Sunman v Environment Agency

A defendant who has pleaded guilty may nevertheless challenge, on an appeal against sentence, the legality of a charge underlying a compensation order. The criminal court may consider whether the charge was authorised and whether its amount was irrationally high. The burden of establishing unlawfulness lies on the defendant, and irrationality sets a high threshold. A compensation order may cover an unpaid registration charge where the saving flowed directly from the offence and represented an economic benefit. A challenge to the fairness of the prosecution should ordinarily be made by judicial review or as an abuse-of-process application, and cannot generally be raised after a guilty plea.

The appellant pleaded guilty to keeping or using a vessel on the Great Ouse without registration contrary to the Environment Agency (Inland Waterways) Order 2010. The magistrates imposed a fine, costs, surcharge and a compensation order equal to the unpaid registration fee. On appeal, the Crown Court reduced the fine but upheld the compensation order.

The appellant appealed by case stated under the Senior Courts Act 1981, challenging the legality and amount of the registration fee, the fairness of the prosecution, and the criminal court’s power to make compensation equivalent to the fee.

1. Appeal dismissed. The Crown Court was entitled to impose the compensation order and there was no legal barrier to doing so.
2. A guilty plea did not prevent the appellant from arguing that the Environment Agency lacked legal power to impose the registration fee. The alternative availability of judicial review did not make it the exclusive remedy. The principle in Boddington v British Transport Police [1999] 2 AC 143 applied equally where the challenge concerned the penalty imposed after conviction.
3. The registration charge was authorised. Article 6(b) of the Environment Agency (Inland Waterways) Order 2010 required payment of a charge applicable under an enactment. The Transport and Works Act 1992 authorised the order to include charges and to amend statutory provisions. The order amended the Anglian Water Authority Act 1977, while the charging power was also supported by section 43 of the Environment Act 1995.
4. It was open in principle to challenge the fee as irrationally high. The court was not the primary decision-maker on the fee’s amount, and the applicable threshold was the high hurdle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The appellant produced insufficient evidence to establish unlawfulness.
5. The unpaid fee was an economic benefit flowing directly from the offence. A compensation order equal to that benefit was therefore within section 130 of the Powers of Criminal Courts (Sentencing) Act 2000. The appellant’s non-use of the waterway did not alter that conclusion because the charging structure had become a single charge covering registration and use.
6. After pleading guilty, the appellant could not argue that prosecution was unfair. Any such challenge should have been made by judicial review or by an abuse-of-process application in the criminal proceedings.

The appeal was brought by case stated from the Cambridge Crown Court’s decision dated 8 March 2019. The Crown Court had reduced the fine but upheld the compensation order and costs. The High Court dismissed the appeal.