12 C O N T E X T 8 8 : M A R C H 2 0 0 5 LEGAL BRIEFING Criminal prosecution for unauthorised works: sentencing The issue of sentencing is often seen to be an obstacle to bringing a successful prosecution in conservation cases. Charles Mynors and Alex Booth report. The general principles of prosecution for unauthorised works to listed buildings were reviewed in an article in Context 70 (June 2001). This present article considers the vexed issue of sentencing, which is thought by many conservation officers to be an obstacle to bringing a prosecution. After all, it is said, if the only result of all that effort is a derisory fine – or even an absolute discharge – what is the point? Indeed, the likely level of the fine is perfectly properly one of the factors that should influence the decision as to whether to prosecute in the first place. Thus the Code for Crown Prosecutors (the most recent edition of which was produced by the CPS in November 2004) provides a two-stage test. First, is the evidence available such that there is a ‘realistic prospect of conviction’ against each defendant? Second, is a prosecution in the public interest? In considering the latter point, the first point to be borne in mind is that the more serious the offence, the more likely it is that a prosecution will be needed in the public interest – thus, ‘a prosecution is likely to be needed [and note that word ‘needed’] if a conviction is likely to result in a significant sentence’; whereas it is less likely to be needed if the court is likely to impose a nominal penalty. So how is sentencing dealt with in the courts? Basic principles The starting point is that the Listed Buildings Act provides (in section 9(4)) that, for any breach of section 9 – that is, for any unauthorised works to a listed building, or any breach of a condition attached to a listed building consent, the maximum penalty is currently: a) on summary conviction (that is, by a magistrates’ court), a prison sentence of six months, or a fine of £20,000, or both; and b) on conviction on indictment (that is, by a jury in the Crown Court), imprisonment for two years or an unlimited fine, or both. Further, section 9(5) provides that, in determining sentence, the court must have regard to any financial benefit which has accrued or appears likely to accrue to the person convicted as a result of the offence. That establishes the maximum fine that may be imposed, and one matter that is to be taken into account, but it gives no indication of the likely sentence in practice. That is likely to be influenced by what are called ‘guideline decisions’ of the Court of Appeal, and guidance given by the Sentencing Advisory Panel to the Court of Appeal (see www.sentencing-advisory-panel.gov.uk). Guideline cases There have been several guideline cases in the Court of Appeal relating to the unlawful demolition of a listed building. In the most important of these, R v Duckworth(1995) 16 Cr App R (S) 529, the ground floor of a historic building had been demolished without listed building consent. The court reviewed its most recent previous decisions – in particular R v Sims Ltd (1993) 14 Cr App R (S) 213, and R v Simpson (1993) 14 Cr App R (S) 602 (both decisions under the ancient monuments legislation), and considered that the principal matters to be taken into account were • the degree of damage that had been done to the historic structure, • the degree of financial gain that the defendant had attempted to achieve, and • the degree of culpability of the defendant. We deal with each of these considerations in turn. However, it should not be forgotten that they are of course in addition to the factors which will be potentially relevant in all criminal cases, such as the means of the defendant, his or her previous record (so far as relevant), any guilty plea, and the extent of the defence’s cooperation with the prosecution. The first of these, in particular, may often be the most crucial factor in practice – see Duckworth; also the Powers of the Criminal Court (Sentencing) Act 2000, section 128, and R v Browning [1996] 1 PLR 61, CA. The extent of the damage All listed buildings are important, but some are clearly more important than others. This has been accepted as a relevant factor both by the Court of Appeal in Duckworth and by the Sentencing Advisory Panel, in its report of March 2000 on sentencing for environmental offences. The offences being considered by the panel, such as air or water pollution, are perhaps generally more serious than the unlawful demolition or alteration of buildings; but the underlying approach would seem to be equally valid. This will clearly be a matter for expert evidence – particularly in a case, which will commonly occur, where the unauthorised works were alteration rather than demolition. It will then be necessary to highlight not just the special architectural or historic interest of the building in question but also the extent of the damage inflicted on it by the unauthorised works – was it simply the replacement of a single window or wholesale butchery?
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