R v Basso (Luigi Del) and Another
| Jurisdiction | England & Wales |
| Judge | .,Lord Justice Leveson |
| Judgment Date | 19 May 2010 |
| Neutral Citation | [2010] EWCA Crim 1119 |
| Docket Number | Case No: 200904121 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 May 2010 |
[2010] EWCA Crim 1119
His Honour Judge Michael Baker Q.C.
Before: The Rt. Hon. Lord Justice Leveson
The Hon. Mr Justice Treacy
and
The Hon. Mr Justice Coulson
Case No: 200904121 B5
T20070085
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST. ALBANS
Mr Andrew Trollope Q.C. (instructed by TntKelly Solictors) for Luigi Del Basso
Mr Anthony Heaton-Armstrong (instructed by the Registrar) for Bradley Goodwin
Mr David Perry Q.C. and Mr Simon Ray (instructed by the Serious Organised Crime Agency) for the Crown
Hearing date: 29 April 2010
Lord Justice Leveson:
On 8 June 2007, at the Crown Court at St Albans, Luigi Del Basso (“Mr Del Basso”) and Bradley Goodwin (“Mr Goodwin”) pleaded guilty, on re-arraignment, to five and two counts respectively of failing to comply with an enforcement notice contrary to s. 179(1) and (2) of the Town and Country Planning Act 1990 (“the 1990 Act”). As a consequence, there was then initiated a hearing under the Proceeds of Crime Act 2002 (‘ POCA’) conducted initially by the Asset Recovery Agency and latterly the Serious Organised Crime Agency. This led to substantial hearings before His Honour Judge Michael Baker QC who was required to deliver two lengthy judgments (on 28 July 2008 and 10 July 2009). We shall return to the complexity of these proceedings at the conclusion of this judgment.
The upshot of the prosecution was that Mr Del Basso was fined £3,000 on each count (with six months imprisonment concurrent on each count in default of payment) and ordered to pay £20,000 costs. Additionally, he was adjudged to have received a benefit of £1,881,221.19; the judge having determined that £760,000 was available, he made a confiscation order in that sum under s 6(5)(b) of POCA; in default of payment, he imposed a term of 18 months imprisonment consecutive to the term of 6 months. Mr Goodwin was fined the nominal sum of £5 on each of the two counts that he faced, adjudged to have received the same benefit but, because of his financial position, the recoverable amount was determined to be nil. Both appeal against the confiscation order with leave of the single judge; Mr Del Basso's application for leave to appeal against the fine was refused and has not been renewed.
The Facts
In order to understand the background to this prosecution, it is necessary to go back to June 1999 when an application was made for 201 parking spaces on land at Dunmow Road, Bishop's Stortford. This land was owned by a company, Timelast Ltd, owned by Mr Del Basso, but rented to Bishop's Stortford Football Club (‘the Football Club’) and intended to provide parking for those attending football matches. Conditional planning permission was granted but restricted to days when football matches were taking place at the Football Club. Four weeks later, however, a further application was made for a ‘park and ride’ parking facility. In July 2000, this application was rejected.
At the time that this application was rejected, the relevant local authority became aware that part of the Football Club site was being used as a ‘park and ride’ airport parking facility for passengers using Stansted Airport. On 2 August 2000, the local authority wrote stating that planning permission was required to operate the parking business and advised the Football Club that the unauthorised parking business should cease. Although this warning was repeated in numerous letters and meetings held between the local authority and the Football Club, it was ignored and the parking business continued to operate.
On 28 January 2003 the local authority served an enforcement notice. Timelast Ltd and the Football Club appealed to the Planning Inspector. On 30 October 2003, following a two day hearing, the appeal was dismissed. In the period of 9 months between service of the enforcement notice and the appeal hearing, however, far from taking heed of the local authority's concerns, the parking operation was expanded. A further appeal to the High Court was mounted but, in February 2004, permission to appeal was refused. Thus, the end of the line had been reached.
