England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26th July 2018

LADY JUSTICE HALLETT:

Introduction

1. The respondents, the Knightland Foundation and Jacob Friedman, were prosecuted under the Town and Country Planning Act 1990 for failing to comply with an Enforcement Notice between 7^th May 2016 and 17^th March 2017. The Notice and associated enforcement action related to a five storey mid-terrace building in the London Borough of Islington. The London Borough of Islington was the prosecuting authority as the local authority responsible for planning in that area.

2. In May 2018 His Honour Judge Simon stayed the proceedings as an abuse of the process of the court. The London Borough apply for leave to appeal against that ruling under section 58 of the Criminal Justice Act 2003.

2. Potentially, two issues arise for determination:

(i) whether the prosecuting authority has met the requirements of section 58(8) of the Criminal Justice Act 2003 and previous decisions of this court in giving the Notice of Appeal and the 'acquittal undertaking' by email;

(ii) if jurisdiction exists, the merits of the proposed appeal.

The Facts

3. The premises were acquired by the respondents in 2007. In 2009 planning permission was granted for "demolition of a three storey rear extension and replacement with a five storey rear extension to accommodate a 14 bed HMO (House in Multiple Occupation) and 2 x 1 bed maisonettes". The property was converted into and used as 18 self contained residential units.
4. In October 2014 the authority served the Enforcement Notice. The Notice contained five requirements, one of which was that the use of the property as 18 self-contained residential units cease. Other requirements were that the respondents remove unauthorised UPVC windows, doors and balustrades, kitchen units, WCs and shower rooms. The final date for compliance with the Notice was May 2016. The respondents did not comply and continued to use the premises in breach of the Notice. They appealed against the Notice, but the Planning Inspector dismissed their appeal.
5. In October 2016, the respondents submitted a fresh planning application for use of the premises as a hotel. During the spring and summer of 2017, negotiations continued between the respondents' representatives and members of the authority's Planning Team. Several members of the latter indicated that they were likely to recommend approval of the planning application as a hotel. Had they done so, the respondents would not have been obliged to comply with all the requirements of the Enforcement Notice: for example, they would not have been forced to remove the kitchens, WCs and shower rooms.
6. Summonses for breach of the Enforcement Notice were issued in July 2017; they were authorised by the applicant's legal department. The department acted on a report from members of the Enforcement Team, Mr Kettani and his manager, Mr Jarrett.
7. In September 2017, a planning officer, Mr Shaxted, indicated to the respondents that the principle of an 18 room hotel seemed acceptable to him. Email traffic between the enforcement officers and members of the Planning Team that month revealed that the Enforcement Team were determined to press ahead with the prosecution and to apply for a confiscation order under the Proceeds of Crime Act 2002 ("POCA"), whatever the result of the 2016 planning application.
8. On 3^rd October 2017, having been sent the planning application file, Mr Kettani wrote a lengthy email to Mr Shaxted setting out a detailed critique of the planning application under consideration. He described the proposed change to a hotel as "very concerning".
9. On 10^th October, Mr Shaxted visited the site with Mr Kettani and on 13^th October, in what the judge described as a "volte-face", Mr Shaxted sent an email indicating that the use as a hotel was not acceptable. On 7^th November the planning application was refused.

The Respondents' Application to Stay Proceedings as an Abuse of Process

10. The respondents made an application to stay the proceedings as an abuse of the process of the court. They relied, in part, on material disclosed by the council just one day before the trial was due to start. They claimed that the enforcement officer, Mr Kettani and Mr Jarrett improperly influenced the planning application process so that the respondents would be unable to regularise their position and that the prosecution was brought for improper motives. They argued that the decision to prosecute was reached on an unfair and partial assessment of the public interest test and that the conduct of the prosecuting authority was oppressive. Ms Murphy, who represented the respondents, relied on guidance given by the Divisional Court in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte South Coast Shipping Co Ltd [1993] QB 645, 96 Cr App R 405; and R v Maxwell [2010] UKSC 48.
11. His Honour Judge Simon heard the application on 30^th April and 1^st May 2018. On 4^th May 2018 he announced his decision in open court to stay the proceedings, but he was not in a position that day to give his detailed reasons. He indicated that they would be provided in writing at a later date. Mr Ham, who appeared for the London Borough, drew attention in open court to the possibility of an appeal under section 58 and he asked for two or three days following receipt of the written judgment in which to announce the authority's decision on appeal. His request was granted.
12. On 10^th May 2018, His Honour Judge Simon distributed a copy of his written judgment to stay proceedings. In his judgment he granted an extension of time for the prosecution to notify an intention to appeal by close of business on 14^th May 2018.
13. On 14^th May, within time, Mr Ham emailed a document entitled "Notice of Appeal" to both the judge and the legal representatives of the respondents. It outlined the prosecution's intention to appeal in accordance with the section and it contained an acceptance of the fact that should the application for leave to appeal fail or be withdrawn, the respondents would be acquitted, in accordance with the provisions of section 58.
14. In his written judgment, the judge analysed the authorities to which he had been referred. He distilled from them a series of principles as to when a stay may be granted. Both parties before us today accepted his analysis. He gave a number of reasons for granting the stay as an abuse of the process of the court, based on the evidence that he had heard, notwithstanding the high hurdle that faced the respondents in establishing an abuse.

