Kombou, R (On the Application Of) v The Crown Court at Wood Green

A guilty plea should be vacated only sparingly, where the interests of justice require it. A prosecuting authority must act independently, fairly and objectively. The prospect of receiving money under confiscation arrangements must not motivate, or appear to motivate, the decision to prosecute. That does not prevent investigators from considering whether confiscation proceedings may arise, or whether resources should be allocated. The court must distinguish legitimate consideration of confiscation from improper financial influence on the charging decision. An abuse-of-process jurisdiction based on prosecutorial impropriety is not confined to misconduct affecting the ingredients of the offence. Judicial review will not succeed where the decision-maker addressed the evidence, made rational findings, and was entitled to conclude that late disclosure would not have supported an abuse argument.

The claimant pleaded guilty in the magistrates’ court to failing to comply with a planning enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990. He was committed to the Crown Court under section 70 of the Proceeds of Crime Act 2002. He later applied to vacate his plea, alleging that the prosecution had been improperly motivated by the prospect of a confiscation order benefiting the local authority and that relevant disclosure had been delayed.

The Crown Court refused the application. On judicial review, the issues were whether that decision was irrational or legally flawed, whether the prosecutorial decision had been independent, fair and objective, and whether the alleged disclosure failures and conflicts of interest made continuation of the prosecution an abuse of process.

1. Outcome. The claim for judicial review was refused. The Crown Court judge had correctly recognised that an unequivocal guilty plea may be changed only sparingly and where the interests of justice demand it.
2. A prosecuting authority is subject to the same duties as other prosecutors. It must act fairly, independently and objectively. Under the principles in R (Wokingham Borough Council) v Scott [2019] EWCA Crim 205, the prospect of a confiscation order benefiting the prosecutor must play no part in the evidential or public-interest decision. The possibility of confiscation may nevertheless be considered for legitimate investigative or resource-allocation purposes. The critical question is whether the decision-maker was improperly motivated by financial gain.
3. The judge was entitled to accept Mr Higham’s evidence that the prosecution decision was based on planning considerations and was uninfluenced by the possibility of a confiscation order. Awareness within the authority of possible confiscation, and correspondence estimating the potential benefit, did not establish actual or apparent improper motivation.
4. The abuse-of-process jurisdiction is not confined to prosecutorial impropriety affecting the ingredients of the offence. The judge did not in fact impose that limitation. She considered the evidence, disclosure failures, alleged conflicts and the merits of the abuse argument. Her findings that the disclosure failures were not in bad faith and that the later-disclosed material did not materially support the proposed stay were rationally open to her.
5. The fair-minded and informed observer test had to be applied with knowledge of the statutory confiscation framework and ARIS. In the circumstances, there was no proper basis for concluding that the prosecution appeared improperly motivated. Both grounds of challenge therefore failed.

High Court (Administrative Court). The court refused judicial review of the Crown Court’s refusal to vacate the claimant’s guilty plea. The judgment under review was the decision of HH Judge Greenberg QC dated 13 May 2019, with written reasons dated 28 May 2019.