THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39479/98 by Peter Edward WICKS against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 11 January 2000 as a Chamber composed of

Mr  J.-P. Costa, President , Sir  Nicolas Bratza, Mr  L. Loucaides, Mr  P. Kūris, Mrs F. Tulkens, Mr  K. Jungwiert, Mrs H.S. Greve, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 November 1997 by Peter Edward Wicks against the United Kingdom and registered on 21 January 1998 under file no. 39479/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen.  He was born in 1942 and lives in Margate, Kent, in the United Kingdom. He is represented before the Court by S.J. Burton & Co., solicitors, and Mr Anthony Speaight QC, counsel, practising in Margate, Kent, and London respectively.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 13 March 1990 an enforcement notice was issued and served on Mr Wicks under section 87 of the Town and Country Planning Act 1971 (“TCPA 1971”).  The notice recited that there appeared to the Thanet District Council (“the Council”) to be a breach of planning control in that a two-storey building had been erected to the rear of 23 and 24 Tivoli Road, Margate, and of 1A and 1B Buckingham Road, Margate, without the necessary planning permission.  The notice required the applicant to remove all parts of the building which were higher than 2.5 metres above the original ground level, within one month of 24 April 1990.  The notice complied on its face with the provisions of the TCPA 1971.

On 24 August 1990 the Town and Country Planning Act 1990 (“TCPA 1990”) entered into force, consolidating the previous legislation including the TCPA 1971.

The applicant appealed to the Secretary of State for the Environment under section 174 of the TCPA 1990.  Section 174 lists eight grounds upon which appeals may be brought. The applicant appealed on four grounds:

“(a) that planning permission ought to be granted for the development to which the notice relates....

(b) that the matters alleged in the notice do not constitute a breach of planning control;

(c) that the breach of planning control alleged in the notice has not taken place;

(g) that the steps required by the notice to be taken exceed what is necessary to ... achieve a purpose specified in section 173(4) ...”

In accordance with the TCPA 1990, an inspector was appointed to determine the appeal against the enforcement notice.  Neither the applicant nor the Council requested a formal public hearing or public inquiry.  The inspector made her decision after inspecting the building and considering written representations from both parties.  In her decision letter dated 10 May 1991, the inspector rejected the appeal under all four grounds.

The applicant did not appeal against the decision of the inspector, and on 10 June 1991, the enforcement notice came into effect.  The applicant remained the owner of the premises, and did not reduce the structure to a height of 2.5 metres as required by the notice.

On 11 June 1992, a summons was issued alleging that the applicant had committed a criminal offence under section 179 of the TCPA 1990, by failing to remove parts of the building higher than 2.5 metres. The applicant was granted legal aid for his representation in criminal proceedings by solicitors and counsel.

The applicant’s legal advisers sought and obtained disclosure of documents from the Council.  On the basis of these documents, the legal advisers wished to argue that there had been bad faith, including bias and improper motives, on the part of a Councillor in connection with the decision to issue the enforcement notice.  The applicant’s counsel advised him that an application for leave to move for judicial review, and thereby directly challenge in separate proceedings the decision to issue the enforcement notice, would have no reasonable prospect of success, being some two years out of time.

The criminal trial took place on 27 and 28 September 1993 at the Canterbury Crown Court, before His Honour Judge Rooke and a jury.  The judge ruled that the applicant was not entitled to contend, as a defence in the criminal proceedings, that the decision to issue the enforcement notice had been influenced by bias and bad faith, as a challenge to the enforcement notice could only be brought by way of proceedings for judicial review. Consequently, the applicant changed his plea from “not guilty” to “guilty”.

The applicant appealed against the conviction on the basis that the ruling of His Honour Judge Rooke had been wrong.  On 11 April 1995, the Court of Appeal (Criminal Division) dismissed the appeal.  On 15 July 1996, the House of Lords granted leave to appeal.

A hearing took place before the House of Lords on 12 and 13 February 1997 and, on 21 May 1997, the House of Lords dismissed the applicant’s appeal ([1998] Appeal Cases 92).  The House of Lords held that “enforcement notice” in section 179(1) of the TCPA 1990 meant a notice issued by a planning authority which, on its face, complied with the requirements of the Act and had not been quashed on appeal or by judicial review.  The effect of this was that, to constitute a defence in the criminal proceedings, the validity of an enforcement notice would have to be challenged within the time limits for a statutory appeal under the TCPA 1990 or for an application for judicial review.  It noted that the statutory grounds of appeal against an enforcement notice were wide enough to include every aspect of the merits of the decision to serve an enforcement notice.  An application for judicial review would in practice be needed only for the rare case in which enforcement was objectively justifiable but the decision that service of the notice was “expedient” (section 172(1)(b)) was vitiated by some impropriety.

