Sumal & Sons (Properties) Ltd v The Crown (London Borough of Newham)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis |
| Judgment Date | 08 August 2012 |
| Neutral Citation | [2012] EWCA Crim 1840 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201106042D2 |
| Date | 08 August 2012 |
[2012] EWCA Crim 1840
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
MS RECORDER CRANE
S20110222
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Mr Justice Burton
and
Mr Justice Langstaff
Case No: 201106042D2
PHILIP RULE (instructed by PGA Solicitors LLP) for the Appellant.
MATTHEW PAUL (instructed by Solicitor, London Borough of Newham) for the Respondent.
Hearing date: 26 th July 2012
Introduction
On 8 th April 2011 at Stratford Magistrates' Court the appellant, Sumal & Sons (Properties) Limited, was found guilty, after a trial in its absence, of being the owner of a rented property without a licence contrary to section 95(1) of the Housing Act 2004 ("the 2004 Act"). The information stated that the offence was committed "on or about 10 th January 2011". The appellant was committed to the Crown Court for sentence under section 70 of the Proceeds of Crime Act 2002 ("the 2002 Act").
On 3 rd October 2011 at the Inner London Crown Court the appellant was sentenced by Ms Recorder Crane as follows:
(i) It was fined £2,000.00 (plus Victim Surcharge of £15.00);
(ii) It was ordered to pay prosecution costs of £3,821.96;
(iii) It was made the subject of a confiscation order under the 2002 Act in the sum of £6,450.83.
The total sum due (£12,287.79) was ordered to be paid within six months.
Section 80 of the 2004 Act, putting it in general terms, makes provision for the introduction by local authorities of selective licensing of rented residential property in the private sector. This can be achieved by a local authority designating either the whole of its district or an area or areas within its district to such licensing. The Little Ilford Ward of the London Borough of Newham was designated a Selective Licensing Area ("SLA"). On 1 st March 2010 the SLA designation became operative. The designation was publicised in the area of the London Borough of Newham through a campaign in the local press.
The appellant has for many years been and is the owner and landlord of 48 Worcester Park Road, Manor Park, Little Ilford, Newham ("the property"). The property, which had been privately rented for a significant period of time, is situated within the SLA. As a result it had to be licensed in accordance with Part 3 of the 2004 Act.
An application pack for a licence and covering letter were sent to the appellant on 9 February 2010. There was correspondence. On 15 March 2010 and again on 27 August 2010 and on 9 December 2010 the appellant wrote to the London Borough of Newham asking why the property needed to be licensed; the London Borough of Newham replied, referring to the legislation. In that correspondence, it also drew attention to the financial discounts available if the licence were applied for promptly. It further referred to potential consequences under the 2004 Act of failure to obtain a licence (including a fine, liability to a rent repayment order and restrictions on recovery of possession). It made no mention of possible confiscation proceedings. The property was, it may be added, subsequently inspected by the Council. It was said to have two "Category 1" faults, both denied by the appellant: overcrowding (6 people in a house suitable for 3) and poor heating. However, it was ultimately accepted that the appellant was a fit and proper person to be licensed and had it only applied for a licence for the property at the relevant time one would have been issued for it. In the event, on application eventually made, the London Borough of Newham did indeed issue a licence for the property on 11 July 2011, with effect from 11 April 2011.
It appears that the appellant has a considerable number of other properties which it rents out. It apparently has a turnover of over £600,000 p.a. It had no previous convictions of any kind and it was said to be a landlord which complied with all its statutory obligations in renting out properties. Its managing director, Mr Sumal, at the time was, it is also said, experiencing the stress of divorce proceedings and so had significant distractions.
The Recorder considered various preliminary arguments to the effect that the proceedings were an abuse of process or were oppressive or were in breach of the appellant's rights under the European Convention on Human Rights. The Recorder rejected all those points. When she came to pass sentence, the Recorder said this:
"As I have already said, the legitimate aim of this legislation and licensing was to prevent landlords who did not have appropriate licences from renting out properties, in order to ensure that properties are rented out appropriately to prevent antisocial behaviour in the area.