16. First, he was far from impressed by the evidence of Mr Kettani. He described him as a very defensive witness who was preoccupied with the breach of the Enforcement Notice, to the extent that he could not contemplate any regularisation of the position before instituting a prosecution. Mr Kettani viewed compliance with the Notice as a fundamental requirement and, in the judge's view, ignored both local and national planning guidance to the effect that enforcement by way of prosecution should be a last resort. The judge considered that, on the evidence before him, the 2016 planning application was a highly material consideration in determining whether to initiate a prosecution – a decision over which the local authority has a wide degree of discretion afforded to it under the Town and Country Planning Act 1990. However, the judge found that neither Mr Kettani nor his manager, Mr Jarrett had materially considered the 2016 application in their decision making.

15. The judge described Mr Kettani's evidence as to the impact of that application on the decision to prosecution as "confused and confusing". In emails, Mr Kettani had ranged from disregarding the application, because it had not been validated, to disregarding it because it was not relevant to the performance of his duty. Yet, under questioning from the judge, he acknowledged that there could be a situation where a planning application would be relevant.
16. The judge also described Mr Kettani's evidence in relation to his involvement in the 2016 planning application. as unconvincing. He said that Mr Kettani had attempted to downplay the tenor and effect of his email correspondence in a way which flew in the face of the obvious meaning. Mr Kettani had become increasingly concerned that had the Planning Team approved the 2016 application, it would have been likely to hinder the enforcement proceedings and the prosecution. Mr Kettani had also sought to emphasise to his planning colleagues the value of the order under POCA that would have followed a successful prosecution.
17. The judge accepted that the respondents may not have had a legitimate expectation that their planning application would be granted, but they did have a legitimate expectation that it would be determined on its merits measured against published transparent criteria. The evidence indicated to him that, despite Mr Kettani's efforts to influence members of the Planning Team against giving permission, up to and including 10^th October 2017 the recommendation of the team would have been to grant permission. The "volte-face" came after Mr Kettani had enlisted support at a higher level. Mr Kettani and Mr Jarrett and/or another had communicated with a senior member of the Planning Team, Sarah Wilson, about the 2016 application and any potential impact on the prosecution and associated POCA proceedings in sufficiently strong terms for her to have directed its refusal, irrespective of the merits. The judge concluded that Ms Wilson must have given such a direction prior to or at a meeting of council officials that took place between the site visit on 10^th October and the email of 13^th October. The judge noted that it was of particular concern that no minutes existed of that meeting. He concluded that the evidence pointed directly to improper influence having been brought to bear on the Planning Team to refuse the 2016 application. The intention of those who brought the influence was not that there should be a proper assessment of planning merit but that nothing should hamper the prosecution or the POCA proceedings.

20. The judge described the way in which the 2016 application had been handled as "improper". He found that it tainted the whole process namely the planning decision and the imitation and continuation of the prosecution. The prosecution had as its focus maximising the returns to the authority from a POCA order.

18. The judge acknowledged that each of the fundamental critical findings he made would not ordinarily have been sufficient on their own to warrant a stay but when taken together, he found that the second limb established in R v Maxwell (that it offended the court's sense of justice and propriety to be asked to try the accused on the particular facts of the case) was satisfied. The way in which the determination of the 2016 application had been conducted led him to conclude that it would have been oppressive to have allowed the prosecution to proceed. Notwithstanding the degree of criticism that might well be laid at the respondents' doors for failing to carry to comply with the Enforcement Notice, this could not override the culpable acts and omissions for which the local authority as a whole were responsible.

