Wokingham Borough Council v Scott & Ors [2019] EWCA Crim 205
Summary
**Wokingham Borough Council v Scott & Ors** [2019] EWCA Crim 205 concerned a prosecution application for leave to appeal against a Crown Court judge’s terminating ruling that criminal proceedings brought to enforce a planning enforcement notice should be stayed as an abuse of process. Lady Justice Hallett, Lord Justice Lindblom and Mrs Justice Carr DBE refused leave and ordered the acquittal of the remaining respondents.
The respondents were charged with offences arising from breaches of an enforcement notice (EN/2) issued by Wokingham Borough Council in August 2013 in respect of unauthorised commercial development of land in the Green Belt. Mr Keith Scott and Mrs Yvonne Scott were the registered owners of the site; Mr Scott operated a garden centre there and other respondents ran businesses on the land. After EN/2 was issued, Mr Scott appealed and a public inquiry was scheduled. Between February and April 2014, extensive discussions took place between Mr Scott and elected councillors and planning officers. On 1 April 2014 Mr Kaiser, the executive member for planning, indicated by email that, subject to caveats, Mr Scott’s understanding was correct that he would present his case for a certificate of lawful existing use or development (CLEUD), and if a planning officer was satisfied he had a substantive case, he would withdraw his appeal, give notice to concessionaires and remove structures. On 3 April 2014 Mr Scott withdrew his appeal shortly before the inquiry. In June 2014 he applied for a CLEUD but was advised in early 2015 that one could not lawfully be issued whilst EN/2 remained extant. The application was refused in March 2015. The Council issued a summons against all the respondents in 2017 following ongoing breaches of EN/2 between 14 May 2015 and 21 February 2017. An injunction to enforce EN/2 was granted by the High Court in February 2017 and in July 2017 Mr Scott was committed for contempt. The respondents applied to stay the criminal proceedings as an abuse of process.
Her Honour Judge Morris heard evidence from Mr Scott and found that he had been induced by the Council to withdraw his appeal against EN/2 to his prejudice. The judge accepted Mr Scott’s account that he had been led to believe his application for a CLEUD would be properly considered on its merits and might well succeed. She concluded that by inducing him to withdraw the appeal the Council had denied him the opportunity to challenge EN/2 in the appropriate planning forum and had then sought to take advantage of the situation by prosecuting him without recourse to the appeal process. She further found significant cumulative concerns about the application of the Code for Crown Prosecutors, including that the Council had failed to consider the case of each defendant separately and had lumped all respondents together irrespective of the quality of evidence and public interest considerations. She noted inordinate delay between the decision to prosecute in May 2015 and Mr Scott being informed of that decision, and that he was left in ignorance for two years that he was at risk of prosecution and that a decision to prosecute had already been made. Most significantly, she found that the possibility of a Proceeds of Crime Act 2002 order, from which the Council would receive 37.5 per cent of any confiscation, was a principal factor in the decision to prosecute. She held that the possibility of a POCA order should never form part of the prosecutorial decision-making process, particularly where the prosecutor and beneficiary are one and the same. Taking account of all these matters, she concluded that the proceedings offended her sense of justice and fairness and stayed them. She would alternatively have stayed the proceedings as against two respondents, Mr Woodhead and his company, on the ground that the Council had failed properly to consider their cases individually and was improperly motivated by the prospect of a POCA order.
The Council appealed under section 58 of the Criminal Justice Act 2003, contending that the judge erred in law in finding that it had induced Mr Scott to withdraw his appeal. The Council argued there had been no unequivocal representation that Mr Scott would not be prosecuted or that he could continue in breach of planning control and that, absent such a promise, there could be no abuse of process. It submitted that the officers and councillors had merely offered advice and that discussions aimed at reaching a settlement could not amount to inducement. It relied on the decision in Ceredigion County Council v Robinson [2018] EWHC 2121 (Admin) and contended that any representations fell far short of being unequivocal. The Council further argued that the judge erred in treating representations made by elected councillors as capable of binding the authority, relying on Reprotech v East Sussex County Council [2003] 1 WLR 348. It contended that the judge erred in extending her findings to other respondents who had not relied on any representations. It argued that the judge improperly questioned the validity of the enforcement notice and that the delay of over four months in delivering judgment was unreasonable and appeared to have affected the findings.
