Local authority prosecutions and abuse of process
Recorder Zeb, sitting with two Justices in the Bristol Crown Court on appeal, recently found Bristol City Council had behaved in a way which ‘offends the sense of justice and fairness’ in a prosecution against Wyldecrest Park Management Limited. Scott Stemp explains why.
On 28th June 2024 the Crown Court sitting at Bristol stayed a prosecution brought by Bristol City Council as an abuse of process, citing Bristol’s failure to properly maintain its statutory planning register, its failure to undertake reasonable enquiries in its criminal investigation, and Bristol’s refusal to withdraw its prosecution unless the defendant paid £15,251.19 in costs.
In June 2022 Bristol commenced a prosecution of Wyldecrest Park Management Ltd for operating a caravan site (Riverside) without a licence, pursuant to s3 of the Caravan Sites and Control of Development Act 1960 (‘CSCDA’).
In April 2021 Wyldecrest acquired Riverside as an operational park home and applied for a new caravan site licence. Riverside had operated as a caravan site since December 1954 under planning permissions granted by Gloucester County Council (the predecessor LPA to Bristol) and under caravan site licences granted since 1961, including one issued by Bristol City Council itself in 1983.
Bristol refused, citing the absence of any planning permission for use of Riverside as a caravan park. Wyldecrest disputed this, pointing to the historic grants of caravan site licences (including those granted by Bristol itself). Trawling local archives revealed minutes of meetings of Mangotsfield Urban District Council (Bristol’s predecessor caravan site licencing authority) and Gloucester County Council’s planning committee from the 1960s and later, referencing the ‘caravan park at Riverside’ and discussing various requirements for the same. Nonetheless Bristol maintained their position that because they could not find a planning permission for Riverside in their statutory planning register, that the site did not benefit from planning permission and so could not be licenced.
Declining to grant the caravan site licence application, Bristol further declined to refuse the application, meaning Wyldecrest could not appeal the refusal to the First Tier Tribunal. Bristol’s refusal to either grant or refuse the licence application left Wyldecrest with an operational and occupied caravan site but with no avenue to secure a new licence.
In June 2022 Bristol commenced prosecution of Wyldecrest for operating a caravan site without a licence.
Because of the impasse between Bristol and Wyldecrest as to the grant of a new caravan site licence, in June 2022 Wyldecrest sought to secure the transfer the existing licence (under s10 CSCDA) by the previous holders (a step available only to the previous holders, not current operators). Bristol endorsed this transfer in October 2022 but refused to accept that s10 CSCDA had retrospective effect.
After commencing the prosecution, in September 2022 Bristol wrote to Wyldecrest stating that they would seek to withdraw the prosecution, contingent on Wyldecrest paying Bristol City Council’s prosecution costs of £15,251.19. Wyldecrest refused to pay the same, pointing out that the offer was likely an abuse of process.
In January 2023 Wyldecrest were convicted at the Bristol Magistrates’ Court, fined £8,000.00 and ordered to pay costs of £25,000.00. Wyldecrest appealed to the Crown Court.
In parallel proceedings before the First Tier Tribunal (relating to licence conditions) the FTT ordered disclosure of historic planning permissions. In March 2023, within a week or so of being ordered to disclose the same (and post-conviction in the Magistrates’ Court) Bristol City Council disclosed a number of historic planning permissions authorising the use of Riverside as a caravan park from 1954 onwards - something which had never been disclosed during the criminal proceedings.
Bristol’s explanation was that there had been a digitisation error in transferring historic planning permissions on to their digital system and that ‘map searching’ would therefore not reveal the permissions since these permissions had been wrongly plotted to other parcels of land. Searching Bristol’s records by using the appropriate planning reference however revealed the planning permissions. Bristol City Council’s evidence to the FTT was that it had taken officers about 30 minutes to discover the permissions.
Nonetheless Bristol City Council continued to resist Wyldecrest’s appeal against conviction, even though it was clear from March 2023 that planning permission had existed throughout. On 28th June 2024 Ms Recorder Zeb, sitting with two lay Justices, stayed the prosecution as an abuse of process.
The Crown Court found that Bristol had failed to maintain their statutory planning register properly and that this was the underlying cause of Bristol’s erroneous belief as to the absence of planning permission for use of Riverside as a caravan park. It also found that Bristol’s officers had failed to pursue reasonable lines of enquiry through 2021 and 2022 to ascertain the existence of planning permission for Riverside.
