London Borough of Haringey, R (On the Application Of) v Roth

A defendant convicted of failing to comply with a planning enforcement notice is entitled to the appropriate credit for a guilty plea from the maximum fine lawfully available to the sentencing court. A court cannot withhold that credit because it considers that a higher fine would have been appropriate but for a jurisdictional limit.

For confiscation under the Proceeds of Crime Act 2002, rental income is obtained as a result of or in connection with the offence where continued prohibited use of premises is the direct factual cause of the lettings. Where the whole letting activity rests on criminal non-compliance, benefit may properly be assessed by gross rents without deduction for expenses or for income that might have been obtained through a lawful alternative.

The appellant owned a house which he converted into twelve self-contained flats, despite planning permission for three flats. An enforcement notice required him to cease using the property as self-contained flats. He pleaded guilty to failing to comply with that notice after its compliance period expired.

The Crown Court imposed a £20,000 fine and a confiscation order for £527,887.55, representing rents received during the period of non-compliance. The appellant appealed the sentence and the confiscation order. He challenged the drafting and temporal scope of the summons, the causal connection between the offence and the rents, and the proportionality of confiscating gross rental receipts.

1. The appeal against sentence was allowed. The Crown Court’s fine was capped at £20,000 because of the basis on which the case had been committed from the Magistrates’ Court. The appellant had pleaded guilty and was entitled in principle to the appropriate reduction from that maximum. The judge could not deny credit by reference to a higher fine that might otherwise have been imposed. The fine was therefore substituted with one of £13,333.
2. The appeal against confiscation was dismissed. The summons sufficiently identified 9 March 2013 as the date from which criminal non-compliance began. Its accompanying statement of facts, the committal and the confiscation proceedings all made clear that the alleged offence covered the full period. Any technical drafting deficiency was not fatal because the appellant knew the case he had to meet.
3. Failure to comply with an enforcement notice by continuing a prohibited use is a continuing offence. The court endorsed the charging guidance in Hodgetts v Chiltern District Council [1983] 2 AC 120, while observing that prosecutors should ordinarily specify the period of the alleged continuing offence clearly.
4. Under section 76 of the Proceeds of Crime Act 2002, the rents were obtained as a result of or in connection with the criminal conduct. Applying and endorsing the approach in Hussain [2014] EWCA Crim 2344, the court held that, but for the continued prohibited use of the premises, the appellant could not have received the rents in the manner he did. Lawful tenancy agreements did not break that direct causal connection.
5. The benefit was the gross rental income. The whole letting activity depended on the criminal breach, so the order was proportionate even though expenses were not deductible and the appellant might have obtained some lawful income had he complied with planning controls differently.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted a fine of £13,333; dismissed the appeal against the confiscation order: [2020] EWCA Crim 967.
• Crown Court at Wood Green: Following a guilty plea, imposed a £20,000 fine and made a confiscation order for £527,887.55.
• Highbury Corner Magistrates’ Court: The appellant pleaded guilty and the case was committed to the Crown Court.