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Court of Appeal Refuses Permission to Appeal in Planning Enforcement Prosecution Case

Melissa Murphy

In an ex tempore judgment given by Lady Justice Hallett DBE (Vice President of the Court of Appeal Criminal Division), the Court of Appeal has today refused to grant leave to the London Borough of Islington to bring an appeal against the decision of a judge of Blackfriars Crown Court which was a “terminatory ruling”, in a prosecution brought by them.  

The Council sought to prosecute the owners and occupiers of a five storey building in Clerkenwell Green Conservation Area in London. The Council alleged non-compliance with a planning enforcement notice. The defendants made an application for the prosecution to be stayed as an abuse of process. The judge heard evidence from the Council’s enforcement officer and from an employee of one of the defendants. The court found that the evidence in the case pointed to there having been improper influence in the determination of a planning application aimed at regularising the breach of planning control. Moreover, there was an improper motive in the bringing and continuation of the prosecution proceedings, the Council’s decision-making having been infected by the Council officers’ concern to ensure that nothing should prejudice the prosecution or the attendant Proceeds of Crime Act proceedings. The judge found that the defendants’ claim that there had been an abuse of process was made out. He stayed the proceedings.

The Court of Appeal said that the first instance judge had been entitled to find as he did. It rejected all nine grounds on which the Council sought to challenge the decision.

A separate jurisdictional point arose. The Court gave useful guidance on “best practice” in relation to the process to be followed in a prosecution appeal, but indicated that they did not need to decide the point.

Melissa Murphy represented the successful defendants.