The Court observed that it found Bristol’s evidence as to why it did not simply refuse the ‘new’ licence application (and thereby enable an appeal by Wyldecrest to the FTT) ‘confusing’ and was a position which meant that Bristol ‘held all of the cards’.
In giving judgment the Court said:
“BCC had a duty to pursue all reasonable lines of enquiry, Mr Mallinson did not, in our opinion provide any convincing evidence that he had conducted or requested to be conducted all reasonable lines of enquiry between August 2022 and the initial trial in January 2023. The court is unable to reconcile why he was not able, with Mr McCamphill or at all, to obtain the documentation that he did eventually obtain when subject to a court order of the FTT and an FOI request. It appears that the actual evidence of the existence of planning permission was obtained in a very short period of time indeed in March 2023 and in our judgment there is no good explanation as to why the same steps were not carried out in the context of a criminal investigation in respect of a very serious matter.”
“To fail to undertake those reasonable enquiries but instead proceed to a trial and secure a conviction is, in our view, an abuse of process by reason of failing to secure ascertainable evidence that would in our view have altered the outcome in this case. We find that this was wholly prejudicial to the Appellant and placed them at an unfair disadvantage in this case.
We do not accept that such abuse has to be oppressive. However, if this were the test then we consider the additional attempt by BCC to rely on other reasons for the non-granting of a licence concerning, given that this information had been provided, and in our view this is unlikely to have been the real reason for the refusal to grant the licence.
Furthermore, the lack of any decision as to the licence and in particular the refusal of the same which would have enabled to the Appellant to appeal such refusal has not been explained and the use of BCC’s prosecutorial powers in all the circumstances is not, in our view either fair or just.”
In relation to the costs-contingent offer to withdraw of the prosecution the Court said:
“We have above referred to the prosecutorial code that must be in the mind of all those with decision making powers for the continuation of a prosecution. We find merit in the Appellant’s argument that in order for BCC’s offer letter to have been made it can be reasonably inferred that BCC felt that it may no longer be in the public interest to continue with this prosecution. We also accept, in the absence of authority to the contrary, that making the discontinuance of criminal proceedings contingent on the payment of a sum of money to the prosecutor offends the sense of justice and fairness that must be protected in these courts. It would be unconscionable to think of any other offences where the payment of a sum of money in costs would avoid prosecution.”
The Court found that the decision to prosecute in June 2022 amounted to an abuse of process and that continuation of this prosecution also marked a continuing abuse of process; in relation to the letter offering withdrawal on payment of costs the Court stated letter could not be divorced from the existing abuse of process and found it to have been part of it, finding the conduct in these proceedings to be oppressive. Submissions on costs were invited.
Comment
This case highlights the dangers for local authorities in not maintaining their planning registers properly and in not undertaking reasonable lines of enquiry. Here it ought to have been plain to Bristol City Council that there were likely good reasons why there were historic grants of caravan site licences and a wealth of ‘side references’ in contemporaneous minutes and correspondence from the 1960s onwards discussing the ‘caravan park at Riverside’. That it ultimately took only 30 minutes for Bristol City Council to find the historic permissions when they looked properly raises questions as to why these permissions were not found by them earlier, and at the stage of the licence application. That disclosure of the historic permissions only occurred post-conviction and following specific directions from the First Tier Tribunal in a licencing appeal, not as part of disclosure to Wyldecrest in the course of their ongoing criminal appeal, only worsened matters.
It also highlights the dangers of adopting an intransigent position as a public authority. Bristol’s position throughout was that it was incumbent on Wyldecrest to ‘prove’ that planning permission existed, and Bristol did not accept that they, as both licencing and planning authority, were in a unique and controlling position in relation to that information and providing the same.
Finally, it serves as a timely reminder that local authorities must rigorously apply the two limbs of the Code for Crown Prosecutors throughout the life of a prosecution and react properly and timeously to changes in evidence and disclosure. Bristol’s position that it would withdraw a prosecution contingent on payment of its costs (of c.£15,000) was incompatible with continuation of the prosecution being in the public interest. The insufficient public interest (pre-conviction) diminished further once the post-conviction disclosure of historic planning permissions was made. Bristol’s continued resistance to the criminal appeal notwithstanding that its own errors were the source of the initial problems was ultimately indefensible.
Scott Stemp is a barrister at No5 Chambers. He acted for the appellants in this case.
