R v Q [2011] EWCA Crim 1584. On Lawtel but not on BAILII

This is an appeal concerning s1(3A), Protection From Eviction Act 1977. This subsection was inserted by the Housing Act 1988 and was intended to fix a problem with s1(3). S1(3A) reads:

Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if—
(a)he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b)he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.

The new subsection dealt with the difficulty in s1(3) that it contained a requirement that the prosecution show an intent by the accused to make the occupier give up possession or refrain from exercising a right. It had proven difficult to demonstrate the necessary intent in practice. S1(3A) resolved the issue by simply removing the intent component of the offence.

The facts of this case were simple. Q or his niece owned a property. The exact ownership was unclear but Q was the landlord and had control of the premises. It was subdivided into bedsit style accommodation, one of which was let to a couple. A two month notice to quit was served which was defective, however on expiry of the notice Q’s son visited the property with 5 other men and demanded that the occupiers leave. One of the men had a knife and various threats and racially abusive comments were made. Without going into detail the harassment continued despite the intervention of the local authority’s housing options team who explained the occupiers rights in a letter.

Crucially, there was no evidence offered that Q himself had actually carried out any of the actions himself, they had all been carried out by his son or other members of the family. There was also no evidence offered that Q had procured the harassment or encouraged it to continue. It was this that became fatal for the prosecution case.

The case was dismissed in the Peterborough Crown Court at the conclusion of the prosecution evidence on the basis that it disclosed no case to answer. The prosecuting local authority appealed and the case came before the Court of Appeal.

Laws LJ gave judgement on behalf of all three justices.

Essentially the question before the Court was whether s1(3A) allowed a landlord to be “vicariously liable” for the actions of others. It was held that s1(3A) specifically stated that the offence was committed by “the landlord … or his agent”. This wording implies that Parliament intended a separation between the two parties and that if the agent committed the offence then the landlord would not be guilty. Additionally, the wording of s1(3A)(a) uses the phrase “does acts” which implies a direct action by a party as opposed to by another. Finally, the offence requires knowledge, or at least a “reasonable cause to believe” which implies a state of mind by the accused.

The Court was at some pains to stress that their decision did not mean that a landlord could not be found guilty if there was evidence of joint enterprise or incitement or he was a co-conspirator. However, no evidence of that had been offered in this case and the appeal was dismissed.

This is a frustrating case as it now gives landlords a potential way out of unlawful eviction and harassment claims where they get someone else to do the dirty work. However, it should never really have happened and probably would not have done if the prosecutor had properly applied his basic legal training, properly deconstructed the offence, and set about proving each element.

It now falls to Parliament to reconsider the Act if this loophole is to be closed. In the meantime everyone should be aware that a landlord is potentially only liable for unlawful eviction and harassment claims and prosecutions if evidence is adduced which actually fixes him or her as a party to the actions complained of.