Case No: 200003181X4
Neutral Citation Number: [2001] EWCA Crim 1395
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ LOCKHART

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 25th May 2001

B e f o r e :

LORD JUSTICE MANTELL
MR JUSTICE PENRY-DAVEY
and
HIS HONOUR JUDGE RIVLIN QC

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	REGINA		
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	DAVID WOOD		

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(Transcript of the Handed Down Judgment of
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MR S FIELD appeared on behalf of the Appellant
MR A COMPTON appeared on behalf of the Crown

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Judgment

Lord Justice  Mantell: 

1.	David Wood is a gypsy.  He prefers the life of a rover.  Your bricks and mortar dwelling is not for him.  He chooses to live in a caravan or mobile home albeit with its wheels removed and planted upon a large concrete base.  That is at Wickford in Essex and on a piece of land which David Wood owns.  The contradiction between his philosophy and his actions cannot pass unnoticed.  However that may be, it is in the mobile home at Wickford that he, his wife, his daughter, his son-in-law and his baby grandson continue to live.  
2.	He does not have planning permission to house the mobile home on his land or to use it as a dwelling.  Nor did he obtain planning permission to lay the concrete base.  
3.	Wickford lies within the bailiwick of Basildon District Council.  
4.	On 13th October 1995 Basildon District Council served an enforcement notice on Mr Wood requiring him to remove the concrete base.  On 19th February 1997 the council served another enforcement notice requiring Mr Wood to remove the mobile home.
5.	Mr Wood has failed to comply with either enforcement notice. 
6.	He does not dispute that he is the owner of the land or that the enforcement notices were served upon him, or that he has failed to comply or that both enforcement notices remain valid and effective.  
7.	It is a criminal offence not to comply with an enforcement notice.  
8.	Section 179(1) of the Town and Country Planning Act 1990 provides that:
	"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."

9.	Accordingly Mr Wood was prosecuted.  He was charged with two offences, one in relation to the concrete base and one in relation to the mobile home.  In the first instance he pleaded not guilty but on 3rd May 2000 at Southend Crown Court following a ruling by His Honour Judge Lockhart he changed his plea on re-arraignment to one of guilty in respect of both charges.  
10.	It had previously been his intention to avail himself of the defence provided by section 179(3) of the Act which provides that:
	"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."

11.	On authority the sub-section has to be read as if the word  “reasonably” were inserted before “expected”.  
12.	The judge ruled that on the facts made known to him as to the defence which was to be presented he would be obliged to direct the jury to return verdicts of guilty.  He also made a ruling adverse to Mr Wood that the evidence of an expert witness as to the availability of alternative sites for gypsies was inadmissible.  
13.	Notwithstanding his plea of guilty Mr Wood now appeals against his conviction by leave of the single judge.  There is no doubt that he is entitled to do so (see R -v- Vickers (1975) 61 CAR 48).
14.	His grounds are (1) that the judge was wrong to disallow the expert evidence; (2) that the judge was wrong to indicate that on the disclosed facts he would be obliged to direct the jury to convict; (3) that the appellant has been denied a right to a fair trial as required under article 6(1) of the European Convention on Human Rights.  
15.	Should the appeal succeed on any one of the grounds advanced it is conceded by Mr Field on behalf of the appellant that there would have to be a retrial.
16.	We tackle the second ground first.  The ambit of the available defence under section 179(3) was considered by this court in the case of Beard (1997) CA Crim Div 64.  At p.70 Hobhouse LJ  (as he then was) giving the judgment of the court said this:
"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."

17.	In the ordinary way the question of whether or not a defendant has done all that he can “reasonably be expected” to do is a matter for the tribunal of fact whether it be the magistrates or the jury.  (See Kent County Council -v- Brockman (1996) 1 PLR p.1). 
18.	In the course of the judgment in Beard this court approved some words of Laws J (as he then was) in giving his ruling at first instance:
"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."

19.	That personal circumstances are material is clear from Brockman.  At p.3 having referred to the sub-section Buckley J said:
"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."

20.	It is also clear on the same authority that the defence remains available even though a defendant has done nothing provided always that there is not anything that he could reasonably be expected to do.  
21.	Applying those principles to the present case, was the judge right to rule as he did?  
22.	We begin by taking two extracts from the transcript of the ruling.  
"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.”

23.	The practice of ruling upon the availability of a defence before any evidence has been heard has been deprecated by this court on many occasions in the past but notably in Vickers and Beard, even though, as possibly happened here it was with the encouragement, or at least the connivance, of counsel.  The problems which may arise particularly when the factual basis for the proposed defence has neither been reduced to writing nor subjected to a clear and coherent formulation, are amply illustrated by the present case.  As a single example, Mr Field tells us that one element of the defence would have been the possible inability of the appellant to persuade his family to move whether or not he was prepared to go himself.  That is not something which is reflected in the judge’s ruling and we remain unclear as to whether or not it was mentioned at the time.  
24.	In those circumstances we think it unfortunate that the matter was allowed to proceed as it did.  We do not attempt to apportion blame although Mr Field has graciously accepted that he may have been at fault in failing to put across his instructions with sufficient clarity or in not running the defence for what it was worth.  Even so we are troubled as to whether or not this conviction should be regarded as safe.  There is no doubt that there is little or no merit in the defence being advanced.  The high probability is that a jury properly directed would return verdicts of guilty on both counts.  However, the outcome is by no means a foregone conclusion and we are left to consider whether or not the convictions should stand.  After a good deal of hesitation and with considerable misgivings we have decided that they cannot.  Accordingly we propose to allow the appeal, quash the convictions and order a retrial.  
25.	When it comes to the retrial it may be that the trial judge would be helped by our respectful suggestion as to how the jury might be directed on the law.  
26.	We suggest the following direction:						Considering each count separately:                                                                                    	(1). Have the prosecution made you sure that:                                                                         		(i) The defendant was served with a valid enforcement notice by the Basildon 		District Council? And										(ii) The defendant failed to comply with that notice?
27.	If the answer to either of these questions is NO, he is NOT GUILTY.
28.	If the answers to both questions are YES, go on to consider:                                              (2) Has the defendant shown that it is more probable or likely than not that in failing to comply with the notice he did everything that he could reasonably be expected to do?
29.	If the answer to this question is YES, he is NOT GUILTY.
30.	If the answer is NO, he is GUILTY.
31.	It is not disputed in each case that the defendant failed to comply with a valid enforcement notice.  The prosecution have therefore proved what they have to prove.  The only question for you to decide is whether the defendant has proved that it is more likely than not  that he did everything he could reasonably be expected to do to comply, and remove from the site caravans, vehicles and rubbish (count 1) and the concrete base (count 2).
32.	In this connection, you will note the words “did everything that he could reasonably be expected to do”.  Whether he did this is a matter for you to decide on all the evidence called before you.  You are not concerned with whether it is socially desirable for someone in the defendant’s situation to be required to move. It is no defence for a man to say: “I did nothing because I wished to stay” or “I decided that it would be inconvenient for me [and my family] to comply”. The defendant is only entitled to be found “not guilty” if (taking each count separately) he can show that his circumstances were such that in reality and common sense he was unable to comply with the particular obligations imposed upon him by the enforcement notice.
33.	We have not considered the Article 6 point which adds nothing to the argument.  Nor have we found it necessary to pronounce upon the admissibility of the expert evidence beyond observing that it is usually advisable to delay ruling until the time arrives when the evidence is to be introduced and objection has been taken.
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LORD JUSTICE MANTELL:  You have nothing to say about the retrial, Mr Field, have you?
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.