Listed building — Unauthorised works without listed building consent — Strict liability — Whether evidence of knowledge of possible breach admissible
In 1996 the
appellant was convicted of six counts of causing unauthorised works to be
executed for the alteration of a listed building, contrary to section 9(1) of
the Planning (Listed Buildings and Conservation Areas) Act 1990. During the
trial the prosecution adduced evidence showing the appellant’s intention, state
of mind and knowledge of possible breach. This evidence included letters from
the appellant’s surveyor advising him that the appellant’s proposals would not
be satisfactory. The appellant appealed against conviction and sentence
contending that that evidence was irrelevant and prejudicial to the issue of
innocence or guilt where no mens rea had to be established.
The offence
was one of strict liability involving no proof of mens rea; it is
complete when the specified elements of the offence are established. To adduce
evidence which goes beyond proof of those elements is not an optional extra, it
is to adduce inadmissible evidence which is prejudicial to the interests of the
accused and accordingly objectionable: see p21G. It is important to have regard
to the principles which have to be observed in such a case. Evidence should not
have been admitted to prove matters not relevant to establish the charges but
which were simply likely to prejudice the jury’s minds against the appellant:
see p24B.
in the judgment
R v Wells Street Metropolitan Stipendiary Magistrate, ex parte
Westminster City Council [1986] 1 WLR 1046; [1986] 3 All ER 4, DC
Appeal against
conviction and sentence
This was an
appeal by Major Sandhu against the conviction and sentence before Judge Waller
in Snaresbrook Crown Court, where the appellant was convicted of six offences
of causing the unauthorised works to be executed for the alteration of a listed
building, contrary to section 9(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990.
Jones (instructed by Cryan & Co, of Harrow) appeared for the appellant,
Major Sandhu.
Gower (instructed by the solicitor for Epping Forest District Council) appeared
for the crown.
following judgment was given.
LORD BINGHAM
OF CORNHILL LCJ: On February 15 1996, in the Crown
Court at Snaresbrook, before Judge Waller and a jury, the appellant was
convicted of six offences of causing works to be executed for the alteration of
a listed building without authorisation, contrary to section 9(1) of the
Planning (Listed Buildings and Conservation Areas) Act 1990. He was acquitted
of count 5 which was another count under the same section. He was fined £1,000
on count 1 and £500 on each of the other counts, making a total fine of £3,500,
in default of payment of which he was to serve three months’ imprisonment. He
was also ordered to pay prosecution costs of £17,500. Leave to appeal against
conviction and sentence was refused by the single judge, but granted by this
court on a renewed application.
The
prosecution related to a Grade II listed building known as Hainault Hall in
Chigwell, Essex. The evidence showed that the building had been in extremely
poor condition since at latest 1964, with no exterior decoration work undertaken
over many years. By 1989 it was in a semi-derelict condition, open to the
elements and a prey to the attention of vandals. In 1990 it was placed on a
register of buildings at risk and in 1991 the district council issued an urgent
works notice to prevent further deterioration.
In 1993 the
appellant, who is by profession an estate agent, bought the house for his own
use. It was at the time uninhabitable, infested by wet and dry rot and in
urgent need of repair and restoration. He applied for planning permission and
listed building consent which was to a certain extent approved in September
1993.
The thrust of
the prosecution case was that between July 1993 and April 1995 the appellant
caused works to be carried out to the building that were not authorised by the
grant of listed building consent and which affected the character of the
building as a building of special architectural or historical interest.
Count 1
related to the replacement of six original windows which should have been
repaired; count 2 to the replacement of three original window surrounds which
should have been repaired; count 3 to the replacement of seven other original
window surrounds which should have been repaired; count 4 to the removal and
failure to store for reuse the internal shutters belonging to six windows;
count 6 to the removal of a fireplace surround from a first-floor room; and
count 7 to the removal of cupboards from first-floor rooms. Count 5, of which
the appellant was acquitted, related to the removal of a fireplace surround
from a room on the first-floor.
Section 9 of
the 1990 Act makes it an offence to contravene section 7 of the Act. Section 7
provides:
Subject to
the following provisions of this Act, no person shall execute or cause to be
executed any works for the demolition of a listed building or for its
alteration or extension in any manner which would affect its character as a
building of special architectural or historic interest, unless the works are
authorised.
It is common
ground between the parties that the section calls for the court (whether it be
justices or a jury) to answer five questions:
(1) Was the
building in question (Hainault Hall) a listed building?
(2) If so,
were the works specified in each count executed for its alteration?
(3) If so, did
the defendant cause the works specified in each count to be executed?
(4) If so,
were such works executed in a manner which affected the character of the
building as a building of special architectural or historic interest?
