Jersey Unreported Judgments

[2006]JCA015

COURT OF APPEAL

26^th January, 2006

Before     :

Sir John Nutting, Bt., Q.C., President; P. D. Smith, Esq., Q.C., and; D. A. J. Vaughan, Esq., C.B.E., Q.C.

Sarum Hotel Limited

-v-

The Attorney General

Application for leave to appeal against the conviction by the Inferior Number on 1^st July 2005, and sentence passed by the Inferior Number on 20^th October, 2005 on charges of:

1 count of:	Contravention of Article 9 of the Island Planning (Jersey) Law, 1964.
1 count of:	Contravention of Article 9 of Public Health (Control of Buildings) (Jersey) Law 1956.

R. L. Weston appearing for Sarum Hotel Limited

C. M. M. Yates, Esq., Crown Advocate

JUDGMENT

Vaughan J.A.:

1.        This is the Judgment of the Court of Appeal, which sat hearing these applications on 26^th and 27^th January 2006.

2.        Sarum Hotel Limited applies for leave to appeal against its conviction in the Royal Court on one count of contravention of Article 9 of the Island Planning (Jersey) Law 1964 ("The Planning Law") and one count of contravention of Article 9 of the Public Health (Control of Buildings) (Jersey) Law 1956 and its associated bye-laws ("the Building Law").  Following its conviction on both counts the Applicant was fined the sum of £5,000 on the first count and £15,000 on the second count.  The company was ordered to pay the costs of the prosecution not exceeding £30,000, which, as it turned out, was about one third of the prosecution's total claimed costs.  The Applicant also seeks leave to appeal against those fines and the order for costs.  The Applicant was represented before this court by Mr. Robert Weston, its Managing Director.  The Attorney General was represented by Crown Advocate C.M.M. Yates.

3.        The Applicant stood trial before the Bailiff and the Superior Number on the following two counts on the revised billet. 

"Count 1

"With having, between March, 1999 and August, 2004, acted in contravention of Article 8 of the Island Planning (Jersey) Law, 1964, by developing land, namely, the premises known as the Sarum Hotel, New St. John's Road in the Parish of St. Helier, in that you made a material change of the use of bedrooms forming part of the premises, without the grant of permission required in that behalf under the said Law.

Particulars of Material Change of Use

Change from use as hotel accommodation to use as private dwelling accommodation."

Count 2

"With having, between March, 1999 and August, 2004, contravened Article 9 of the Public Health (Control of Buildings) (Jersey) Law, 1956, by carrying out work at the premises known as the Sarum Hotel, New St. John's Road, in the Parish of St. Helier, namely the making of a material change of the use of part thereof, to which the Building Bye-laws (Jersey) 1997 applied until the 31^st December, 2001, the Building Bye-laws (Jersey) 2001 applied from the 1^st January 2002 until the 29^th February, 2004 applied and have continued to apply from 1^st March, 2004, in respect of which plans had not been passed by the Environment and Public Services Committee (formerly the Planning and Environment Committee) under Article 5 of the Public Health (Control of Buildings) (Jersey) Law, 1956.

Particulars of Material Change of Use

Change from the use as "other residential premises" (defined to include a hotel), to use "for two or more dwellings"".

4.        The relevant provisions of the Planning Law are as follows:

"Article 9:       If a person develops, or causes to be developed, any land without the grant of permission [...] the person shall [...] be guilty of an offence and shall be liable to a fine ...

Article 5(2)(c):             "development" means [...] the making of any material change in the use of any building or other land;

Article 1:         "land" includes a "building", which in turn includes "any part of a building"."

The first count of indictment refers to Article 8 of the Planning Law, but in fact at the date of the prosecution Article 8 has been renumbered as Article 9.  There is no dispute that Sarum Hotel Limited was convicted on the first count of an offence under Article 9 of the Planning Law and it is against that conviction that Sarum Hotel Limited applies for leave to appeal.

5.         The relevant provisions of the Building Law are as follows:

"Article 9:       If any person carries out or causes to be carried out any work to which building bye laws are applicable and in respect of which plans have not been passed [...] or otherwise than in accordance with any requirements subject to which the plans have been passed, the person shall be liable to a fine.

1997 Bye-Laws

Bye-Law 4       [...] this Part [Part concerning control by building work]      shall apply to any building work or material change of use.

Bye-Law 6       A material change of use of a building occurs where (a) the purpose for which it is used changes from a use specified in column 1 of the table in the Third Schedule (existing use) to a use specified in column 2 of that table opposite the existing use (proposed use).

3^rd Schedule: Article 1 "other residential premises" means a hotel, lodging house [...] and any residence purpose other than as a dwelling or institution.

3^rd Schedule: Table     "other residential premises" appears in column 1, and "flat" appears in column 2.

Bye-Law 1       "flat" means a separate dwelling which forms part of a building and is divided horizontally from some part of the building and whether or not (a) it is a single storey dwelling; (b) facilities used or intended to be used for cooking or sanitary purposes are shared with other dwellings in that building; or (c) it forms part of a lodging house

Bye-Law 1       "dwelling" means a dwelling house, flat or other private residential accommodation whether or not it is used on a permanent basis or whether or not it is used as tourist accommodation.

Note:   (In later versions of Bye-Laws, Column 2 of Schedule 3 contains the words "two or more dwellings" instead of "flat" at the appropriate entry)."

