R (Islington LBC) v Inner London Crown Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,MR JUSTICE SULLIVAN |
| Judgment Date | 13 October 2003 |
| Neutral Citation | [2003] EWHC 2500 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2003 |
| Docket Number | CO/4544/2002 |
[2003] EWHC 2500 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Brooke
Mr Justice Sullivan
CO/4544/2002
MR J COOK (instructed by SOLICITORS LONDON BOROUGH OF ISLINGTON) appeared on behalf of the CLAIMANT
THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED
MISS T BLOOM (instructed by HARTER AND LOVELESS) appeared on behalf of the INTERESTED PARTY
Monday, 13th October 2003
This is an application by the London Borough of Islington ("the Council") for judicial review of a decision of the Inner London Crown Court on 13th September 2002, when Judge Prendergast was sitting with justices, whereby it dismissed the Council's appeal against a fine of £4,000 imposed upon it by the Highbury Corner Magistrates' Court on 30th July 2002, for an offence under section 82 of the Environmental Protection Act 1990 ("the 1990 Act") to which the Council pleaded guilty. The Crown Court reduced from £2,500 to £1,000 the compensation payable to each of the two complainants, Mrs Elaine Rooney and her daughter Geraldine. No point turns on that part of its order.
The proceedings relate to the premises owned by the Council at 3 Holland Passage, Popham Road, Islington, which were first let to Mrs Rooney in 1978. Her daughter became a joint tenant in 1998. The premises were on the lower floors of a 3 storey block, and the nuisance of which complaint was made appears to have started in 1992 when new windows were instituted and damp started appearing.
The Rooneys' complaint, except insofar as it was restricted by the form of these statutory proceedings, was based on the fact that the Council took no effective action on the complaints they had made from 1999 onwards. Eventually they commissioned a report from a Environmental Health Consultant, Mr Lawrence, in February 2002. When the Council took no action after his report had been sent to them on 21st March 2002, the Rooneys invoked the statutory scheme set out in section 79–82 of the 1990 Act. This enables a person to complain to a Magistrates' Court if he or she is aggrieved by a statutory nuisance (section 82(1)). Such a nuisance arises where any premises are in such a state as to be prejudicial to health (section 79(1)(a)).
The court's powers on a conviction include making an order to abate the nuisance and imposing a fine not exceeding level 5 on the standard scale (section 82(2)). It may also order the payment of compensation in addition to a fine, (Powers of Criminal Courts (Sentencing) Act 2000) ("the 2000 Act") (section 130(1)). The maximum fine that might be imposed at level 5 in July 2002 was £5,000. Section 128(2) of the 2000 Act provides:
"The amount of any fine fixed by a court shall be such as, in the opinion of the court, reflects the seriousness of the offence".
Section 130(12) of that Act requires a court to give preference to compensation, although it may impose a fine as well, if any question arises about the ability of an offender to pay both compensation and a fine. But no question arises about that in this case.
We have been given a good deal of evidence relating to the previous history of the complaints which effectively centred around the presence of damp and mould growth in the Rooneys' flat. Eventually the Islington Legal Advice Centre complained to the Council on the Rooneys' behalf in October 2001. On 20th November 2001 Mrs Rooney's solicitors wrote an equally strong letter of complaint. Nothing effective was done and as a result Mr Lawrence was instructed to conduct an inspection.
His report and the colour photographs that accompany it describe vividly the deplorable conditions in which the Rooneys were living. Mr Lawrence was satisfied that the design and construction of the premises were such that they were unable to cope with the water vapour produced through the normal biological and domestic activities of the household. He added that there was a well documented association between dampness and mould growth on the one hand and proliferation of house dust mites and respiratory illness on the other. He was unable to say that the house was unfit for human habitation.
The Council, as I have said, did not respond when Mr Lawrence's report was sent to them. In due course 21 day notices, pursuant to section 82(6) and (7) of the 1990 Act, were served on the Council. The earliest of these notices expired on 6th May 2002. For some reason a notice was served by each of the Rooneys and two summonses were issued, one slightly later than the other.
The complaints were listed for hearing together on 2nd July 2002 when the Council pleaded guilty and agreed to a schedule of works. Sentencing took place on 30th July, and by that stage there were still certain works not complete. The bath fan and a radiator in the water closet had not yet been put right.
In imposing the fine of £4,000 the justices said that after considering the inspection report and seeing the photographs contained in it, as well as having heard from the two complainants, they felt that the statutory nuisance was of such a degree and the state of the premises was such that this level of fine was appropriate. They gave credit for the Council's guilty plea.
The Council appealed against the fine on the grounds that it was excessive, particularly in view of the Council's guilty plea at the first opportunity and its agreement to a schedule of works. It also complained that the fine was excessively punitive considering the level of compensation awarded. As I have said, the Crown Court reduced the compensation. It said, however, that while it gave credit for the early entry of a guilty plea, there was absolutely no defence to the offence and the fine commensurate with the seriousness of the offence would be £4,000.
In challenging the amount of the fine in this court, Mr Cook, who appeared for the Council, has referred us to three decisions made by Magistrates' Courts against Greater London Boroughs in 1996 and 1997, in which the fines varied between £500 and £650 in cases involving dampness, condensation and mould growth. He also relied on a dictum in R v Crown Court at Liverpool and another, ex parte Cooke [1996] 4 All ER 589, 595, where Leggatt LJ said in relation to an offence under this legislation:
"Since the section provides for both alternatives, I see nothing contrary to principle about ordering compensation 'instead of' rather than 'in addition to' a fine. If a compensation order is itself large enough to be punitive, as the magistrate's order was here, there is no occasion to impose a fine as well. If, on the other hand, the compensation order is relatively small, as the Crown Court decided it should be, it is necessary to add a fine for punitive effect".
The general effect of Mr Cook's submissions was that the Crown Court had gone far, far, too high, especially against the background of those authorities, such as they were, to which he had drawn the Crown Court's attention.
The jurisdiction of this court to interfere in a case like this has conveniently been set out in the summary of the judgments of this court in R v Truro Crown Court ex parteAdair which is contained in [1997] C.O.D. 296 at 297. The summary reads:
"It was clearly established by earlier cases, in particular R v St Albans Crown Court, ex parte Cinnamond [1981] Q.B. 480 and R v Croydon Crown Court, ex parte Miller [1987] 85 Cr.App.R. 152, that judicial review did not offer a backdoor means of appeal against the sentences imposed by the Crown Court on appeal from justices. It was nonetheless recognised by those authorities that there came a point at which a penalty was so far outside the reasonable range of penalties as to be indicative of a manifest error of law. Per Lord Bingham of Cornhill CJ:
'The court has on previous occasions suggested a test of whether the sentence in question is regarded by any acceptable standard as truly astonishing. I would, for my part, question whether that is an ideal test since some people are more readily astonished than others and it would appear to be a somewhat subjective approach. It would perhaps seem more helpful to ask the question whether the sentence or order in question falls clearly outside the broad area of the lower court's sentencing discretion'."
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