Case No: 201304556 C5 and 201304561 C5
Neutral Citation Number: [2014] EWCA Crim 1030
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HIS HONOUR JUDGE BYRNE
T20121232
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/05/2014
Before :

LORD JUSTICE ELIAS
MR JUSTICE JEREMY BAKER
and
THE RECORDER OF LEEDS HIS HONOUR JUDGE COLLIER QC (Sitting as a Judge of the Court of Appeal Criminal Division)
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Between :

	(1) JONATHAN JAMES CLAYTON		
	(2) PAUL DONALD SIMON DOCKERTY	Appellants	
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	REGINA	Respondent	

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Mr Matthew McDonagh (instructed by Messrs Harrison Drury) for the Appellants
Mr Stephen Sauvain QC (instructed by Head of Legal Services, Blackpool Borough Council) for the Respondent

Hearing date : 16 May 2014
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Judgment
Lord Justice Elias : 

1.	On 2nd August 2013 in The Crown Court at Preston before H.H.J. Byrne the appellants pleaded guilty to failing to comply with an Enforcement Notice contrary to s.179 of the Town and Country Planning Act 1990. Sentencing was adjourned pending the outcome of these appeals.  The appellants now appeal against conviction by leave of the single judge. The short but difficult point is whether the judge ought, in the particular circumstances of the case, to have investigated whether the criminal proceedings should have been stayed for abuse of process.
2.	The background to the appeal can be shortly stated. In 1998 Blackpool Borough Council learnt that five flats at 76 Palatine Road, Blackpool were being let as long term residential flats. Planning consent allowed the use of the flats as holiday or short lettings only. The owner of the property at that time was a Mr Taylor (para 6). The Council applied for an Enforcement Notice. They had to prove that the change of use to long term residential flats had occurred not more than four years prior to the issue of the Notice.  On 4th November 1998 an Enforcement Notice was issued and was due to take effect on 18th December 1998. On 26th November 1998 Mr Taylor lodged an appeal against the notice. On 23rd November 1999 the appeal was heard by an inspector on behalf of the Secretary of State, and on 12th January 2000 it was dismissed. The Enforcement Notice therefore came into effect requiring Mr Taylor to discontinue the use of the land as self contained residential units of occupation on a permanent basis. The period of compliance ended on 12th April 2000. 
3.	The appellants bought the premises in 2006. The Enforcement Notice was still in force. They were both successfully prosecuted in 2010 for failing to stop using the flats as long term lets. They pleaded guilty and were fined.
4.	The property was further inspected on 26th January 2012, 7th June 2012 and 11th September 2012. On all three occasions permanent residents were living in some of the flats. Housing benefit claims and tax records confirmed this to be the position. This led to the current proceedings for breach.
5.	Prior to the hearing, the appellants were contacted by an ex-employee of the Council and informed that there might have been an issue with the original Enforcement Notice. That person provided a statement which supported the contention that the Council had allegedly been aware of information which showed that the property had in fact been used as permanent residencies for over four years prior to the Enforcement Notice being granted. If correct, this would have precluded the Council from obtaining the Notice. Furthermore, Mr Taylor’s appeal in 1999 must have succeeded had the inspector been informed of this fact. It is alleged that the solicitor then acting for the Council had deliberately concealed this information.
6.	The appellants say that before they could consider a judicial review in the light of this information, the Council commenced the criminal proceedings which are the subject matter of these appeals as a result of the ongoing breach of the Enforcement Notice.
7.	Counsel for the appellants submitted to the judge that it was an abuse of process for the Council to prosecute the appellants on the basis of their unlawful actions and that the prosecutions should be stayed. There was a preliminary issue, whether in all the circumstances the Crown Court had jurisdiction to hear that argument. For the purposes of this jurisdiction argument it was assumed that in principle the appellants might be able to make good their contention, but it must be emphasised that the issue has yet to be determined (and indeed, we were told that the solicitor then acting for the Council has since died.) We would only observe that it appears odd that the landlords at the time were not aware of this fact, if it be a fact.