6.        Under Jersey law there is distinction between hotels (which are registered under the Tourism (Jersey) Law 1948 and lodging houses (which are registered under the Lodging Houses (Registration) (Jersey) Law 1962.  A great deal of time, documentation and evidence has been spent on the differences between the two (which are considerable as can be seen from a schedule of differences which was helpfully put before us by Mr. Weston), but the issue for this application does not relate to the difference between hotels and lodging houses, but on the much narrower issue as to whether the use of the bedrooms (or some of them) at the Sarum Hotel was changed from being ordinary hotel bedrooms into "private dwelling accommodation" (for the Planning Law) or into "two or more dwellings" (for the Building Law).  If there had been such a change of use and if it were "material", then it would be a change which contravened the Planning Law (for there had been no planning permission so to do) and also a contravention of the Building Law (for it would have needed consent and such consent would not have been given unless additional soundproofing as required by bye-laws had been installed).  It was not disputed that it would cost about £15,000 per room to install the necessary soundproofing, so obviously that was not something to be undertaken on a short-term basis in what was otherwise a hotel to meet a fluctuating situation.  All accepted that whether there had been such a change was a question of fact and degree and would depend upon the particular facts of this case.  Obviously being a criminal case these were matters for the prosecution to prove and to do so to the criminal standard of proof.

Background Facts

7.        A certain number of formal admissions were made in relation to the facts concerning the Sarum Hotel and also in relation to various documents.  In general it was not the facts or the documents which were in dispute, but the inferences which were to be drawn from such matters and from the evidence before the Royal Court. 

8.        The Sarum Hotel has operated in St. Helier since 1916 and the Applicant has been registered as its proprietor since 1987.  At all times prior to the events leading up to the period which is the subject of this prosecution, the Sarum Hotel operated as a normal hotel concentrating in the main, at least in the summer months, on tourists visiting the Island.  It was generally described as a well-run hotel with a garden and a swimming pool, a lounge, a dining room, a bar and a functioning kitchen (which provided at least breakfast for the guests).  The bedrooms were just as one would expect in such a hotel, and of apparently a good size.  Televisions and telephones were provided in the rooms and there was the normal hotel servicing of the bedrooms. 

9.        The hotel was under the day-to-day management of a resident Manager.  From 1987 to 12^th January 2004 it was managed by Mr. Giuseppe Arena, from 12 January 2004 to 15^th February 2005 by Mr. Martins and since 16^th February 2005 by Mr. Dennis Naulty.  At all relevant times the Sarum Hotel held licences which were appropriate to the conduct of such a hotel business, save that in the period between December 2003 and 16^th June 2005 it did not hold a restaurant licence because the restaurant did not operate then. 

10.      The agreed documentation showed that in December 1997 Mr. Weston, on behalf of the company, applied under the Planning Law and Building Law for permission to change the use of the premises from that of a Hotel to a Lodging House.  A conditional approval was issued on the 12^th March 1998, subject to the condition that application for development permission had to be made by 12^th March 2001 and that specific development permission had to be obtained for the necessary building works.  No subsequent application was made within that period or was ever granted, so the conditional permission never became absolute and expired.

11.      On 10^th November 1998 Mr. Weston wrote to Mr. Philpott, the Development Director of Jersey Tourism (with a copy to Mr. Roscouet, Assistant Director - Building Control of the planning authorities) stressing the severe financial difficulties faced by all hoteliers in Jersey, stating that he saw the way forward would be by providing light self-catering facilities in some of the larger rooms whilst retaining all the other public facilities of the hotel, such as the bar, restaurant, swimming pool and kitchens.  Mr. Philpott replied by letter dated 3^rd December 1998 making it clear that:

(i)        At the hotel there must be a restaurant area capable of at least providing breakfast;

(ii)       Provided that the hotel offered normal hotel facilities and services and whilst the rooms were occupied by tourists when such persons would normally be on the Island there was no objection to the hotel providing such additional facilities in the rooms,

(iii)      Longer term residents could be accepted in the winter months but not in the summer tourist months.  

There is nothing to suggest that Mr. Roscouet disagreed or would have disagreed with any of the above points, in particular that longer term guests were acceptable in the winter months, provided that the other conditions were satisfied.

12.      The Sarum Hotel on 26^th January 1999 then applied to the Planning and Building Committee for planning permission/building regulation permission to install such light self-catering facilities in some of the rooms at the Sarum.  A conditional building permit was issued on 2^nd March 1999 for the works.  In particular it was made clear that if the use of any part of the hotel changed to private residential use, not only would additional sound proofing have to be carried out but planning permission to permit such a change would have to be obtained.  It is clear from this that the position of the Committee was that the mere installation of light cooking facilities did not by itself amount to a change of use, if all other matters remained as one would expect in a hotel.   See also Mr. Roscouet's letter dated 12 January 1999, which made it clear that the hotel would have to continue to retain its restaurant, bar, kitchen and reception as before. 

13.      At a tourism authority Inspection carried out on 22^nd June 1999 certain concerns were expressed relating to the operation of the hotel and in a letter dated 24^th June 1999 Mr. Philpott expressed the view that the Sarum Hotel was being used as a partial lodging house, in particular because in the hotel literature payment for some of the rooms was described as "rent" and guests were described as "residents".  Mr. Weston replied in a long letter dated 21^st July 1999 in which he repeated his concern about the financial viability of the hotel industry in Jersey and setting out why he did not consider the Sarum Hotel to be a lodging house, and making clear that the wording of the hotel literature had been changed.  In particular he pointed out that the basic hotel facilities such as the restaurant, bar and kitchen facilities and room services remained as before.  In his reply dated 4^th August 1999 Mr. Philpott appeared to be content with these assurances, but made it clear that extended stay guests would only be acceptable in the winter months, from which it can be inferred that he meant other than in the main tourist months of May, June, July, August and September.  He made it clear that he expected the hotel to operate fully as a hotel.