(5) If so,
were such works authorised?
The parties
are agreed, and the trial judge was of the same opinion, that the offence
provided in section 9 of contravening section 7 is an offence of strict
liability. It was so held in R v Wells Street Metropolitan
Stipendiary Magistrate, ex parte Westminster City Council [1986] 1 WLR
1046. All parties accept the correctness of that decision. The effect of
concluding that it is an offence of strict liability is that the intent or
state of mind or motives or knowledge of a defendant are irrelevant to the
issue of guilt. In other words, it is an offence in which there is technically
speaking no mens rea. Of course a defendant’s intention, state of mind,
motives and knowledge may be relevant to the appropriate penalty, but not to
the issue of innocence or guilt.
Before the
case was opened prosecuting counsel had helpfully made available both to the
judge and to the appellant’s representative a draft of his opening note,
containing a summary of the way in which the case would be put before the jury.
After various introductory matters the note referred to an occasion when a
representative of the council had explained the planning history of the
building to the appellant and had explained to him the need for listed building
consent to alterations which would affect the character of the property.
Counsel then indicated in his note that before introducing the jury to the
counts themselves he intended to draw their attention to a letter written to
the appellant by his professional surveyor which (counsel proposed to observe)
should have acted as a warning to the appellant, but which went unheeded. Later
in the note counsel indicated that it was his intention to refer to evidence
from a joiner employed by the appellant to the effect that the appellant had
made it quite clear to the joiner that he did not intend to pay the extra money
required to repair the old windows in the house, as was required in respect of
six of the windows, and that in any event he did not want old windows. In
summary counsel proposed to say that the appellant had been clearly warned both
by the local authority’s representative and by his own surveyor as to what he
could and could not do, but that he had chosen to ignore those warnings.
It was no
doubt perusal of that proposed opening note which caused counsel representing
the appellant to take objection to a body of evidence which, as he submitted to
the judge, did nothing to prove the answers to the five questions on which a
successful prosecution depended, but which simply went to impugn the motives of
the appellant in a manner that had
at the outset, before the case was opened before the jury, and the judge ruled
upon it. At p1D of the transcript of his ruling he indicated that he had
received the opening note. He also referred to items of history taken from the
opening note and to a letter written to the appellant by his surveyor. That
letter, ‘SLB 7’, dated February 24 1994, was written to the appellant by his
surveyor, giving certain advice. It contained the following para:
When you
first instructed me I advised you that as the building was listed great care
had to be taken over the repair and its restoration. I made it quite clear to
you that whilst much of the joinery was damaged, and there were missing
sections, it was quite capable of being properly restored with much of the
original joinery being retained. I advised you that whilst the careful
restoration of windows, doors, etc, would perhaps be more expensive in the
short term it would provide a better quality of work and lasting joinery in the
long term. The quality of the timber in this original property is better than
modern joinery is likely to be.
Then the judge
made reference to a letter, exhibit ‘SLB 11’. That was a letter written by the
surveyor at the very end of his professional relationship with the appellant
when relations between them, as is evident from the letter, had become very
stained. In the first paragraph of the letter the surveyor, Mr Boniface, wrote:
I have always
striven to give you the best advice possible. Unfortunately my advice has not
always been in accord with your wishes. It is for you to take my advice, or
not, as you so wish but the consequences of ignoring my proper advice are yours
alone.
There follow a
number of paragraphs dealing with various matters and the letter continues:
My
understanding was that I would be an advisor, as and when required. You asked
that I attempt to make sure that the work was carried out to the standards that
one might expect for an historic building. However, it has become quite clear
that the builders you selected for the project are not capable of undertaking
the work to the appropriate standard regardless of instruction. Furthermore, it
has become clear that whatever the financial arrangements made between you and
the builder you are attempting to undertake the work to a cut price.
The letter
ends with the resignation of the surveyor and a request that his last invoices
should be paid.
There is then,
in the course of the judge’s ruling on this preliminary submission, a reference
to the evidence of a joiner named Mr Ward employed by the appellant who (as the
judge puts it) ‘will give evidence that it was made clear to him by [the appellant]
that he was not going to pay the extra money required to repair the old windows
and in any event he did not want old windows in his new house.’
The learned
judge records the objection which was taken by defence counsel to the advice
given by Mr Boniface to the appellant being admitted in evidence. The judge
says that he has already referred to some of this advice, to which we have also
referred, and then he makes reference to a letter ‘SLB 2’ written at an earlier
stage when the surveyor was giving the appellant advice on how the building
should be repaired and emphasising the need to preserve as much as possible.
That is a message reinforced by some guidance notes (‘SLB 3’) which were
annexed to the letter.