8.	Crown counsel submitted that the abuse of process argument could not be advanced in the Crown Court. His contention was that the court had no jurisdiction in the light of section 285(1) of the Town and Country Planning Act 1990 and also the binding judgment of the House of Lords in R v Wicks [1998] AC 92. The appropriate remedy was for the appellant to appeal or seek judicial review to challenge the validity of the Enforcement Order. So the question for the court was whether it could hear the abuse argument at that stage at all.  
9.	The judge acceded to the arguments of the Crown and rejected the application for a stay. The question in this appeal was whether he was correct.
Stay of proceedings
10.	As Lord Dyson observed in Warren v AG for Jersey [2012] UKPC 10; [2012] 1 AC 22, in a judgment with which Lords Hope, Rodger, Brown and Kerr agreed, the court’s power to stay proceedings arises in two classes of case. The first is where it will be impossible for the defendant to have a fair trial. That is not applicable here. The second, which is relied upon, is where it offends against the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the second category, involving an abuse of process, the court is concerned with protecting the integrity of the criminal justice system: see the discussion of Lord Kerr of Tonaghmore in Warren, para. 83.  
11.	However, as Lord Dyson pointed out in Warren, para. 35, this latter category is not founded on the notion that there must have been prejudice to the defendant, or that he would not face a fair trial. That had been the view of the Court of Appeal of Jersey, but it was held to be erroneous.  However, as Lord Dyson also pointed out in the context of explaining why the decision of the CACD in R v Grant [2005] EWCA Crim 1089; [2006] QB 60 was wrongly decided, the fact that there is no prejudice to the defendant will be an important factor in determining whether proceedings should be stayed for an abuse of process.  
12.	For abuse of process to be established, mere disapproval of the conduct of the prosecutor is not enough; something more is required. It must be conduct which would make it offensive to the court’s sense of justice for the trial to continue. That is not always an easy boundary to draw, as Lord Dyson noted (para. 37):
13.	The Court of Appeal in Grant recognised at paragraph 55 that it is “not in general the function of criminal courts to discipline the police”. That was a reflection of the words of Lord Lowry in Bennett at p 74H: “The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct .... ‘pour encourager les autres’ ”. It may not always be easy to distinguish between (impermissibly) granting a stay “in order to express the court’s disapproval of official conduct pour encourager les autres” and (permissibly) granting a stay because it offends the court’s sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court’s disapproval of the police misconduct and to discipline the police.
The basis of the abuse claim
14.	The thrust of the argument advanced before HH Judge Byrne - and certainly the way in which he and prosecuting counsel understood the argument - appears to have focused on the link between non-disclosure and the validity of the Order. The submission was that if it were established that the Council through its former solicitor had indeed concealed information which, if given, would have meant that the application for the Enforcement Order was “doomed to fail”, it would be an abuse of process for the Council to initiate the prosecution for breach of an order which should never have been granted had the Council acted with due propriety. The Council was relying on its own unlawful act, and the proceedings should be stayed.
15.	The logic of this argument is that if it could be shown that the Order was made on a false factual premise of which the Council was aware, that would justify the Enforcement Notice being set aside.  However, in those circumstances there is no reason why the Enforcement Order should not be quashed directly, being an invalid notice, in which case there could be no breach and the stay would be unnecessary.
16.	 In our judgment, if the Order itself cannot be challenged in the criminal proceedings by way of defence to the prosecution for breach, that limitation cannot be overcome by seeking to recast  the claim as a stay of proceedings when the argument for a stay depends for its success on establishing the invalidity of the Order.
17.	The Crown’s case before us, which was successful below, was that the Order cannot be challenged in the breach proceedings. As we have said, the Crown relies upon section 285 of the Town and Country Planning Act 1990, and the decision of the House of Lords in Wicks to make good that proposition. We deal with these two points in turn.
