Ability-to-Pay Challenges to Fines and Costs: Defendants Must Provide Proper Financial Disclosure and Cannot “Save” Evidence for Appeal

1. Introduction

In Freeland & Anor, R. v [2026] EWCA Crim 1006, the Court of Appeal (Criminal Division) (Popplewell LJ, Stacey J, HHJ Karu) dismissed sentence appeals by a property development company (Garden Mill Ltd) and its director (the director) following substantial fines and prosecution costs for deliberate breaches of planning stop and enforcement controls imposed by a local planning authority.

The appeal was narrowly framed: with leave limited to the contention that the appellants were unable to meet the fines and costs. The Court’s judgment is principally significant as a practical and procedural statement about (i) the burden on defendants—individuals and companies—to place reliable means information before the sentencing court, (ii) the permissibility of drawing adverse inferences where disclosure is withheld or manipulated, and (iii) the strict approach to fresh evidence on appeal in means-based sentencing challenges.

2. Summary of the Judgment

  • The sentencing judge had no credible evidence that either appellant could not pay the fines and costs imposed.
  • The appellants had been ordered to provide financial information in advance but failed to do so, and the director expressly indicated at sentencing that he did not wish to provide further information.
  • The limited documents produced were inadequate: a personal bank statement was redacted and incomplete; the company “accounts” were unsigned, unaudited, heavily redacted (“filleted”), and not supported by source material.
  • The Court held the judge was entitled to treat the appellants as having means, and to draw adverse inferences from deliberate non-disclosure.
  • An attempt on appeal to rely on additional material was rejected as inadmissible fresh evidence, both for procedural defects and because it raised further unanswered questions and could have been provided at sentencing.
  • The appeals were dismissed.

3. Analysis

3.1 Statutory Framework: Fines, Costs, and “Means”

The Court anchored its approach in the Sentencing Act 2020:

  • Section 124(1): before fixing an individual’s fine, the court must inquire into the individual’s financial circumstances.
  • Section 125(2): when fixing a fine for any offender (individual or corporate), the court must take into account the offender’s financial circumstances so far as known or apparent.
  • Section 126: where the offender fails to cooperate and the court has insufficient information, it may make such determination of financial circumstances as it considers appropriate.

A key practical clarification is the asymmetry between individuals and companies: there is no duty to inquire into a company’s means, but the court must still consider corporate means to the extent they are known or apparent. In both contexts, the Court emphasised the same operational rule: the defendant bears the primary responsibility for providing reliable financial information.

3.2 Precedents Cited: Responsibility to Disclose and Permissible Inferences

The leading authority relied on was R v North Allerton Magistrates' Court ex parte Dove [2000] 1 Cr App (S) 136. The Court treated Dove as establishing (and reaffirming) these propositions:

  • It is for the defendant facing a fine or costs order to disclose sufficient financial data to enable an assessment of what can reasonably be afforded.
  • Absent disclosure, the sentencer may draw reasonable inferences from the evidence heard and the circumstances.
  • The sentencing court is not required to conduct an inquisitorial investigation into the defendant’s means.

The Court also noted the lineage cited in Dove, including Wright (unreported, November 12, 1976) (via Lord Widgery CJ) and a statement of principle in Current Sentencing Practice: if a defendant provides only meagre details, “it is the appellant’s fault”.

In the present case, Dove directly informed both (i) the legitimacy of proceeding to sentence in the face of non-cooperation and (ii) the legitimacy of adverse inferences where disclosure failures appeared deliberate.

3.3 The Court’s Legal Reasoning on the Sentencing Decision

The Court’s reasoning proceeded in three steps:

  1. Identify the disclosure failure: the appellants were ordered to provide means information weeks in advance, failed to do so, and on the day produced documents that were facially unreliable and incomplete.
  2. Assess whether the judge was entitled to conclude means were sufficient: the judge knew the director was involved in multiple development companies undertaking sizeable projects; the limited documents did not credibly undermine the inference of substantial means.
  3. Confirm adverse inference was open: the Court endorsed the judge’s entitlement to infer that the choice not to provide fuller disclosure was because it would not assist the appellants’ claimed inability to pay.

