John McNamara was interviewed by LexisPSL in relation to the recent Court of Appeal case of Wokingham Borough Council v Scott and others  EWCA Crim 205. The article was first published on LexisPSL on 13 March 2019. The LexisPSL article can be viewed on the above link.
Wokingham Borough Council v Scott and others  EWCA Crim 205
What are the lessons to be learned from this judgment about making decisions to prosecute?
The decision to instigate criminal proceedings is serious and decisions must be taken with care.
The Code for Crown Prosecutors should be applied to each case, and to each proposed defendant and each individual charge.
The prosecutor should never consider as a ground for instigating criminal proceedings that it would benefit from a confiscation order.
What was the background?
The applicant had sought to prosecute the first respondent and others for breach of a planning enforcement notice.
The first respondent was the registered legal owner of a plot of land from where he ran a garden centre business. The other respondents also operated businesses from that plot of land. The land was within the Green Belt and restricted planning policies applied. The authorised planning use included a horticultural nursery, a farm shop, a café and a house.
The applicant alleged that the site had been significantly developed, without authorisation, by the operation of cafés and restaurants, a pet store, a seating area, hard standing and a children’s play area.
The applicant issued an enforcement notice on the first respondent requiring him and others on site to cease the unauthorised use of the land. He appealed. But following discussions with the applicant's councillors and officers, he withdrew his appeal on the basis that the applicant would issue him with a certificate of lawfulness of existing use or development (CLEUD) in relation to some of the activities on his land if it agreed he had a substantive case.
However, the applicant subsequently was given legal advice that a landowner had to be immune from enforcement notice requirements to qualify for a CLEUD and so it refused to issue the first respondent with a CLEUD.
The applicant then requested the first respondent to provide a timetable for compliance and its officers drafted a recommendation for prosecution. The applicant's chief executive officer indicated that it would work with the first respondent to achieve a negotiated solution. Meanwhile, the applicant was granted a High Court injunction to secure compliance with the enforcement notice and subsequently a committal order was made against the first respondent for breach of the injunction.
The applicant issued a summons against each of the respondents. The recorded reasons for the prosecution were to support compliance with the enforcement notice and the injunction, to allow a court to punish the respondents for the breach, and to allow the court to make an order under POCA 2002.
The respondents applied to stay the criminal proceedings as an abuse of process.
The Crown Court found that the proceedings were an abuse of process. In particular, it found:
- the applicant had induced the first respondent to withdraw his appeal, which was to his prejudice because he had been denied the opportunity to test the matter in the appropriate planning forum and the applicant had commenced the prosecution without recourse to the appeal process
- the applicant had not followed the Code for Crown Prosecutors in that it had not considered each defendant separately, had not informed the respondents they were at risk of criminal proceedings and had been influenced by the possibility of a confiscation order being made under POCA 2002
The Crown Court stayed the proceedings. The applicant applied for permission to appeal against the terminating ruling.
What did the Court of Appeal decide?
The court considered whether the applicant had:
- been influenced by the possibility of a POCA 2002 confiscation order
- not adhered to the Code for Crown Prosecutors
- induced the first respondent to withdraw his appeal
The court held that decisions to prosecute were serious and had to be taken with care. It noted the obvious conflict where a prosecutor would financially benefit from a POCA 2002 confiscation order (local authorities receive 37.5% of a confiscation order). The possibility of a confiscation order being made should play no part in the decision to prosecute. Regard should only be had to the determination of the evidential and public interest test. A prosecutor had to be independent, fair and objective (R v The Knightland Foundation and another  EWCA Crim 1860 followed).
On the facts of this case, the court found that, given the applicant had been granted injunctive relief and the first respondent had been made subject to a suspended sentence of imprisonment for breach of the injunction, there was a distinct possibility that a POCA 2002 confiscation order had been part of the applicant's reasons for prosecuting.
Code for Crown Prosecutors
The court affirmed that prosecutors had to be satisfied that there was sufficient evidence to provide a realistic prospect of conviction of each suspect on each charge and that there was a public interest in prosecuting.
The court considered the applicant's recorded rationale for prosecuting was deficient. The applicant had assumed a criminal prosecution was justified by the fact of a breach, with no regard for relevant considerations. For example, one of the respondents, who had been the first respondent's wife, was an owner of the land in legal name only, had been divorced from the first respondent for many years and had no interest in the site; the applicant had had to acknowledge during the Court of Appeal proceedings that the public interest test was not met in her case and it had withdrawn its application in relation to her.
The court also highlighted the need for the applicant to have conducted an ongoing review of its decision to prosecute the respondents, especially after compliance with the notice had been achieved by the injunction and committal proceedings.
The court found that the Crown Court's conclusion that an inducement had occurred had been based on its careful and fair analysis of all the evidence before it. The applicant had not overcome the high hurdle of persuading the Court of Appeal that the lower court's decision had been unreasonable. Accordingly, the Crown Court's finding that the applicant had induced the first respondent to act to his detriment and had then taken advantage of the situation would have to stand.
The court stressed that its rulings should not be seen to cast doubt on the value of informal discussions between a planning authority and a landowner who appeared to be in breach of planning control. It was not the case that these discussions would bind a local authority to a particular course of action. The judgment in this case was based on the cumulative facts of the case – not simply the discussions.
What are the implications in terms of the prospect of bringing confiscation proceedings and the practical considerations which arise from this?
Confiscation proceedings flow from criminal convictions where a defendant has benefited from criminal conduct. A Crown Court must proceed to make a confiscation order if the prosecutor asks the court to proceed to do so, or the court believes it is appropriate to do so.
This judgment may have most application in cases where a significant period of time has passed between the compliance date of an enforcement notice and the subsequent court proceedings. The effect of such a delay is often that the sum of the confiscation order will increase as the benefit to the defendant accrues over that period.
If the reason for the delay in bringing proceedings is connected with the possibility of a greater confiscation order being made, then local authorities may be at risk of other cases being stayed. For a stay application to be successful, a defendant would likely have to demonstrate some misconduct on the part of the local authority or bad faith.
The principles identified in this case apply equally in cases brought by private prosecutors where they are set to gain from any confiscation (and compensation) order. They add a further tension to an already difficult area to navigate, namely the conflict between the public interest and the benefit to a private prosecutor as identified in R (Virgin Media Ltd) v Zinga  EWCA Crim 52,  3 All ER 90.
John's practice encompasses criminal law and all related areas. He is experienced in prosecuting and defending in cases brought by local authorities and has defended individuals in cases involving confiscation proceedings, including where the proceedings stem from planning enforcement notices.
Interviewed by Robert Matthews LexisPSL.