Anonymized Summary of Court of Appeal Opinion
Factual and Procedural Background
This opinion concerns two appellants (referred to here as "Appellant" and "Co-Appellant") who were convicted at a Magistrates' Court (Judge Allison) on 16 June 2020 of failing to comply with an enforcement notice contrary to section 179(2) and (8) of the Town and Country Planning Act 1990. The enforcing and prosecuting authority was Company A. The property at issue had planning permission for conversion into four flats but was converted and used as seven flats; despite an enforcement notice, the appellants continued to let the flats and entered into new tenancies while proceedings were pending.
The Magistrates' Court committed the appellants to the Crown Court for consideration of confiscation proceedings under the Proceeds of Crime Act 2002 (POCA). On 14 September 2023 the Crown Court (Judge Aaronberg) made Confiscation Orders: a nominal £1.00 against Appellant and £16,696 against Co-Appellant. On 27 February 2024 the same Crown Court judge imposed substantial fines and costs: Appellant was fined £262,500 (or 3 years' imprisonment in default) and ordered to pay £185,258.73 in prosecution costs; Co-Appellant was fined £70,000 (or 18 months' imprisonment in default) and ordered to pay £61,752.91 in prosecution costs.
The appellants appealed the sentences. A single judge initially granted leave to appeal only on Ground 1 and refused leave on Grounds 2–6. At the appeal hearing the appellants renewed the refused grounds; the Court of Appeal (Judge Fraser presiding) granted leave on Ground 4 only and heard the appeal on Grounds 1 and 4. Judgment was reserved following hearing.
Legal Issues Presented
- Whether, given changes to section 179(8) of the Town and Country Planning Act 1990 in March 2015, the Crown Court's sentencing powers were limited to the maximum fine available to the Magistrates' Court for offending that occurred before that change (Ground 1).
- Whether the starting point adopted by the sentencing judge for the fine was too high (Ground 2).
- Whether the sentencing judge was bound by findings made in the earlier confiscation proceedings about available assets (Ground 3).
- Whether the sentencing judge erred in ordering the appellants to pay the full prosecution costs for the confiscation and sentencing proceedings (Ground 4).
- Whether the judge wrongly drew adverse inferences from alleged breach of a Financial Circumstances Order and thereby erred in concluding the appellants could pay substantial penalties and costs (Ground 5).
- Whether the judge failed properly to consider that much of the information related to corporate, not personal, assets (Ground 6).
Arguments of the Parties
Attorney Pons (for the Appellants)
- Argued that the committal certificate from the Magistrates' Court did not state that the Magistrates would have committed the defendants for sentence pursuant to the Sentencing Code, and thus the Crown Court's sentencing powers were limited to those of the Magistrates' Court for the period of offending before 15 March 2015 (technical challenge on committal procedure and fairness).
- Submitted that the sentencing judge's starting point was too high, and that rental receipts should not be treated as a continuing benefit where those sums were used to service mortgages (i.e., the appellants did not truly benefit by receipt of rent but dissipated sums to creditors).
- Contended that the prosecution incurred substantial costs investigating a position that was ultimately correct (that the appellants had no assets), and so the appellants should not be ordered to pay the full prosecution costs.
- Maintained that adverse inferences drawn from alleged non-compliance with disclosure orders were wrong and that the judge was wrong to infer ability to pay from those matters.
Attorney Robb (for the Respondent / Company A)
- Contended that the committal to the Crown Court was for both confiscation and sentence and that records and other material (including the conduct at the Magistrates' hearing and subsequent communications) showed everyone understood the Crown Court would have unlimited fine powers.
- Emphasised the seriousness and persistence of the offending, the large rental benefit, the appellants' obstructive conduct, and evidence the appellants concealed assets; thus the large fines and costs orders were justified.