Two fact-specific aspects mattered:

  • Manipulated documents: the personal bank statement was redacted to conceal the balance and later shown to be incomplete; the company “accounts” were unsigned and “filleted”, with redacted notes and no provenance.
  • Refusal of an alternative process: the judge flagged he could adjourn and order a financial report or proceed and draw conclusions. The director opted against providing further information, materially weakening any later “ability to pay” complaint.

3.4 Fresh Evidence on Appeal: Procedural Rigor and Substantive Skepticism

The appeal featured an attempt to rely on later-produced bank statements, accountants’ letters, evidence of administrative receivership, and the director’s bankruptcy. The Court refused admission, applying principles reflected in section 23 Criminal Justice Act 1968, and making important practice points:

(a) Proper form is not optional

The Court held it was not permissible (in these circumstances) to advance such material “informally”. It required:

  • a proper application (including Form W), and
  • signed witness statements compliant with section 9 Criminal Justice Act 1967, including provenance and explanation of documents.

The Court stressed that formality protects the integrity of the process: it enables potential testing (including cross-examination), provides notice to the Crown, and underscores the seriousness of the evidence. The Court indicated that, had the evidence been properly advanced, it was “very likely” the director would have been required for cross-examination—particularly given prior convictions for dishonesty-related bankruptcy conduct (relevant to the reliability of means assertions).

(b) No “banking” evidence for appeal

A central reason for refusal was that the substance of the means evidence was readily available at sentencing, but a conscious decision was made not to provide it. The Court treated it as contrary to the interests of justice to allow appellants to withhold material at first instance and deploy it only after the sentencing outcome proved unfavourable.

(c) The new material was not reassuring

Even taken at face value, the proposed evidence raised unanswered questions:

  • disclosure gaps (missing statements for significant periods);
  • an unexplained large payment from a third-party entity; and
  • an undisclosed bank account receiving a substantial transfer, with no statements produced.

The Court therefore concluded the material was not “evidence” in an admissible sense, lacked reasonable explanation for prior omission, and would not have afforded a basis to allow the appeal.

3.5 Impact

Although the judgment applies established principles, it has clear operational impact in sentencing and appeals involving financial penalties:

  • Means challenges must be made properly at sentencing. Defendants who obstruct inquiry (by delay, redaction, incompleteness, or refusing opportunities to provide information) should expect adverse inferences.
  • Corporate offenders cannot rely on the absence of a statutory duty to inquire: the court may sentence on what is “known or appears” and on reasonable inferences from the offender’s business context, especially where group-company structures obscure resources.
  • Fresh evidence on appeal in means disputes will be tightly controlled: procedural non-compliance and tactical withholding are likely to be fatal, and gaps or anomalies will undermine admissibility and weight.

4. Complex Concepts Simplified

  • Stop Notice / Temporary Stop Notice: planning enforcement tools requiring development activity to stop, often immediately, to prevent ongoing harm while longer processes continue.
  • Enforcement Notice: a notice requiring steps to remedy or cease breaches of planning control within a specified timeframe.
  • “Filleted” accounts: abbreviated company accounts with removed detail; here, coupled with heavy redaction, they were of limited evidential value.
  • Adverse inference: where a party withholds information it would be expected to provide, the court may infer the information would not have helped that party.
  • Section 9 statement (CJA 1967): a formal written witness statement that can be used in criminal proceedings, carrying seriousness and procedural safeguards.
  • Fresh evidence on appeal (CJA 1968, s 23): new evidence is not automatically admitted; the court considers, among other things, why it was not adduced below and whether it could affect the safety/correctness of the decision.
  • Administrative receiver: a receiver appointed (typically by a secured creditor) to take control of a company’s charged assets to recover the debt.
  • Bankruptcy: a legal status affecting an individual’s assets and ability to deal with creditors; it does not, without more, prove inability to pay at the earlier sentencing date, and it does not cure prior non-disclosure.

5. Conclusion

[2026] EWCA Crim 1006 underscores that “ability to pay” is not established by assertion, selective disclosure, or improvised appeal bundles. The Court reaffirmed that defendants must provide full, reliable, and properly sourced financial information at sentencing; otherwise the court may proceed on reasonable inference and may treat non-cooperation as indicative of undisclosed means. On appeal, attempts to re-litigate means through fresh material will fail without strict procedural compliance, a credible explanation for prior omission, and evidence that resolves—rather than multiplies—questions about resources.