During the hearing of the appeal, the Council conceded that it could not demonstrate that the public interest test in the Code for Crown Prosecutors had been met in respect of Mr Woodhead and his company (respondents 9 and 10) and the application was withdrawn as to them. On further examination, the Council also conceded that whilst the evidential test was met as to Mrs Scott, the public interest test could not be satisfied given that she was divorced from Mr Scott and had no actual interest in the land beyond being a joint legal owner for mortgage purposes, and the application was withdrawn as to her as well.
The Court of Appeal rejected the Council’s submission that an unequivocal undertaking not to prosecute was an essential prerequisite for an abuse of process application to succeed. The court emphasised, following R v Gripton [2010] EWCA Crim 2260, that the abuse of process jurisdiction is not confined to cases where a solemn promise has been made and that the court must assess all the circumstances to determine whether allowing the prosecution to proceed would affront justice. The court held that Garnham J in Ceredigion had not purported to restrict the ambit of the abuse jurisdiction in the manner suggested. The court upheld the judge’s careful finding, based on her acceptance of Mr Scott’s oral evidence and supported by emails disclosed during the proceedings, that he had been induced by those representing the Council to abandon his appeal on assurances that his CLEUD application would be given proper consideration on its merits and might succeed. The court noted that when Mr Scott withdrew his appeal and could not obtain a CLEUD he was unable to challenge EN/2, and the Council then took advantage of that fact to prosecute.
The court rejected the contention that the judge erred in taking account of representations made by elected councillors. It noted that the planning department was well aware of the councillors’ involvement and hoped they would negotiate a fair settlement, and Mr Scott had been led to believe they were acting with the authority of the Council. Officers in the planning department had themselves played a part in the negotiations. The judge had not found that councillors or officers had bound the planning authority in breach of Reprotech principles but rather that the Council’s course of conduct as a whole meant it would be an affront to justice to allow the prosecution to proceed. The court accepted the limited force of the ground that representations were made only to Mr Scott but observed that the judge had specifically considered the individual positions of the other respondents and that Mr Scott’s inability to regularise his position and challenge EN/2 necessarily impacted upon them.
The court held that the judge was not bound by the earlier findings of Her Honour Judge Walden-Smith in the civil injunction proceedings. The issue in those proceedings was different, the evidence was different and it was far from clear that all material, including the key emails, had been provided. The respondents had applied to give oral evidence but been unable to do so and had sought to appeal. No issue estoppel arose. The judge had been entitled to reach her own findings on the evidence called before her. The court rejected the ground relating to delay in giving judgment, holding that the judge had given reasons for the delay and that it had no discernible impact on her full and careful ruling.
The court endorsed and repeated the observations in R v The Knightland Foundation [2018] EWCA Crim 1860 concerning the role of POCA orders in prosecutorial decision-making. The court emphasised that where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest tests within the Code for Crown Prosecutors. The court expressed concern that, given nothing had been advanced to justify prosecuting at least ten of the respondents after injunctive relief had been granted and Mr Scott had been made subject to a suspended committal sentence, there was a distinct possibility that the making of a POCA order was one of the grounds for the decision to prosecute them. The court also expressed concern about the Council’s approach to selecting those to be prosecuted, noting that the Expediency Reports indicated a failure properly to consider whether there was a realistic prospect of conviction and a public interest in prosecuting each individual defendant. The court observed that the respondents had been lumped together as owners and occupiers during a period of breaches and that it was inappropriate to adopt such an approach when exercising the power to prosecute in the criminal courts with potentially serious consequences. The court further noted that the original decision to prosecute may well have been based in part on the financial advantage to the Council in obtaining convictions and subsequent POCA orders and questioned the public interest in putting eleven individuals and small businesses in the dock at the Crown Court on these facts.
The court held that the judge’s conclusions were open to her on the material before her. Whilst other judges might have reached a different conclusion and Mr Scott might consider himself fortunate, the judge’s findings were clear and reasoned and made on the basis of the evidence called before her. The court was not satisfied that the ruling was wrong in law, involved an error of law or principle, or was a ruling it was not reasonable for the judge to have made. The appeal was therefore refused and all the remaining respondents were ordered to be acquitted. The court added that nothing in its judgment should be seen as casting doubt on the value of informal discussions between officers of a local planning authority and applicants or landowners, provided such discussions are conducted in good faith and with good sense on either side. The judgment was entirely dictated by the cumulative effect of all the facts of the case, not simply the discussions. In short, the Court of Appeal refused leave to appeal and upheld the stay of proceedings as an abuse of process, emphasising that the possibility of financial benefit to a prosecuting authority through a POCA order must play no part in the decision to prosecute and that prosecutors must rigorously and fairly assess the case against each individual defendant.