The learned
judge describes the thrust of the appellant’s argument as being that the
offence is one of strict liability and therefore it was not necessary to prove mens
rea. It was submitted that it followed from that conclusion that what the
appellant was advised that he was doing was irrelevant, inadmissible and
prejudicial and accordingly should be excluded either under section 78 of the
Police and Criminal Evidence Act or simply on the grounds that it was
inadmissible.
The judge
expressed the conclusion that the argument put forward on behalf of the
appellant, although ingenious, was flawed. The judge accepted that the offence
was one of strict liability, which he defined as a ‘quasi-criminal offence’
involving no fault or mental element, but simply an actus reus. He gave
three reasons for rejecting this submission:
However,
although the prosecution are not required to prove mens rea, if they are
in a position to do so, in my judgment such evidence is relevant and
admissible. It is relevant as to how the actus reus was caused. The
jury, of course, in their decision as to guilt or innocence, are not concerned
with any moral blame, and I shall clearly direct them as to that issue.
During
argument the prosecution counsel, Mr Gower, pointed out that if the defence
contention is right the defendant is in a better position in a strict liability
offence than where the prosecution would have to prove mens rea, and
where such evidence would undoubtedly be admissible. Further, for the jury not
to know the true position of Mr Boniface, and how he came to be involved in
relation to the defendant, and to be left in ignorance as to what his position
was, would be a very real distortion of the true picture. And, indeed, in
practical terms would, I suspect, be quite impossible to conceal from them. Nor
do I think there is any reason why it should be concealed from them.
I therefore
rule that the evidence is relevant and admissible.
We pause to
observe that in the judgment of this court all three of the learned judge’s
reasons are unsound. So far as the first of the reasons is concerned, as
already pointed out, an offence of strict liability is one which involves no
proof of mens rea; it is complete when the specified elements of the
offence are established. To adduce evidence which goes beyond proof of those
elements is not an optional extra, it is to adduce inadmissible evidence and to
adduce inadmissible evidence which is prejudicial to the interests of the
accused must, in our judgment, be objectionable.
So far as the
second point is concerned, it is certainly true that in as
proof of motive, intention, knowledge and so on cannot, in our judgment, be
relevantly adduced. On the other hand, a defendant is in a worse position since
an innocent state of mind affords him no defence. It is not therefore generally
true to say that the defendant to a charge which is of strict liability is
better placed than in the ordinary class of case.
So far as the
third point is concerned, it was open to the prosecution (as they did) to
adduce the evidence of Mr Boniface as to what he saw on each occasion, as to
the work that was done and how it came to be done. That, however, did not
involve his giving evidence as to the advice which he gave his client (the
appellant), still less giving evidence to the effect that the appellant had
flouted and overridden his advice. That was, in our judgment, material which
was irrelevant to what the Crown had to prove to establish this charge.
So far as the
evidence of Mr Ward, the joiner, was concerned, a further objection was taken
to his evidence. Of him the judge said:
He was a
joiner employed by the defendant in which he says that the defendant said to
him he did not want old windows, but he wanted all new ones, and Mr Ward — if his
evidence is accepted — told him that he might get into trouble, but he said he
was not worried. I am again invited to exclude this evidence on the same basis
as Mr Boniface’s evidence, as being irrelevant and prejudicial. It seems to me
that it is relevant and admissible as to how the alleged offending windows got
there, and that there is nothing unfair in the evidence that someone else was
advising the defendant that what he was doing might get him into trouble.
For our part,
we would accept that it was open to Mr Ward to give evidence to the effect that
he made new windows on the instructions of the appellant and that those were
fitted. What, in our view, is inadmissible and prejudicial is the additional
evidence of Mr Ward to the effect that the appellant was prepared to ignore the
requirements of the planning authority if it was cheaper to do so. This is not,
in our view, a trivial and pedantic distinction as counsel for the Crown was
inclined to suggest.
Having
therefore ruled that this evidence was admissible, the trial went ahead. It was
a lengthy trial and a number of witnesses were called. By the time the judge
came to sum up to the jury, however, the answers to most of the five questions
which we have identified were clear. To the question: ‘Was Hainault Hall a
listed building?’, the answer was plainly ‘Yes’, as the judge pointed out in
his summing-up. To the question: ‘If so, were the works specified in each count
executed for its alteration?’, the judge again answered ‘Yes’. To the question:
‘If so, did the defendant cause the work specified to be executed?’, the judge
directed the jury that the answer was ‘Yes’, save in relation to count 5, where
there was an issue. So much emerges from p14A of the transcript; the appellant
was acquitted on count 5. In relation to the fourth question: ‘If so, were such
works executed in a manner which affected the character of the building as a
building of special architectural or historic interest?’, the judge indicated
that the jury might think that that was the principal issue between the defence
and the
alteration in the particular count which they were considering had affected the
character of the building as a whole. Save for the limited issue relating to
whether the appellant caused the work specified in count 5 to be executed, this
was in truth the only issue between the parties by this stage. To the fifth
question: ‘If so, were such works authorised?’, the judge acknowledged that the
answer was ‘No’, and so directed the jury.
