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Confiscation proceedings halted over “fatal error” in indication of guilty pleas

A council’s bid to obtain a confiscation order over planning enforcement breaches has been halted after a ruling that the indication of pleas of guilty on the two defendants’ behalf and in their presence by counsel appearing for them in the magistrates’ court was an incurable error.

In Westminster City Council v Owadally & Anor [2017] EWHC 1092 (Admin) the appellant local authority sought to overturn a Crown Court decision that this error was fatal to the subsequent proceedings.

The case of the respondents, Mohammed Yousouf Farook Owadally and Seema Khan, was that only they, personally, could have indicated pleas of guilty and that the lapse of some 21 months, together with their participation in the confiscation proceedings in the interim were neither here nor there.

Lord Justice Goss, who heard the appeal alongside Mr Justice Ouseley, said the case concerned a judgment of HHJ Grieve QC, sitting at Southwark Crown Court on 7 June 2016

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HHJ Grieve QC found that the indications of pleas of guilty were entered in Westminster Magistrates' Court on 14 May, 2014 by the respondents' barrister, on behalf of both Owadally and Khan, and not by them personally, and therefore that the indications of guilty pleas were invalid, as was the respondents' committal to the Crown Court for confiscation proceedings. The respondents had been present throughout the hearing and present in court at the point when the guilty pleas were indicated.

HHJ Grieve QC remitted the cases back to the magistrates' court.

The legal proceedings date back to 21 February 2014 when Westminster laid three informations against Owadally and Khan, alleging breaches of three separate planning enforcement notices served on them as owners of a property in London W9. The breaches were said to constitute offences contrary to s.179 of the Town and Country Planning Act 1990.

After the indication of guilty pleas to the three offences through their barrister on 14 May, the prosecutor indicated to the Magistrates’ court an intention to pursue confiscation proceedings. The case was subsequently committed to the Crown Court pursuant to s.70 of the Proceeds of Crime Act 2002.

On 9 June 2014 the case was listed for committal for sentence at Southwark Crown Court, before Mr Recorder Rhodes QC.

The case before the High Court noted that: "The defendants would have admitted at their first hearing in the Crown Court to having been committed from Westminster Magistrates' Court on 14 May 2014." A confiscation timetable was set, with a final hearing fixed for 5 March 2015.

A number of delays then ensued as Owadally and Khan sought extensions of time or adjournments while pursuing other avenues of appeal relating to the planning status of the property. Ultimately, in September 2015, all planning appeals were exhausted.

On 22 September 2015, at a mention in the Crown Court, the final confiscation hearing was re-fixed for 14 March 2016. By this time there had been an exchange of s.16 POCA statements of information prepared by the prosecutor and s.17 POCA responses by the respondents. There had also been a number of mention hearings.

The next development was, in the words of Lord Justice Goss, “dramatic”. He said: "On 29 February 2016, Blackfords LLP, solicitors acting on behalf of both respondents, wrote to the prosecution indicating that Mr Owadally and Ms Khan intended to apply to vacate their guilty pleas 21 months after the pleas were indicated. This was the first time since the pleas were indicated in May 2014 that the issue of vacation was raised."

The case stated posed the following questions for the opinion of the High Court:

"i) Whether the Learned Judge [HHJ Grieve QC] was right to find that the ratio of R v Ellis (1973) 57 Cr App R 571 [on pleas by the defendants rather than by counsel on their behalf] is equally applicable to an indication of plea in the Magistrates' Court as to arraignment in the Crown Court?

ii) Whether the Learned Judge was right to conclude, following R v Ashton [2006] EWCA Crim 794, that the indication of pleas of guilty by counsel on the respondents' behalves and not by the respondents themselves was a procedural failure which invalidated the steps which followed; or should he have found that was not the intention of the legislature and gone on to consider the interests of justice generally, including the acceptance by the respondents in the Crown Court that they had been committed from the Magistrates' Court?"

Lord Justice Goss said there was an additional question (iii) that needed to be addressed by the High Court. That was:

"Whether the learned Judge was correct to permit the Defendants to raise the question of validity of the committal for sentence 21 months after their cases were committed to the Crown Court under s.70 of the Proceeds of Crime Act 2002, and just one month before the listing of what would have been the final hearing of the matter?"

Lord Justice Goss considered that the “insuperable difficulty” was that – as established by authority – the jurisdiction of the magistrates' court to deal with these either way offences was conditional on strict compliance with the requirements of s.17A of the Magistrates’ Court Act 1980.

“A failure so to comply, here constituted by not taking the indication of pleas from the respondents personally, meant that the magistrates' court was acting without jurisdiction,” he said.

“It follows that the committal for sentence was invalid, thus fatally undermining the Crown Court proceedings: see, for instance, the observations in Ex p. Machin and Williams. The defect, once found, could not be cured or overcome by waiver, ratification, acquiescence or the like; none of these, as expressed in Ashton, could operate to confer jurisdiction.”

Lord Justice Goss added: “Parliament's intention must be understood as meaning that non-compliance with the s.17A, MCA requirements results in the invalidity of any proceedings which follow - so reflecting the fundamental importance of guilty pleas being entered personally; and that such invalidity, once found, was incurable by the respondents' participation in the proceedings which followed.

“Accordingly, I am, most reluctantly, driven to the conclusion that the respondents' submission is correct in law. Put another way, any other conclusion would run strongly and unacceptably counter to the tenor of authority, to which reference has been made.

Lord Justice Goss reiterated that the approach followed in this case was based on the following considerations: “the case is where it is because of the procedural errors made on all sides, so that, in effect, each party required our indulgence; the need for a pragmatic response at the stage this case has reached; the problems of deciding whether to grant permission when the case is already before us, and the facts have been found. This approach is no guide at all as to how a court should approach judicial review applications of this nature in the future. It is to be hoped that the court is not put in this position again.”

Lord Justice Goss answered the three questions as follows:

i) Question I: yes;

ii) Question II: yes;

iii) Question III: it cannot be answered yes or no; it depends.

In the event, as this matter was to be treated as a judicial review rather than an appeal by way of case stated, the questions need not be formally answered, Lord Justice Goss said.

The judge said the order (to be drawn up by counsel) should reflect that on waiving all procedural requirements, and the Court treating the proceedings as including applications for judicial review of the decisions of the Crown Court and of the Magistrates' Court:

i) the indications of pleas by counsel on behalf of the respondents in the magistrates' court are quashed;

ii) the magistrates' court committal of the respondents for sentence to the Crown Court is quashed;

iii) The decision of the Crown Court is quashed.

Counsel should also draft directions for the further conduct of the matter before the Magistrates' Court, he said.

Lord Justice Goss further observed that the case should be seen as exceptional. “Should the contention be repeated in other cases that guilty pleas had not been indicated or entered personally, I would anticipate a very close scrutiny of the available evidence, against the background of the clear presumption of regularity,” he stressed. (Judge’s emphasis)

“That said, the present case stands as a reminder that guilty pleas in the magistrates' court must be indicated or entered by defendants personally. All concerned should take care to ensure that this is the case; a failure to do so can (as has been seen here) give rise to an unnecessary waste of time and money. The importance of maintaining a suitable record is likewise apparent.”

Mr Justice Ouseley agreed.

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