COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ LOCKHART
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE PENRY-DAVEY
HIS HONOUR JUDGE RIVLIN QC
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MR A COMPTON appeared on behalf of the Crown
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Lord Justice Mantell:
"Where at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to be ceased is being carried on, the person who is then the owner of the land is in breach of the notice."
By sub-section 2:
"Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence."
"in proceedings against any person for an offence under sub-section (2) it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice."
"The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others no question of a defence under sub-section (3) arises. Before a defence can arise under that sub-section the owner must show that compliance with the notice is not within his own unaided powers otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of sub-section (3). We accept as does counsel for the prosecution that the phrase 'everything he could be expected to do' must implicitly be read as 'reasonably expected'. It applies an objective criterion of reasonableness having regard to all the relevant circumstances, in particular any disability to which the owner of the land is subject."
"In the course of argument Mr Crean accepted a proposition which I put to him, namely that his submission would mean that sub-section (3) is available in circumstances where the defendant, though perfectly able physically and financially and legally, to comply with the enforcement notice did not do so because for good reason he did not wish to comply with it.
In my judgment that exposes the flaw in Mr Crean's argument. Sub-section (3) is not concerned with a balance of social factors. It is not concerned with such policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin a court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply. Indeed it is not at all concerned with the defendant's wishes; only with his capacity. It is there to protect an individual who shows that in reality and common-sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner."
"It seems to me that the plain meaning of those words does indeed permit the personal circumstances of a defendant to be taken into account. I bear in mind in reaching that conclusion that this section creates a criminal offence. To hold someone guilty of a criminal offence for not doing something which they are genuinely incapable of doing, would be quite contrary to any tenets of criminal law known to me at least."
"The defence available is that a person has done everything that he could reasonably have expected to do. It does not extend, and cannot , in my view, be extended to cover a situation where a Defendant may have difficulty in finding somewhere else to live. It does not - and, again, in my view, cannot - extend to a situation where a Defendant may wholly genuinely feel that it is in the best interests of his family to remain on the site...".
"It has been made absolutely clear to me that his stance today is that it remains in the best interests of his family, including his infant grandchild who I am told suffers from a particular and serious medical condition in respect of which, as at today's date, there is still no medical opinion or assessment available, that he should remain there. It has been made quite clear that he has done nothing. Mr Field, on his behalf, submits that notwithstanding this, it would be open to him to invite a Jury to consider that his client has a defence to these allegations on the grounds possibly of justification. It seemed to me that the possibility of necessity may arise, and the possibility of reasonable excuse may arise. I have to say that this, to me, flies in the face of the clear meaning, clear intention behind Section 179(3).
I am in no doubt that Mr Woods has done nothing in all the time available to him, and it is clear that his case would be that he is acting in the best interests of his family, in a way which he feels is reasonable and necessary. But, the reality is that he has done nothing, and intends to do nothing. It seems to me therefore, that that being the basis upon which a possible defence would be for the Jury, I would have to direct that that is not a defence to either of these charges. I am conscious of the fact that one must be careful in making this sort of ruling, prior to the Jury being empanelled, and prior to the evidence being called, but with the absolute certainty, as I believe I have it, that this would be the Defendant's case. It is not a case that I could leave to the Jury. It is simply not an available defence."
LORD JUSTICE MANTELL: You have nothing to say about the retrial, Mr Field, have you?PRIVATE
MR FIELD: My Lord, no.
LORD JUSTICE MANTELL: Accordingly, we have allowed the appeal and quashed the conviction. We direct that a fresh indictment be preferred and that the appellant be rearraigned on the fresh indictment within two months. There is no difficulty about venue, is there?
MR FIELD: No.
LORD JUSTICE MANTELL: In the same court, Southend Crown Court, and no question of bail arises. Do you want legal aid, Mr Field?
MR FIELD: For the retrial?
LORD JUSTICE MANTELL: Yes.
MR FIELD: My Lord, I did not quite follow the argument in the earlier case, but if your Lordship grants it --
LORD JUSTICE MANTELL: The argument in the earlier case simply related to whether or not there should be leading counsel. You are not asking for that?
MR FIELD: Not for a minute, my Lord.
LORD JUSTICE MANTELL: Legal aid will be granted.
MR FIELD: There was one other aspect. If your Lordships will recall, there was a solicitor who was co-operating in the background to this case throughout the preparation for the appeal. He did not have legal aid and I apply that he should have legal aid if nothing else for his attendance at the earlier hearing. Your Lordship said he would reserve judgment on that until today's hearing.
LORD JUSTICE MANTELL: No, Mr Field.
MR FIELD: I am grateful.