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Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2847
Experience:  Partner in national law firm
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I am being prosecuted for a listed building offence.

Customer Question

I am being prosecuted for a listed building offence. The council prosecution officer did not 'caution' me on 2 of the 4 visits made to my property. Can I ask to have the offence dismissed in court on this basis. They also verbally threatened to have me charged with architectural theft and the same day brought a police officer to my home without the jurisdiction to do so. Please advise how I should proceed. Thanks


 


One of the offences is for moving the boiler flue without council appoval. The existing one was installed under 15cm from an opening window and therefore did not meet health and safety requirements for any boiler installation. The plumber moved it to meet with regulations. The rear wall itself had also undergone significant changes with council approval 10 years ago when a door was altered to a window and the boiler flue and a fan vent opening created. Can I ask for this item to be removed from the prosecution on the basis that it was a health and safety risk and that considering the wall was already recently significantly altered not obtaining council approval did not affect the architectural or historic significance of the building?


 


Optional Information: 
System of Law: England-and-Wales

Submitted: 2 years ago.
Category: Law
Expert:  Alice H replied 2 years ago.
My name is Alex Hughes and I'm happy to help with your question today.

Under what planning regulations are you being prosecuted? This information will be on the summons.
Customer: replied 2 years ago.

The summons states "At some time between the 22nd April 2013 and the 17th october 2013 you did execute, or cause to be executed, works for the alteration of the Grade II listed building known as......., in a manner which affected its character as a building of special architectural interest by the removal of 3 fire surrounds and inserts, the removal of the staircase and the insertion of a new boiler vent, without having first obtained listed building consent from the local planning authoriy, contrary to Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Such breach constitutes an offence by virtue of the Section 9(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

Expert:  Alice H replied 2 years ago.
Thanks for the additional information. Please bear with me for a few minutes while I type an answer.
Expert:  Alice H replied 2 years ago.
OK.

1. Issue regarding failure to caution.

The officer's failure to caution prior to asking you questions will not be enough to apply for a dismissal of the prosecution. Failure to administer a caution - as required by Code C, Codes of Practice of Police and Criminal Evidence Act 1984 - means that any interview or comment which they intend to rely on could be excluded under s.78 PACE 1984. In otherwords, the failure to caution might be helpful if you are looking to exclude a conversation unless, of course, you feel the record of that interview will actually assist your defence. But, just to emphasise, failure to caution is not fatal to a prosecution and the Court will not dismiss a case because of such a technicality.

2. Defence to a prosecution.

The defences available under section 9 of the Regulations are:

(a)that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;

(b)that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;

(c)that the works carried out were limited to the minimum measures immediately necessary; and

(d)that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable

You seem to be saying that paragraphs (a) and (b) are relevant to your situation. If you have evidence corroborating your evidence then by all means its worth asking the council to review the prosecution the basis that its is not needed on 'public interest' grounds. However, councils in my experience are very blinkered in their approach and even when confronted with irrefutable evidence that something was necessary they will press on with a prosecution nonetheless. I think this approach is down to two factors: to avoid being criticised for mounting a prosecution and then dropping it and because time and money has already been expended. Despite this making strong representations might do the trick.

Hope this helps.

Alex

Customer: replied 2 years ago.

Is telling the court that the council enforcement officer threatened to have me charged with architectural theft for the removal of the staircase and then later that day, brought a police officer, who stated that he had told council that he did not have jurisdiction over the matter, but that council had insisted that he come, something that would be beneficial to the council not following due process. I wrote a letter of complaint to the council to which I received a general reply that they had acted appropriately.

Expert:  Alice H replied 2 years ago.
I doubt if telling the Court about the inappropriate behaviour of the officer will be enough in itself for dismissal. But when he gives evidence about the matter you can cross-examine him directly about his threats and general attitude in order to undermine his credibility and their case generally. If you have a genuine health and safety situation and the officer refused to listen and proceeded with a gung-ho attitude then his behaviour may work against him in Court and he will lose sympathy with the Justices who may empathise more with you for trying to make your voice heard. So, in summary, his attitude towards you is not a defence to a prosecution nor is it grounds for dismissal - but it may help you undermine the council's case.
Customer: replied 2 years ago.

Should I move for a dismissal, if they have failed to caution me 3 out of 4 visit to the property whilst the matter was under investigation. Also listed building consent was granted for the flue vent. Should I at the very least ask for this to be removed from the offences being prosecuted?

Expert:  Alice H replied 2 years ago.
The Magistrates Court will not deal with a dismissal application until the day of the trial. You can make your application once the evidence has been completed at 'half time' or at the end of the case. In the meantime you can certainly ask for the charges to be dropped on the grounds that we discussed.
Customer: replied 2 years ago.

Does the trial date just require a plea to be entered? Can a dismissal application be made then instead of a plea or in addition to a plea?

Expert:  Alice H replied 2 years ago.
The procedure is this:

1. You attend at the first hearing and enter your not guilty plea;

2. You inform the court of the issues in the case including your proposed application to dismiss;

3. The court will set a date for the trial;

4. At the trial date you apply for dismissal;

The court will not usually deal with legal argument at the fist hearing because none of the witnesses will be present and the court will not have set aside sufficient time to deal with the matter. But you can inform them of your argument and they will set aside time to deal with it.

But, just to re-iterate, the failure to administer a caution will not be enough to get the case dismissed. At best any interview or comment will be excluded under s.78 PACE. It sounds like the council has other evidence to proceed with a case anyway.

Alex
Expert:  Alice H replied 2 years ago.
Hi Nina

I am following up our conversation to see how you got on with the issue. If you need any further help then please let me know - remember I am a qualified UK Solicitor and able to help on most aspects of English Law. I am London based and usually able to respond to your query very quickly.

Regards
Alex Hughes

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