The Jurisdiction Issue

19. The prosecution authority gave notice of its intention to appeal and the 'acquittal undertaking' at the same time and within the time allowed by the judge but gave it by email rather than in open court. The jurisdiction issue is, therefore, simple to state: must the prosecution inform the judge in open court to comply with the provisions of section 58 of the Criminal Justice Act?
20. The provisions of section 58, where relevant, are as follows:

"(4) The prosecution may not appeal in respect of the ruling unless –

(a) following the making of the ruling, it –

(i) informs the court that it intends to appeal, or

(ii) requests an adjournment to consider

whether to appeal, and

(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

…

(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9) Those conditions are –

(a) that leave to appeal to the Court of Appeal is not obtained, and

(b) that the appeal is abandoned before it is determined by the Court of Appeal."

21. The relevant Rules of Court are set out in the Criminal Procedure Rules 2015. Rule 38.2 covers the position where the prosecution intends to seek leave to appeal. It provides as follows:

"(1) An appellant must tell the Crown Court judge of any decision to appeal –

(a) immediately after the ruling against which the appellant wants to appeal; or

(b) on the expiry of the time to decide whether to appeal allowed under paragraph (2).

(2) If an appellant wants time to decide whether to appeal –

(a) the appellant must ask the Crown Court judge immediately after the ruling; and

(b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day."

22. Mr Ham drew our attention to the fact that there is no express requirement under section 58 or rule 38.2 that the notification of the intention to appeal and/or the required undertaking must be given orally and in open court. He contrasted this with rule 38.5, which stipulates that where the prosecutor seeks leave to appeal from the Crown Court judge, the prosecution must apply orally, with reasons, immediately after the ruling or in writing if an adjournment has been allowed under rule 38.2. Mr Ham maintains that if there is no obligation on the prosecution authority to inform the court in open court imposed by the Act or the rules, then the authority has complied with the strict requirements of both. He acknowledged that the judgment of the Court Martial Appeal Court given by Hughes LJ (as he then was) in R v LSA [2008] EWCA Crim 1034 appears to import into the section the requirements to give notice of the intention to appeal and the acquittal undertaking in open court but he attempted to distinguish the instant case on its facts and he described the passages in which reference is made to "open court" in the judgment as "obiter".
23. In LSA the prosecution did not give the required undertaking until the service of his written Notice of Appeal, which was served six days after the hearing at which the prosecution had indicated its intention to appeal. In the present case, Mr Ham emphasised that the notification of the intention to appeal and the undertaking were given simultaneously and within the time frame allowed. Mr Ham emphasised that the ratio of the judgment in LSA relates to the timing, not the form of the undertaking and the notification. Furthermore, the rules relating to Courts Martial differ from the Criminal Procedure Rules in that they require an application for leave to appeal be made orally. On that basis it was said that the issue of whether the undertaking has to be given in open court was not a matter that the court had to decide: hence, Mr Ham's description of it as "obiter".
24. Similarly, he distinguished the facts in R v NT [2010] EWCA Crim 711, where a specially constituted five judge court, over which the Lord Chief Justice presided, considered whether, in relation to timing, there was any tension between previous decisions of this court. Mr Ham drew to our attention that in NT the prosecution gave the undertaking the day after it had notified the court of its intention to appeal. He accepted that the Lord Chief Justice, giving the judgment of the court, did appear to endorse the relevant passage in the judgment of Hughes LJ in LSA, but suggested in argument that in doing so the Lord Chief Justice was focusing on the timing of the undertaking, not the means. Nowhere in the judgment can a specific reference be found to consideration of the issue of giving it in open court.
25. Ms Murphy for the respondents has submitted that this court does not have jurisdiction to determine the application for leave to appeal. She takes no issue on the timing of the notice and 'acquittal undertaking'. However, she contends that section 58 was construed by the court in LSA to require the notice of intention and 'acquittal undertaking' to be given in open court. She reminded the court of the safeguards that were identified in LSA as pre-conditions of the court's jurisdiction and insisted that these are not matters of "arid technicality". There are many difficulties that may arise should this court allow such notifications to be given by email. They should be given in open court to support the principle of open justice, certainty, clarity and accountability. Where an indication and 'acquittal undertaking' are given in open court, the party to whom the notice of intention to appeal and undertaking relate cannot complain that they have not received proper notice, whereas the same cannot be said of a communication by email.

The Grounds of Appeal in relation to the merits

26. If we do have jurisdiction, Mr Ham advances several grounds of appeal. First, he wished to emphasise the importance of proper enforcement of the planning laws and planning control and the distinct nature of the planning application regime and the enforcement regime. He attempted to persuade us that if there was, as the judge found, an abuse in relation to the 2016 planning application, it did not taint the decision to prosecute and/or continue to prosecute. Mr Ham's more detailed complaints are:

(i) The judge did not give sufficient weight to factors that he had identified as relevant to his determination of the abuse argument.