14.      Subsequently, further applications were made to extend the light cooking facilities in other rooms and the further conditional permission was granted on 17^th November 1999.  Mr. Weston applied for relaxation of the soundproofing regulations, but that was never granted.   In his letter of 26^th November 2001 Mr. Roscouet, made it clear that the permission for the installation of light cooking facilities was conditional upon the Sarum Hotel remaining a hotel and the rooms not being used as a private residence of any sort, and added that he had instructed an enforcement officer to inspect the hotel and to report on the exact nature of the use of the hotel.  At the same time Sarum Hotel applied for a renewal of the conditional planning permission for change of use to a lodging house, but this was refused. 

15.      The enforcement officer's inspection took place on 23^rd January 2002.  It was effected by Mr. Gerald Bisson, a very experienced enforcement official of the planning authorities.  He had been employed in such role for 24 years and had previously been a building inspector.  No doubt the planning authorities made sure that the appropriate enforcement officer was somebody with appropriate experience.  It is important to emphasise this because Crown Advocate Yates, in his closing speech at the Trial, somewhat remarkably, criticised Mr. Bisson (who was his own main witness of fact in relation to the state of the Sarum Hotel in 2002) as not being aware of bye-law requirements and appearing confused about legal terminology. 

16.      Mr. Bisson at that inspection met Mr Weston and the Manager, Mr. Arena.  He reported that he considered Mr. Weston was very open with him, answered all his questions, and took him wherever he wanted to go.  It is apparent from the inspection report that Mr. Bisson carried out a very full inspection and was given access to various documents (including a document entitled "Information and Rules for Extended Stay Guests" which was the new expression used for "winter stay guests"), and he was given full access to the Guest Books.  It was this report which was forwarded to the H.M. Attorney General for his consideration, apparently on the same day as the report was produced.  The report was then passed to a Legal Assistant in the Law Officers' Department to consider.  It was clear from the evidence at the trial that extended stay guests (sometimes staying for several months) in the winter months are a common and necessary feature of the Jersey hotel industry given the extremely seasonal nature of Jersey's tourist industry.  The evidence was that 30-40 hotels in Jersey operate on a winter extended stay basis.

17.      Mr. Bisson, in his inspection report dated 31^st January 2002, entitled "Possible Change of Use from the Hotel to a Lodging House", highlighted the difference of opinion between Mr. Roscouet, who considered that the hotel had been used as a lodging house, and the tourism authority, who knew that the hotel was being used for extended stay guests in the winter months and had no objection.  At the time of this inspection, the restaurant and bar were both in operation, as were the kitchens.   Breakfasts were available for guests.  He was told that the extended stay guests were there in the winter months and that no such extended stay guests had been there the previous summer.  Mr. Weston informed him that there were some travel agent couriers staying there at that time, but Mr. Bisson said that he considered that that was ancillary to the use as a hotel.  Mr. Bisson reported that Mr. Weston had assured him he was fully aware that if he wished to change the use of the hotel, he would have to make the necessary applications under the Planning Law and the Building Law.  The report was accompanied by photographs and various documents.  There is nothing to suggest that anything in the Report was inaccurate, or that any members or officials of the Planning and Building Committee disagreed or would have disagreed with that report.

18.      Mr. Bisson had warned Mr. Weston, in advance, that if he considered that there had been a material change of use from that of the hotel he would formally caution Mr. Weston, but in the event he saw nothing to cause him to do this.  The general tenor of the report is certainly not unfavourable to Sarum Hotel about the use of the hotel, or any possible change of use.  In particular there is nothing to suggest that Mr. Bisson considered that the occupation of the rooms by the extended stay guests in the winter months (which was undisputed) constituted a change of use, for if he had, Sarum Hotel would certainly have been cautioned.

19.      On 25^th March 2002 Mr. Weston wrote to Mr. Bisson recording the fact that Mr. Bisson had assured him that he considered that the hotel was being used as such and that there had been no change of use.  Mr. Bisson replied by letter dated 15^th April 2002 saying the advice of the Law Officers was awaited (in fact we have subsequently been told no advice was forthcoming until 31^st December 2003).  Mr. Bisson did not dissent from the position recorded by Mr. Weston in his letter and said that he would forward a copy of Mr. Weston's letter to the Law Officers.  In his oral evidence Mr. Bisson said that he did not say to Mr. Weston that in his opinion there had been no change of use, but said that he told Mr. Weston he was uncertain.  So far as Mr. Weston was concerned, there was nothing about that visit (or the Inspection Report if he had seen it at the time, which he did not) that suggested that the experienced enforcement officer thought that as a result of his inspection the Sarum Hotel was committing a criminal offence whether in relation to the Planning Law or the Building Law.  Indeed if there had been such a view, it might be thought to be inconceivable that the legal advice would have been allowed to be delayed in the way that it was.

