Smart Planning Ltd v Brentwood Borough Council

For an offence of wilfully obstructing a person exercising a statutory right of entry, the right must have been positively asserted. Voluntary admission for an inspection does not, without more, amount to entry under the statutory power. Criminal liability is not imposed vicariously on an employer for an employee’s offence. A company may be liable where a controlling officer commits, or aids and abets, the relevant act with the required guilty intention, or where a special attribution rule is necessary because ordinary attribution would defeat Parliament’s purpose.

Smart Planning Limited appealed by way of case stated against its conviction by North Essex magistrates for an offence under section 88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990. A planning officer and others entered listed-building premises after being admitted voluntarily. An employee of the appellant obstructed a former tenant who was present during the inspection. The magistrates held the company vicariously liable for the employee’s conduct.

The appeal concerned whether the officer had been exercising a statutory right of entry and whether the company could be convicted on a basis of vicarious liability.

1. Statutory right of entry. The statutory rights of entry under sections 88 and 88A of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not exclude informal consensual entry. Where an officer enters by agreement without asserting a right of entry, the statutory right is not being exercised.
2. To exercise a right of entry under section 88, the officer must communicate an assertion of that right and make clear that entry is sought on that basis. This distinction matters because obstruction of a person exercising the statutory right constitutes a criminal offence. The facts found by the magistrates contained no such assertion or communication. The employee therefore did not obstruct a person acting in the exercise of a right of entry: [2018] EWHC 2372 (Admin), paras 20–22.
3. Corporate criminal liability. The general rule is that criminal liability is not vicarious. The fact that an employee commits an offence in the course of employment does not, without more, make the employer criminally liable. Applying the conventional attribution approach described in St Regis Paper Company Ltd v R [2011] EWCA Crim 2527, a company committing an offence requiring mens rea may be liable where a controlling officer commits the relevant conduct with the necessary intention.
4. The company might also have been liable if a controlling officer had committed, or aided and abetted, an act of obstruction with the requisite intention. That was not the prosecution case. The magistrates had convicted the appellant solely on a supposed principle of vicarious liability, which the statute did not create: paras 24–30.
5. The observations in Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] 2 AC 500 concerned attribution of a person’s state of mind to a company, not vicarious liability. A special attribution rule was unnecessary because ordinary attribution would not defeat Parliament’s purpose in this context: paras 32–36.
6. The conviction was quashed. The remaining questions stated by the magistrates did not require determination.

• North Essex magistrates: convicted Smart Planning Limited under section 88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990, treating the company as vicariously liable for its employee’s conduct.
• High Court (Administrative Court): on appeal by way of case stated, quashed the conviction and answered only the questions necessary to dispose of the appeal.