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Landlord fails in bid to vacate earlier guilty plea amid claims council was improperly motivated by prospect of confiscation windfall

A landlord has failed in a judicial review challenge after he was refused permission to vacate a guilty plea in relation to an enforcement notice, amid claims that a council was improperly motivated by an expected windfall from a confiscation order.

In Kombou, R (On the Application Of) v The Crown Court at Wood Green [2020] EWHC 1529 (Admin) Lord Justice Holroyde and Mrs Justice Thornton ruled that although Enfield made some errors “there was ample basis for the conclusion that prosecution was, and remained, in the public interest”.

The case concerned Marios Peter Kombou, who was charged by Enfield (the interested party in the High Court) with failing to comply with an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990 over the conversion of a house to eight bedsits without planning permission.

Mr Kombou in October 2017 pleaded guilty at a magistrates' court and was committed for sentence at Wood Green Crown Court as a confiscation order would be considered under section 70 of the Proceeds of Crime Act 2002.

Under Home Office rules Enfield as both investigator and prosecutor would receive 37.5% of the sum recovered.

In the course of the dispute between Mr Kombou and Enfield a planning enforcement officer recommended prosecution and estimated “Proceeds of Crime Act potential on rental income of 8 flats” at some £307,200.

When Mr Kombou first appeared before magistrates in January 2017 his counsel suspected that the prosecution was motivated by an improper consideration of confiscation, and sought disclosure from Enfield.

Mr Kombou's solicitor later that month made written representations to Enfield's legal services department that it was not in the public interest to pursue the prosecution as Mr Kombou had complied with the enforcement notice and issues of confiscation had influenced the decision to prosecute.

In June 2017 there was an application to stay the proceedings as an abuse of the process on the ground that Enfield had been guilty of misconduct or abuse of power, had been dilatory and unhelpful with late disclosures, delayed bringing the prosecution and had improperly been motivated by the prospect of a confiscation order.

When the case reached the Crown Court in March 2019 Mr Kombou sought to change his earlier plea and again claimed an abuse of process was occurring.

Unusually, his original counsel, a Mr Heller, appeared as a witness and gave evidence that if he had had documents later disclosed by Enfield he would not have advised Mr Kombou to plead guilty.

Hearing that case, HHJ Greenberg rejected Mr Kombou’s claims of impropriety by Enfield and imposed a fine of £13,500, ordered him to pay prosecution costs quantified at £30,449 and made a confiscation order for £333,400.99.

Mr Kombou sought judicial review on the grounds that HHJ Greenberg’s finding that the decision to prosecute was independent, fair and objective was wrong in law and/or irrational, as was her finding that Enfield's conduct of the proceedings could not amount to an abuse of process.

Lord Justice Holroyde and Mrs Justice Thornton said: “The power to stay a prosecution on grounds of abuse of process is also one which is sparingly exercised.

“On any view, therefore, Mr Kombou - on whom the burden lay - was seeking to bring himself within a very narrow category of case.”

They said Mr Kombou’s case “was built on flimsy foundations” because “ensuring compliance with an enforcement notice is the primary aim of the legislation…but it is not suggested that it is the only permissible consideration.

“If it were, there would be a perverse incentive for a property owner who was profiting from his deliberate breach of planning control to remain in breach for as long as possible, so as to maximise his profit before belatedly complying in order to put an end to any risk of prosecution and therefore to any risk of a confiscation order.

“There was here clear evidence of a prolonged and deliberate flouting of planning control, which Mr Kombou ultimately admitted.”

They rejected the idea that HHJ Greenberg’s finding were irrational or that she had erred.

Any alleged improper motivation to prosecute had to be seen from the view of a fair-minded and informed observer.

The Asset Recovery Incentivisation Scheme under the Proceeds of Crime Act is a system introduced by the government, “not a private arrangement devised by the prosecuting authority for its own advantage” and “we see no basis on which it can be said that [HHJ Greenberg], having made her findings as to [Enfield’s] actual reasons, erred by not finding an appearance of an improper motive”.

HHJ Greenberg had correctly considered all relevant evidence and “we are therefore unable to accept the submission that all of the judge's findings and conclusions can be ascribed to an error of law as to the ambit of abuse of process hearings”, the two judges said.

Mark Smulian

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