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Possession and evidence


North Devon Homes Ltd. v Batchelor [2008] EWCA Civ 840 concerned a claim for possession of an assured tenancy. At County Court, the claim was brought on grounds 10, 12 and 14 HA 1988. While the claim resulted in a postponed possession order for ground 10 rent arrears, the claims on ground 12 (non-performance of obligation) and 14 (nuisance/arrestable offence). The Circuit Judge had refused to make a possession order on grounds 12 and 14 on the basis that it was not reasonable to do so.

North Devon appealed that decision, arguing that the Judge took into an account an irrelevant matter, had failed to consider a relevant matter and failed to consider a relevant matter raised in the respondent’s evidence.

Briefly, the evidence that North Devon had put forward at the first hearing was of Ms B’s

conviction before Exeter Crown Court on May 2007 of possession of 7.5 grammes within 76 wraps or thereabouts of cocaine, a controlled drug of Class A with the intent to supply it, and also of money laundering. She pleaded guilty to possession of the cocaine with intent to supply, upon the specific basis that she had been asked to hold the drugs for her son and had agreed to do so intending to hand them back to him. However, she was prevented from doing so by the arrival of the police on 22nd September 2005 to execute a search warrant at the flat. Conversely, the jury convicted her of having laundered about £1600 on two specific occasions. The £1600 was part of a larger sum of £27,000 which had been laundered, not necessarily by her, over about a three month period. She had also pleaded guilty to a specific offence of possession of cannabis. She was sentenced to eighteen months imprisonment to run concurrently on the offences of possessing cocaine with intent to supply and on money laundering, with no separate penalty being imposed for the possession of the cannabis.

By the time of the substantive hearing, Ms B was released from prison and back at the property. Ms B gave oral evidence. North Devon apparently did not put forward witnesses at the hearing. In evidence Ms B admitted that she ‘may’ continue to use cannabis for pain relief (Ms B was 61 and in sheltered accommodation). The Judge found that there was not sufficient evidence to establish nuisance under Ground 14(a) or 14(b)(i) immoral or illegal purposes. However, the conviction clearly fell under 14(b)(ii). In deciding that it was not sufficient to make possession reasonable, the Judge said

Mr James (counsel for the respondent) argued that once the Court puts on one side, as it has to do, and as I have done, the complete absence of satisfactory evidence produced to establish nuisance or annoyance and looks at the defendant’s conviction for possession of 7.5 grammes of cocaine with intent to supply, this court must, as the Crown Court had to do so, accept the defendant’s basis of plea, namely looking after it for her son, intending to hand it back to him on one occasion only in September 2005. Whilst I would not necessarily agree with Mr James that this was merely a technical offence, I would nonetheless agree that in gradation of seriousness it is at the lower end of the scale of possession with intent to supply a Class A controlled drug. Insofar as the possession of cannabis is concerned, whilst of course this remains a criminal offence now of Class C, if every tenant of a dwelling house within the public sector was to be visited by a possession order because it was reasonable to make one, the courts would inevitably be swamped with such claims. The facts of this case as presented are wholly different from those in the Musah case [City Council of Bristol v Martin Mousah (1998) 30 HLR 32]  and those in the Stonebridge Housing case. Having considered the available evidence and the arguments I do not therefore consider that it would be reasonable to make an order for possession under either Grounds 12 or 14 in this case. 

North Devon’s grounds of appeal were that:

The Judge’s comments in the passage above were irrelevant to the extent that they addressed the likelihood of Ms B being rehoused. In addition, inasmuch as smoking cannabis was a criminal offence, it was for the courts to uphold the law not to be perceived as condoning illegal activities.

The Court of Appeal did not agree with that interpretation of the passage. All the Judge was addressing was the seriousness of the conviction for possession of cannabis. The Judge was not clearly wrong to reach the conclusion he did.

Secondly, North Devon argued that the Judge had failed to consider ‘previous warnings’ to Ms B, relying on a letter to her of Sept 2005 – not in evidence at the Court of Appeal but quoted in a skeleton argument.

You will remember that I visited you on 5 Auust 2005 following several complaints that had been made by those living around you. You will remember that one of the complaints was that you were having a steady stream of visitors to your home and it was alleged that you were involved in drug dealing or using. I am continuing to receive complaints about the number of visitors you have visiting you during the day.

The Court of Appeal found that this went to 14(a) – which had not been raised on appeal – but that in any event the Judge had dealt with the issue of visitors and rejected North Devon’s case, which decision was also not appealed.

Thirdly, North Devon’s evidence that Ms B would continue to use cannabis was no stronger than the ‘maybe’ that the Judge had addressed. There was no reason for the Court of Appeal to find that Ms B would continue to smoke cannabis.

In response to a submission from North Devon that ‘the wrong message would be given out’, Lord Justice Wall said:

In my judgment, there are two short answers to that submission, although neither is strictly necessary for the determination of this appeal. The first is that if there is a message in this case (and speaking for myself the case seems to me to turn on its particular facts and to raise no point of principle) it is that actions for possession are serious and regard must be had to the facts of the particular case. As I see it, the judge paid careful attention to the particular facts and weighed them up meticulously. The second follows from the first, namely that, on the particular facts of this case and as the case was presented to him, the judge was entitled to deal with the respondent’s convictions as he did, and he was thus entitled to hold, as he did, that the respondent’s breaches of her tenancy agreement did not bring her within the scope of this court’s decision in Bristol City Council v. Mousah: or, to put the matter another way, that they were not such as to make it unreasonable for the judge, to decline to make a possession order. 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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