Mudslinging, evidence and possession of different kinds

Barking & Dagenham LBC v Bakare, Imevbore & Imevbore. Romford County Court 14/03/2011 HHJ Platt [unreported elsewhere]

A county court case, but one with some interesting issues. Also a cautionary tale on being able to actually provide evidence of allegations and raising matters in the right proceedings.

Barking had applied within existing possession proceedings for a final order for possession of a property under Grounds 1 and 2 of Schedule 2 of the Housing Act 1985 against Ms Bakare. Barking also claimed against the second and third defendants (who are the adult sons of the first defendant) for anti social behaviour orders under section 1 of the Crime and Disorder Act 1998. This claim was joined with the application in the existing proceedings. This presented some issues, as the standard of proof in the possession proceedings was the civil standard, but, following Clingham v Kensington and Chelsea RBC [2003] 1 AC 787, the standard of proof in the Crime and Disorder Act proceedings was the criminal standard.

Ms Bakare was the secure tenant of Barking. In 2005 possession proceedings were brought on rent arrears of about £830. A suspended Order was made giving possession from 16 December 2005, but suspending on terms. The terms were breached, principally because Ms B made payment of rent and arrears monthly, not weekly. So Ms B was a tolerated trespasser, from 16 Dec 2005 or at least from the first technical breach. There were some subsequent warrant requests, all stayed, apparently because Ms B paid monthly. There was no application to vary the order under s.85 Housing Act 1985. So Ms B remained a tolerated trespasser until May 2009 when she got a replacement tenancy under the Housing and Regeneration Act 2008. The possession order remained live.

It was these proceedings in which Barking applied for a final order for possession under grounds 1 and 2, based upon alleged anti social behaviour by her sons, for which she, as tenant was responsible.

As a starting point, the Court found that as Ms B was not the tenant between December 2005 and May 2009, nothing that occurred during that period could properly be raised against under ground 1 and 2 as these grounds only applied to tenants. There were only a couple of minor and ancient allegations before December 2005.

After May 2009, there were no allegations at all against Ms B, only against her two sons, on which more below. Ground 1 insofar as it concerned rent arrears had already been dealt with and a suspended order made. That left Ground 2 – nuisance by the tenant or a person residing in or visiting the property.

Since May 2009, neither son had been convicted of any indictable offence in or in the locality of the property, so the only issue was ground 2(a) conduct causing or likely to cause a nuisance. Barking had raised no less than 42 allegations against the two sons. We’ll come back to those.

As against Ms B what Barking had applied to do was to convert an existing suspended possession order into an outright order on different grounds. There was nothing is s.85 Housing Act 1985 which allowed them to do this.

they are not entitled to ask the court at this stage effectively to rewrite an order made over five years ago on the basis of a cause of action which has effectively arisen wholly after that order was made. 

However

The case of Sheffield City Council v Hopkins [2001] EWCA Civ 1023 is clear authority for the proposition that on an application for suspension of a possession warrant where the order has been made on the grounds of rent arrears the court is entitled to have regard to other breaches of the tenancy agreement or other established grounds for possession in deciding whether or not to exercise its discretion to allow any or any further suspension. However at least some of the behaviour complained of in Hopkins preceded the making of the order on the grounds of rent arrears. At present there is an application for suspension of the warrant which has been adjourned to 10 a.m. on 1st June 2011 on terms as to payment which allow for the reissue of the warrant in the event of any default in payments. 

Now that Barking had raised these other issues and the court had considered them, the proper course of action was to adjourn Barking’s application to the hearing of Ms B’s application to suspend the warrant.

So, to the allegations against the sons and the claim under the Crime and Disorder Act. This demanded the criminal standard of proof.

Against the eldest, who had not lived at the property since May 2009 and was now a student at University, Barking relied in generalised allegations of drug dealing from the block of flats in which Ms B lived. Barking’s evidence in support consisted of video evidence and hearsay evidence i the form of anonymous replies to questionnaire.

The ‘video evidence’, from CCTV, fell apart completely when Barking’s witness had to admit that two pieces of film alleged to show drug dealing did not support that assertion, nor could he be sure that either of Ms B’s sons were involved in the scenes recorded.