20.      That same year the Sarum Hotel was inspected by the tourism authorities on 29^th July 2002.  They found it to be a well run hotel, with a very attractive swimming pool and garden and found that the kitchens were clean and well organised and in operation with breakfasts for guests being provided in the dining room. 

21.      In February 2003 letters were exchanged between Mr. Weston and the tourism authorities concerning the possibility that the Sarum Hotel might not operate as a hotel that year, because of the possibility which was under consideration of the Sarum Hotel housing the staff of Luminar Leisure for an extended period and therefore the Sarum Hotel was not at that time accepting tourist bookings for the summer that year.  Mr. Weston said that they were treating, for the time being, such arrangements as amounting to extended winter let arrangements.  Later that month the Sarum Hotel made a new planning/building bye-law application to effect the compliance of existing accommodation with bye-law requirements. That application (and the accompanying cheque) was returned as it was considered by the Planning and Environment Committee that almost all the matters for which permission had been sought had already been approved. 

22.      Mr. Ferbrache, Principal Building Control Surveyor in the Planning and Building Services, in his letter of 20^th February 2003 returning that application made the position quite clear in the following terms:

"If the use of the building is to remain, as you clearly stated in your telephone conversation, as a Hotel and registered as such then the above changes would not require consent of the building bye-laws.  If the building were to be used and registered as a lodging house, then consent of both the Planning law and the Building Bye-Laws would be required and a formal application submitted in this department for determination".

At that stage Mr. Ferbrache and the Planning and Building Committee would have known from Mr. Bisson's Report that the Sarum Hotel was offering hotel accommodation to extended stay guests in the winter months.

23.      There is nothing in that letter which suggested that Mr. Ferbrache or the planning authorities considered there was any evidence that the Sarum Hotel was in any way being operated other than as a hotel, or that its operation amounted to an infringement of the Planning Law or the Building Law.  At that stage the factual information that he had available to them was Mr. Bisson's Report (which made the position clear about extended winter occupancy).  The Law Officers' Department had still not produced their legal opinion, even after a lapse of over one year.  We are informed that there was some correspondence between the planning authority and the Law Officers Department before the actual Opinion was eventually produced on 31 December 2003.

24.      The next documents which have been agreed relate to an inspection by the tourism authority on 28^th July 2004.  There was no document before the Royal Court which evidenced the factual position at the Sarum Hotel between Mr. Ferbrache's letter of February 2003 and the date of this later inspection.  It would seem from what we have been told that this inspection was conducted to provide further evidence to the Law Officers before formal charges were decided upon.  No reason has been advanced why the inspection was carried out by the tourism authorities rather than the planning enforcement officials but it would appear that they were treated as interchangeable.  It would seem from the report of that inspection that certainly by July 2004 there had been a considerable change in the operation of the hotel and in the facilities and services provided.  In particular by July 2004 the public rooms were no longer in use, the lounge was being used for storage and the bar was not used.  Breakfast could in theory be served, but it was not promoted and the kitchen was not in use.  Accordingly, certainly at that date, the ordinary hotel services, which were the whole basis upon which all treated the hotel as being used as such, were not being provided.

25.      It was on the 14^th September 2004 that the Sarum Hotel received a Summons alleging four offences under the Planning and the Building Laws, that is to say some 2 1/2 years after the visit of the enforcement officer in January 2002.  The receipt of this Summons was the first intimation the Sarum Hotel had received that a prosecution was even being contemplated or that it was considered that an offence might have been committed.  There had been no further inspection by the planning or building officials subsequent of that of Mr. Bisson, the only inspection having been made was that by the tourism authorities of 28^th July 2004 referred to above.  There had been no prior formal notice given to Sarum Hotel that it was contended that the Sarum Hotel's use of the bedrooms amounted to a material change of use, still less that a prosecution was envisaged or asking Sarum Hotel to remedy the situation.  It also appears that the issue of the Summons was delayed by some 9 months after the initial advice of the Solicitor General had been received on 31^st December 2003 part of which was necessary because of the need to carry out the further inspection in July 2004.

26.      It is not without significance that when it came to the sentencing of the Sarum Hotel Mr. Weston informed the Court that matters had, by then, been put in order to the satisfaction of the planning authorities.  The main thing that needed to be rectified related not to the carrying out any building work or obtaining permissions but for Sarum Hotel to recommence the use of the public rooms and the kitchens and to secure the removal of extended stay (other than winter stay) guests so that the hotel could revert back to its previous use as a hotel.  Although that was not accepted by the Crown Advocate as necessarily correct, there was no positive case advanced that this was not correct and Sarum Hotel was sentenced on the basis that this was correct.  This is of course of considerable relevance for if the matters had been pursued by the planning authorities with the vigour one would have expected if there had been evidence of a possible criminal office in January 2002, still less a "flouting" of the law as is alleged, these matters would have been raised with Sarum Hotel much earlier and the same steps could have been taken by Sarum Hotel to rectify the situation at that stage, and certainly well before the prosecution was brought.

27.      Before turning to the evidence advanced at the trial, it is necessary to deal with the question of the delay between Mr. Bisson's report of January 2002 and the commencement of the prosecution in September 2004.  Mr. Weston, not surprisingly, asked for an explanation from H.M. Solicitor General for the delay in bringing in the prosecution in a letter dated 26^th September 2004.  In the reply dated 28^th September 2004, the Solicitor General wrote:

"The bringing of the prosecution was dependant upon legal advice from me.  Unfortunately the resources within this Department are not sufficient to enable us to deal in timely fashion with the volume of work which is expected of us.  I regret that, but this is due to circumstances beyond my control."