(ii) Whatever role the enforcement officers played in respect of the later planning application, it could have no bearing on the prosecution of the respondents for an earlier failure to comply with the Enforcement Notice. The first five months of the indictment period predate the submission of the 2016 planning application.

(iii) The judge was wrong to find that the planning application was a highly material consideration to the decision to prosecute.

(iv) The judge placed "inordinate emphasis" on the physical aspects of the Enforcement Notice and planning application, such as the removal or retention of kitchen units, and at the same time ignored the continued residential use of the units. Under section 179(1) of the Town and Country Planning Act an offence is committed where any step required to be taken by the Notice has not been taken by the date for compliance. Regardless of the fact that planning permission might have been granted in relation to certain aspects of the development, Mr Ham repeatedly emphasised the continued unlawful residential use of the units, which was in itself an offence.

(v) The judge overemphasised the importance within the planning regime and guidance of permitting development, while ignoring the importance of enforcement. Mr Ham submits that the judge failed properly to apply the tests in A v R [2012] EWCA Crim 434 and R v Adaway [2004] EWCA Crim 2831. Further, he relied on London Borough of Wandsworth v Rashid [2009] EWHC 1844 (Admin) in support of the proposition that it was not an abuse to prosecute where, according to the prosecuting authority's policy, prosecution was but one option, as opposed to the only option.

(vi) The judge was wrong to find that if the planning application had been granted, this would have had any impact on the criminal prosecution and any POCA proceedings. Whatever Mr Kettani may have thought, Mr Ham insists that the later grant of planning permission, had it been given, would have been irrelevant to the earlier breach of the Notice. During the course of the argument today, Mr Ham repeatedly attempted to persuade us that the respondents would not have been entitled to rely on any attempt to regularise their position in their mitigation of past offences.

(vii) The judge was wrong to imply that the intention to apply for a confiscation order was in some way an improper motive for continuing the prosecution. Mr Ham relied upon the decision in R v Del Basso and Others [2010] EWCA Crim 1119 in support of the proposition that the making of such orders in planning cases was expressly approved.

(viii) The judge was wrong to have found that the prosecution was oppressive because the planning application was unfairly decided.

27. Ms Murphy, in her grounds of opposition, argued that it is apparent from section 67 of the Criminal Justice Act 2003 that the circumstances in which this court may reverse the judge's findings are limited and akin to a judicial review. They do not include simple disagreement with the outcome. She argued that the grounds did not address the judge's findings directly. She sought to persuade us that the council simply disagrees with the judge's conclusions. She invited us to find that the grounds did not reach the threshold of being arguable, let alone seriously arguable.

Our Conclusions

The Jurisdictional Issue

28. We understand how the confusion arose. This was an abuse of process argument, and so no jury had been empanelled and a number of orders that may follow a decision to stop a case were not required. When the parties returned to open court on 4^th May, as they thought to hear the reasoned judgment, the judge, for understandable reasons, was unable to provide it. He emailed it to them subsequently. No hearing had been arranged. In those circumstances, neither party realised there might be a need for a special hearing simply for the applicant to confirm its intention to appeal and give its undertaking. However, the fact that the parties agreed the notices should be given electronically does not give us jurisdiction where none exists. Jurisdiction cannot be granted by consent.
29. The issue of whether the applicant authority was entitled to give the notice of intention to appeal and the acquittal undertaking electronically is not straightforward. We can see force in the arguments advanced by both sides. On the one hand, changes in a judge's case management powers, changes to the Crim PR and improved technology have encouraged all parties to communicate, where possible, electronically. On the other hand, as Ms Murphy pointed out, the principle of open justice remains at the heart of our system.
30. In our view, it is undoubtedly best practice to give the notification and the acquittal undertaking in open court, for a number of reasons:

(1) This court has held on numerous occasions that the right to appeal is given on strict terms and there must be compliance with those terms or the right is lost. If the judge is informed in open court of the intention to appeal, he or she can keep control of the proceedings and ensure that those requirements are met. In most cases where the prosecution intend to appeal, the judge will be required to give consequential directions, for example, to discharge or retain a sitting jury, expedition of the appeal and leave to appeal. Furthermore, the judge may wish to identify the key issues and evidence, including those parts of the evidence which would assist this court in deciding the appeal. Conversely, if the prosecution indicates an intention not to appeal, matters will arise: for example, taking a verdict from a sitting jury; dealing with applications for costs; and the review of any reporting restrictions.

