Ancient Monuments and Archaeological Areas Act 1979 — Compensation paid for loss of development rights — Normal agricultural operations carried out regularly over a period of 5 years permitted — Consent required for ploughing at a greater depth — Ploughing without consent caused damage — Landowner found guilty of criminal offence — Appeal against sentence — Whether trial judge given misleading plans — Whether evidence of planning compensation misled trial judge — Whether fine of £ 10,000 excessive
The appellant,
the eighth Marquess of Hertford, is the owner of a substantial acreage of land
near Alcester. Below the surface of two fields in his ownership lie the remains
of part of the old Roman town of Alcester. Planning permission had originally
been granted for the development of the site in September 1975. The Secretary
of State for the Environment issued an interim preservation order in November
of that year which had the effect of cancelling planning permission. The order
was eventually confirmed and the appellant received compensation for the
deprivation of the right to develop the land totalling £ 127,000. The Ancient
Monuments and Archaeological Areas Act 1979 now consolidates the earlier Acts
of 1913-1953. The appellant corresponded with the Department of the Environment
concerning the activities permitted on these fields and was informed that no
scheduled monument consent was required for normal agricultural works of the
kind carried out prior to October 9 1981 although consent would be required for
ploughing at greater depth. In July 1985 the land was ploughed with the appellant’s
authority to a normal depth of 10-12 in and, as the Roman remains commenced at
only 6 in below the surface, considerable damage was done to part of those
remains. The appellant was charged with an offence under section 2 of the 1979
Act in that he carried out or permitted of injurious works to an ancient
monument. He pleaded guilty and was fined £ 10,000, payable within 28 days with
12 months’ imprisonment in default and was ordered to pay the cost of the
prosecution limited to £ 4,914.22. He sought leave to appeal and to appeal
against sentence.
Held The trial judge had not been misled by
inaccurate plans as to the extent of the Roman town put before him, nor as to
the compensation paid to the appellant when planning permission was revoked at
the earlier date, but the fine imposed was excessive and far more than would
have been appropriate for an offence which was, though perhaps negligent,
inadvertent and was not an intentional flouting of the law. The fine, which
must relate to the status and resources of the offender, was reduced to £
3,000, payable within 28 days (with 6 months’ custody in default) and the order
awarding costs against the accused was altered to £ 1,000 as representing the
costs of the prosecution and not the costs of investigations leading to the
prosecution.
to in the judgment
R v Maher [1983] QB 784; [1983] 2 WLR 764; [1983] 2 All ER 417;
(1983) 76 Cr App R 309, CA.
Application
for leave to appeal against a sentence
This was an
application for leave to appeal against a sentence imposed by His Honour Judge
Hall on February 9 1987 in the Warwick Crown Court following a
and Archaeological Areas Act 1979.
Wiggs (instructed by Russell & Co, of Malvern) appeared for the applicant.
following judgment of the court was given.
STOCKER LJ: On February 9 1987 in the Crown Court at Warwick before His Honour
Judge Harrison Hall this applicant pleaded guilty to an offence of permitting
the execution of unauthorised works resulting in damage to a scheduled
monument, brought pursuant to section 2(1) of the Ancient Monuments and
Archaeological Areas Act 1979. He was fined £ 10,000, payable within 28 days,
with 12 months’ imprisonment in default, and was ordered to pay costs of the
prosecution limited to £ 4,914.22. He now applies to this court for leave to
appeal against that sentence. The registrar has referred that application to
this court. We grant leave to appeal and with the consent of the appellant
given through his counsel we treat this as the substantive hearing of the
appeal.
The background
to the matter is this. The Ancient Monuments and Archaeological Areas Act 1979,
which consolidates earlier Acts of 1913-1953, provides a scheme for the
protection of sites of historical value and interest based on a system of
scheduling. Scheduled land has the status of an ancient monument and is
protected under the Act. Strict controls are imposed over any works which may
cause damage to the site. There are two offences under the Act, one under
section 28, which does not arise in this case and is ‘causing damage to a
listed monument’. That is usually reserved for cases of vandalism. The other is
under section 2 and is the carrying out or permitting of injurious works on an
ancient monument, which applies in this case. An offence under section 2 is one
of strict liability, subject to certain statutory defences, none of which arise
in this case.
The damage in
this case was caused by permitting the ploughing of part of the scheduled land
resulting in damage to an ancient monument, namely the remains of the old Roman
settlement of Alcester, a part of which lay underneath the scheduled land.
