The Knightland Foundation, R. v

A prosecuting authority must act fairly, independently and objectively when deciding whether to prosecute. A prosecution may amount to an abuse of process where decision-makers fail to consider a material prospect of regularising the alleged breach, give significant weight to the authority’s prospective financial benefit from confiscation, and improperly influence a related planning decision to preserve the prosecution.

Under section 67 of the Criminal Justice Act 2003, an appellate court does not substitute its own view for that of the trial judge. It may intervene only on the specified errors of law, principle or reasonableness. Giving an intention to appeal and an acquittal undertaking in open court is best practice, but the court left unresolved whether electronic notification is jurisdictionally sufficient.

The respondents were prosecuted for failing to comply with an enforcement notice concerning unauthorised residential use and alterations at a property in Islington, contrary to the Town and Country Planning Act 1990.

His Honour Judge Simon stayed the proceedings as an abuse of process. He found that enforcement officers had failed properly to consider a later planning application, had given undue weight to prospective confiscation under the Proceeds of Crime Act 2002, and had improperly influenced the refusal of that application in order to protect the prosecution.

The local authority sought leave to appeal under section 58 of the Criminal Justice Act 2003. It had sent its notice of intention to appeal and acquittal undertaking by email within an extension allowed by the judge. The issues were whether that gave the court jurisdiction and, if so, whether the stay could be reversed.

1. Leave to appeal was refused. Under section 67 of the Criminal Justice Act 2003, the court could reverse the stay only if it was wrong in law, involved an error of law or principle, or was not reasonably open to the judge. The test was not whether members of the appellate court would themselves have granted a stay.
2. The judge had set out and applied the correct principles to findings of fact open to him. His conclusion was fully reasoned and reasonably open. The proposed appeal therefore satisfied none of the section 67 conditions.
3. The authority had to act fairly, independently and objectively as a prosecutor. On the judge’s findings, those advising the prosecution decision failed to consider the material prospect that the respondents’ position might be regularised. They also allowed the prospect of a financially advantageous confiscation order to carry significant weight. Officers then improperly sought to influence the planning decision so that it would not undermine the prosecution or the prospective confiscation order.
4. A grant of planning permission and regularisation could have been material in mitigation and to the proportionality of a substantial confiscation order. The planning process and prosecution were therefore properly treated as intrinsically linked on these facts. The court would not disturb the conclusion that continuing the prosecution was oppressive and abusive.
5. The court made no ruling on whether notice and the acquittal undertaking under section 58 could validly be given by email. Giving them in open court was plainly best practice, but determination of the statutory point was unnecessary because leave failed on the merits.

The matter was to return to Blackfriars Crown Court for ancillary applications, including costs.

• Court of Appeal (Criminal Division) — The local authority’s application for leave to appeal was refused: [2018] EWCA Crim 1860.
• Crown Court — His Honour Judge Simon stayed the prosecution as an abuse of process in May 2018.