As set out above it had taken the Law Officers' Department almost 2 years to produce the initial opinion, and a further 9 months (including the need for a further inspection in July 2004) before the prosecution was commenced.  The letter did not go further into any detail to explain this extraordinary delay and even when we asked for details from Crown Advocate Yates very little additional information was forthcoming.

Evidence at the Trial

28.      The trial took place over three days on 29^th, 30^th June and 1^st July 2005.  In the course of the trial there was extensive evidence from the relevant planning and building officials, in the main Mr. Roscouet, Mr. Bisson and Mr. Ferbrache and also of the tourism authorities, Mr. Philpott and those who carried out the inspection in July 2004.  In the main those witnesses spoke to the documents which were before the Royal Court and which are before us.  In addition the Bailiff and the Jurats, at the request of the Defendant, carried out a site inspection of the Sarum Hotel. 

29.      The main additional witness who was called on behalf of the prosecution and who did not speak to a document, was a Mr. Jonathan Broadhead who was a nightclub manager employed by Luminar.  He moved into accommodation at the Sarum Hotel in about February 2003, which was about the time when the correspondence was exchanged with Mr. Philpott concerning the possibility of accommodating staff employed by Luminar at the Sarum Hotel.  He stated that the majority of the rooms, when he was there, were occupied by Luminar staff.  He stayed there "on and off" for approximately 1 year.  He said that the dining area was not in use and that he was not allowed to use the swimming pool and that he did not think that the kitchen was in use at the time.  He said he was there in the summer period as well as at other times.  He said he regarded his room as his home.

30.      The Learned Bailiff rejected Sarum Hotel's application that there was no case to answer effectively saying that it was all a matter for the Jurats to decide on the basis of the evidence before them and that there was certainly a case to go to the Jurats.

31.      The main factual evidence called on behalf of Sarum Hotel was Mr. Naulty, who as stated before was the Manager from February 2005 and who replaced Mr. Martins, and Mr. Weston himself.  There was in addition the evidence of Deputy Lyndon Farnham, who amongst other things was the Vice President of Jersey's Economic Development Committee and Chairman of the Jersey Tourist Board, Mr. Beddoe, a local hotelier, and Mr. Robert Fletcher, the Chief Executive Officer of the Jersey Hospitality Association who gave evidence relating to the prevalence of "winter lets". 

32.      Following a short summing up of the case by the Bailiff in which he set out the law he made it clear that the issue for Jurats to decide was whether during at least part of the period between 1999 and 2004 the use of at least part of the hotel changed from hotel accommodation to private dwelling accommodation and thus, if material, contravened the Planning Law and the Building Law.  After that the Jurats convicted Sarum Hotel on both counts. 

33.      It was against both those convictions that Sarum Hotel applies for leave to appeal. 

Application for leave to appeal against conviction

34.      Mr. Weston advanced very extensive contentions in support of his application.  Before setting them out in any detail, we think we should express our appreciation and admiration for the very professional and moderate way in which Mr. Weston advanced his case.  His written contentions and the preparation of the written materials were of the highest possible quality and most helpfully he reduced his oral submissions into writing which made our consideration of the Application (and his related Application on sentence) much easier than otherwise would have been the case.

35.      However, before considering the matters advanced by Mr. Weston on behalf of Sarum Hotel it is important to emphasise the restricted role of this court as made clear in Bell v. Attorney General [2001] JLR 400:

"The Court of Appeal (Jersey) Law 1961, art. 25 entitles this court to allow an appeal in the circumstances there stated, namely -

"... that the verdict shall be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence ... or that, on any ground, there was a miscarriage of justice".

The Court must dismiss an appeal if none of these criteria (or that of legal misdirection) are satisfied, and may do so, even if they are, if no substantial miscarriage of justice has, in its view, occurred.

This test is not identical of the English Criminal Appeal Act 1968, section 2 which introduced a distinct test of an "unsafe conviction" and was the foundation of the well known invocation of the "lurking doubt" criterion: see R v. Cooper [1969] 1 QB 267.  ... we must base ourselves on the language of the 1961 Jersey law.  On any view a jury verdict is not lightly to be displaced, and a contention that a jury verdict admittedly unaffected by misdirection of law or other material irregularity is unreasonable or unsupported by evidence is no easy one for an appellant to sustain."

Obviously the same applies in the case of the verdict of Jurats.

36.      Sarum Hotel's contentions to support its application for leave to appeal against its conviction, can be considered under separate headings which relate to:

(i)        the bringing of the prosecution,

(ii)       the conduct of the trial,

(iii)      sufficiency of the evidence for the prosecution,

(iv)      the summing up,

(v)       the conviction.

Without in any way seeking to minimise the importance of the contentions advanced by Mr. Weston, it is possible to deal with some of these contentions in less detail than others.

