England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 October 2013

MR JUSTICE SILBER :

I. Introduction

1. This is the judgment of the Court. The main issue which arises in this matter, in which there has been a period of alleged contraventions of a particular Planning Stop Notice contrary to Section 187 of the Town & Country Planning Act 1990 ("the 1990 Act"), is whether (a) there can be a prosecution for each breach or (b) there can only be one charge covering the entire period. Three Rivers District Council ("the respondent") contends that the answer is (a), while David Lewis ("the appellant") submits that the answer is (b).
2. There is also a preliminary issue to be determined which is whether the appellant was permitted to appeal to the Crown Court against a conviction after he had pleaded guilty in a Magistrates' Court and had been sentenced there.

II. The Background

3. In this matter, the appellant appeals by way of Case Stated against a decision of the St Albans Crown Court made on 19 December 2012 by HHJ Gulick sitting with two lay magistrates by which they upheld a conviction recorded against the appellant imposed at St Albans Magistrates' Court on 3 August 2012 for six offences of acting in contravention of a Planning Stop Notice contrary to Section 187 of the 1990 Act.
4. It is common ground that this requires consideration of section 187 of the 1990 Act (as amended), which deals with "Penalties for Contravention of a Stop Notice" and which provides in so far as is material that:-

"(1) If any person contravenes a Stop Notice after a site notice has been displayed or the Stop Notice has been served on him he shall be guilty of an offence.

(1A) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.

(1B) References in this section to contravening a Stop Notice include causing or permitting its contravention.

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £20,000; and

(b) on conviction on indictment, to a fine.

(2A) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

(3) In proceedings for an offence under this section it shall be a defence for the accused to prove—

(a) that the Stop Notice was not served on him, and

(b) that he did not know, and could not reasonably have been expected to know, of its existence."

5. The summonses issued by the respondent sets out six offences relating to contraventions by the appellant of a Stop Notice issued on 8 February 2012 pursuant to Section 85 of the 1990 Act in respect of land at 81, Quickley Lane, Chorley Wood, Hertfordshire. Of those six summonses, two related to works carried out by contractors on 15 February 2012 and a further three related to works being carried out by contractors between 15 and 20 February 2012 with the final charge relating to work carried out on 21 February 2012.
6. It was argued before the Crown Court on behalf of the appellant that the magistrates had no jurisdiction in respect of the latter five of the six summonses since the bringing of multiple charges for breaches of a single Stop Notice fell outside the scope of Section 187(1A) of the 1990 Act. The case for the appellant was that he could only be charged once and so the other five summonses should have been dismissed.
7. The Crown Court rejected this submission and found that the Magistrates' Court had jurisdiction in relation to all six summonses. In its reasons, it explained that section 187(1A) permitted the respondent to charge over a period of time, but that it did not require them to do so. In other words, it was a matter for the local authority to decide if they wished to charge each individual breach or if they wished to make the charge in respect of a period. The Court explained that if the respondent charged individual breaches, the Court was bound to have regard to the principle of totality when sentencing.
8. The Crown Court also rejected the contention of the appellant's counsel that a second or subsequent offence could only be brought following a conviction in the light of the second limb of section 187 (1A). This submission was rejected as one "that lead to absurdities that Parliament could not have meant to happen".
9. In relation to the appeal against sentence, the Crown Court upheld the fine imposed of the Magistrates' Court which was £3,500 for each offence giving a total of £21,000. The Crown Court also rejected submissions made on the appellant's behalf on the level of the fines on the grounds first that the appellant lacked knowledge of the Stop Notice, second there was no reference in the sentencing remarks to credit being given for the appellant's timely plea and third that there should have been consideration of the appellant's means but that had not occurred. The Crown Court accepted that if there were separate charges for different breaches of the Stop Notice, this could be considered on the issue of sentence.
10. The total fine imposed exceeded the maximum fine for a single offence under Section 187 which was "a fine not exceeding £20,000" (section 187 (2) (a)) of the 1990 Act.
11. There is preliminary point taken by Mr. Michael Tomlinson, counsel for the respondent, which is that as the appellant pleaded guilty and had been sentenced in the Magistrates' Court, he had no right to appeal to the Crown Court against his conviction with the consequence that this Court cannot deal with the challenges to the last five summonses.
12. The High Court is asked for its opinion on the following questions:-

(i) Do ss.187 (1) and (1A) Town and Country Planning Act 1990 permit a prosecuting authority to bring multiple charges within a single prosecution in relation to contravention of a single Stop Notice?

