Below is a link to an article in the recent edition of Criminal Law week where senior partner Mark Bowen has commented on the recent case of R.(Kombou) v Wood Green Crown Court  EWHC 1529 (Admin).
In this case the defendant had unsuccessfully applied to vacate his guilty plea to an offence of failing to comply with an enforcement notice,contrary to section 179 Town and Country Planning Act 1990, on the ground that, if the prosecuting agency had disclosed evidence (that had since been disclosed) at the magistrates’ court hearing, the defence would have been able to make a successful abuse of process application because the prosecution had been driven by an improper motive: namely the prospect of gain from a confiscation order.
Despite evidence being disclosed that the prosecutor, a local authority, had considered confiscation prior to making a charging decision and had applied for POCA production orders prior to a that decision being made (and despite denying that there had been any consideration as to confiscation prior to issuing the summons),and the fact that the defendant had remedied the breaches identified in the with the order of the council to remedy his breach of planning control, the Administrative court found that the Crown Court Judge was correct not to allow the defendant to reopen his plea and that the the decision to prosecute had not been driven by an improper motive for gain and was independent, fair and objective. Further, the Administrative Court found that the judge was correct to consider the merits of the abuse of process argument when deciding whether she should exercise her discretion to allow the defendant to vacate his guilty plea. You can read the article by clicking here and a transcript of the judgement can be accessed here.
The case is a salutary reminder to all practitioners, acting for clients facing proceedings under s179, to make full and proper enquiries of the prosecuting authority in seeking to establish whether the prospect of confiscation has influenced the decision to prosecute before finalising advice on plea. Although in the instant case the application for judicial review effectively only consider the judge’s decision not to allow the defendant to revisit his plea, the position might have been different if proper and timely disclosure of the information had been provided to the defence prior to plea in the magistrates court.
We are grateful to counsel, Andrew Campbell Teich, who acted for the defendant in the case for providing further insight and information about the case.
A link to criminal law week can be accessed here.