Court of Appeal upholds POCA confiscation order after planning enforcement breaches

The Court of Appeal has upheld a confiscation order under the Proceeds of Crime Act 2002 for failure to comply with planning enforcement notices, rejecting an argument that a judge should look at the “net profit” earned from the unlawful activity rather than the total turnover.

Luigi Del Basso and Bradley Goodwin had run a park and ride business at Bishop’s Stortford Football Club, taking passengers to Stansted Airport.

The local authority warned them and the football club that planning permission was needed to operate the parking business. However, despite numerous letters and meeting between the club and the local authority, the business continued to operate.

The council then served an enforcement notice on 28 January 2003. Mr Basso’s company, Timelast, and the football club appealed to the Planning Inspector. During the nine month period before the hearing, which dismissed the appeal, the parking operation was expanded. Permission to appeal to the High Court was subsequently refused.

Officers visited the site again and found that the business was still running. A prosecution was brought against Timelast, the football club and Mr Goodwin (trading as the Bishop’s Stortford Football Club Members’ Parking Association). All three were convicted on 10 November 2005 after a trial and each defendant fined £20,000.

Ownership arrangements for the park and ride business changed but the operation carried on despite the convictions. The council then brought a second prosecution, which culminated on 8 June 2007 with Mr Del Basso and Mr Goodwin pleading guilty at St Albans Crown Court to failure to comply with an enforcement notice contrary to s. 179(1) and (2) of the Town and Country Planning Act 1990.

A hearing was then initiated under POCA by the Assets Recovery Agency and later the Serious Organised Crime Agency. Judge Michael Baker QC then delivered judgements on 28 July 2008 and 10 July 2009, ruling that the two men had enjoyed a criminal lifestyle within the meaning of POCA as they had committed offences over a period of at least six months and had received some benefit from their offending.

The result of the prosecution was that Mr Del Basso was fined £3,000 for each of five counts (with six months imprisonment concurrent on each count in default of payment), and ordered to pay £20,000 costs.

He was also adjudged to have received a benefit of £1.8m. The judge determined that £760,000 was available and made a confiscation order under POCA for that amount. He imposed a prison term of 18 months consecutive to the six months in the event of non-payment.

Mr Goodwin was fined £5 for the two counts he faced and was adjudged to have received the same benefit. However, because of his financial position, the recoverable amount was determined to be nil.

Both Mr Del Basso and Mr Goodwin appealed against the confiscation order. Their counsel argued that the judge had erred in not deducting money spent to meet legitimate expenses incurred by the parking business when calculating the benefit figure. Andrew Trollope QC, for Mr Del Basso, said the benefit should be equated to net profit, not turnover.

It was also argued that the prosecution’s decision to pursue confiscation was an abuse of process and should have been stayed because of the lack of environmental and economic damage caused by the breaches of the enforcement notice, the legal advice that had been received and the effect of confiscation. The judge should also have reconsidered his decision in the light of R v Seager and R v Blatch, counsel said.

Giving the lead judgement, Lord Justice Leveson rejected the net profit argument. “It is clear that the legislation looks at the property coming to an offender which is his and not what happens to it subsequently,” he said. “What happens to the benefit after it has been obtained (for example, how it might have been spent) forms no part of the statutory test.”

Lord Justice Leveson added that the Seager and Blatch cases would have had no impact on Judge Baker’s ruling.

On the question of abuse of process, Andrew Trollope QC said Mr Del Basso had only made a ‘profit’ of £180,000 – less than 10% of the benefit assessed – over the period of the operation of the scheme, and had only been attempting to help the club. The way the parking business was run was utterly different to the normal situation in which the POCA legislation is brought into play in relation to drug dealers, fraudsters and the like, he added.

This was also rejected by Lord Leveson. He said: “From the moment that Mr Del Basso had exhausted his rights of appeal against the enforcement notice, it was his duty to obey the law; he chose, deliberately, not to do so. A requirement to observe the law is imposed on all and Mr Del Basso and Mr Goodwin have only themselves to blame for their persistent failure to do so.”