COMPLAINTS

The applicant complains that the proceedings in the Canterbury Crown Court breached Article 6 § 1 of the Convention in that he was not allowed to raise the issue of lawfulness of the enforcement notice as a defence in the criminal proceedings, and was consequently not given a fair hearing on that issue.  He further contends that the fact that he could have made an application for judicial review is not sufficient for the purposes of Article 6 § 1, due to the three-month time limit for bringing an application for leave to move for judicial review, the need to obtain leave to bring an application, and the discretionary nature of the remedy.

The applicant further complains that the presumption of innocence required the prosecution to prove every element in the offence against him, and that a requirement that he should bring proceedings in another court to challenge the lawfulness of the enforcement notice breached Article 6 § 2 of the Convention.

The applicant contends that it is unlikely that he would have been granted legal aid to apply for judicial review of the lawfulness of the enforcement notice, and he complains that this was a violation of Article 6 § 3 (c) of the Convention.

The applicant also contends that judicial review proceedings would have afforded inadequate and limited opportunity for the cross-examination, on his behalf, of witnesses for the Council, and he complains that this was a violation of Article 6 § 3 (d) of the Convention.

The applicant complains that a breach of Article 7 of the Convention arises by virtue of the fact that a challenge to the lawfulness of the enforcement notice by way of judicial review proceedings had to be brought within three months of the issue of the notice.  The effect of this, according to the applicant, is that his conduct, which might or might not have been an offence within three months of issue of the notice, became a criminal offence after that date.

Finally, the applicant complains that the refusal to allow him to challenge the lawfulness of the enforcement notice as a defence in the criminal proceedings amounted to a violation of Article 13 of the Convention.

THE LAW

1 . The applicant alleges a violation of Article 6 of the Convention in that he was not allowed to raise the issue of lawfulness of the enforcement notice as a defence in the criminal proceedings against him, and that consequently he was not given a fair hearing on that issue.

Article 6 of the Convention provides, so far as relevant, as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The applicant also alleges a violation of Article 13, which requires the provision of effective remedies for Convention breaches.

Having regard to the nature of the complaint under Article 6 § 1, the Court considers that it is not necessary to examine the complaint under Article 13, the requirements of which are less strict than, and are here absorbed by, those of Article 6 § 1 (see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 31-32, § 88).

The Court first notes that it is clear that a “criminal charge” was determined in the proceedings which began with the summons of 11 June 1992 and ended with the decision of the House of Lords of 21 May 1997. Article 6 of the Convention therefore applies.

In the present case, the enforcement notice which formed the basis of the charge had been issued by a planning authority, complied unquestionably with the express requirements of the TCPA 1990, and had not been quashed by any competent judicial authority. In these circumstances, the Court concludes that the question of whether the fact-finding functions of criminal courts are usurped when certain of the facts at issue have previously been determined by administrative bodies does not arise, as the Crown Court was able to establish all the facts which were necessary to found a conviction.

The applicant’s complaints under Article 6 §§ 1 and 2 are therefore not made out.

The applicant also refers to Articles 6 § 3 and 7 of the Convention in connection with proceedings which he did not bring to challenge the enforcement notice. (Article 7 prohibits retroactive criminal legislation or penalties.) However, Article 6 § 3 and Article 7 both apply solely in connection with a “criminal offence”. It is clear that any judicial review proceedings would not, as such, have determined a criminal offence, and given the Court’s findings above, there is no question of any such proceedings forming part of the criminal charge which was subsequently determined. Articles 6 § 3 and 7 are therefore not applicable to the “pure” planning proceedings.

To the extent that the applicant refers to Article 7 in connection with the criminal proceedings which were brought against him, the Court notes that section 179 of the TCPA 1990 and its statutory predecessors had long been in force at the time when the enforcement notice was alleged to have been breached and when the proceedings against the applicant were begun. The applicant was not therefore “held guilty of any criminal offence on account of any ... omission which did not constitute an offence ... at the time it was committed”, within the meaning of Article 7 of the Convention.

It follows that the application as a whole is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President