This
appellant, who is the 8th Marquess of Hertford, lives at Ragley Hall in
Alcester. He is the owner of a substantial acreage of land in that district. In
particular, he is the owner of two fields of about seven acres in extent. They
are adjacent to Bleachfield Street in Alcester. Those fields are the subject of
this indictment. Beneath the surface of those fields — and indeed beneath the
surface of adjoining land — lies the site of part of the old Roman town of
Alcester. The site is regarded as an important example of a small Roman town in
Britain. It was for that reason that it became scheduled under the earlier
Acts. The appellant was given notice of the fact of scheduling.
The notice of
scheduling was followed by events which occurred in 1975. George Wimpey &
Co made an offer to buy part of those scheduled lands for development. Planning
permission was granted for the development of the site in September 1975. In
November, however, the appellant having given notice to the Department of the
Environment of his intention to sell the land for development, the Secretary of
State for that Department issued an interim preservation order on November 7
1975. That had the effect of cancelling the planning permission and forestalled
any attempt to build on the land. The order was confirmed and made a full order
on January 18 1977. The appellant received compensation for the deprivation of
the opportunity which he had to develop the land. The total sum, we understand,
was of the order of £ 127,000, though certain sums had to be deducted from that
in respect of any residual agricultural use which might remain in the land.
The scheduled
status of the land was again highlighted in 1984 when the appellant received a
letter from the Department of the Environment informing him of a proposal to
extend the scheduled area and setting out what works were prohibited or allowed
on scheduled land. In particular the letter stated:
. . . by
virtue of the Ancient Monuments (Class Consents) Order 1981, consent has been
granted for agricultural, horticultural or forestry works which were carried
out regularly over a period of 5 years up to 9th October 1981, with the
exception of subsoiling, drainage, the planting or uprooting of trees, hedges
or shrubs or works likely to involve any deeper cultivation than in the past .
. .
In the
appellant’s particular case, ploughing did not come within the permitted group
of activities to which I have just referred, as the fields in question had not
in fact been ploughed within living memory, let alone within the past 5 years,
and probably had not been ploughed since medieval days.
The appellant
acknowledged the receipt of that letter and asked for clarification as to what
works were allowed, expressing concern that ploughing seemed to be restricted.
He wrote:
I am
concerned by the top paragraph of the second page of your letter which appears
to restrict normal farming activities such as ploughing, sub-soiling and
draining this piece of land. I am not clear from that paragraph whether the
planting or uprooting of trees and hedges is or is not to be allowed. If these things
are not permitted, may I ask what arrangements may be made to compensate me and
my tenants for any future loss of income?
Then he dealt
with the question of the use of metal detectors and he wrote:
Although
neither my tenants nor I welcome trespassers, there is a public footpath
running across these fields, which are in practice quite widely used for
recreation by people living in the neighbourhood. I trust that I would not be
held personally responsible for the use of metal detectors, which would be hard
to prevent.
The body now
responsible for the Department of the Environment so far as is relevant is
English Heritage. They wrote a letter, dated May 15 1984, referring back to the
letter which had been directed to the Department of the Environment, passages
from which I have just cited. They said:
Although you
will not need to apply for scheduled monument consent for normal agricultural
works of the kind carried out prior to 9th October 1981, consent will be
required for ploughing at a greater depth, for subsoiling, drainage, the
planting (or uprooting) of trees, hedges and shrubs, or any other works that
would cause damage to the stratigraphy of the site.
The letter
went on to say that the football club, which occasionally used that land, ‘will
similarly need to apply for scheduled monument consent’.
It seems to
have been accepted by the learned judge, and is apparent from the words which I
have just cited, that there is a potential ambiguity in what English Heritage
wrote in response to the letter of March 20. No criticism can be levelled at
anybody, but it is a pity that the reply could not have been in a single
sentence: ‘You are not allowed to plough’. If that had been done, then the
problems which have subsequently arisen might well have been wholly avoided.
What happened
was that in July 1985 the appellant’s estate manager, with the appellant’s
authority, asked a local man to plough up two fields, the subject of the
indictment in this case. No permission had been sought for such ploughing. The
ploughing was done on July 24 and 25 to what appears to have been a normal
depth of 10-12 inches. Roman remains, it seems, in fact
was done to part of those remains. It is said that 1000 sherds of Roman
pottery, glass and tile were recorded on the surface of the ploughed fields.
Experts calculated that that only represented a very small percentage of what
had been ploughed up and that the rest was destroyed. The experts also said
that they would have expected to find a large amount of Roman coinage in the
remains, but no coins were ever found. It seems that the explanation of that
may be that unauthorised persons with metal detectors had arrived on the scene
and perhaps removed such coinage, if indeed such were in fact there.
Despite the
damage it seems quite clear that the site is still one of archaeological value,
as there are still remains and artefacts below the level of the ploughing which
has taken place.