Section 285
18.	Section 285(1) is in the following terms:
“The validity of an Enforcement Notice shall not, except by way of an appeal under Part 7, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”
19.	Sub-section (2) then creates a number of exceptions to the principle established in sub-section (1), but it is common ground that none of those exceptions applies here.
20.	In our judgment, the language is clear: where the order is alleged to be invalid for a reason which can be the subject of an appeal, its validity cannot be questioned save on appeal. In this case that appeal would be to the Secretary of State. As we understand it, it is conceded that the ground alleged here could have been the subject of an appeal in that way on the basis that the letting of permanent tenancies had gone on for a period in excess of 4 years. Since the application for a stay is questioning the validity of the enforcement order, the section would prevent the argument being advanced in the Crown Court.
The Wicks case
21.	We turn to the alternative argument, also accepted by the judge, namely that the appellants’ submissions are inconsistent with the reasoning of the House of Lords in the case of Wicks. That too was a case of an alleged breach of an Enforcement Notice contrary to section 179 of the 1990 Act.
22.	In that case the House of Lords specifically considered the challenges that can be made in the Crown Court to the validity of an Enforcement Notice. The facts were very similar to this case. 
23.	The appellant was subject to an Enforcement Notice for building in breach of planning controls. He was subsequently prosecuted for breach of the notice which required the removal of parts of a building higher than 2.5 metres. He contended that in serving the notice the local authority had acted in bad faith and had taken into account irrelevant considerations. The issue was not whether he could challenge the validity of the order, or its service, at all. It was simply one of jurisdiction: which was the appropriate forum?  Could the challenge be mounted in the course of the criminal proceedings or did the defendant have to establish the invalidity of the order by other proceedings, either on appeal or in the administrative court by way of judicial review?  
24.	There are two lucid and thoughtful speeches by Lords Nichols and Hoffman. They considered the reasons why it may often be desirable to proceed by way of appeal or judicial review in separate proceedings rather than have the validity of an order determined by the judge in the criminal court. There is also some discussion of the principles which might be adopted to map out the boundary between cases where the challenge can be raised by way of a defence or a stay of proceedings and those where that would be inappropriate. 
25.	Lord Nicholls accepted that the starting point is that a defendant who wishes to challenge the validity of an order by way of defence to a criminal charge should be allowed to raise his defence in the criminal proceedings. In Boddington v British Transport Board [1998] UKHL 13; [1999] 2 AC 143 the Lord Chancellor, Lord Irvine of Lairg, confirmed that there is a strong presumption to this effect. But that presumption may have to give way and, as Lord Nichols put it, any statement of abstract principles must “always take effect subject to any contrary indication in the relevant legislation.” 
26.	A careful scrutiny of the legislation will sometimes reveal the answer to the jurisdiction question. Their Lordships accepted that that was the position in Wicks. Lord Hoffman indicated that the critical question is what the prosecution has to prove to make good its case (p.117):  
“But, my Lords, while I am willing for the sake of argument to accept Mr. Speaight’s submission that there is a wide right for anyone prosecuted under a local byelaw to challenge its validity, the point at which we absolutely part company is when he submits that this right can be extrapolated to enable a defendant to challenge the vires of every act done under statutory authority if its validity forms part of the prosecution's case or its invalidity would constitute a defence. In my view, no such generalisation is possible. The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.”
27.	Lord Hoffmann then gave reasons why, in his view, Parliament in this case must have intended that the prosecution need only show that an apparently valid order was in place and had not been quashed. There was a detailed system of appeals and section 285 in terms prevented an order being questioned on any ground which could be the subject of an appeal. 
28.	It is interesting to note that in Wicks the grounds on which the appellant sought to mount his defence was not a ground which could have been the subject of a challenge by way of appeal. Section 285 was therefore not directly in play. It was argued that since no valid appeal on this ground could be lodged, that pointed in favour of proceeding by way of a challenge in the course of the criminal proceedings. Lord Hoffman rejected that submission and concluded, for a variety of reasons which he developed in his judgment, that it would be appropriate to proceed by way of judicial review.  Accordingly, to the extent that in this case it is suggested that the male fides argument could not be advanced by way of appeal, Wicks would suggest that judicial review is the appropriate procedure.
