Abuse of Process: Council's enforcement prosecution "based on .... an improper motive"
It is not very often that I am genuinely taken aback by the facts of a Court of Appeal case, but R v The Knightland Foundation and Jacob Friedman* is somewhat special.
The case concerns a prosecution brought by Islington Council for failing to comply with an enforcement notice. The respondents had originally obtained planning permission for a development which would accommodate a 14 bed HMO** and 2 one bedroom maisonettes. They actually built 18 self-contained residential flats, which did not have the benefit of planning consent.
An enforcement notice was served in October 2014, which the respondents did not comply with, even after their appeal against the enforcement notice was refused. In October 2016, however, they did submit a new planning application to convert the property into a hotel. If this application was granted, then the respondents would not have had to carry out many of the physical works set out in the enforcement notice. The application was received positively by the Council's planning team.
In July 2017, the Council's legal team started to bring a prosecution against the respondents for failing to comply with the enforcement notice. The decision to prosecute was based on a report prepared by the Council's enforcement team.
What happened next is best described by the Court of Appeal itself:
" 8. 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.
9. On 3rd 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".
10. On 10th October, Mr Shaxted visited the site with Mr Kettani and on 13th 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 7th November the planning application was refused. "
The respondents applied to have the prosecution stayed as an abuse of process. Against all of the odds, which were high, abuse of process arguments are notoriously tricky to make*^, the respondents succeeded. Again, I will return to the Judgment to set out the reasons why:
" 15. In his written judgment, the judge.... 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....
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.
- 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.
18. 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.
- 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 10th 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 10th October and the email of 13th 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."
The Council appealed and the Court of Appeal upheld the original decision, on the basis that it could not be argued that the decision was in any way wrong in law. Their conclusions are particularly damning:
" 37. 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. "
Confiscation orders can be a very useful tool for Councils, when used appropriately. They remove the financial incentives for continuing to breach an enforcement notice and can be a powerful incentive for compliance. In this case, however, it appears as if the Council's enforcement team became overly fixated on the ability to recover significant sums of money from the respondent under a confiscation order. This fixation led them to improperly interfere with the respondent's second planning application, which could have served to regularise the planning situation at the property.
The respondents are by no means blameless in this situation. They did ignore the enforcement notice for the best part of two years after it came into effect. That said, the level to which the desire for a specific enforcement outcome appears to have tainted the proper application of planning judgment in this specific case is concerning.
The case also highlights something which I have, on occasion, noticed myself - namely a significant disconnect (or difference in approach) between a Council's planning officers and their counterparts in the enforcement team. This is usually down to a failure to communicate, rather than anything more sinister (I must flag here that the facts of this case are HIGHLY unusual) but it does not help the perception of fairness when two different aspects of the same Council take such different approaches to the same issue - and then give conflicting advice.
Whilst I am sure that this Judgment is very much a one off, and not in any way indicative of a wider problem, it does serve as a useful (if somewhat shocking) reminder of the importance of exercising powers of prosecution fairly and taking into account all material factors. Criminal prosecution should, after all, always be a matter of last resort.
*v [2018] EWCA Crim 1860 - link to full judgment below
** House in Multiple Occupation
*^ almost as tricky as proving 'bias' on the part of an LPA
The authority... is obliged to act fairly, independently and objectively. The judge's findings of fact indicate that the authority did not do so... 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..... 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... obtaining a POCA order. In their eyes the grant of planning permission was intrinsically linked to the prosecution and possible penalty. The judge agreed... so do we. ”
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