The defendant knew of the requirement for the licence and failed to apply for it for a number of months, despite repeated reminders. It is important that landlords who are renting out the property meet their obligations under the law."
The Recorder proceeded to impose the fine of £2,000 and also made the order for costs as previously indicated. The Recorder had previously ruled that the appellant had benefited from criminal conduct in the amount of the rent received whilst the property was unlicensed – that being in an agreed amount of £6,450.83 — and she had made a confiscation order accordingly. The Recorder indicated that she had had that in mind in imposing the level of fine and the order for costs as she did.
Mr Rule renews all his points in this court. His grounds for disputing the outcome in the court below are many and varied, albeit in some respects overlapping. The ground, however, in respect of which he was actually granted leave by the single judge related to the Court's imposition of a confiscation order. But before turning to Mr Rule's arguments, it is appropriate to refer to some of the provisions of the 2004 Act.
The relevant provisions are contained in Part 3 of the 2004 Act. One of the evident purposes of those provisions was to assist local housing authorities in (amongst other things) improving social conditions and reducing antisocial behaviour in the area of its district or in any area within that district. Section 80 empowers a local housing authority to designate any such area subject to selective licensing, if the specified requirements are met.
The scheme is that a house coming within the reach of such provisions must be licensed under Part 3: see s.85. Section 87 provides for applications for licences; and s.88 and s.89 relates to the grant and refusal of licences. Section 90 provides that licences may have conditions attached to them as the Housing Authority may consider appropriate for regulating the management, use or occupation of the house concerned. Section 95 is headed "Offences in relation to licensing of houses under this Part", and is, in the relevant respects, in these terms:
"(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed.
(2) A person commits an offence if —
(a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 90(6), and
(b) he fails to comply with any condition of the licence.
….
(5) A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding £20,000.
(6) A person who commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale."
Section 96 is headed "Other consequences of operating unlicensed houses: rent repayment orders". In the relevant respects, section 96 is in these terms:
"(1) For the purposes of this section a house is an 'unlicensed house' if —
(a) it is required to be licensed under this Part but is not so licensed, and
(b) neither of the conditions in subsection (2) is satisfied.
(2) The conditions are —
(a) that a notification has been duly given in respect of the house under section 62( 1) or 86(1) and that notification is still effective (as defined by section 95(7));
(b) that an application for a licence has been duly made in respect of the house under section 87 and that application is still effective (as so defined).
(3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of –
(a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of the whole or a part of an unlicensed house, or
(b) any other provision of such a tenancy or licence.
(4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section 97.
(5) If —
(a) an application in respect of a house is made to a residential property tribunal by the local housing authority or an occupier of the whole or part of the house, and
(b) the tribunal is satisfied as to the matters mentioned in subsection ( 6) or (8),
the tribunal may make an order (a "rent repayment order") requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (8)(b), as is specified in the order (see section 97(2) to (8).
(6) If the application is made to...
To continue reading
Request your trial
-
R (London Borough of Haringey) v Boruch Roth
...50 It takes as its starting point the decision of a constitution of this court in the case of Sumal and Sons (Properties) Limited [2012] EWCA Crim 1840, [2013] 1 WLR 2078. As a starting-point, it meets the initial objection that, in giving the judgment of the court, Davis LJ made clear, a......
-
R v Karen Neuberg
...R v McDowell and Singh [2015] EWCA Crim 173, [2015] 2 Cr App R (S) 14 and the earlier decision in R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840, [2013] 1 WLR 2078. The CCRC had said at paragraph 68 of the reference: "The CCRC considers that in the circumstances there is a real po......
-
1. Christopher James McDowell and Another v The Queen
...section 76(4) POCA either to the company or to the appellant, by relying on the decision of this court in Sumal and Sons (Properties) Limited v The Crown (London Borough of Newham) [2012] EWCA Crim 1840; [2013] 1 WLR 2078. In the alternative, it was argued that there was no evidence before......
-
R v Adrian Weintroub
...where the court found there had been no intention to commit fraud or deception. Reliance was additionally placed with reference to the Sumal case ( R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840, [2013] 1 WLR 2078) on the following suggested features of the present case. First, th......