14 C O N T E X T 8 8 : M A R C H 2 0 0 5 it may be raised as a mitigating factor to secure a lower sentence. On the other hand, the court might take the view that even if, for example, a building was of little importance, perhaps because it had been much altered since it was first listed, the right course of action by the landowner would have been to seek listed building consent for its alteration or demolition, if necessary from the Secretary of State on appeal, rather than simply carrying on regardless; and that a reduction in sentence may therefore not be appropriate. Procedure Sentencing is in some cases a key element in a trial for unauthorised works to listed buildings. If the defendant has pleaded guilty, no evidence at all will have been called prior to conviction, so that matters relevant to sentencing (such as, notably, the culpability of the defendant and the value of the building) may need to be explored following conviction prior to sentencing. Where there is a substantial difference between the two sides on such matters, there may have to be a hearing to determine the basis on which the court should arrive at its sentence. The procedure by which this is achieved is known as a Newton hearing. The same procedure may also be required, however, where there is a conviction following a not-guilty plea. In some cases, evidence relating to matters such as the culpability of the defendant and the amenity value of the tree would be both irrelevant and, possibly, highly prejudicial if admitted during the main trial. Such evidence must therefore be rigorously excluded at that stage (see Sandhu), but may be introduced following conviction.The Court of Appeal has advocated that in such cases a procedure similar to the Newton hearing be adopted. The trial thus effectively splits into two parts. Costs In the event of a conviction in a case of this kind, the prosecution will usually seek to recover all or part of its costs from the defendant. Indeed the amount of costs recovered can (exceptionally) exceed the amount of the fine, although it should never be ‘grossly disproportionate’ to it (R v Northallerton Magistrates’ Court, ex parte Dove (1999) 163 JP 657). The computation of allowable costs is beyond the scope of this article. In broad terms, the court may order the defendant to pay to the prosecution such costs as it considers just and reasonable (see Prosecution of Offences Act 1985, section 18). This may include the costs of any investigation carried out by the prosecuting authority in preparation for a trial that eventually results in a conviction – which may be very significant. The prosecution should produce as early as possible a statement of its costs, and serve it on the defence; and the defence should have a chance to object to them where appropriate. In practice, having considered the means of the defendant and all the circumstances, the court will often order the defendant to pay some rather than all of the prosecution costs. If the defendant is acquitted, his or her costs will be met from central funds, not by the prosecution; and there is no special rule as to costs in proceedings brought in the public interest. Choice of court Finally, the wording of the Act (see above) might appear to suggest that a prosecution should be mounted in the Crown Court, if only because its powers of sentencing are so much greater than those available to magistrates. However, a number of points suggest that this is a misconception. For one thing, the procedural difficulties are so much greater in the Crown Court that a prosecution is likely to come unstuck, and – even if the prosecution is successful – the costs are likely to be significantly greater, with only some recoverable from the accused. Second, Home Office guidance is clear that prosecutions should generally be in the magistrates’ courts unless there are overwhelming reasons to suggest otherwise. While it is of course the privilege of the defence to opt for jury trial, it is therefore wrong for the prosecution to go for it (as they are theoretically entitled to) simply for reasons related to sentencing. The law and the facts relating to a listed building offence are, after all, likely to be relatively straightforward. Third, the magistrates are entitled – after finding someone guilty or accepting a guilty plea – to send a case up to the Crown Court for sentencing if they consider that their powers are insufficient. That is, I suggest, a much more appropriate course. It is up to the prosecution to present the facts of the case in a balanced way – without straining to get the maximum possible sentence – and to summarise the relevant law on sentencing, and to invite the magistrates to decide themselves. A further hazard is that going to the Crown Court may lead to an adjournment while the magistrates obtain further details of the means and previous convictions of the defendant. Fourth, the results of insisting on trial in the Crown Court are simply not worth the effort – or only very rarely worth it. The available evidence suggests that there have been almost no fines of greater than £20,000 imposed, in any court. But we (and Bob Kindred) would welcome any evidence suggesting otherwise, or indeed any reports of prosecutions, successful or otherwise. Conclusion The most important factor in achieving both a conviction and a proper sentence is a thoroughly well-prepared prosecutor. Magistrates do not deal with these offences often – they may never have come across one at all. But it can be done; and, as always, practice makes perfect. Perhaps it is time for some helpful guidance from central government on how to do it – the existing guidance is limited to one not particularly helpful paragraph in PPG15. Charles Mynors and Alex Booth are barristers in the Chambers of Robin Purchas QC in the Temple. A new edition of Mynors’ seminal book, Listed Buildings, Conservation Areas and Monuments, published by Sweet & Maxwell and including over 100 recent decisions of the courts, will be published in 2005.
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