A visiting
archaeologist saw the appellant on October 18 1985 and the appellant admitted
responsibility for the ploughing. Though he had not directly given the
instruction for it to be done, he had authorised such instruction. The
ploughing was for the purpose of growing wheat. He said that he did not know
that ploughing was not allowed. He was seen by a police inspector on July 9
1986, expressed considerable regret, and said that he had construed the letter
from English Heritage, from which we have cited, as giving him permission to
plough. He thought that Roman remains would be safe if the field was ploughed
to a depth of 8 inches, which he would have thought was the normal. As already
said, the Crown accept that that letter from English Heritage was capable of
misinterpretation. But there is no doubt in a situation of importance such as
this, it would have been prudent (and indeed, in our view, the duty) of the
appellant if he had any doubts at all about the matter to seek adequate and
accurate advice.
That was the
situation which was presented to the court and upon which the fine of £ 10,000
was levied.
Mr Wiggs on
behalf of this appellant before this court has put forward a number of matters
as indicating that the fine was excessive. The first is that the learned judge
was not given sufficient information, or at times was given inaccurate
information. He argues that certain annexures, and in particular a plan annexed
as annexure no 7, indicates that the land in fact ploughed over was not as
extensive as had been put before the court in a different plan, and that
accordingly the area of ploughing with which the learned judge had to deal was
in truth less extensive than he had been led to believe. Moreover, as is
pointed out by reference to that plan, there had been a floodbank constructed,
under local authority auspices, which must itself in the past have
substantially disturbed the Roman remains lying beneath.
It would seem
to us that, though it is perhaps not a matter of the greatest importance, the
learned judge perhaps was given information which was inaccurate since in
opening the matter counsel for the Crown said:
Beneath the
surface of those two fields lies the site of a Roman town which is regarded by
archaeologists as an important site, being an important example of a small
Roman town in Britain.
In addition to
the matters to which reference has just been made, Mr Wiggs points out that,
taken literally, that would seem to suggest that the whole of Roman Alcester
was in fact beneath the fields which had been ploughed up, whereas it is
manifest from the first of the annexures that the extent of the Roman town
lying beneath the surface is very considerably greater than the two fields
which were in fact ploughed up. They would appear to represent certainly not
more than about a fifth (if as much as that) of the extent of the whole of the
ancient Roman town.
Secondly,
complaint is made that reference was made in terms, which might
permission granted in favour of Wimpeys was revoked by the imposition of the
orders which have been cited. We rather doubt if the learned judge was in any
way misled, but the fact remains that that sum was compensation for the rescission
of permission to develop and build and did not relate to compensation for any
lessening of the potential agricultural use of the land. That would have been,
no doubt, an important factor, but we are not convinced — and really Mr Wiggs
has not seriously urged before us today — that the learned judge did
misapprehend that factor. He certainly made no mention of it in the short
remarks that he made when imposing the fine in question.
Other matters
have been urged before this court. The first is that the land is still believed
to contain — no doubt on very good authority — a substantial part, other than
the surface artefacts, of the ancient Roman town. That is confirmed by a letter
of May 19 1987. It has been pointed out that it has been accepted by the appellant
— and no doubt has been cast upon the genuineness of that acceptance — that he
will not do any further ploughing for agricultural purposes.
It has also
been urged before us that the learned judge perhaps gave insufficient credit
for the plea of guilty which had been made, and indeed was made as early as
November 19 1986 in writing. The committal proceedings did not take place until
December 15 1986, so this appellant had pleaded guilty in writing before the
committal proceedings ever began. It has been urged before us by Mr Wiggs that
you could not have a clearer or firmer case of acknowledgement of guilt and a
plea of guilty than that.
It has also
been urged upon us that this appellant manifestly does have a high regard for
English Heritage and is not a person who would be likely flagrantly to play any
part in the destruction of that heritage, had he turned his mind, as he should
have done, to that particular problem. We have been told — and it is manifest
from the documents — that the appellant has restored his ancestral home, Ragley
Hall, out of his own resources, a building which was dilapidated in his
predecessor’s time and in respect of which there had been at some time an
intention to demolish. The Hall has been carefully restored and is now open to
visit from the public, who attend in large numbers. Of course it is true that
that same act has had the effect of enabling the appellant and his family to
reside in their ancestral home rather than in one of the farm houses on the
estate in which they had been living up to that time. However, we do accept
that this appellant does have regard for the heritage of the country and is not
a person who in any circumstances has flagrantly broken the law. Indeed the
learned judge so accepted, because he said:
In this case
the Crown have accepted that this was not a deliberate flouting of the
provisions in the sense that there was room for misunderstanding as to what he
was or was not allowed to do.