The respondents were charged with offences arising from breaches of an enforcement notice (EN/2) issued by Wokingham Borough Council in August 2013 in respect of unauthorised commercial development of land in the Green Belt. Mr Keith Scott and Mrs Yvonne Scott were the registered owners of the site; Mr Scott operated a garden centre there and other respondents ran businesses on the land. After EN/2 was issued, Mr Scott appealed and a public inquiry was scheduled. Between February and April 2014, extensive discussions took place between Mr Scott and elected councillors and planning officers. On 1 April 2014 Mr Kaiser, the executive member for planning, indicated by email that, subject to caveats, Mr Scott’s understanding was correct that he would present his case for a certificate of lawful existing use or development (CLEUD), and if a planning officer was satisfied he had a substantive case, he would withdraw his appeal, give notice to concessionaires and remove structures. On 3 April 2014 Mr Scott withdrew his appeal shortly before the inquiry. In June 2014 he applied for a CLEUD but was advised in early 2015 that one could not lawfully be issued whilst EN/2 remained extant. The application was refused in March 2015. The Council issued a summons against all the respondents in 2017 following ongoing breaches of EN/2 between 14 May 2015 and 21 February 2017. An injunction to enforce EN/2 was granted by the High Court in February 2017 and in July 2017 Mr Scott was committed for contempt. The respondents applied to stay the criminal proceedings as an abuse of process.
Her Honour Judge Morris heard evidence from Mr Scott and found that he had been induced by the Council to withdraw his appeal against EN/2 to his prejudice. The judge accepted Mr Scott’s account that he had been led to believe his application for a CLEUD would be properly considered on its merits and might well succeed. She concluded that by inducing him to withdraw the appeal the Council had denied him the opportunity to challenge EN/2 in the appropriate planning forum and had then sought to take advantage of the situation by prosecuting him without recourse to the appeal process. She further found significant cumulative concerns about the application of the Code for Crown Prosecutors, including that the Council had failed to consider the case of each defendant separately and had lumped all respondents together irrespective of the quality of evidence and public interest considerations. She noted inordinate delay between the decision to prosecute in May 2015 and Mr Scott being informed of that decision, and that he was left in ignorance for two years that he was at risk of prosecution and that a decision to prosecute had already been made. Most significantly, she found that the possibility of a Proceeds of Crime Act 2002 order, from which the Council would receive 37.5 per cent of any confiscation, was a principal factor in the decision to prosecute. She held that the possibility of a POCA order should never form part of the prosecutorial decision-making process, particularly where the prosecutor and beneficiary are one and the same. Taking account of all these matters, she concluded that the proceedings offended her sense of justice and fairness and stayed them. She would alternatively have stayed the proceedings as against two respondents, Mr Woodhead and his company, on the ground that the Council had failed properly to consider their cases individually and was improperly motivated by the prospect of a POCA order.
The Council appealed under section 58 of the Criminal Justice Act 2003, contending that the judge erred in law in finding that it had induced Mr Scott to withdraw his appeal. The Council argued there had been no unequivocal representation that Mr Scott would not be prosecuted or that he could continue in breach of planning control and that, absent such a promise, there could be no abuse of process. It submitted that the officers and councillors had merely offered advice and that discussions aimed at reaching a settlement could not amount to inducement. It relied on the decision in Ceredigion County Council v Robinson [2018] EWHC 2121 (Admin) and contended that any representations fell far short of being unequivocal. The Council further argued that the judge erred in treating representations made by elected councillors as capable of binding the authority, relying on Reprotech v East Sussex County Council [2003] 1 WLR 348. It contended that the judge erred in extending her findings to other respondents who had not relied on any representations. It argued that the judge improperly questioned the validity of the enforcement notice and that the delay of over four months in delivering judgment was unreasonable and appeared to have affected the findings.
During the hearing of the appeal, the Council conceded that it could not demonstrate that the public interest test in the Code for Crown Prosecutors had been met in respect of Mr Woodhead and his company (respondents 9 and 10) and the application was withdrawn as to them. On further examination, the Council also conceded that whilst the evidential test was met as to Mrs Scott, the public interest test could not be satisfied given that she was divorced from Mr Scott and had no actual interest in the land beyond being a joint legal owner for mortgage purposes, and the application was withdrawn as to her as well.
