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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> The Knightland Foundation, R. v [2018] EWCA Crim 1860 (26 July 2018) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2018/1860.html Cite as: [2018] EWCA Crim 1860 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE JULIAN KNOWLES
and
THE RECORDER OF NOTTINGHAM
(His Honour Judge Dickinson QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
R E G I N A | ||
- v - | ||
THE KNIGHTLAND FOUNDATION | ||
JACOB FRIEDMAN |
____________________
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
Ms M Murphy appeared on behalf of the Respondents
____________________
Crown Copyright ©
LADY JUSTICE HALLETT:
Introduction
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.
(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
The Respondents' Application to Stay Proceedings as an Abuse of Process
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.
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.
The Jurisdiction Issue
"(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."
"(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."
The Grounds of Appeal in relation to the merits
(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.
Our Conclusions
The Jurisdictional Issue
(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.
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.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.