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POCA and planning offenders

Roderick Morton considers a recent Court of Appeal ruling which suggests the pendulum is swinging back towards a more balanced view of POCA confiscations in planning cases.

Local authorities’ knowledge of potential POCA confiscation receipts in their decisions to prosecute planning offenders have been successfully used as the basis of abuse of process arguments in several recent cases, notably R v Knightland Foundation and R (Wokingham BC) vs Scott.  Despite the existence of the Home Office Asset Recovery Incentivisation Scheme (“ARIS”) and the encouragement it gives local authorities to investigate and prosecute, it seemed that any enforcement officer which so much as muttered the word POCA prior to prosecution had doomed the case by doing so. Large scale fishing exercises, with defendants seeking disclosure and trawling every email, memo and decision in relation to the council’s prosecution policy, have become the norm.  

A recent Court of Appeal case seems to provide some respite and may indicate that the pendulum is swinging back towards a more balanced view of POCA confiscations in planning cases.

In The Queen (on the application of Marios Peter Kombou) vs LB Enfield and Wood Green Crown Court [2020] EWHC 1529, the Court of Appeal was asked to allow judicial review of a decision by a lower court not to allow Mr Kombou to vacate his guilty plea. Mr Kombou argued that Enfield had been late in disclosing documents relating to his fishing exercise and that, had he had those documents prior to his hearing, he would not have pleaded guilty.

Mr Kombou’s counsel was allowed to make wide-ranging submissions as to the propriety of the decision to prosecute, arguing that Enfield’s financial investigator was hopelessly conflicted because POCA receipts funded his salary, that Enfield’s officers had investigated the potential receipt prior to commencing the prosecution and that their decision to prosecute was motivated by an estimated £300k POCA receipt.  

In finding that the lower court had reached a reasonable decision and that judicial review would be denied, the Court of Appeal make a number of helpful observations, paraphrased below:

  1. It can be in the public interest to prosecute even when there has been compliance with an enforcement notice. Achieving compliance is not the only goal of planning legislation.
  2. The Knightland and Wokingham decisions are right to make clear that the decision to prosecute must not be influenced by the prospect of a financial benefit accruing to the local authority as a result of a confiscation order. ARIS is capable of giving rise to a serious conflict of interest or at least the appearance of such a conflict.
  3. But it is not the case that a decision to prosecute will be open to challenge if it might eventually lead to a confiscation from which the local authority will benefit. There is a difference between prosecuting in the knowledge that POCA receipts may occur and prosecuting in order to get those receipts.
  4. In deciding whether prosecution is in the public interest, it is legitimate to consider whether the defendant has benefited from his crime.
  5. When considering whether a decision to prosecute is improperly motivated, the yardstick is the view of a fair-minded and independent observer who understands the Home Office ARIS system. In particular that 

“ARIS is a system introduced by the government, not a private arrangement devised by the prosecuting authority for its own advantage; that legal consequences, in terms of the powers of the court, follow upon conviction; that those legal consequences may bring financial consequences for the offender; and that any financial benefit to the prosecuting authority accrues only after, and as a result of, the court’s exercise of its powers.”

This last paragraph in particular is very helpful. It has often seemed that the courts have conveniently ignored that Parliament, in creating ARIS, intended local authorities to be financially able to, and incentivised to, prosecute and confiscate. This case makes clear that the existence of ARIS is not a bar to a successful prosecution and that the fact that it might result in POCA receipts for the local authority does not make the prosecution an abuse. This case is likely to cut down the scope of future fishing exercises considerably.

The decision is not a get out of jail free card for planning prosecutions. Its facts are unusual; it was a JR of a decision to refuse to allow vacation of a guilty plea. In essence, Mr Kombou was arguing that Enfield had behaved with such serious impropriety [in relation to failure to disclose] and his advisers had been so badly misled, that a prosecution would be an affront to justice and an abuse of the process of the court. This is a very high bar.

And the case makes clear that local authorities must continue to take their decisions to prosecute conscientiously and not for the purpose of POCA receipts. This remains a difficult line. The fact that local authorities have limited resources and must choose their battles was mentioned in the facts of the case but no guidance was given by the court.

But we do think that this is an indication of a stricter judicial treatment of abuse of process applications in planning cases. The pendulum may be swinging back at last.

Roderick Morton is a partner in Ivy Legal.

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