1998/188 - O'Neill v AG [1998] UR 188 (14 September 1998)

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Application for leave to appeal against a fine of £20,000, imposed by the Inferior Number of the Royal Court on 3 April 1998 [1998.073], on an admission of the facts on:

1 count of contravening Article 14(1)(d) of the Housing (Jersey) Law 1949, by being party to a device, plan or scheme for an arrangement to occupy property, which was inconsistent with a condition attaching to a Housing Committee consent to the purchase of the property by Bell Properties Limited, restricting occupation to persons of a category specified in Regulation 1(1)(a) to (h) of the Housing (General Provisions) (Jersey) Regulations, 1970, as amended, in that the accused did not fall within any of the said categories.

Leave to appeal was refused by the Deputy Bailiff on 21 April 1998; the application was renewed to the plenary Court, under Article 39 of the Court of Appeal (Jersey) Law, 1961, on 22 April 1998.

THE DEPUTY BAILIFF: The appellant purchased a property with a view to developing it and making a commercial profit. It was eventually developed into five self-contained town houses. Neither the appellant nor his wife had housing qualifications and four of the houses were to be occupied under Regulation 1(1)(a) to (h) of the Housing (General Provisions) (Jersey) Regulations, 1970. The remaining house, No 5, was, by concession of the Housing Department, initially allowed to be occupied under Regulation 1(1)(a) to (j) and then it would revert to (a) to (h). Because neither he nor his wife had any housing qualifications, the appellant took legal advice. That advice was perfectly clear and I am going to read part of it in this judgment:

"As we also discussed you would not, in my opinion, fall foul of the Housing Regulations, if, once you have acquired the shares, you let the property to a residentially qualified tenant who then allowed you to occupy the property merely as his lodgers. To avoid falling foul of the law, however, you must ensure that you are merely lodgers of your residentially qualified tenant and this means in effect, that the tenant must have access at all times to all rooms in the property, that he provides you with some sort of service on a regular basis such as laundry, cleaning of rooms or provision of meals. The tenant must have access to your rooms at any time and for this purpose he must himself have a key to your rooms. As I explained to you, you cannot make it a condition of the lease to your tenant that he has you as his lodgers, your tenant must be free to choose whichever lodgers he wishes to take on. As a lodger you would have no security of tenure and your tenant could ask you to leave at any time.

I enclose a copy of a leaflet prepared by the Housing Department entitled "Lodgers and the Law" which clearly sets out the various criteria in this matter".

After receipt of that letter a sham scheme was devised whereby the appellant persuaded his then employee - for he owns a business in St. Helier - who was 19 years old, to purport to take a lease of the town house and let the appellant and his family live there as his lodgers. Declarations on a signed exemption form were false, no rent was paid, the employee never moved into the premises, except for two relatively brief visits.

The appellant compounded matters by making false statements during the Housing Enforcement Officer’s investigation.

The Crown Advocate at trial moved for a fine of £5,000 and defence counsel, in mitigation, asked for the conclusions to be reduced to £3,000.

It appears from the Judges report that the Royal Court considered whether it should deprive the defendant of his profit of £75,000 at one stage, but accepted the submission of his counsel that the profit would have been made whether or not the defendant had committed a breach of the law. However, in sentencing the appellant, the Court said: "This was, in the judgment of this Court, as flagrant a breach of the Housing Law which has come before the Court in recent years". The Law was breached, as we have said, quite deliberately and the fine under the amended law is now limitless. The warnings to the appellant were perfectly clear. There seemed to us to have been little mitigation and certainly no point to the argument that he might lose his housing qualifications because he has no housing qualifications to lose.

We cannot but share the view of the Inferior Number that this case involved a deliberate attempt, after a clear warning, to break the law. But we are concerned with the ‘jump’ effect which appears to us to be excessive in the light of the cases which Advocate Livingstone has submitted to us. In the circumstances we will give leave to appeal and we will allow the appeal to the extent that we reduce the fine to one of £14,000, but we hope that this case will be a clear warning to anyone else who might consider breaking the Housing Laws in the future.

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	Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/188 - O'Neill v AG [1998] UR 188 (14 September 1998) URL: http://www.bailii.org/je/cases/UR/1998/188.html Cite as: [1998] UR 188

Jersey Unreported Judgments