(2) Notification in open court provides openness, certainty and clarity, where this is important. There are increasing numbers of unrepresented defendants, for example, and it is vital that they are kept properly informed of such a significant development in the history of their case.

(3) Communication in open court does not depend upon emails being forwarded to the right people in a timely fashion.

(4) Although electronic communication is encouraged by the rules (see, for example CPR 5.1), service by email may raise practical issues. Criminal Procedure Rule 4.11, for example, provides that an email sent no later than 2.30pm is deemed served that day. Any later and it is deemed served the following day. A notice purporting to comply with section 58(4) and (8) may be emailed at 2.29pm but not seen by the judge until sometime later. If this is the case, it is difficult to see how a judge could respond promptly to applications, as the rules require him to do as a matter of generality.

31. However, it does not follow from the fact that giving notice in open court is best practice that we have no jurisdiction. The question remains – does a prosecutor lose his or her right to apply for leave to appeal by failing to give notice in open court? Had it been necessary to decide the jurisdiction issue, unusually in this kind of urgent application we should have adjourned it and invited further submissions on the point of statutory construction. We would have needed more assistance on the intention of Parliament.

35. It is not necessary, however, to decide the point because, even if we do have jurisdiction, we have reached the firm conclusion that we should refuse leave. Section 67 of the Act provides that the Court of Appeal may not reverse a ruling on an appeal under this Part of the Act "unless it is satisfied (a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made". The test is not, therefore, whether individual members of this court would have granted a stay.

32. In our view, it cannot be argued that the ruling was wrong in law, involved an error of law or principle, or was made unreasonably. In a very full and careful judgment, the judge set out the relevant principles of law, the evidence and his findings of fact made on that evidence. He applied the correct and relevant principles of law to the specific facts as he found them to be. His conclusion was fully and properly reasoned and, in our judgment, was one that was open to him.
33. Accordingly, the proposed appeal does not meet any of the requirements of section 67 of the Criminal Justice Act 2003. The judge was entitled to find that the prosecuting authority did not exercise its discretion to prosecute and continue the prosecution appropriately and that to allow the prosecution to proceed amounted to an abuse of the process of the court. The authority, as a prosecuting authority, is subject to the same duties as other prosecuting authorities. It is obliged to act fairly, independently and objectively. The judge's findings of fact indicate that the authority did not do so. We do not have any material from the legal department or from the person who took the decision to prosecute but we do know that their decision was based on a report from Mr Kettani and Mr Jarrett. The judge found that report to be flawed and that the decision to prosecute and to continue the prosecution based on it had an improper motive namely the financial advantage to the applicant of a POCA order. Those who advised the person who took the decision to prosecute failed to take into account a relevant factor, namely, the possibility that the respondents' position could be regularised and allowed an irrelevant factor, namely, the possibility of their obtaining a POCA order to the authority's financial advantage, to carry significant weight. On the judge's findings, having taken the decision to prosecute, officers of the same authority then attempted, improperly, to influence the determination of the planning application so that it would not impact adversely upon the prosecution and/or the prospects of their obtaining a POCA order. In their eyes the grant of planning permission was intrinsically linked to the prosecution and possible penalty. The judge agreed and so do we. Had planning permission been granted and the respondents' position regularised, this could have been a significant factor in mitigation and any attempt by the respondents to persuade the court that it would not be proportionate to make a sizeable POCA order.
34. We understand the concern of the Enforcement Team that the respondents were in clear breach of planning control and that, despite being in breach of the Enforcement Notice, continued to take on residents after time for compliance had ended. We understand the importance of maintaining planning controls. It may well be that the respondents are fortunate that they will not face prosecution for what appears to be a clear breach of the Enforcement Notice. However, for the reasons that we have given, we have concluded that we should not intervene.
35. Accordingly, we make no decision on the jurisdiction issue and we refuse leave.
36. MR HAM: My Lady, there has been an order from His Honour Judge Simon that, following the determination of these proceedings, the matter return to Blackfriars Crown Court for any ancillary applications. I have discussed with my learned friend – and of course she will have a costs application under section 19 for unreasonably incurred costs. I accept, in principle, that will be the order. It will be a matter of quantum. So, I think that both parties agree that His Honour Judge Simon should determine the costs application, which would include the costs of this appeal.
37. LADY JUSTICE HALLETT: I know the rules have changed about when we can and cannot make costs orders. So, you are both content that we do not have to do anything further?
38. MR HAM: Yes.
39. LADY JUSTICE HALLETT: Thank you both very much.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.