(a)        The Bringing of the Prosecution

37.      Mr. Weston advanced various arguments relating to the decision to prosecute.  He contended that the law was ambiguous and should be construed in favour of the Defendant.  We do not consider that the law is in any way ambiguous.  Whether accommodation is to be categorized as hotel accommodation or as a "dwelling" is merely applying perfectly normal expressions in the English language to the particular facts of a case.  Broadly speaking, as is clear from the authorities (see for example Railway Assessment Authority v. Great Western Railway [1948] LJR 244, Mayflower Cambridge Limited v. Secretary of State for the Environment [1975] 30 P&CR 28, and Uratemp Venture Limited v. Collins [2001] UKHL 43) that whereas a hotel tends to provide accommodation for a transient population requiring short stay accommodation (who may be tourists but need not be), even though there may be some who stay there for a long time to suit their own convenience, a "dwelling" (even though it may be a single room within what is otherwise a hotel) is where someone lives and who regards that accommodation as his home, and consequently a "dwelling" will tend to be occupied by a far more stable population then hotel accommodation, although this is not necessarily so.  The provision of a communal restaurant may be indicative that the use of the premises is for hotel purposes rather than as a dwelling or dwellings but of course not all premises which provide hotel accommodation have restaurants.  The absence or presence of some cooking facilities in rooms is not determinative of whether the accommodation is a "dwelling", but it may, with other matters, be a relevant factor.  As Crown Advocate Yates contended, the application of these tests must be made in the context of Jersey, in particular with its very seasonal summer tourist trade and lack of tourist visitors in the winter months.  Further the change of use must be "material" which means significant in time and degree and excludes minimal or temporary changes.  Accordingly we have no difficulty in finding that the law is clear.  The problem arises as to its application in any particular factual situation.

38.      Nor is there any basis for the contention that the relevant Jersey authorities has sought to "cut down" the property rights of the Sarum Hotel and to do so without clear words.  Not only do we consider the words of the legislation to be clear, but there is no evidence that the Jersey authorities sought to do anything other than enforce what they saw as being breaches of the law.  It was entirely a matter for the Sarum Hotel and those that ran it to decide how to operate it, provided that they did so within the law and within the permitted use of the available accommodation.

39.      It was contended that, in launching the prosecution, the planning authorities failed to have regard to its own policy guidelines.  We consider it was entirely a matter for those authorities and the Law Officers whether to proceed by way of enforcement notice or prosecution and the decision to proceed by way of prosecution is not a matter for us on an application for leave to appeal against conviction.  Whether or not the facts of this case amount to a serious and flagrant breach of the law is a matter which goes to sentence, not to conviction.

40.      It was contended that the charges were unfairly drafted, but we do not accept that there is anything in this contention.  It is difficult to see what alternative wording could have been used.  Although the two charges arise out of one factual situation (the alleged use of the accommodation as a "dwelling") there are two distinct legal consequences under two different legislative schemes, with two different purposes.  The only other issue relates to the period of both the charges which are alleged to have occurred as a result of the offence having taken place "between March 1999 and August 2004".  Obviously it is essential in any charge to define the period when or within which the offence is alleged to have taken place, and in the case of a continuing offence (as is the case of an alleged material change of use) the dates between which the offence is alleged to have taken place need to be specified (see for example Chiltern D.C. v. Hodgetts [1983] A.C. 120).  However, it is not a necessary part of the offence that the continuing offence took place for the whole of that period.  Thus in the case of the present counts, Sarum Hotel could have been convicted if the offence of material change of use was only established for part or parts of that period.  The evidence of the length of period over which the offence took place may be relevant to sentence once the material change of use is established, not to conviction.

41.      Mr. Weston raised the question of the delay between the inspection by the Enforcement Officer and the actual commencement of the prosecution.  On conviction (as opposed to sentence) the only relevant factor is whether the delay caused prejudice for the Defendant in the conduct of the trial and the conduct of his defence.  The main prejudice that Mr. Weston could point to was the fact that Mr. Broadhead had to give evidence of matters which had taken place some 2 years before, and because of that that his evidence lacked the necessary clarity.  However, even if there was any significant lack of clarity (which we do not accept) it was at all times possible for Sarum Hotel to provide evidence from its own documents to clarify any doubts which might have existed on these matters.  We will revert to the issue of delay on the question of sentence.

42.      Mr. Weston raised the question of natural justice, the right of defence and legitimate expectations.  Without going into any detail, it appears that the evidence, in particular the documentary evidence, shows the Sarum Hotel has no basis for any complaint on these grounds whether before or after the prosecution was launched.  Sarum Hotel had ample opportunity to advance its views at all stages.  Insofar as these matters go to the question of the verdict of guilty by the Jurats, we revert to this later, in particular in relation to the period prior to 2003.

(b)        The Conduct of the Trial

43.      Mr Weston advanced various complaints about the Bailiff, the Jurats, the Crown Advocate and Sarum Hotel's own advocate at the trial.  He said that the Bailiff, should have recused himself, did not understand the tourism industry, rushed the trial, and retired with the Jurats.  We do not consider that there is anything in any of these contentions and we do not consider it appropriate or necessary to spend further time on those contentions.  Equally we can see no possible basis for the contention that "one of the Jurats appeared not to maintain concentration".  Nothing in the transcript provides any evidence to support this contention and indeed Mr. Weston accepts in his written contentions that attention was not drawn to this fact because it was felt it might cause embarrassment.  Even if there had been some momentary lapse of attention, the proper and only course would have been for Sarum Hotel's Advocate to draw the attention of the Court to this fact, and we have no doubt that he would have done so if this had been the case.  The suggestion that it was not done because it might be embarrassing seems to us to be wholly without any merit.  The criticism of the Crown Advocate for not referring to a particular case and to Sarum Hotel's own Advocate for not referring to any cases again does not merit consideration and is completely unfounded as a basis for any challenge to the conviction.  In any event the proper procedures in R -v- Docherty [1994] 2 Cr. App R. 218, 219 have not been followed.

