The Court of Appeal has upheld a Crown Court decision to stay proceedings as an abuse of process of court, preventing Islington Council from prosecuting property owners Knightland Foundation and Jacob Friedman.
The headlines which accompanied the case suggested that the court accepted that prosecuting in the hope of receiving monies under the Proceeds of Crime Act 2002 was an abuse of process. Planning enforcement officers can therefore expect this case to be trotted out in every new prosecution.
A more careful reading, however, suggests that the precedent value of the case is much more limited and that, at Court of Appeal level, the case was more about the limits of the appeal process than the merits of the decision to prosecute. Sadly, we will never fully know the merits of the decision as the Crown Court judgment is not reported and we only have those limited excerpts which made it into the Court of Appeal’s decision.
Planning permission for the demolition of a three storey property with a five storey rear extension to accommodate a 14 bed HMO and 2 x 1 bed maisonettes was granted in 2009. The developers instead converted the property into 18 self-contained residential units.
On 1 October 2014 the Council issued an enforcement notice alleging five breaches of planning control, including the conversion of the property to 18 self-contained residential flats. The notice was upheld on appeal. In October 2016 the defendants submitted a new application for use of the premises as a hotel. There appears then to have been a series of discussions between the defentants’ agents and planning and planning enforcement officers within the Council. These discussions culminated in a refusal of the application on 7 November 2016 and, in July 2017, the issue of a summons for non-compliance with the enforcement notice between May 2016 and March 2017. The defendants sought to stay the summons as an abuse of process. The Crown Court judge agreed and the council appealed the stay to the Court of Appeal.
There appears to have been some internal discussion at the council as to the merits of the hotel application, with planning enforcement team members allegedly influencing the planners’ decision and causing an application to be rejected which would otherwise have been approved. The Crown Court judge is recorded as having found that this was improper and was motivated by the possibility of collection of POCA proceeds following a successful prosecution.
While it is dangerous to suggest (from the comfort of one’s armchair) that a judge who sat through the evidence might have got it wrong, there are aspects of this case which are odd. It is not unusual for planning enforcement officers to point out the existence of an enforcement notice to their planning colleagues. It is not unusual for enforcement officers to be consulted on planning decisions where there is an extant notice. The suggestion that a planning officer would have granted permission had it not been for the influence of a planning enforcement officer would be an unusual state of affairs. It is not unusual to take further enforcement action after 2 years of non-compliance with a notice. It is clear that the POCA legislation is designed to incentivise councils for seeking confiscation orders in appropriate cases. In a world of limited council resources, is it so bad to choose which cases to prosecute based on likely confiscation amounts?
Nevertheless, it is quite easy to see how a picture could be painted for a judge by a clever defence counsel that the combination of these factors was somehow improperly motivated. Sadly we will never know because the Crown Court’s judgment is not reported.
The matter came to the Court of Appeal as an appeal against the abuse of process stay. There was extensive discussion on a technical jurisdiction point which was ultimately undecided and which we do not need to go into.
The appeal was brought under s67 of the Criminal Justice Act 2003. The problem is that s67 is limited to a review of the process under which the Crown Court judge reached his decision; this is akin to a judicial review. If the process is right and if the decision is one which a judge could reasonably reach, the appeal court will not interfere even if it might have reached a different decision. As the judge was entitled to find that the council officers had taken into account improper factors in deciding to prosecute, that is not something with which the appeal court would interfere. This is the basis for the court’s decision. And as the court noted, “it may well be that the developers are fortunate that they will not face prosecution for what appears to be a clear breach of the enforcement notice [but] we have concluded that we should not intervene”.
To that extent, it can be concluded that the decision is limited to its facts and we can sleep a little more easily.
However, the Court of Appeal also expressly decided that the judge had not been misguided on the law. That is the worrying aspect of this case. It is frankly difficult to agree with it in the light of the limited excerpts of the judgment which are quoted in the Court of Appeal case and the arguments raised by counsel for the LPA. Amongst other things, he pointed out that a subsequent grant of permission would not have precluded a prosecution nor would it have impacted the proportionality of the POCA confiscation. He also pointed out that the Del Basso case makes clear that an intention to apply for confiscation did not make prosecution necessarily abusive. These arguments seem, in themselves, unimpeachable but they were given no airtime by the court.
It is important to remember that the abuse of process alleged in this case was not so much the decision to prosecute and seek confiscation but rather the decision to deny planning permission. In the end, the damage seems to have been done in the Crown Court where the judge was clearly convinced on the evidence that the council’s motives were improper, based largely it seems on an allegedly poor presentation by an officer. Whether that is a fair reflection of the council’s true motives is something which we will never know.