Wokingham Borough Council v Scott & Ors (Rev 1)

An abuse-of-process stay is exceptional, but it depends on all the circumstances. It does not require an unequivocal undertaking not to prosecute. A prosecution may affront justice where a public authority induces a person to abandon a planning appeal to that person’s detriment, then seeks to exploit the resulting position.

A prosecutor which may benefit from a confiscation order must exclude that possible financial benefit from its assessment under the Code for Crown Prosecutors. It must assess the evidence and public interest separately for each proposed defendant. Informal planning discussions do not bind an authority, but their cumulative conduct may still be material to the fairness of a later prosecution.

Wokingham Borough Council prosecuted the respondents for alleged breaches of a planning enforcement notice affecting land in the Green Belt. During discussions with the council, Mr Scott withdrew his appeal against the notice in the expectation that an application for a certificate of lawfulness would be considered on its merits. The certificate could not be granted while the enforcement notice remained in force.

Her Honour Judge Morris stayed the criminal proceedings as an abuse of process. She found that the council had induced Mr Scott to withdraw the appeal to his detriment, and identified serious concerns about the decision to prosecute, including reliance on the prospect of a confiscation order and a failure to assess defendants individually.

The council sought leave under section 58 of the Criminal Justice Act 2003 to appeal the terminating ruling. The central issue was whether the judge had erred in concluding that continuation of the prosecution would affront justice.

1. The court refused leave to appeal and ordered the acquittal of all respondents. The judge’s terminating ruling was open to her and disclosed no error of law, principle or reasonableness within section 58 of the Criminal Justice Act 2003.

2. An unequivocal promise not to prosecute is not an essential condition of an abuse-of-process stay. The jurisdiction is not governed by a comprehensive rule. The court must consider all the circumstances and decide whether continuation would affront justice; a stay remains exceptional. The court applied the approach in R v Gripton [2010] EWCA Crim 2260 and explained that neither R v Abu Hamza [2006] EWCA Crim 2918 nor Ceredigion County Council v Robinson [2018] EWHC 2121 (Admin) imposed the narrower requirement advanced by the council.

3. The trial judge was entitled to find, on Mr Scott’s evidence and the emails, that the council’s overall course of conduct induced him to withdraw his planning appeal. No specific assurance of planning permission, a certificate of lawfulness, or immunity from prosecution was found. Nevertheless, the inducement caused detriment because, once the appeal was withdrawn and the certificate was unavailable, the enforcement notice could not be challenged. The council was then seeking to prosecute for breaches of that notice.

4. The council’s potential financial benefit from an order under the Proceeds of Crime Act 2002 should have played no part in the evidential or public-interest assessment. Prosecutors must be independent, fair and objective. The council also failed properly to assess the evidential and public-interest cases against each proposed defendant, and should in any event have reviewed the prosecutions after compliance had been secured through injunction and committal proceedings.

5. The finding of inducement did not treat councillors or officers as binding the planning authority contrary to Reprotech v East Sussex County Council [2003] 1 WLR 348. It addressed instead the fairness of the authority’s cumulative conduct. The valid enforcement notice did not prevent the criminal court from considering abuse of process, and issue estoppel has no place in criminal proceedings.

The court added that informal planning discussions remain valuable, provided they are conducted in good faith and with good sense. The result turned on the cumulative and particular facts.

• Court of Appeal (Criminal Division): Refused the local authority’s application for leave to appeal under section 58 of the Criminal Justice Act 2003 and ordered the respondents’ acquittal.
• Crown Court: On 13 June 2018, Her Honour Judge Morris stayed the prosecutions as an abuse of process.
• High Court: Before the criminal prosecution, an injunction had been granted requiring compliance with the enforcement notice. Permission to appeal that injunction was later refused.