The Court of Appeal rejected the Council’s submission that an unequivocal undertaking not to prosecute was an essential prerequisite for an abuse of process application to succeed. The court emphasised, following R v Gripton [2010] EWCA Crim 2260, that the abuse of process jurisdiction is not confined to cases where a solemn promise has been made and that the court must assess all the circumstances to determine whether allowing the prosecution to proceed would affront justice. The court held that Garnham J in Ceredigion had not purported to restrict the ambit of the abuse jurisdiction in the manner suggested. The court upheld the judge’s careful finding, based on her acceptance of Mr Scott’s oral evidence and supported by emails disclosed during the proceedings, that he had been induced by those representing the Council to abandon his appeal on assurances that his CLEUD application would be given proper consideration on its merits and might succeed. The court noted that when Mr Scott withdrew his appeal and could not obtain a CLEUD he was unable to challenge EN/2, and the Council then took advantage of that fact to prosecute.
The court rejected the contention that the judge erred in taking account of representations made by elected councillors. It noted that the planning department was well aware of the councillors’ involvement and hoped they would negotiate a fair settlement, and Mr Scott had been led to believe they were acting with the authority of the Council. Officers in the planning department had themselves played a part in the negotiations. The judge had not found that councillors or officers had bound the planning authority in breach of Reprotech principles but rather that the Council’s course of conduct as a whole meant it would be an affront to justice to allow the prosecution to proceed. The court accepted the limited force of the ground that representations were made only to Mr Scott but observed that the judge had specifically considered the individual positions of the other respondents and that Mr Scott’s inability to regularise his position and challenge EN/2 necessarily impacted upon them.
The court held that the judge was not bound by the earlier findings of Her Honour Judge Walden-Smith in the civil injunction proceedings. The issue in those proceedings was different, the evidence was different and it was far from clear that all material, including the key emails, had been provided. The respondents had applied to give oral evidence but been unable to do so and had sought to appeal. No issue estoppel arose. The judge had been entitled to reach her own findings on the evidence called before her. The court rejected the ground relating to delay in giving judgment, holding that the judge had given reasons for the delay and that it had no discernible impact on her full and careful ruling.
The court endorsed and repeated the observations in R v The Knightland Foundation [2018] EWCA Crim 1860 concerning the role of POCA orders in prosecutorial decision-making. The court emphasised that where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest tests within the Code for Crown Prosecutors. The court expressed concern that, given nothing had been advanced to justify prosecuting at least ten of the respondents after injunctive relief had been granted and Mr Scott had been made subject to a suspended committal sentence, there was a distinct possibility that the making of a POCA order was one of the grounds for the decision to prosecute them. The court also expressed concern about the Council’s approach to selecting those to be prosecuted, noting that the Expediency Reports indicated a failure properly to consider whether there was a realistic prospect of conviction and a public interest in prosecuting each individual defendant. The court observed that the respondents had been lumped together as owners and occupiers during a period of breaches and that it was inappropriate to adopt such an approach when exercising the power to prosecute in the criminal courts with potentially serious consequences. The court further noted that the original decision to prosecute may well have been based in part on the financial advantage to the Council in obtaining convictions and subsequent POCA orders and questioned the public interest in putting eleven individuals and small businesses in the dock at the Crown Court on these facts.
The court held that the judge’s conclusions were open to her on the material before her. Whilst other judges might have reached a different conclusion and Mr Scott might consider himself fortunate, the judge’s findings were clear and reasoned and made on the basis of the evidence called before her. The court was not satisfied that the ruling was wrong in law, involved an error of law or principle, or was a ruling it was not reasonable for the judge to have made. The appeal was therefore refused and all the remaining respondents were ordered to be acquitted. The court added that nothing in its judgment should be seen as casting doubt on the value of informal discussions between officers of a local planning authority and applicants or landowners, provided such discussions are conducted in good faith and with good sense on either side. The judgment was entirely dictated by the cumulative effect of all the facts of the case, not simply the discussions. In short, the Court of Appeal refused leave to appeal and upheld the stay of proceedings as an abuse of process, emphasising that the possibility of financial benefit to a prosecuting authority through a POCA order must play no part in the decision to prosecute and that prosecutors must rigorously and fairly assess the case against each individual defendant.