When the
learned judge directed the jury at the end of the trial he took them at some
length through a number of the documents which we have already mentioned. He
referred to the initial letter from Mr Boniface to the appellant enclosing the
guidance notes; he quoted extensively from those guidance notes; he referred to
cross-examination of the appellant about the letter and the guidance notes
which the appellant said he had not received. That is, in our judgment,
cross-examination which should never have taken place since we conclude that
this document should not have been before the jury. The judge made reference to
a letter which we have not yet mentioned, ‘SLB 9’, and then went on to refer,
albeit in fairly general terms, to the evidence of Mr Ward to the effect that
the appellant had chosen not to pay the higher price for repairing the windows
as opposed to replacing them. The learned judge directed the jury on a letter
already referred to at p86, quoting the passages that we have already
mentioned, to the effect that an incompetent builder had been employed to do
the work at a cut price in the teeth of advice from Mr Boniface.
It was not
until p47 of the judge’s directions to the jury, which began at p11, that he
reached what he had earlier described as ‘the principal issue’ which the jury
had to decide. That was an issue which he succinctly summed up to the jury in
the space of four pages before sending them out to consider their verdict. It
is worthy of comment that, although when ruling on the submission made at the
outset he had said that he would clearly direct the jury that they were not
concerned in their decision as to guilt or innocence, they were not concerned
with any moral blame, no such warning was in the event given.
It seems to us
that in the course of this lengthy summing-up the learned judge took the jury
in detail through a number of matters which were not relevant to proof of the
counts which the Crown had set out to establish against the appellant, but
which were prejudicial.
In seeking to
uphold the conviction and defend the course which was taken at the trial, counsel
for the Crown has made a number of points. He has urged that some of the
material went to the credibility of Mr Boniface, but it would seem to us that
the correspondence became relevant when and only when there was a challenge to
the credibility of Mr Boniface. He sought to justify the inclusion of this
material as forming part of the res gestae, but was unable to refer us
to any authority or any text book justification for extending that doctrine to
a case such as this. He made various submissions on the detail of the
documents, suggesting that some of them would help the jury to understand the
case and that some of them would enable the expert witnesses to put their views
of building conservation before the jury in a convenient way and that this formed
part
legitimate material for the jury to consider. He relied on certain of the
documents for factual substantiation of points made in them and it is true that
there are points of factual detail which could have been the subject of oral
testimony.
In our
judgment, it is important to have regard to the principles which have to be
observed in a case of this kind. Any evidence adduced by the prosecution was,
as we think, relevant if and to the extent that it went to answer any one of
the five questions already indicated. Evidence which did not go to answer any
of those five questions was irrelevant and therefore inadmissible. There are of
course cases in which evidence, although irrelevant and inadmissible, is not
prejudicial to a defendant and thus will not threaten the safety of a
conviction. Such is the case where the evidence is neutral. But where evidence
is irrelevant, inadmissible and damaging to a defendant, then it is in truth
mere prejudice. Its admission will serve no purpose other than to incline a
jury to think badly of that particular defendant.
Here, at the
end of the day, there was (apart from count 5) one substantial issue before the
jury which related to question 4 and which was the subject, as we have
indicated, of four pages of the summing-up. It was, in our judgment, bound to
sway the jury against the defendant and distract attention from the principal
issue if the jury were told, as they were, that the appellant, before causing
the execution of the alterations objected to, was warned and advised of the
dangers, chose to ignore that advice, chose an incompetent builder and was
generally happy to ride roughshod over the regulations. Those are all matters
relevant to sentence; some of them could have been rendered admissible by an
unskilful cross-examination on behalf of the appellant. This was however, we
repeat, an offence of strict liability. Evidence should not have been admitted
to prove matters not relevant to establish the charges but which were simply
likely to prejudice the jury’s minds against the appellant.
In all the
circumstances here we cannot be confident, as we were asked to be, that the
jury may not have been swayed against the appellant by consideration of a lot
of matters which should, as we conclude, never have been before them.
Accordingly, we feel bound, albeit with considerable dismay having regard to
the time this trial took and to the expense that it involved, to quash these
six convictions.
The convictions
were quashed.
