[2023] UKUT 263 (LC)

The third ground of appeal is that the FTT failed properly to apply the principle of totality, which it considered at paragraph 46 of its decision quoted at paragraph 32 above. Mr Peterken argues that the totality principle requires that since the two offences relating to flats 1 and 4 were identical (because in each case what was missing was a new heating system and a new kitchen) only one penalty should have been imposed.

Totality is a concept in the law and practice of criminal sentencing and has to be considered where a defendant is sentenced in criminal proceedings for a number of offences. It is the subject of a Definitive Guideline published by the Sentencing Council; that Guideline focuses on criminal proceedings, but the respondent expressly incorporated it in its enforcement policy because it is relevant and helpful in the context of civil penalties.

The Definitive Guideline begins by saying:

“The principle of totality comprises two elements:

This is of critical importance in the context of custodial sentences because of the choice to be made between concurrent and consecutive sentences, which is obviously not relevant here. But the Definitive Guideline also addresses the situation where the court considers imposing multiple fines for non-imprisonable offences.

On its page dedicated to multiple fines, the Definitive Guideline says that the total fine is inevitably cumulative, but that the court should add up the fines for each offence and consider if the aggregate is just and proportionate. If it is not, then there are a number of ways in which justice and proportionality can be achieved. Where offences arise out of the same incident and especially when they are committed against the same person, it will often be appropriate to impose a fine for the most serious offence and impose no separate penalty for the others. Alternatively where the offences arise from different incidents it will often be appropriate to impose separate fines but then to consider reducing each fine proportionately.

As a separate point the Guideline goes on to say that the court must be careful to ensure that there is no double counting. Double counting is therefore not the same as totality but is an ingredient within it.

As we have seen the FTT added together the three single penalties and said it was satisfied that there was no double counting because each offence was a separate offence which gave rise to a separate breach and a separate financial penalty. It went on to say that the aggregate of the three penalties was just and proportionate, noting that the breaches of the HMO regulations had been subsumed in a single offence.

Mr Peterken acknowledged that the principle of totality had been observed in the management regulation offence, but he argued that one of the two penalties of £14,250 for the two flats should have been discarded on the basis that the two offences involved exactly the same behaviour namely the failure to renew a kitchen and to provide a proper heating system. The respondent in its skeleton argument maintained that totality had been sufficiently observed in the decision to amalgamate the breaches of the HMO regulations into one civil penalty and that the FTT had reached the correct decision.