Clare County Council v Floyd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 19 January 2007
• Neutral Citation: [2007] IEHC 48
• Court: High Court
• Docket Number: [2005 No. 905 SS
• Date: 19 January 2007

[2007] IEHC 48

THE HIGH COURT

[No. 905 SS/2005]

CLARE CO COUNCIL v FLOYD

JUDICIAL REVIEW

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961 AND

IN THE MATTER OF ORDER 102, RULE 12 OF THE DISTRICT COURT

RULES, 1997 AND

IN THE MATTER OF ORDER 62 OF THE RULES OF THE SUPERIOR

COURTS

BETWEEN

CLARE COUNTY COUNCIL

APPLICANT

and

DEREK FLOYD

DEFENDANT

PLANNING & DEVELOPMENT ACT 2000 S50

BOLAND v BORD PLEANALA 1996 3 IR 435

PLANNING & DEVELOPMENT ACT 2000 S160

HOULIHAN v BORD PLEANALA UNREP MURPHY 4.10.1993 1993/12/3737

O'CONNOR v DUBLIN CORPORATION UNREP O'NEILL 3.10.2000 2000/14/5399

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

PLANNING AND ENVIRONMENTAL LAW

Offences

Failure to comply with enforcement notice - Proof of offence - Autrefois acquit - Double jeopardy - Whether breach of enforcement notice constitutes continuing offence - Whether previous acquittal of accused precludes further prosecution in respect of continuing offence - Corporation of Dublin v Flynn [1980] IR 357 applied - Statute - Interpretation - Planning and Development Act 2000 (No 30), ss 151, 152, 153, 154, 155, 156 and 157 - Case stated answered in favour of prosecutor (2005/905SS - Charleton J - 19/1/2007) [2007] IEHC 48Clare County Council v Floyd

This was a consultative case stated referred to the High Court by Judge Mangan arising out of a criminal prosecution in the District Court It concerned the provisions of the Planning and Development Act 2000 which made the carrying out of an unauthorized development an offence and the failure to comply with an enforcement notice an offence.

Held by Charleton J. in answering the questions posed in the affirmative that a failure to comply with an enforcement notice was a continuing offence. The proofs required by the prosecution encompassed the service of the enforcement notice and evidence of an unauthorised development. The mental element could be inferred from evidence establishing the control of the accused over the development in question.

Reporter: R.W.

1 1. This is a consultative case stated referred to the High Court by Judge Mangan on 22nd October, 2004, from Ennis District Court, Co. Clare. Fundamentally, it concerns the interpretation of the criminal law doctrine of contemporaneity, which requires coincidence of the mental and external elements of an offence. The function of the criminal law is to concern itself only with the distinct criminal conduct of which the accused is charged, and not his general character. That is relevant to sentence only. A criminal offence may be committed in a moment or over a longer period of time. If the accused punches someone in the face, he is criminally liable for assault if he intends that blow during the moment it takes to deliver it. If a person attempts to swat a fly but accidentally hits a person, the absence of a coincident mental element means that the striking of the victim is not a criminal offence; that remains the principle notwithstanding that the accused is later delighted when he discovers that he has managed to hit the person he most dislikes in the eye.

2 2. This principle has led to some few difficulties of interpretation which point up the necessity for its subtle application. The commission of all criminal offences takes time. If the victim is kidnapped, the abduction by force will take more time than that required for a momentary assault. If the accused kills someone then it can be the case that a progressive series of acts is required which will eventually lead to the death of the victim. This could take some hours. Where the person kidnapped is held over a period of days, it is obvious that the nature of the offence requires the passage of time. It could be said that the kidnapping occurs once but the resultant false imprisonment takes place over a continuing period of time. The law therefore tends to draw distinction between a momentary offence and a continuing offence. An analysis of the facts will provide the answer as to whether the requirement that the mental element coincides with the external act has been met. Unlike in the instance of the man who accidentally swats an enemy, while intending to kill a fly, where an offence is continuous even if the mental element was not present at the start of the act, if it appears at any stage during its continued execution all the elements of criminal liability are in place. In Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439 the accused accidentally, or so he said, drove his car onto a policeman's foot but then deliberately left it there for a minute or two. His defence was that the act of assault and the intent never coincided. The Divisional Court held that the accused's conduct in driving the car onto the foot and leaving it there should be viewed as a continuing act; the fault element coincided when he realised what had happened and decided to leave the car where it was. The principle remains that the mental and external elements must coincide; R. v. Hehir [1895] 2 I.R. 709. Where an act is continuous it is easier to find that mental element in the behaviour of the accused. A homicidal assault which takes place over a period of time may be regarded, notwithstanding the existence of separate phases of it, as a continuing act. From the point where the accused has the intention to kill or seriously injure the victim criminal liability is established; Attorney General's Reference (No. 4 of 1980) [1981] 1 W.L.R. 705.

3 3. In practical terms, if an offence occurs in an instant, the charge must specify that it occurred at that instant. Usually that is done by the indictment specifying that on a particular day the accused, for instance, murdered the victim. If an offence continues over time, like false imprisonment, then the indictment is correct if it alleges that it occurs between two dates, or by picking any date in between. It can be the case that every time a man opens his business on a particular day and shuts it in the evening, he commits a distinct offence each day.

4 4. The second principle, applicable to the set of facts to which I shall shortly turn, is that charges should not be double. It should be possible to know from the nature of the way the charge is framed that the accused has been convicted of a single and distinct offence and not of various elements of bad conduct over a period of time. Charges are framed in order to avoid duplicity by making reference to specific dates or sometimes, with a view to giving the accused information, by describing the events. Through these two rules, the criminal law concerns itself with conduct and not with character.

The Legislation

5 5. Whether the mental element must coincide with the external commission of the crime at one particular instant of time only, or at any stage during the continuation of an offence is a matter of construction. The Planning and Development Act, 2000, was passed to consolidate most of the existing law in relation to that subject and to introduce several amendments. Part VIII deals with enforcement, s. 151 provides "Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence."

6 6. Under s. 152 a planning authority may issue a warning letter to a person carrying out a development where they have either received a complaint or where they decide to act of their own motion. If the development is trivial the authority has the discretion not to issue a warning letter. Under s. 153 the authority may then investigate the matter, if it considers that necessary, and it may then decide to issue an enforcement notice. This is to be done "as expeditiously as possible". Representations may be made by the person to whom the warning letter is addressed and these should be taken into account. This procedure, however, is not a bar to subsequent criminal proceedings as s. 153(5) plainly states that a failure to issue a warning letter does not prejudice the issue of an enforcement notice. Such a notice is issued under s. 154 and is served on the person "carrying out the development". It takes effect as of the date of service. The particulars required by statute indicate that the enforcement notice must refer to the land concerned and then go on to indicate that no permission has been granted in respect of a development or that the development has not proceeded in conformity with the permission. The wording used in relation to these two situations all indicate a continuous course of action. If the development has commenced then the enforcement notice tells the recipient that it must cease. This implies that, of its nature, the development goes on over a period of time. If the development has commenced, but is not in conformity with the planning permission, then the enforcement notice indicates that it must proceed in conformity with the permission granted. From the perspective of remedying apparent breaches, the enforcement notice will indicate what works are to be taken and these may involve "the removal, demolition or alteration of any structure and the discontinuance of any use and, insofar as is practicable, the restoration of the land to its condition prior to the commencement of the development". These are all indications of a continuous offence. Section 154(8) provides that a person who fails to comply with the requirements of a notice will be guilty of an offence. Under s. 155 an enforcement...