(ii) If offending activity can be charged either as a single offence by reference to a period of time, or as a number of separate offences relating to different individual activities and/or days/periods, does a Court on summary conviction have the power to fine the defendant in excess of £20,000 where the latter course is chosen over the former?

(iii) If the court does have such a power (in (ii) above), did the Crown Court err in failing to have regard to the fact that the fine imposed was above the statutory maximum for a single offence when considering the appropriateness of the level of the fine in this case?

(iv) Did the Crown Court err in law in sentencing the appellant on the basis that he knew about the Stop Notice, despite accepting the evidence that he had no actual knowledge before the commission of the final offence, on the basis that he had a perfectly good defence under s.187 (3) Town and Country Planning Act 1990 which had not been put forward?

(v) Does the Court consider that the Crown Court was irrational and/or perverse to refuse to take into account the appellant's means on the basis that no documentary evidence had been provided to support uncontested oral submissions on instructions? and

(vi) Did the Crown Court err in failing to make any reference to credit for guilty pleas?

13. The appellant has not been represented in front of us, but he has appeared in person. He was represented in the Crown Court by Counsel who drafted the Case Stated.

III. The Preliminary Point

14. The appellant pleaded guilty at the Magistrates Court to the charges. Section 108(1) of the Magistrates' Courts Act 1980 provides that:-

"A person convicted by a magistrates' court may appeal to the Crown Court –(a) if he pleaded guilty, against his sentence;

(b) if he did not , against the conviction or sentence".

15. There are provisions in the Criminal Procedure Rules which enable a person to apply to withdraw a guilty plea but Rule 37.9(2) provides that:-

"The defendant must apply to do so –

(a) as soon as practicable after becoming aware of the reasons for doing so; and

(b) before sentence".

16. The appellant was sentenced in the Magistrates' Court before his appeal was heard in the Crown Court. In consequence, it is said that he was not entitled to appeal his conviction to the Crown Court. Surprisingly, this point was not taken at the Crown Court by the respondents who were represented by Counsel or by the Court itself.
17. No argument has been put forward to show that this point is wrong or that the Crown Court had jurisdiction to hear the appeal. The Court suggested in argument that the proper remedy for the appellant was to have sought to judicially review the decision of the Magistrates to find all six counts proved, and that it might be open to the Court to treat the case even now as one of judicial review of the Magistrates Court. Mr. Tomlinson accepted that the respondent would not be prejudiced by us taking this step even though the Magistrates Court were not represented.
18. Having heard full argument on the merits, we have decided not to pursue this judicial review route because, as we will explain, we have concluded that the Magistrates had jurisdiction to hear all six charges and so nothing would be gained by considering in a judicial review application whether this decision was an error of law. We should add that there might have been additional problems for the appellant if we had pursued the judicial review route, such as that there has been excessive delay and that the appellant would have been required to give undertakings to pay the appropriate court fee for bringing a judicial review application.
19. In consequence, this Court does not have jurisdiction to deal with question (i) but as we have heard submissions on the issue of whether multiple charges could be brought, we will give our views on it. The appellant was not represented but we will regard what had been stated by his former Counsel in the Case Stated as representing his contentions, bearing in mind that he had told us that he was not a lawyer.