29.	Wicks had been an appeal by way of case stated. The first two questions posed for determination were as follows: 
“(1) Is a defendant, who is prosecuted for an offence contrary to section 179(1) of the Town and Country Planning Act 1990, entitled as a matter of right to put forward in such proceedings the defence that the Enforcement Notice relied upon by the prosecution is invalid on the grounds that the decision to issue it was ultra vires? 
(2) If a defendant is not permitted to raise such a defence as of right in criminal proceedings and can only challenge the validity of such notice on such grounds in proceedings for judicial review, are there any exceptions to such a rule, such as where it is contended by the defendant that the invalidity arises as a result of mala fides on the part of the authority issuing the Enforcement Notice?” 
30.	Their Lordships answered both questions in the negative.  Even if the appeal route was not available, still there could be no collateral challenge to the validity of the Enforcement Notice in the criminal proceedings. The appropriate forum would then be the administrative court. 
31.	The prosecution in this case too was for an offence contrary to section 179 and in our view the answer given in Wicks is equally applicable. We  do not think that the different factual context materially alters the analysis of the court.  Nor do we accept that the rationale of Wicks can be avoided by the simple expedient of re-casting what is in substance a defence by way of challenge to the validity of the Enforcement Notice as a case of abuse of process.
32.	Mr McDonagh advanced a number of reasons for distinguishing Wicks.   First, he points out that in the Boddington case, Lord Irvine had noted that an important feature of the Wicks case was that it was “concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.” But in this case too, the Enforcement Notice was directed at the defendants and in principle they had had time to challenge it. In so far as it is said that they did not know of the alleged wrongdoing until late in the day, that is not in our view a reason for concluding that a collateral challenge should be allowed, although it may well have justified an application for a stay of proceedings pending the issue of validity being determined either on appeal or by way of judicial review. 
33.	The other ground of distinction on which he relied is that in Wicks the alleged mala fides was by members of the committee which had issued the Enforcement Notice whereas here the committee had acted perfectly properly in the light of the information they had. They were misled by a third party. But that does not in our view alter the fact that at the heart of the argument is the submission that the Enforcement Notice should never have been made in the first place and would not have been, but for the wrongdoing by the officer of the Council. It is that which makes it objectionable for the prosecution for breach to be pursued.
34.	Mr McDonagh placed reliance on the decision of the Divisional Court in White and White v South Derbyshire District Council [2012] EWHC 3495. That too, was a case where the appellant was being prosecuted for breach of an Enforcement Notice, but in highly bizarre circumstances. The local authority had wrongly granted a caravan licence allowing the owner to operate a caravan site. The licence ought not to have been granted because at the time of the grant the land did not have the relevant planning permission to be used for that purpose, although it was conceded that if an application for the certificate of lawful use and development had been sought, it would inevitably have been granted. The licence was transferred to the defendants in 2007.
35.	The requisite certificate for lawful use was subsequently granted in September 2009.  The defendants were invited to apply for a licence, which would have been granted at no cost, but they inexplicably failed to do so. Finally, the Council sought to prosecute them for breach of the notice.
36.	It was a necessary step in the Council’s argument that the original licence was void and should never have been granted, notwithstanding that no proceedings had been taken to quash it. Whilst the local authority could not have sought judicial review to challenge its own decision, the court noted that the mayor or a councillor could have done so. That was not done and accordingly an apparently lawful licence was still in force.
37.	The issue for the Divisional Court (Gross LJ and Singh J) was described by Singh J in the following terms: 
“Can a public authority which has acted ultra vires rely on the unlawfulness of its own act in order to found a criminal prosecution?