We take the
view that the fine imposed upon this appellant was excessive and far more than
would have been appropriate for an offence which was, though perhaps negligent,
inadvertent and was not an intentional flouting of the law. It would have been
a sum more appropriate to a flagrant disregard of an ancient monument for the
purposes of personal gain. That aspect of the matter does not arise in this
case. On the facts which the learned judge accepted, and which we clearly also
accept, this damage was done through a failure by the appellant, which he
freely acknowledges, to take such advice as should have been appropriate having
regard to the information that he had been given with regard to the uses which
he was permitted or, more importantly, not permitted to put the land. We have
already said, without
at an early stage in unambiguous and categorical terms. It was not. So we have
to deal with the matter on the basis of a man who is concerned for the
preservation of our national heritage, but has through fault, for which he
accepts responsibility as he has admitted to be the case, caused substantial
damage to that heritage.
Having come to
the conclusion that the fine imposed was greater than it should have been on
the basis indicated, and that it would have been more appropriate in the case
of someone who had deliberately and flagrantly destroyed an ancient monument
for personal gain, we have to ask the question: what is the appropriate fine
for such a matter? That is a question
which is easier to pose than it is to answer. The view to which we have come is
that a fine must be related to the actual or ostensible means of the person
ordered to pay it, since a fine is of course a penalty. It is not possible to
go into precise means in circumstances such as this, nor would it be desirable
to do so. There must be cases in which it is not practicable or reasonable to
relate the amount of a fine strictly speaking to the means of the person paying
it. None the less it has to be a penalty and the size of the fine must be
related to the status and apparent resources of the defendant. In this case we
are dealing with a substantial landowner.
We have been
referred to a number of cases, none of which are particularly helpful, though
they do indicate that the maximum of any of them has been the figure of £
1,500. Without knowing the precise details of each of those cases or the
background of the defendants upon whom the fines were imposed, no great
assistance can be had from them. We have to do the best we can and relate the
fine, so far as is practicable to do so, to the status and resources of the
appellant, so that it is in fact a penalty and not something derisory, but at
the same time reflects the fact that this was not a deliberate and conscious
assault upon our national heritage but was due to a misunderstanding or,
perhaps more accurately, a failure to take adequate advice in time as to what
his rights were.
We have given
close thought to the matter and in our view an appropriate fine would have been
the figure of £ 3,000, which will be substituted for the fine of £ 10,000 which
was imposed. To that extent this appeal succeeds.
We now come to
the question of costs. The learned judge ordered the appellant to pay the costs
of the prosecution in a sum limited to £ 4,914.22. That figure apparently is
derived from direct costs incurred by the Crown Prosecution Service amounting
to £ 1,240 and costs which it is said English Heritage incurred in connection
with this matter. The English Heritage costs amount to £ 3,674.22. We have no
more to go by in deciding how that figure was reached than the details of the
breakdown of that figure set out in a document, annexure 12. That shows that
the sum includes 21 days costs of administration staff at £ 91 per day, inspectorate
— 15 days at £ 66.95 a day, the costs of an assistant solicitor for two days,
and certain other fairly minor items such as photocopying and special maps. We
have been told that the special maps were not in fact produced in court at all,
and the same applies to aerial photographs that were apparently taken. We have
therefore to pay regard to whether the English Heritage costs are properly
recoverable at all as being costs of the prosecution.
We have been
referred to the case of R v Maher (1983) 76 Cr App R 309. That
case was decided under the former Act — the Costs in Criminal Cases Act 1973.
At the time this hearing took place the relevant Act was the Prosecution of
Offences Act 1985, so that it does not follow that the views expressed by the
court in the case of Maher necessarily apply to costs incurred under
different legislation. However, we are minded to accept that the principle is
probably
reads: ‘Award of costs against accused.’
Then (1):
Where — (c)
any person is convicted of an offence before the Crown Court, the court may
make such order as to the costs to be paid by the accused to the prosecutor as
it considers just and reasonable.
In our view
not only the case of Maher, but, it would seem to us, the reality and
common sense of the situation, indicate that costs should be confined to the
‘costs of the prosecution’ itself and not to costs of investigations leading up
to the prosecution, particularly where the body carrying out those
investigations is not the same body as either the police or the Crown
Prosecution Service. Moreover, we are of the view that in considering what is
or is not just and reasonable we should pay regard to the fact that this
appellant pleaded guilty in writing a substantial period of time before the
committal proceedings ever began and has maintained that plea of guilty
throughout. Accordingly, on the question of what would be just and reasonable
as a sum to award against the appellant for prosecution costs we are of the
view that the sum of £ 1,000 would represent the appropriate figure.
Accordingly, we quash the order for costs in the sum made and substitute an
order of £ 1,000.
Sentence
reduced and order for costs substituted.