- Argued that the extensive and protracted confiscation proceedings were necessary because of the appellants' non-disclosure and obfuscation and that the prosecution was entitled to recover costs; the sentencing judge had sufficient factual basis to conclude the appellants had means to pay.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Precedent A [2020] EWCA Crim 402 |
Confirms post-LASPO approach to fines under section 179: broad sentencing canvas and alignment of summary and indictment fine principles. |
Used to explain the legal context that, after statutory amendment, there is no statutory maximum on summary conviction fines and to describe the appropriate sentencing approach. |
| Precedent B [2021] EWHC 2530 (Admin) |
Record of earlier case-stated appeal arising from these proceedings. |
Noted as an unsuccessful case stated appeal; its existence forms part of the procedural history but the Court did not treat it as altering sentencing powers in this appeal. |
| Precedent C [2014] EWCA Crim 2344 |
Illustrates a case where magistrates retained jurisdiction for sentence despite committal for confiscation. |
Relied on as a comparator for when magistrates retain sentencing jurisdiction; the Court distinguished that factual situation from the present case. |
| Precedent D [2023] EWHC Crim 1131 |
Examples of serious procedural defects arising on committal from the magistrates' court to the Crown Court and the questions that arise where such errors may have occurred. |
Quoted to set out the analytical framework for assessing whether a committal error occurred and its consequences; the Court concluded the present case was a far different and non-defective example. |
| Precedent E [2013] 1 Cr.App.R (S) 123 |
Principles on reducing costs orders where confiscation proceedings proved fruitless (R v Rance). |
Considered by the Court when addressing the appellants' costs challenge; the Court distinguished Rance on the facts (appellants' concealment and later revelation of means making the prosecution's work not merely fruitless but necessary). |
| Precedent F [2023] EWCA Crim 1363 |
On the test for ordering costs: the court must be satisfied a defendant has the means to pay; precise findings of financial position are not required. |
Applied by the sentencing judge and endorsed by the Court of Appeal as the correct approach to costs orders in these circumstances. |
Court's Reasoning and Analysis
The Court proceeded by addressing (i) the scope of leave to appeal (renewal of grounds), (ii) the statutory context for sentencing powers, and (iii) each of the substantive grounds in turn, giving detailed reasons for refusing leave on most grounds and for dismissing the appeal on the grounds heard.
On procedure and leave: the single judge had granted leave on Ground 1 only; the appellants renewed the other grounds at the substantive hearing and the Court granted leave as to Ground 4 alone, refusing leave as to Grounds 2, 3, 5 and 6 because those grounds were not reasonably arguable in light of the single judge's reasoning and the evidence.
On statutory sentencing powers (Ground 1): the Court analysed section 179 of the Town and Country Planning Act 1990, the amendment made by the LASPO Regulations effective 15 March 2015 (removing a magistrates' £20,000 cap), and the interaction with POCA sections 70–71 concerning committal for confiscation. Section 71(2) provides that where the magistrates state they would have committed for sentence, the Crown Court has the wider sentencing powers (including an unlimited fine). The Court examined the committal records and surrounding materials and concluded that, notwithstanding the certificate's lack of an express statement, the Magistrates' Court did commit the defendants to the Crown Court for both confiscation and sentence. The Court relied on contemporaneous entries in the court register, an email from the Magistrates' Court legal adviser confirming the committal "for sentence and for consideration of a Confiscation Order", and the conduct of the parties (including written submissions to the sentencing judge accepting the Crown Court's unlimited fine power). The Court therefore held the Crown Court was not limited to magistrates' powers and rejected the appellants' technical challenge to the committal certificate.
On the merits of Grounds 2, 3, 5 and 6 (refused leave): the Court accepted the sentencing judge's factual findings about the scope of rental benefit, the appellants' high culpability, their attempts to conceal assets (including complex corporate structures and mortgages), the poor quality and late disclosure of financial material, and the judge's rejection of the appellants' accounting evidence. The Court emphasised the difference between "financial benefit" and "profit" (rental receipts counted as the benefit regardless of subsequent disposition); rejected the argument that mortgage payments avoided characterising the receipts as a benefit; and rejected the submission that the sentencing judge was bound by earlier confiscation findings, noting that more and different evidence was available at the sentencing hearing which justified different findings. The Court stressed the appellate standard: it was not open to the appellants to re-run credibility findings after an extensive fact-finding hearing in which the judge had seen witnesses and documents first-hand.
On costs (Ground 4): the Court accepted that the confiscation proceedings were lengthy and that some of the time and expense resulted from the prosecution's work. However, it agreed with the sentencing judge that much of that was caused by the appellants' obstructive conduct and failure to make full disclosure; the judge had found on the evidence that both defendants had means to pay and that, had those means been disclosed earlier, the prosecution's work would have been much reduced. The Court applied the correct legal test (as articulated in Precedent F) that the court must be satisfied the defendant has the means to pay; precise quantification is not required. The Court rejected the appellants' reliance on Precedent E (R v Rance) because that case was distinguishable on the facts: here the prosecution's work was not merely fruitless but rendered necessary by the appellants' concealment and delay. The Court concluded the costs orders were within the judge's proper discretion.
Holding and Implications
HOLDING: The appeal is dismissed in its entirety. The Court granted leave on Ground 4 only but dismissed the appeal on both Ground 1 and Ground 4; leave was refused on Grounds 2, 3, 5 and 6. The fines and costs orders imposed by the Crown Court remain undisturbed.
Implications: The direct effect is that the appellants remain liable for the fines and prosecution costs previously ordered. The Court confirmed that where a magistrates' court (in open court and on the record) commits defendants to the Crown Court for confiscation and for sentence, the Crown Court may exercise the wider sentencing powers (including an unlimited fine) despite a committal certificate that does not use a particular formulaic wording; the factual context and contemporaneous record may suffice. The opinion contains detailed factual findings about concealment and delay which justified both substantial fines and full costs orders on the facts; it does not purport to lay down a novel general principle beyond applying established statutory and appellate principles in the circumstances described.