The anonymous complaint of drug dealing was a response to a survey commissioned by Barking. It was hearsay evidence, but no notice had been given under s.2 Civil Evidence Act 1995 and CPR 33.2 had been ignored. As hearsay evidence, the weight to be given to it was affected. Even so, as far as the evidence pointed to any individual, it pointed away from Ms B’s sons. Further, the questionnaires invited anonymous replies. No efforts had been made to persuade the maker of the anonymous statement to come to court. The witness evidence of Barking’s officer also contained multiple hearsay of evidence of police officers, but no police officers were present as witnesses and no explanation was given as to why hearsay was relied upon. it could not be that the police officers were too frightened to come to court. Barking had completely ignored the Court of Appeal’s reminder in Moat Housing Group South Limited v Harris [2005] EWCA Civ 287 that more attention should be paid by claimants to the need to state by convincing direct evidence why it was not reasonable and practicable to produce the original maker of a statement as a witness.

The remainder of the specific allegations against the elder son sin ply did not contain any evince as to his involvement in any incidents or behaviour since May 2009. In as much as evidence was included of arrests without subsequent charge or occasions where he was stopped and searched without anything being found, the Claimant’s approach appeared to be ‘based upon the principle that if you sling enough mud some of it will stick. The court declines to accede to that invitation.”

Against the younger son, some of the evidence suffered the same faults, however, there were arrests and convictions for possession of drugs in September, October and November 2009 within half a mile of the property, and his belongings had been found in the same concealed place in the building as a shotgun, ammunition and cannabis. On the evidence there was a clear connection between the younger son and other youths using the hidden areas for storage of weapons and drugs. The finding of the weapons and cannabis was likely to cause serious alarm and distress to other residents. There were two further videoed occasions where the younger son was part of a group of youths in the block, at least one of whom was smoking cannabis. The court applied the Turnbull guidelines (R v Turnbull [1977] QB 224) on disputed identification evidence and was satisfied that the younger son was present.

In view of this, the court was satisfied to the civil standard that the younger son had, from summer 2009 to the present, regularly been in possession of and smoking cannabis in the communal parts and vicinity of the building. He was also linked to the presence of offensive weapons. This was behaviour that had caused and was likely to cause significant annoyance, nuisance and distress to other residents. There was also an incident of throwing fireworks in the street outside the block.

In addition, in November 2009, class A drugs had been found in Ms B’s flat. The younger son denied any involvement and was not charged, but it remained that the drugs were found in the flat, irrespective of whose they were.

If these were straightforward possession proceedings, a possession order would have been made, but the suspended order was already in existence and the court could not be asked to rewrite that order on the basis of subsequent events. The issue was adjourned to the hearing of the stay application. However, Barking had succeeded in establishing it was reasonable to make a possession order and was in principle entitled to its costs against Ms B.

On the claims for Anti Social behaviour orders against the two sons, these were not constrained by the period in which Ms B was Barking’s tenant rather than a tolerated trespasser.

There were two arrests and charges against the elder son for robbery and violent disorder, but these dated from 2006 and 2007. There had been no evidence of any re-occurence and he no longer lived at the property. It was not remotely necessary to make an order to protect the public from any further ASB. Claim dismissed and the elder son entitled to his costs as a litigant in person.

Against the younger son, in addition to the matters set out above, there were two arrests and convictions from September 2009 for threatening behaviour and assault on a police officer. The court was satisfied on the criminal standard that it was necessary to make an ASBO against him. Costs for Barking.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in ASB, Housing law - All, Possession, secure-tenancy and tagged , , .

2 Comments

  1. “As against Ms B what Barking had applied to do was to convert an existing suspended possession order into an outright order on different grounds. There was nothing is s.85 Housing Act 1985 which allowed them to do this.”

    What about Manchester CC v Finn? I would agree that a far better way of doing it would be to have issued a warrant and sought to raise the additional allegations then, but there is no reason why it couldn’t have proceeded in the way it did.

    • From the judgment

      59 However there is a suspended order already in existence. What the claimants are now asking me to do is effectively to convert that suspended order into an outright order. I have considered very carefully the provisions of section 85 of the 1985 Act and I am unable to find any provision in that section which supports the claimant’s application. Nor can I find any case which directly supports the claimant’s application. All the authorities quoted in the very helpful skeleton of the claimant’s counsel are directed to the correct approach in proceedings where no possession order has yet been made

      So someone didn’t cite Finn to the Court??

      But it appears that a warrant had already been raised – hence the forthcoming stay hearing.

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