IV. The Multiple Charge Issue

20. This issue requires determination of the question as to whether different charges for breach of a Stop Notice can be brought for repeated breaches committed over a period of time rather than bringing one charge relating to breaches over a period of time. The answer to this depends on the construction of section 187(1) as amended of the 1990 Act.
21. At the hearing in the Crown Court, it was submitted by counsel then acting for the appellant that a local authority which has issued one summons is entitled to allege a breach of a Stop Notice by reference to a period of time, but that this does not permit summonses to be issued for different breaches committed within that period unless there has been a previous conviction. The basis of that submission is that the bringing of multiple charges for breaches of a single Stop Notice fell outside the scope of section 187(1A) of the 1990 Act because of the terms of the second limb of it.
22. This submission was rejected in the Crown Court which held that the local authority was entitled to issue and to pursue different summonses for different days without the need for there to be a conviction.
23. The Court took the view that the submissions on behalf of the appellant would make a "nonsense" of the legislation because it would give the person subject to the Stop Notice a right to do whatever he liked on subsequent days to the dates specified in the Notice in circumstances in which he could never be prosecuted. Thus the Crown Court held that the respondent could pursue separate charges for individual alleged offences over a period of time although they considered that the sub-section was not clear. At the hearing in front of us, similar submissions were made on behalf of the local authority.
24. The appellant's case was that it would be absurd if a prosecuting authority could prosecute the recipient of a Stop Notice every time there was a breach and thereby avoid the maximum fine of £20,000 as has happened in this case. So the Crown Court erred in this case in imposing total fines totalling £21,000 (£3,500 for six offences), while the maximum for an individual offence in section 187(2) (a) is £20,000. Thus it is said that section 187(1A) prohibits the bringing of multiple prosecutions save for the possibility of a further prosecution after there has been a first conviction.
25. It is common ground that the answer to this aspect of the Case Stated depends on the interpretation of section 187(1A) and that there is no reported authority that deals with it.
26. The focus of the submissions has been on the meaning and scope of section 187 (1A), which was introduced as a consequence of the decision of the House of Lords in Hodgetts v Chiltern DC [1983] 2 AC 120 in which the House of Lords held that a prosecution for a breach of a planning enforcement notice in relation to the parallel provision in what is now section 179 of the 1990 Act for an initial offence and any further offences which take place over a period, were nevertheless to be regarded as a single offence and not a series of separate offences committed each day.
27. In consequence, a summons which alleged an offence that was taking place over a period of time was not bad for duplicity. Lord Roskill (with whom the other members of the House agreed) did not find objectionable the practice of charging the offence as having occurred "on or since" a specified date, although he considered that it would be preferable if offences were charged as having been committed between two specified dates (at 128E and see commentary in the Planning Encyclopaedia at P179.34). It is this decision which led Parliament to set out expressly in s.187(1A) (and s.179(6)) that an offence may be charged by reference to any day or longer period of time.
28. Lord Roskill explained at pages 128 C-D that:-

"As respects non-compliance with a "desist notice," it is in my view clear that the initial offence (as well as the further offence) though it too may take place over a period, whether continuously or intermittently (e.g., holding a Sunday market), is a single offence and not a series of separate offences committed each day that the non-compliance prior to the first conviction for non-compliance continues. If it were otherwise it would have the bizarre consequence that upon summary conviction a fine of £400 per diem could be imposed for each such separate offence committed before the offender received his first conviction, whereas for any further offence committed after the offender against a "desist notice" had been convicted, a daily fine of only £50 could be inflicted. Uniquely a previous conviction would be a positive advantage to the offender. This can hardly have been Parliament's intention."

29. This case was considered by Mr. Robert Carnwath QC (as he then was) in his Review on Enforcing Planning Control (HMSO, 1989) when he concluded that:-

"There is still some confusion as to the position following a first offence, in the light of Hodgetts v Chiltern DC [1983] 2 AC 120. That case established that the first and any subsequent offence are single offences, although the penalty for a second offence is assessed on a daily basis. It still needs to be made clear, however, that there can be further convictions after the second offence, and further, that the days taken into account in fixing the penalty can start from the last date taken into account on the previous conviction (rather than the date of the conviction itself)."

30. In consequence section 187(1A) was passed and it becomes necessary to construe it. Mr. Tomlinson had carried out a search of the relevant debates in Hansard and was unable to find any useful comments which would satisfy the test laid down in Pepper v Hart [1990] 1 WLR 204.
31. There are two limbs to it of which the first states that a person "may be charged by reference to any day or longer period of time". This presupposes that where there are continuous breaches there can be more than one charge or a single charge.
32. The second limb of section 187(1A) is of critical importance to this issue as it is relied on by the appellant as showing and limiting the power given to the prosecution to prosecute for further and repeated breaches of one Stop Notice when it states that:-

"a person may be convicted of a second and subsequent offence under this section by reference to any period of time following the previous conviction for such an offence".