Throughout this time, the ‘park and ride’ business had continued to be operated by Mr Del Basso and Mr Goodwin trading as Bishop's Stortford Football Club Members’ Parking Association (‘the Parking Association’). On 9 March 2004, the local authority advised the Parking Association that if the business remained in operation beyond 11 August 2004, a prosecution would be commenced immediately and without further notice. So it was that, on 13 August 2004, officials from the local authority visited the Football Club site. The airport parking business was still operating, apparently expanded; since the appeal decision, no attempt had been made to comply with the Enforcement Notice.
On 17 September 2004, the local authority commenced a prosecution against Timelast Ltd (the owner of the land), the Football Club (which occupied the site) and Mr Goodwin (trading as the Parking Association) for failing to comply with the enforcement notice. The allegation was confined to the single day of the visit, 13 August 2004. On 10 November 2005, after a trial, all three were convicted and, on 22 December, each defendant was sentenced to a fine of £20,000. Applications for leave to appeal were refused by the single judge, not renewed in relation to conviction and, as to sentence, were also refused by the full court (see R v Bishop's Stortford Football Club and others [2006] EWCA Crim 3098).
Meanwhile, prior to the criminal trial, the arrangements for the ‘park and ride’ business were changed. The Parking Association had operated as a non-incorporated partnership of which Mr Del Basso and Mr Goodwin were the only partners and the revenue received was paid into a bank account over which they had joint exclusive control. From 1 July 2005, it was operated by Bishop's Stortford Football Club Members’ Parking Association Limited (‘the Parking Company’) with 50% of the beneficial interest in the shares being held by Mr Del Basso and Mr Goodwin. Having said that, in the period 1 July 2005 to 31 October 2005 there was a crossover between the Parking Association and the Parking Company. During this period revenue from the ‘park and ride’ business continued to be paid into the Parking Association bank account despite the operation of the Parking Company.
On 22 November 2005, after the conviction in the trial, local authority officials again visited the Football Club site and found the parking business continuing as before. As a result, on 17 January 2006, a second prosecution was commenced, again for offences arising from the failure to comply with the enforcement notice. The defendants were: Timelast Ltd, the Football Club, the Parking Company, Mr Del Basso and Mr Goodwin; proceedings against two further defendants were discontinued. It is this prosecution that culminated on 8 June 2007 when all five defendants pleaded guilty to the charges which they faced. Timelast Ltd, the Football Club and the Parking Company were fined nominal sums.
Confiscation proceedings under section 6(3)(a) of POCA were initially commenced against all five defendants but, during the course of legal argument, discontinued against all but Mr Del Basso and Mr Goodwin. The first hearing lasted a week and in a detailed 38 page reserved ruling delivered on 11 August 2008, Judge Baker determined a number of preliminary issues (reduced into 15 written questions not all of which he then answered) although he gave leave to the parties to submit further argument in the light of a recent decision of this court. There were then further hearings and his second ruling, dated 10 July 2009 (covering a further 24 pages of transcript) made a number of findings of fact and reached conclusions on remaining issues sufficient for him to determine the matter.
The Approach of the Judge
The case for the Crown was that the ‘park and ride’ operation became criminally unlawful from the moment the enforcement notice became effective, that Mr Del Basso and Mr Goodwin were to be treated as having had a criminal lifestyle and, as a result, were subject to the assumptions set out in s. 10 of the 2002 Act, unless these assumptions were incorrect or would result in a risk of serious injustice. The turnover of the scheme represented the benefit of the offenders irrespective of the corporate vehicle through which the turnover was generated.
On behalf of Mr Del Basso, it was argued that the purpose of the Parking Association, later the Parking Company, was to provide income for the Football Club; it had an altruistic motive and no element was run for personal profit. In fact the Football Club was in a parlous financial state and the scheme had provided much needed income in the form of rent for the use of the land: over the life of the scheme, total payments to the Football Club amounted to some £500,000 and represented nearly 30% of the Club's income. Further, virtually all the income from the scheme was spent on necessary running expenses. Mr Del Basso, himself, had made a very significant financial contribution to the football club and derived only modest income from services or loans; his income had been approximately £125,000. On behalf of Mr Goodwin, it was added that the breaches of the 1990 Act were modest and had caused little environmental harm and no economic harm.
The judge concluded that although the Parking Association and Parking Company were run on business-like...
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