Smart Planning was found guilty by North Essex Magistrates in November 2017 of wilful obstruction “by the act of another”, its employee Paul Clarke, of an officer acting in the exercise of a right of entry contrary to s.88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Smart Planning appealed and this was heard by the Divisional Court.
Local Government Lawyer reports:
In Smart Planning Ltd v Brentwood Borough Council  EWHC 2372 (Admin) Lord Justice Leggatt said the two critical questions raised by the appeal were:
1. “whether on the facts found by the magistrates Mr Clarke was acting in the exercise of a right of entry conferred by s.88 of the Act when he told one of the persons present to leave and thereby, on the magistrates’ findings, wilfully obstructed a planning officer”; and
2. “whether there was a basis in law for finding the appellant vicariously liable for an offence committed by Mr Clarke”.
Lord Justice Leggatt said: “On the facts found by the magistrates, there was no finding of any assertion or communication of a request or demand by Mr Bray or any other council officer to enter the premises in this case as of right.
“It follows, in my view, that when Mr Clarke ordered or demanded that one of those present, namely Mr Collins [a former tenant who had been asked by the council to attend], should leave, he was not guilty of an offence under s.88B(3) because none of those present on the property was acting in the exercise of a right of entry.”
The Court of Appeal judge said that that was sufficient to justify quashing the conviction of the appellant.
However, he went on to find that the magistrates were not entitled to find the appellant vicariously liable for the actions of Mr Clarke on the facts found.
“The basis of the prosecution and conviction, as is clear from the case stated to us, was simply a supposed principle of vicarious liability. There is nothing in the wording of the 1990 Act which suggests that, by way of very rare exception to the general rule, some principle of vicarious liability is intended to be sufficient to result in a conviction. In particular, there is no reason why the purpose of the statute would otherwise be defeated,” Lord Justice Leggatt added.
“…..the company cannot simply be liable on the basis that it is vicariously responsible for whatever its employee does acting in the course of his employment. It can only be liable if it is demonstrated that a controlling officer of the appellant committed an act capable of giving rise to the offence with the necessary intention.”
Lord Justice Leggatt said that Smart Planning’s conviction should be quashed. Mr Justice William Davis said that he agreed with Lord Justice Leggatt that “vicarious liability has no place in criminal law, particularly in this context”.
For background see the IHBC NewsBlog