33. So the case for the appellant is that the presence of these provisions shows that there was no such pre-existing right for repeated breaches, but such right only arises after there has been a "preceding conviction for such an offence". Therefore until there has been such a conviction, the right to convict and indeed prosecute for a further offence does not come into operation.
34. In essence, the case for the appellant is that the power to convict for further breaches is dependent on there being an earlier conviction. An earlier charge will not suffice. So the mere fact that there has been a prosecution for a breach of a Stop Notice (but not a conviction) in an earlier period does not entitle a local authority to prosecute for a subsequent period in the absence of a conviction.
35. It was said on behalf of the respondents that the case of the appellant depends on rewriting the second limb by inserting the word "only" so that it reads with inserted word emphasised "a person may only be convicted of a second and subsequent offence under this section by reference to any period of time following the previous conviction for such an offence". The argument for the respondent is that if the draftsman had intended to say this, then they would have used the word "only" and it is not permissible to read this word in as to drastically change the effect of the provision.
36. We are fortified in reaching the conclusion that the Crown Court and the respondent were correct by three further matters.
37. First, it is said by Mr Tomlinson that if the appellant's case was correct, it would mean that if there was an acquittal, there could not then be a prosecution for any subsequent breaches as a prior conviction would be required to trigger the right to bring charges for subsequent breaches. This would mean that the Stop Notice could be disregarded with impunity.
38. Second, the point is made that if the appellant's approach is correct, a defendant could not be prosecuted for breaches of the Stop Notice committed after the time of the first charges and prior to the conviction. Again there would be a period when breaches of the Stop Notice could not be prosecuted.
39. Both these points must be considered in the light of the well-known principles that "the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament" (Bennion on Statutory Interpretation (5^th Edition) 2008 Page 969)
40. Third, the first limb of section 187(1A) makes it clear that a charge can be brought not merely by reference to a period, but also by reference to a day, which suggests that charges for breaches of a Stop Notice can be brought by reference to individual days and so there is a need for there to be just one charge for a period as opposed to individual breaches on different occasions. In other words, these are alternatives.
41. We consider these points to be valid and they show that the prosecution was entitled to bring the six charges. It is not totally clear why the second limb was inserted into section 187(1A), but it might well have been merely to make it clear that after a prior conviction, a person could be prosecuted for subsequent breaches.
42. If (which is not the case) we had concluded that Crown Court had jurisdiction, we would have answered in the affirmative the first question in the Case Stated:-

(i) Do ss.187 (1) and (1A) Town and Country Planning Act 1990 permit a prosecuting authority to bring multiple charges within a single prosecution in relation to contravention of a single Stop Notice?

V The Fines

43. The questions on quantum were not the subject of oral submissions but were referred to in the Case Stated and the respondent's written skeleton argument. The questions (ii) must be answered "yes". The questions (iii) to (vi) must all be answered in the negative as in relation to:-

(a) Questions (ii) and (iii), there is no limitation on the total fines that can be imposed for different individual breaches provided that the sentence for each individual offence does not exceed the statutory maximum. It is noteworthy that section 32 of the Magistrates Court Act 1980 sets out the powers of such courts in respect of offenders on summary conviction for offences triable either way. There is nothing to suggest, let alone specify, that a financial penalty shall not exceed the maximum for one offence if there are two or more consecutive sentences There is nothing to suggest that the Crown Court erred in having regard to the fact that the total sentence exceeded the statutory maximum for a single offence;

(b) Question (iv), there is no basis for the submission that the Magistrates accepted that the appellant had no actual knowledge about the Stop Notice before the commission of the final offence to which he had pleaded guilty. In any event, the individual sentences and the total sentence fell within the appropriate bracket for this type of offending with the result that there is no indication, let alone proof of a legal error;

(c) Question (vi), there is no evidence that the means of the appellant were agreed by the prosecution who was neither asked to comment nor did comment on the appellant's means. The onus of proof in relation to the appellant's means was on the appellant and the Crown Court was entitled to regard such evidence in the way that it did; and

(d) Question (vi), the guilty plea of the appellant was expressly referred to by Judge Gullick.

VI Conclusion

44. For the reasons set out above, this Court does not have jurisdiction to deal with question (i), question (ii) must be answered in the affirmative and the questions (iii) to (vi) inclusive are all to be answered in the negative.