Aboutboul v London Borough of Barnet
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] EWHC 285 (Admin) |
| Date | 28 January 2020 |
| Docket Number | No. CO/1880/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 285 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
No. CO/1880/2019
Mr I. Colville (instructed by BSG Solicitors) appeared on behalf of the Appellant.
Mr S. Jessop (instructed by the Legal Department) appeared on behalf of the Respondent.
This appellant appeals by way of case stated pursuant to section 111 of the Magistrates' Court Act 1980 against the decision by lay justices sitting at Willesden Magistrates' Court on 28 December 2018 to convict him of two offences set out in two summonses contrary to section 179(2) of the Town & Country Planning Act 1990 in that he failed to comply with enforcement notices served relating to 40 Sunningfields Road, London NW4 (“the Property”).
The court found the appellant guilty of two offences: first, between 4 March 2017 and 10 November 2017 he failed to comply with the requirements of the enforcement notice dated 7 January 2016 (EN1) by failing to demolish the rear garden outbuilding at the property and permanently removing all constituent materials from the property. Second, between 14 August 2016 and 10 November 2017, he failed to comply with an enforcement noticed dated 11 February 2016 (EN2) by failing to cease the use of the property as five self-contained flats and permanently remove all the kitchen and bathroom facilities save for one.
On 28 December 2018 the justices committed the appellant to Harrow Crown Court for a confiscation order to be considered at the Crown Court and for sentence pursuant to section 70(5) of the Proceeds of Crime Act 2002.
On 30 January 2019 there was a hearing before Her Honour Judge Francis sitting at Harrow Crown Court in respect of the Proceeds of Crime Act proceedings and sentence. The parties were represented by counsel. Mr Underhill appeared for the prosecution and Mr Colville appeared for the defendant, as he does today. The transcript of the hearing records that Mr Underhill informed the judge that Mr Colville, who represented the defendant in the Magistrates' Court, intended to ask the Magistrates' Court to state a case in relation to their determination. The transcript then records Mr Underhill as stating, at p.2 E-H:
“The powers which allow that to happen ordinarily that doesn't happen unless there's been a final determination which is defined as being a sentence or as being ‘dealt with in another way’. The difficulty is that the High Court in its capacity to deal with cases stated can only effectively reverse, change or alter a Magistrates’ Court decision. Magistrates cannot make confiscation proceedings or make confiscation orders, so the difficulty that we are trying to avoid is having the POCA before the sentence, as we are mandated to do by the Proceeds of Crime Act 2002. Then having the sentence, then sending it to the High Court, only to have them potentially quash a conviction, but without any powers to deal with the POCA order, which would then involve us all going to the Court of Appeal to vary the POCA order which is the knot we are in.”
Mr Underhill then suggested to the judge (Mr Colville agreeing) that the confiscation proceedings and sentence should be adjourned pending a decision from the High Court on the case stated, and that the date of this hearing should be deemed the start date for the 21 day period in which an application to the magistrates to state a case for the purposes of 111(2) must be made. The judge said: “That all sounds extremely sensible”, and adjourned the sentencing and any POCA proceedings pending any ruling by the High Court. The judge stated, for the avoidance of doubt, that by adjourning these proceedings pending any ruling by the High Court, should it be required, she was “dealing with the case in another way as defined in section 111(3) of the Magistrates' Court 1980 as agreed by all parties.” (Transcript at 4-G)
On 20 February 2019 the appellant made an application to the Magistrates' Court to state a case in relation to the decision of the court dated 28 December 2018. On 30 April 2019 the Magistrates Court stated its case.
The questions for the opinion for the High Court are: (1) Were we correct to find that EN1 and/or EN2 were not a nullity as we found them to be clear, unambiguous and not contradictory? (2) Were we correct in finding that the arguments raised by the appellant with respect to EN1 and EN2 went to the validity of the notices rather than whether the notices were a nullity on their face, and accordingly we were precluded from considering those arguments? (3) Despite accepting the submissions that the appellant should have received a caution, were we correct not to exclude the evidence of the appellant's admission that the flats were occupied on 7 November 2017 due to other compelling evidence? (4) Were we correct to find that the flats were being used for residential purposes continually within the period between 4 August 2016 and 10 November 2017?
The parties have today agreed a consent order in relation to EN1 which will involve the case on that enforcement notice being returned to the Magistrates' Court and result in the acquittal of the appellant in relation to that offence. It is, therefore, only EN2 that remains the subject of an ongoing challenge.
Mr Stuart Jessop, for the respondent, submits that the Crown Court was wrong and acted in excess of its jurisdiction to purport to extend the time for the application to the Magistrates' Court to state the case. Time had already expired on 18 January 2019 by virtue of section 111(2) of the 1970 Act, and in any case it had no power to extend it.
Since the question whether or not there is a discretion to extend time under section 111(2) of the 1980 Act goes to jurisdiction, it is appropriate to deal with that issue at the outset.
Section 111 of the 1980 Act provides, so far as is material, as follows:
“Statement of case by magistrates' court.
“(1) Any person who was a party to any proceedings before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court, may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved.
(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.
(3) For the purposes of subsection (2) above, the day on which the decision of the magistrates' court is given shall, where the court has...
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