of a note of the person who granted consent in respect of an advertisement may involve little more than a name and contact details against the site on which the advertisement was placed and, if appropriate, the basis on which they are entitled to grant consent. I also do not agree that this amounts to a requirement that written consent be obtained in every case. The permission may be given orally. All that is required on the defendant's part is a record of who gave that permission. Of course, the obtaining of written consent would place a defendant in an even better position, but it is not a requirement that necessarily emerges from the reversed burden.

Mr Keating also argued that, if the reversed burden of proof applied in respect of permissions obtained, then it would have to apply also to the other standard conditions and the Class 3F conditions. However, that does not follow: the reason that SC1 can be interpreted as being one where the burden shifts is because of its terms. The other standard conditions – for example, the condition not to hinder any surveillance equipment – cannot be regarded as an "exception, exemption, proviso, excuse or qualification" within the meaning of section 101 MCA 1980 . Even if it could, it is clear that these other conditions create no difficulty for the prosecution in having to prove them. It will be apparent upon observation whether a poster causes a hindrance, obstruction or danger etc. Establishing an offence in those cases will not involve either proving a negative or having to make enquiries of a large number of unspecified and unknown persons. Mr Jeyes fairly accepted that, in those other cases, the burden would indeed fall on the prosecution.

Mr Keating's final point is that the existence of express defences under section 224(5) and (6) of the TCPA 1990 precludes other defences. However, it is clear that section 101 of the MCA 1980 can apply to any offence where reliance is placed on exceptions etc. within the meaning of that provision. That is so irrespective of whether there are express defences under the Act .

Ground 2 - O'Brien

Mr Keating submits that O'Brien ought not to be followed because the case of R v Turner (1816) 5 M&S 206, from which the principle of the shifting burden of proof derives, is a case where the "qualification" relied upon was a "defence", whereas SC1 cannot be said to be a defence in the same way.

"Is not the Statute of Anne in effect a prohibition on every person to kill game, unless he brings himself within some one of the qualifications allowed by law; the proof of which is easy on the one side, but almost impossible on the other?"

"wherever the defendant to an information relies for his defence on any exception, exemption, proviso, excuse or qualification".

Mr Keating's second point under this head is that O'Brien is based on a line of authority dealing with licencing rather than permission or consent and, therefore, does not apply to the present case. I disagree: what is permission but a form of licence? Whilst the licencing cases will involve a licence being obtained upon application with a formal document or stamp of some sort being issued, there is little difference in substance between such a case, where authorisation is the subject of a formal record, and a ‘permission’ case where the authorisation may be informal. In any event, the fact that, even in licencing cases, the authorities have held that the matters relied upon by way of defence are peculiarly within the knowledge of the defendant, supports the view that in the present case, where permission is not the subject of a formal record, the relevant knowledge is even more peculiarly that of the defendant. After all, in a licencing case, the prosecution could take steps to approach the appropriate licencing authority to establish whether the accused possessed the requisite licence. Doing so would be a far easier task than trying to identify which person with an interest in the site might have granted permission to display advertisements, there being no central register of such persons.

Mr Keating's next point under this head is that O'Brien may be distinguished because it was not concerned with Class 3F advertisements. He submits that a travelling circus, like the appellant's, will put up dozens of temporary advertisements, unlike the defendant in O'Brien who appears only to have put up one and did so in circumstances requiring express consent.

In my judgment, the fact that a travelling circus may put up more posters than a different category of business to which a different class under schedule 3 to the 2007 regulations might apply is not a distinguishing feature, as far as the applicability of O'Brien is concerned. It is clear from the review of the authorities on which the decision in O'Brien was based that the principles therein restated were ones of general application and not confined to the facts of that case. In any case, whilst it is not absolutely clear from the report of O'Brien which class of advertisement was in question, there is no doubt that the principles espoused were in relation to the burden of proof in respect of both deemed and expressed consent. As stated at page 268 of O'Brien, "There is nothing in the Act s or the Regulations to distinguish between express and deemed consent".

As such Mr Keating's argument that one can put O'Brien to one side because it concerns a different class of advertisement to which express consent applies, largely falls away.

It is also submitted that the particular nature of the advertisements in question under class F – small numerous and temporary – is a distinguishing factor, given the enormous task of recording the potentially large number of persons from whom permission may be obtained. However, it seems to me that the bulk of that task, namely identifying the appropriate person who is entitled to grant permission, would have to be done in any event in the course of complying with SC1. Thereafter, there would be the relatively small additional task of recording the basic details of the person concerned.

Mr Keating expressed concern as to the position where, by the time of any prosecution, which could be up to three years after the event, the person from whom permission was obtained may no longer be available to provide a witness statement, if required. However, it seems to me that, in those circumstances, the defendant would probably be able to rely on the written record of the person granting permission and he would have the benefit of the lower standard of proof in establishing the position.

Human Rights Act 1998

Mr Keating's first point on this aspect of ground two is that O'Brien is no longer binding because it was decided before HRA 1998 came into force. However, the mere fact that O’Brien predates the coming into force of HRA 1998 does not diminish its authority: the real question is whether, in light of HRA 1998, the decision in O'Brien involves a disproportionate interference with a Convention right and, in particular, article 6 and the right to a fair trial.

I was referred to the judgment of the House of Lords in Sheldrake v DPP [2004] UKHL 4 in which Lord Bingham said as follows:

"21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

Much of Mr Keating's argument in this regard is based on the notion that the reverse burden of proof imposes a disproportionate and unfair burden on the defendant to a charge under section 224(3) TCPA 1990 and risks criminalising defendants who have acted entirely properly.

For reasons already considered above, that burden is, in my judgment, neither unreasonable nor unfair. Whilst it is correct to say that the precise limits of who might be said to have an interest in a site and entitled to grant permission are somewhat indistinct in the abstract, they are not so in application. The person putting up posters for a travelling circus will be the one obtaining consent from persons appearing to have an interest, as Mr Wingate purported to do in this case. In each such case, it was for him to satisfy himself, in order to comply with SC1, that the person was entitled to grant permission. The fact that one cannot identify in advance all such persons does not render the task for the defendant overly burdensome or difficult, and it has not been asserted that the obtaining of permission is of itself burdensome.

the 2007 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;

they do so by establishing a summary offence for advertisements that are displayed in contravention of the 2007 regulations;

that offence, which requires no mental element, is at the less serious end of the scale, punishable only by a fine;

insofar as the burden of proof shifts, that burden is on the balance of probabilities;

there is no risk to loss of liberty, and the risk of stigma is minimal. Mr Keating submitted that there would be some stigma, in that being convicted of displaying advertisements in contravention of the 2007 regulations may lead to adverse assumptions being made by other local authorities in respect of the travelling circus concerned. However, that would appear to be a fairly minor consequence as compared to the stigma attached to the commission of a more serious offence;

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. The difficulty of the task for the prosecutor is a relevant matter to take into account, as confirmed in Sheldrake at paragraph 21.

Taking all of these matters into account, it can be seen that the infringement of the presumption of innocence, caused by the reverse burden of proof, amounts to a proportionate interference with the article 6 right and is, therefore, justified.

Conclusion

"Yes. the Crown Court was 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".

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