Town and country planning – Enforcement notice — Confiscation order — Appellant being convicted of failing to comply with enforcement notice — Judge making confiscation order against appellant while in-patient for mental health problems — Appellant appealing — Whether appellant’s benefit including rents received where no enforcement notice served or before time for compliance — Whether conduct comprising criminal offence being limited to period actually charged – Appeal allowed
The appellant was convicted of failing to comply with an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990. He had converted a house into 12 flats without planning permission and failed to comply with an enforcement notice requiring him to cease using the premises as more than one dwelling. The appellant was committed to the Crown Court, pursuant to section 70 of the Proceeds of Crime Act 2002, for sentence and confiscation proceedings. He was a hospital in-patient suffering mental health problems until after the confiscation hearing. The judge concluded that, on the medical evidence before him, the appellant might never be able to attend. However, a fair hearing could take place because the court had the full defence case in statements made under section 17 of the 2002 Act. Accordingly, the judge made a confiscation order in the sum of £1,438,180.59, payable within six months with a period of default of 10 years’ imprisonment. The appellant was also fined £4,000 payable within six months with three months’ imprisonment in default.
The appellant appealed against the confiscation order which had been made on the basis that he was to be treated as having a criminal lifestyle and applying the assumptions in section 10 of the 2002 Act so that, unless he showed otherwise, property transferred to him in the six years ending with the date when the proceedings for the offence had been started were deemed to have been obtained as a result of his criminal conduct. The order was made on the basis that, as well as his benefit from housing benefit/rents obtained from the flats, the application of the statutory assumptions meant that some £1.2m he obtained from housing benefit/rents in respect of three other houses converted into flats without planning permission were obtained from his criminal conduct.
The issues for determination were, amongst other things, whether the appellant’s benefit, within sections 6 and 10 of the 2002 Act, included rents received where no enforcement notice had been served or before the time for compliance with an enforcement notice; and whether the conduct comprising the criminal offence in respect of a property for which an enforcement notice had been issued was limited to the period that was actually charged.
Held: The appeal was allowed.
(1) The appellant had been obtaining rent for houses which he had converted into flats without having first obtained the requisite planning permission. His activities might have been in breach of planning and other regulations. However, his conduct had not constituted an offence in England and Wales, within the meaning of section 76(1)(a) of the 2002 Act, in relation to any particular property until any enforcement notice had actually been served and had become effective in relation to that property, namely, the relevant notice period in relation to that property had expired. Unless and until that moment in time had arrived, the appellant could not be said to have been engaged in general or particular criminal conduct within the meaning of section 6(4) of the 2002 Act. Accordingly, subject to consideration of inchoate offences, any rents or proceeds derived from tenants in such properties prior to the expiry of any enforcement notice period could not, in law, constitute relevant proceeds of criminal conduct for the purposes of the 2002 Act. There had been no finding of attempt or conspiracy and, on the evidence before the judge, and in particular, the failure to identify an agreement with one or more co-conspirators or the ingredients of an attempt, it would be wrong to infer one. In the particular circumstances of the case, the attempt to reconfigure the judge’s decision as proceeding on the basis of an inchoate offence did not succeed. The conduct was criminal, whether or not charged, once the time for compliance with the enforcement notice had elapsed and it remained criminal, so that the order need not be limited to the period that was charged.
(2) The proviso to section 11(3) of the Criminal Appeal Act 1968 prohibited the exercise by the court of its powers under that section so that, taking the case as a whole, the appellant was more severely dealt with on appeal than he had been dealt with by the court below. The order made had been in the sum of £1,438,180.59. It could not be said that, taking the case as a whole, the appellant would be dealt with more severely by an order reflecting the benefit in respect of the property for the period ending on the date of his conviction. The confiscation order made against the appellant would be set aside and in its place an order would be made in the total sum of £544,358 to be paid within six months with a period of imprisonment in default of five years.
Simon Farrell QC (instructed by Kingsley Napley LLP) appeared for the appellant; Andrew Campbell-Tiech QC and Kriston Berlevy (instructed by Brent London borough council) appeared for the respondent.
Eileen O’Grady, barrister
