Rance v R.

Before fixing a fine, the court must enquire into the offender’s financial circumstances and take account of those known or apparent to it. A fair enquiry may consist of close questioning where the offender has the opportunity to give evidence, call witnesses or seek an adjournment. A fine must not be imposed on the assumption that a spouse or other person will pay it. The principle does not prevent a court from rejecting an unreliable account of impecuniosity and finding that the offender has means.

Under section 9(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, financial benefit from the offence must be considered, but need not be recovered in full or in a substantial proportion. The fine should reflect the deliberate disregard of planning controls and must not be excessive.

The appellant, a property developer, was convicted in the West London Magistrates’ Court of offences arising from the demolition and reconstruction of a Victorian house in a conservation area. His appeal against conviction was dismissed at the Crown Court sitting at Isleworth.

Following unsuccessful confiscation proceedings, the Crown Court imposed a fine of £120,000 and ordered £100,000 costs. The appellant contended that the judge had conducted an unfair enquiry into his means, had wrongly assumed that others would meet the liabilities, and had imposed excessive financial penalties. The appeal concerned both the proper assessment of means and the appropriate fine for the planning offence.

1. The appeal was allowed in part. The court upheld the judge’s conclusion that the appellant could afford a substantial fine and costs, but substituted a fine of £50,000 and costs of £40,000.

2. Section 164(1) and (3) of the Criminal Justice Act 2003 required an enquiry into the appellant’s financial circumstances before fixing the fine. The enquiry was fair. The appellant and his advisers knew that his means would be closely scrutinised. The judge questioned the written account, and the appellant could have given evidence, called witnesses, or sought an adjournment. None of those steps was taken.

3. The court reaffirmed that a fine cannot be fixed on the basis that a spouse, partner or other person will satisfy it. That was not what occurred. The judge was entitled to reject the appellant’s later assertion of impecuniosity, having regard to his earlier statement that his wife would waive the assignment of his interest in the home, the complexity of his finances, and evidence of under-declaration of income. The judge’s conclusion that the appellant had not given an honest account of funds available to him was tenable.

4. Under section 9(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the court had to have regard to financial benefit derived from the offence. It was not required to order the whole benefit, or a large proportion of it, as a fine. The offence was a cynical and deliberate evasion of planning procedures, rather than a matter to be assessed by the comparative aesthetic quality of the replacement building. Having considered the history of comparable fines, £50,000 was appropriate.

5. The costs order was excessive because substantial work had been undertaken on confiscation proceedings which proved fruitless. Costs of £40,000 ensured that the combined financial burden was not excessive.

• Court of Appeal (Criminal Division): Allowed the appeal to the extent of varying the financial penalties: [2012] EWCA Crim 2023.

• Crown Court at Isleworth: Dismissed the appeal against conviction and imposed a fine of £120,000 and costs of £100,000.

• West London Magistrates’ Court: Convicted the appellant on 13 December 2010.