(c)        Sufficiency of the Evidence for the Prosecution

44.      The Advocate for Sarum Hotel, at the conclusion of the prosecution case, made a submission that there was no case to leave to the Jurats and the Bailiff rejected that submission.  There had been extensive evidence advanced by the prosecution that at least in 2003 and 2004 extended stay occupants spent long times, extending over the summer months, at the Sarum Hotel, that in 2003 most of the hotel was being provided as accommodation for Luminar employees, and certainly by 2004 the Sarum Hotel had ceased to provide the basic facilities that it had provided beforehand.  Moreover there was the evidence of Mr. Broadhead relating to his stay at the Sarum Hotel on and off for a period of one year (including the summer months) and that he regarded his room as his home.  We consider the Bailiff was clearly correct in holding that there was sufficient evidence to be left to the Jurats certainly with regard to the period of 2003 and 2004.

(d)        The Summing Up

45.      Sarum Hotel criticises the failure of the Bailiff to sum up the evidence to the Jurats.  However, even though the case lasted some three days, we do not consider that in the circumstances of this particular case it was essential for the Bailiff to have summed up the facts to the Jurats.  Equally insofar as the Sarum Hotel criticises the Bailiff's treatment of the law, the law, certainly with regard to the allegation of material change of use in 2003 and 2004, was simple.  For those years the question in essence was a question of fact, applying the appropriate criminal standards as to which the Bailiff made clear to the Jurats.  A long summing up of the law would have been wholly inappropriate.   We turn to the question of the years 1999-2002 below.

(e)        The Conviction

(i)             2003-2004

46.      The Jurats found the Sarum Hotel guilty on both counts.  We remind ourselves of the limitation of our jurisdiction as set out at paragraph 35 above.  Again, certainly with regard to the years 2003 and 2004 we are wholly unable to find that the verdict was unreasonable or could not be supported having regard to the evidence or amounted to a miscarriage of justice.  Indeed, for those two years we consider that the evidence clearly established that there had been a material change of use to dwellings from hotel rooms.  In particular we would point to the evidence of Mr. Broadhead and to the July 2004 inspection not only with regard to the degree of permanence of some of the persons who stayed at the Sarum Hotel in this period, in particular the Luminar staff, but the lack of public facilities provided by the hotel for such persons or at all.

(ii)            1999-2002

47.      On the other hand with regard to the period between 1999 and the end of 2002 we consider the position is completely different.  We consider that there is no evidence from which guilt can be inferred for this period.  It is clear from what we have set out before that it was accepted by both the tourism authorities and the planning authorities that the installation of light cooking facilities in some of the rooms would not by itself amount to a material change of use, provided the hotel continued to provide public facilities as they did before, and which they did at least until the end of 2002.  Moreover, it is certainly correct that the tourism authorities (who were or should have been so far as Sarum Hotel was concerned working very closely with the planning authorities in these matters) accepted that extended stays in the winter months did not amount to a change of use.  When the experienced Mr. Bisson inspected the premises on behalf of those authorities in January 2002 he did not consider that such extended stays amounted in those months to a material change of use, such as to cause him to give a caution to be given to the Sarum Hotel.  Moreover, Mr. Ferbrache, who clearly knew about Mr. Bisson's inspection report, did not, when he came to deal with the matter, suggest that the Sarum Hotel had not in fact been operating as a hotel by reason of this matter.  If Mr. Bisson and Mr. Ferbrache did not consider, as a matter of fact, that extended winter stays amounted to a material change of use, it would be impossible for Sarum Hotel to be convicted for taking the same view or relying upon their views.  But even if we were wrong on this, we consider it would not be possible to convict Sarum Hotel when they relied upon the approval or acquiescence of such experienced officials who held such responsible positions, applying the principles as in Manning v. Attorney General [2000] JLR 284 in relation to abuse of process, at least until they had been given reasonable notice in advance that the relevant authorities intended to contend that extended winter stays amounted to material change of use (and for that to be challenged by judicial review if necessary).  Moreover, it is relevant that there is nothing in the summing up which dealt with the period prior to 2003 and which alerted the Jurats for the need to consider these matters separately.  In this respect it is also relevant that Crown Advocate Yates in his Submissions before us and on sentence did not appear to place any reliance or any particular reliance on the period up to 2003.  In essence he relied almost entirely on the events in 2003 and 2004.

48.      In the light of all these matters set out above, we consider that this application to appeal against Conviction raises important issues and therefore we grant such leave.  We have indicated that we are satisfied that there was evidence to justify convictions based on the period 2003 - 2004.  Since this period was included within the bracket of dates for the counts in the indictment, the convictions stand.  We deal below with our views on the evidence for the period prior to 2003, since although those views do not affect the convictions, they do have an impact on sentence for the reasons we discuss below.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

49.      As set out above the Sarum Hotel was fined by the Royal Court £5,000 for the Planning Law offence and £15,000 for the Building Law offence.

50.      As made it clear in Harrison v. Attorney General [2004] JLR 111, this Court can only interfere with a sentence imposed by the Royal Court if:

(i)        the sentence is not justified in law

(ii)       was passed on the wrong factual basis

(iii)      some matter has been improperly taken into account or some fresh matter needed consideration

(iv)      the sentence was wrong in principle or manifestly excessive.

