Wu v Chelmsford City Council (2023) EWCA Crim 338

Not something we see very often, an appeal from a conviction for illegal eviction (not that we see many convictions for illegal eviction in the first place).

Brief facts – Mr and Mrs Krishnamoorthy had a tenancy from Ms Susan Wu

On 13 June 2018 Mrs Krishnamoorthy was present at the Premises. The appellant arrived with her partner and two builders and entered using her own set of keys. She instructed the builders to change the locks on the main front door and to resolve a water leak. This resulted in the builders disconnecting the water supply and removing a section of the water pipes. Mrs Krishnamoorthy telephoned her husband and he advised her to call the police. Police officers attended and told her that the issue was a civil matter and then left. She called her husband again who eventually spoke to a Housing Officer at Chelmsford City Council. Mr Krishnamoorthy returned home from work at lunchtime. He later left the Premises while his wife remained inside, to attend at the offices of the Housing Team at the Council.

While at the Housing Office he emailed the appellant to advise that there was no emergency accommodation available and that if the Premises were uninhabitable she would be required to provide accommodation. He then returned to the Premises and told the appellant she was obliged to house them. The appellant and Mr Krishnamoorthy eventually both attended the Housing Office. A Housing Officer told the appellant that she was to make the necessary arrangements for accommodation as she had made the Premises uninhabitable. Mr Krishnamoorthy and the appellant returned to the Premises. The appellant left shortly thereafter without having given Mr and Mrs Krishnamoorthy a set of new keys. They remained inside the unlocked Premises. Mr Krishnamoorthy spoke further to a Housing Advice Officer at the Council. The latter advised the appellant that withholding the new keys might give rise to an accusation of illegal eviction. The appellant said she would arrange for a set of new keys to be given to the tenants. These were ultimately delivered to Mr and Mrs Krishnamoorthy at the Premises, just after midnight on 14 June.

Chelmsford then brought a prosecution on 4 counts of breach of Protection from Eviction Act 1977

The appellant was in due course indicted on four counts. Counts 1 and 2 alleged unlawful eviction contrary to s.1(2) of Mr Krishnamoorthy (Count 1) and of Mrs Krishnamoorthy (Count 2). The particulars of Count 1 were that ‘SUSAN WU on dates between 13th June 2018 and 14th June 2018 did or did attempt to unlawfully deprive [Mr] Krishnamoorthy, the residential occupier, of his occupation of the premises by changing the locks of the said premises during his absence and refusing to provide [him] with a copy of the new keys’. Count 2 was in the same terms save as to the name of the residential occupier and to omit the words ‘during his absence’.

Following discussion between the parties and before the evidence began, the Judge permitted amendment of each of these two counts so as to delete the words “or did attempt to”; thus removing the alternative inchoate offence which s.1(2) expressly includes.

Counts 3 and 4 alleged unlawful harassment contrary to s.1(3A) of Mrs Krishnamoorthy (Count 3) and of Mr Krishnamoorthy (Count 4). The particulars of Count 3 were that the appellant ‘on dates between 13th June 2018 and 18th June 2018 did acts likely to interfere with the peace and comfort of Mrs Krishnamoorthy, the residential occupier of the Premises, namely, the disconnection of water services and refusal to reconnect them within a reasonable time, knowing, or having reasonable cause to believe, that that conduct was likely to cause the residential occupiers to give up the occupation of the whole or part of the premises.’ Count 4 was in the same terms, save as to the name of the residential occupier.

Ms Wu had previously agreed with the prosecution in regards to counts 1 and 2 that Mr and Mrs Krishnamoorthy had in fact been deprived of occupation by the changing of the locks and the failure to provide new keys. So, the ‘attempt’ element was removed from the counts.

S.1(2) Protection from Eviction Act reads

(2) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.

Ms Susan Wu was convicted on counts 1 and 2 after the jury found her guilty.

Ms Susan Wu was also convicted on counts 3 and 4 after the jury found her guilty.

Rather cheekily, one might think, Ms Wu then appealed counts 1 and 2 on the basis that in order to establish unlawful deprivation, the occupants must have been put or kept out of physical occupation, and that Mr & Mrs K had not been put or kept out.

The Court of Appeal agreed

In our judgment the natural reading of s.1 is that the actus reus of the completed offence under sub-section (2) requires that the defendant’s conduct has in fact put or kept the residential occupier out of physical occupation. This is in clear and sensible contrast both to the actus reus of the offence of attempt under that sub-section and to the offences under sub-sections (3) or (3A). It is a distinction which will be readily explicable to a jury in straightforward, non-technical, language.

In the present case, the changing of the locks would have been highly material to the offences charged under Counts 3 and 4 if it had been relied on for that purpose. However, on the particular facts of this case, that conduct did not put or keep either complainant out of physical occupation. Accordingly, in our judgment, the agreed direction that ‘by changing the locks the defendant did deprive the case of occupation of the premises’ was wrong in law.

But this did not avail Ms Wu.

The alternative of ‘attempted’ deprivation had been withdrawn because of Ms Wu’s agreement to the direction. If the alternative of ‘attempt’ had remained

the Prosecution would have had to make the jury sure on each count that the appellant (i) with intent to commit the s.1(2) offence of deprivation of occupation of the premises (ii) by her admitted conduct did acts which were more than merely preparatory for the commission of that offence: s.1 Criminal Attempts Act 1981. Given both the jury’s actual finding on the issue of intent and the undisputed conduct of changing the locks, the jury would inevitably have found the appellant guilty of the statutory alternative under sub-section (2). We add that Parliament’s decision to take the unusual course of including the alternative of attempt within the s.1(2) offence rather suggests that its intent was to avoid debates on property law of the type which has arisen on this appeal. This case demonstrates the wisdom of including that alternative within an indictment under s.1(2).

So, the conviction on counts 1 and 2 was sound.

Ms Wu also appealed the convictions on counts 3 and 4. Section 1(3A) reads, so far as relevant

(3A) 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

Ms Wu argued that ‘acts’ was in the plural, and did not include omissions. Here one act – disconnection of the water supply – and one omission – failure to reconnect in a reasonable time – had been cited. It should be read in line with the Protection from Harassment Act 1997 as ‘a course of conduct’, so more than one act.

The Court of Appeal found no merit in this.

There was no basis for importing the language of Protection from Harassment Act. It did not cover all offences of ‘harassment’.

One act sufficed, but in any event, a refusal to rectify a previous act would be capable of being an act, not a mere omission.

Appeal dismissed.