Local authorities’ knowledge of potential POCA confiscation receipts in their decisions to prosecute planning offenders have been successfully used as the basis of abuse of process arguments in several recent cases, notably R v Knightland Foundation and R (Wokingham BC) vs Scott on which we have reported in the past.  Despite the existence of the Home Office Asset Recovery Incentivisation Scheme (“ARIS”) and the encouragement it gives Local Authorities to investigate and prosecute, it seemed that any enforcement officer which so much as muttered the word POCA prior to prosecution had doomed the case by doing so.  Large scale fishing exercises, with defendants seeking disclosure and trawling every email, memo and decision in relation to the council’s prosecution policy, have become the norm.  

A recent Court of Appeal case seems to provide some respite and may indicate that the pendulum is swinging back towards a more balanced view of POCA confiscations in planning cases.

In The Queen (on the application of Marios Peter Kombou) vs LB Enfield and Wood Green Crown Court [2020] EWHC 1529, the Court of Appeal was asked to allow judicial review of a decision by a lower court not to allow Mr Kombou to vacate his guilty plea.  Mr Kombou argued that Enfield had been late in disclosing documents relating to his fishing exercise and that, had he had those documents prior to his hearing, he would not have pleaded guilty.

Mr Kombou’s counsel was allowed to make wide-ranging submissions as to the propriety of the decision to prosecute, arguing that Enfield’s financial investigator was hopelessly conflicted because POCA receipts funded his salary, that Enfield’s officers had investigated the potential receipt prior to commencing the prosecution and that their decision to prosecute was motivated by an estimated £300k POCA receipt.  

In finding that the lower court had reached a reasonable decision and that judicial review would be denied, the Court of Appeal make a number of helpful observations, paraphrased below:

This last paragraph in particular is very helpful.  It has often seemed that the courts have conveniently ignored that Parliament, in creating ARIS, intended Local Authorities to be financially able to, and incentivised to, prosecute and confiscate.  This case makes clear that the existence of ARIS is not a bar to a successful prosecution and that the fact that it might result in POCA receipts for the Local Authority does not make the prosecution an abuse.  This case is likely to cut down the scope of future fishing exercises considerably.

The decision is not a get out of jail free card for planning prosecutions.  Its facts are unusual; it was a JR of a decision to refuse to allow vacation of a guilty plea.  In essence, Mr Kombou was arguing that Enfield had behaved with such serious impropriety [in relation to failure to disclose] and his advisers had been so badly misled, that a prosecution would be an affront to justice and an abuse of the process of the court.  This is a very high bar.

And the case makes clear that Local Authorities must continue to take their decisions to prosecute conscientiously and not for the purpose of POCA receipts.  This remains a difficult line.  The fact that Local Authorities have limited resources and must choose their battles was mentioned in the facts of the case but no guidance was given by the court.

But we do think that this is an indication of a stricter judicial treatment of abuse of process applications in planning cases.  The pendulum may be swinging back at last.