We do not consider that there can be any question of the sentence being not justified in law, or that it was wrong in principle or manifestly excessive, so accordingly the issue would be whether it was passed on the wrong factual basis or some matter had been improperly taken into account or some fresh matter needed consideration. 

51.      In imposing the fines on the two counts, the Royal Court made it clear that they were sentencing on the basis that the "what the Crown has charged is that the offence took place between 1999 and 2004 and that is what the Court has convicted the company of" (see Sentencing Transcript, page 176, see also ibid page 19).  Further see also the sentencing remarks at Sentencing Transcript page 195 which indicate that the Royal Court considered that the installation of the kitchenettes (which took place in 1999 or 2000) enabled the rooms to be used as dwelling accommodation.  The Royal Court also made it clear that whether the Crown made concessions as to the timing of the offences (they contended that the sentencing should be on the basis that there was no offence prior to 2003) that did not bind the Jurats who had convicted for the whole period in the indictment (see Sentencing Transcript p.19 and 176).  We have already indicated that we consider that there was no basis for any conviction prior to 2003.  Accordingly, insofar as the sentence dealt with the period prior to that year, then we think it was done on the wrong factual basis.  Accordingly, we consider that by sentencing Sarum Hotel for offences which were said to last some five years from March 1999 to August 2004, the Royal Court was incorrect and the sentencing basis should be for some 18 months.  Obviously that applies to both counts. 

52.      In imposing the fine the Royal Court took into account certain matters of aggravation and mitigation.  By way of aggravation the Royal Court stated that they considered that Sarum Hotel was seeking to have the best of both worlds (being both hotel and lodging house) and in this way was seeking to obtain some financial advantage (which they accepted was unquantifiable) by enabling the hotel to operate at lower costs for some of the rooms because, being dwellings, they did not need extra hotel services (although they had some) and also did not have to upgrade them as regards the Building Law requirements as others who provided lodgings had to do.  They also found by way of aggravation that Mr. Weston, as President of the Jersey Hospitality Association, was conversant with the relevant statutory provisions and the Sarum Hotel was well aware of the conditions imposed by the planning authority in relation to the installation of the kitchenettes. 

53.      By way of mitigation the Royal Court accepted that the Sarum Hotel had no previous convictions, there was an overlapping between the two charges, matters had recently been put in order and the premises appeared by then at least to be operated as a hotel to the satisfaction of the planning authorities, Mr. Weston had very properly resigned as President of the Jersey Hospitality Association and that no complaints had been made to the tourism authorities.  Further, allowance was made for the fact that the tourism authorities had acquiesced in the offences and that Mr. Weston had been frank with them (although not necessarily so with the planning authorities). 

54.      However, not only do we consider that the Sarum Hotel was wrongly sentenced on the basis that the offences had been committed in 1999, 2000, 2001 and 2002, we also consider that the Royal Courts should have taken into account the following additional matters by way of mitigation on both counts:

(i)        that the Sarum Hotel was entitled to expect that the Jersey authorities, and in particular the planning and building authorities and the tourism authorities, would cooperate and communicate on these matters of the use of hotels in the Island, in particular because the hotel industry and the tourism industry are such important sectors of the Island's economy.

(ii)       that the Law Officers' Department took some two years to advise on the issue on the basis of Mr. Bisson's inspection report and it took a further 9 months before the prosecution was lodged.  Had the advice been provided with reasonable expedition, the advice would have been available at least by the end of 2002, if not the middle of that year, and that if that had been done then and Sarum Hotel informed of the position, then there would have been no question of the offence lasting a long time for it could have been as readily rectified in 2002 as it was in 2005.

55.      We can find no basis in the transcript for the decision by the Royal Court to impose a sentence for the Building Law offence which was three times greater than that of the Planning Law offence.  According to the Sentencing Transcript (page 20) the Crown in its contentions expressed the view that the contravention of the Planning Law was slightly less serious than the breach of the Building Law.  We for our part can see no justification for any difference of treatment between these two offences, certainly not one to justify a fine three times greater.

56.      In the light of all these matters we consider that Sarum Hotel should be given leave to appeal against the sentence, and we substitute a fine of £2,000 on each count, taking into account all these matters.

57.      With regard to the costs ordered by the Royal Court to be paid by Sarum Hotel, again taking into account all the above matters, we consider that the Order, on the basis of the conviction of the whole term and not allowing for the additional matters of mitigation set out above, that the costs of Sarum Hotel should pay should not exceed £30,000 should be varied so that a figure of not in excess of £10,000 substituted.  We consider that to be a far more accurate reflection of the position as shown from the matters set out in this Judgment and in particular the matters set out in paragraph 54 above.

Authorities

Island Planning (Jersey) Law 1964

Public Health (Control of Buildings) (Jersey) Law 1956.

Tourism (Jersey) Law 1948

Lodging Houses (Registration) (Jersey) Law 1962.

Bell v. Attorney General [2001] JLR 400.

Railway Assessment Authority v Great Western Railway [1948] LJR 244.

Mayflower Cambridge Limited v Secretary of State for the Environment [1975] 30 P&CR 28.

Uratemp Venture Limited v. Collins [2001] UKHL 43.

Chiltern D.C. v Hodgetts [1983] A.C. 120.

R v Docherty [1994] 2 Cr. App R. 218, 219.

Manning v Attorney General [2000] JLR 284.

Harrison v Attorney General [2004] JLR 111.