38.	The court concluded that it could not.  However, Singh J did so on the basis that the original grant of the licence, subsequently transferred to the defendants, should not be considered to be void for all purposes. The Council could not seek to assert that it was unlawful, when they had initially granted the licence, in order to make good the prosecution. It was not a case where the licence was invalid on its face.
39.	Gross LJ came closer to adopting an abuse of process argument when he said (para. 58): 
 “I am unable to accept that it can be right for the local authority to rely on its own unlawful act (the grant of an invalid site licence) to found the prosecution.”
40.	The Council was not so much relying on its own unlawful act as asserting it so as to be able to claim that the defendants were acting in breach of the notice because they had no valid licence.
41.	In our opinion, this case is not analogous to the circumstances arising here.  The critical feature of that appeal was that the licence granted by the Council was treated by the court as valid, notwithstanding that it should never have been granted.  It was the Council who were contending as a critical step in the prosecution that the licence which they had originally granted was no longer lawful. By contrast, here the Council is relying on the validity of the Enforcement Notice; it is not seeking to deny the legality of its own act. Moreover, in our view it is false to say, as Mr McDonagh does, that the Council is relying upon the unlawful act of the solicitor (even assuming that he acted unlawfully, which has not been determined). It is relying upon the legality of the Enforcement Notice, which is apparently valid and binding and which it can properly seek to enforce until it is shown to be invalid. The only issue is which jurisdiction is the appropriate one to determine that question of validity. 
42.	In our view, the judge was right to say that both section 285 and the decision in Wicks precluded him from investigating the alleged unlawful act in the context of the criminal trial. That is so whether the ground of challenge is one which could be pursued on appeal or not. In the latter case, the issue would be for the administrative court.
An alternative argument.
43.	So far we have treated the case as one where an essential element in the case for a stay was the need to show that the enforcement order was invalid; it would be an abuse of process for the Council to initiate the prosecution for breach of an order which should never have been granted had the solicitor acted with due propriety. Mr McDonagh submitted before us that this misrepresented his case which he sought to cast in wider terms. He says that if the Council through its former solicitor had indeed deliberately and knowingly concealed information from the Council or the Secretary of State on appeal, that would be reprehensible conduct which would in principle be capable of mounting an abuse of process whether or not it was material to the making of the Enforcement Notice.  It was the contumelious nature of the officer’s conduct, rather than its effect, which rendered it an offence to justice to allow the criminal proceedings to continue.  The judge ought to have engaged with this question.
44.	We accept, as the decision in Warren demonstrates, that it is not necessary to establish that a defendant should have been prejudiced by the action of the prosecutor before he can seek a stay. However, it will be an important factor when deciding whether or not to accede to a stay application.  
45.	It seems that the judge below did not directly address this formulation of the argument, perhaps because he had not appreciated (justifiably, we are inclined to think) that this was how the case was being put. We have considered whether in the circumstances it would be appropriate to remit the case for this argument to be considered, but we have concluded that we ought not to do so. If the argument for a stay rests on the wrong doing of the solicitor and is independent of the effect on the Enforcement Order, we do not think that a court could conceivably find that a stay would be appropriate. The fact that an officer of the Council concealed information would not render it in any way abusive for the Council to prosecute for breach of an enforcement order properly made.  No doubt the solicitor would in those circumstances be liable to professional disciplinary and possibly even criminal sanctions. But as the authorities make clear, it is not the function of the abuse of process doctrine to discipline the wrongdoer. If, on the other hand, the concealment did lead to the making of an enforcement notice which ought not to have been made, it would not be appropriate for the criminal court to engage with the abuse of process argument for reasons we have given. Once it is recognised that the validity of the order lies at the heart of the abuse of process complaint, the provisions in section 285 and the principles enunciated in Wicks are applicable.  However inconvenient it may be to have to challenge the order in proceedings other than the criminal process itself, that is in our view the effect of the law by which this court is bound. 
46.	Accordingly, we dismiss the appeal against conviction.