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High Court finds in council’s favour in special treatment licence case

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High Court finds in council’s favour in special treatment licence case 12th April 2018

The High Court has rules in favour of a local authority who appealed a Magistrates’ Court ruling in a case involving special treatment licence offences.

Mr Aslim ran Yankees Hair Studio at 109 High Street, Hounslow. He was the holder of a licence granted by the London Borough of Hounslow, under s.6 of the London Local Authorities Act 1991 for the period from 1st April 2016 to 31st March 2017. The licence authorised the premises to be used as an "establishment for special treatment", which included the provision of body-piercing services.

Mr Aslim was convicted for a number of offences by Hounslow Council.

The first offence alleged was that on 16th 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.

The second offence alleged was that between 1st April 2016 and 14th 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.

After careful consideration of the alleged offences, the Magistrates 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 16th 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."

Hounslow Council appealed by way of case stated.

The magistrates have stated two questions for the opinion of the High 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?"

Mr Justice Holgate answered the first question in the negative drawing from the principles established in the case of Gammon (Hong Kong) Limited v The Attorney General (Hong Kong) [1985] AC 1.

He also allowed the appeal in relation to question 2 and remitted the matter to the Magistrates' Court with a direction to convict the respondent Mr Aslim.

Read the ruling transcript: http://www.bailii.org/ew/cases/EWHC/Admin/2018/733.html

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