London Borough of Barnet v Kamyab

A breach of a planning enforcement notice under section 179 may be a continuing offence. A summons which identifies the date by which compliance was required and alleges failure thereafter does not ordinarily confine the offending to one day. Clear language and presentation would be needed to impose that artificial limit.

In confiscation proceedings, benefit from such offending is assessed by reference to the continuing conduct and the statutory requirements of POCA. On a prosecutor’s appeal from an order already made, the Court of Appeal has no power to remit the case under section 32(1), but it may vary the order and receive evidence to do so.

The respondent was convicted of failing to comply with a planning enforcement notice concerning the use of a property as nine residential units. Following his unsuccessful appeal against conviction, the Crown Court made a confiscation order for £270.

The Crown Court treated the summons as charging offending on one day only, following R v Panayi [2019] EWCA Crim 413. It therefore limited benefit to one day’s rent. The prosecutor appealed, contending that the offence and the summons covered continuing non-compliance, and that the Crown Court should have determined benefit and the available amount over the relevant period.

A further issue was whether, if the appeal succeeded, the Court of Appeal could remit the confiscation proceedings to the Crown Court.

1. Appeal allowed. The Crown Court erred in treating the summons as charging a single day of offending. Properly construed, it identified 1 June 2013 as the extended compliance date and alleged the continuing offence thereafter. The reasoning in R v Roth [2020] EWCA Crim 967 applied. The wording materially differed from R v Panayi [2019] EWCA Crim 413, which was distinguishable.

2. The nature of the offence depends on the construction of the offence-creating provision. Failure to comply with this enforcement notice was one continuing offence throughout the non-compliance period, rather than a succession of daily offences. A summons would require very clear words, coupled with a correspondingly clear presentation of the case, to limit that offence to a particular day. The respondent had throughout understood the case that he had to meet.

3. The Crown Court should therefore have determined benefit by applying sections 8 and 76 of the Proceeds of Crime Act 2002, and should then have determined the available amount. The benefit was not confined by an immaterial end date in the summons or indictment.

4. On a prosecutor’s appeal under section 31(1), section 32(1) permits the Court of Appeal only to confirm, quash or vary the confiscation order. It does not permit a remittal to the Crown Court. That contrast with section 32(2), and the corresponding Supreme Court provisions, was deliberate statutory language which the court could not rewrite.

5. The court could, however, vary the order and receive evidence under the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003. Exceptionally, it directed a further confiscation hearing in the Court of Appeal and directions for that hearing. It also warned that Crown Courts should ordinarily resolve all material confiscation issues, rather than disposing of substantial proceedings through a preliminary point, so that an appellate court can effectively exercise its statutory powers.

• Court of Appeal (Criminal Division) — The prosecutor’s appeal was allowed. The court held that the Crown Court had erred on the single-day issue, held that it had no power to remit under section 32(1) of the Proceeds of Crime Act 2002, and directed a further hearing to consider variation of the confiscation order: [2021] EWCA Crim 543.
• Crown Court at Harrow — On 16 December 2019, the court made a confiscation order of £270 after determining the preliminary issue in the respondent’s favour. It had previously dismissed the respondent’s appeal against conviction on 26 August 2016.
• Willesden Magistrates’ Court — The respondent was convicted on 2 February 2015 of failing to comply with the planning enforcement notice.