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Freeland & Anor, R. v
Factual and Procedural Background
Company A and the Individual Appellant were sentenced on 19 August 2024 to fines and prosecution costs for breaches of planning control notices connected to a 32-home development in South Devon, and they appealed on the ground that they could not meet the financial penalties. [Para 26][Para 27][Para 28][Para 29]
The development site had been bought in April 2021, work began almost immediately, and the work continued for about six months in deliberate breach of the planning conditions and stop/enforcement notices, despite repeated interventions by police and council officers. [Para 34][Para 35][Para 36][Para 37]
Legal Issues Presented
- Whether the sentencing judge erred in concluding that the Individual Appellant and Company A had the means to pay the fines and costs. [Para 26][Para 38][Para 39][Para 40]
- Whether later financial material should be admitted as fresh evidence on appeal to show that the appellants could not pay. [Para 72][Para 73][Para 74][Para 85]
Arguments of the Parties
Appellant's Arguments
- The Individual Appellant and Company A contended that the financial penalties were unaffordable and that the judge should not have proceeded on the basis that they could pay. [Para 26][Para 51][Para 52][Para 53]
- On appeal, they relied on accountant letters and later bank/company documents said to show that the businesses were loss-making, heavily indebted, and that the Individual Appellant had limited personal assets. [Para 68][Para 69][Para 70][Para 71]
- They also relied on the judge's remark that the position could be reviewed later if detailed financial submissions were brought forward. [Para 66]
- They sought to adduce additional financial material as fresh evidence to support the inability-to-pay case. [Para 72][Para 73]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v North Allerton Magistrates' Court ex parte Dove [2000] 1 Cr App (S) 136 | The defendant facing a financial penalty must disclose relevant financial information; if disclosure is lacking, the court may draw reasonable inferences from the evidence and circumstances. [Para 44][Para 45] | The court relied on this authority to confirm that the sentencing judge was entitled to infer means from the appellants' failure to provide proper financial disclosure. [Para 44][Para 45][Para 46][Para 47][Para 39][Para 40][Para 64][Para 65] |
| Wright (unreported, November 12, 1976) | The court is not required to conduct its own inquisitorial search for means; the burden remains on the defendant to place financial information before the sentencer. [Para 46][Para 47] | The court used this passage to support the conclusion that the appellants' failure to provide full financial material was their responsibility, not the court's. [Para 46][Para 47][Para 64][Para 65] |
Court's Reasoning and Analysis
The court first set out the statutory framework: under sections 124 to 126 of the Sentencing Act 2020, the court must inquire into an individual's financial circumstances before fixing a fine, must take financial circumstances into account for both individuals and companies, and may make a determination where the offender fails to cooperate or the information is insufficient. [Para 39][Para 40][Para 41][Para 42][Para 43]
It then applied the principle from Dove and Wright that the burden lies on the defendant to provide adequate financial information, and that the court may draw reasonable inferences where disclosure is incomplete. [Para 44][Para 45][Para 46][Para 47]
On the facts, the court held that the material produced at sentencing was wholly inadequate: the Individual Appellant's bank statement was redacted and incomplete, and Company A's accounts were unsigned, heavily redacted, unsupported by underlying documents, and did not establish insolvency. [Para 51][Para 52][Para 53][Para 58][Para 59][Para 60][Para 61][Para 62][Para 63]
The court held that the sentencing judge was entitled to treat both appellants as having the means to pay, and was also entitled to draw an adverse inference from their deliberate decision not to provide fuller information after being ordered to do so. [Para 64][Para 65]
The court rejected the argument that the judge's later comment about reviewing payment time implied a different view on ability to pay, explaining that the remark concerned timing of payment rather than affordability. [Para 66]
As to fresh evidence, the court refused the application because it was not made in proper form, the evidence could have been produced at sentence, and the new material raised unresolved questions rather than providing a reliable answer to the affordability issue. [Para 74][Para 75][Para 76][Para 77][Para 78][Para 79][Para 80][Para 81][Para 82][Para 83][Para 84][Para 85]
Holding and Implications
Appeal dismissed. The court dismissed the appeals of both the Individual Appellant and Company A, and it refused to admit the later financial material as fresh evidence, so the fines and costs orders remained in place. [Para 85][Para 87]
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