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Criminal action

This content applies to England

The Protection from Eviction Act 1977 makes harassment and illegal eviction criminal offences. Civil action will probably bring the speediest remedy for the occupier, but successful criminal proceedings can be a long-term deterrent for landlords.

Criminal proceedings

Criminal action may also be more appropriate in urgent cases (eg those involving violence), and may be preferable if the client is not eligible for help with legal costs. The existence of a proven criminal offence can also enhance the effectiveness of a civil action. Prosecution for other offences (such as theft, or attempting to pervert the course of justice) can also take place at the same time.[1] To secure conviction, the case must be proven beyond all reasonable doubt.

Landlords are normally prosecuted by local authorities (at no cost to the occupier), although individuals and the police can also prosecute. In many cases, local authorities employ tenancy relations officers to do this work (see the page Practical steps for more information). For an individual occupier to prosecute her/his landlord, s/he would have to go the magistrates' court, explain what happened in order to establish that an offence may have occurred, and ask for a summons to be issued. However, for the following reasons, it may not be advisable for an occupier to bring a private prosecution:

  • help with legal costs is not available
  • the case must be proved 'beyond reasonable doubt'
  • the landlord has the right to ask to be tried in the crown court before a judge and jury and this is an expensive and lengthy procedure
  • the court has no power to grant an injunction to reinstate an evicted occupier
  • if the landlord is acquitted, the occupier could be ordered to pay the landlord's legal costs, which might be significant.

The police rarely bring prosecutions under the Protection from Eviction Act 1977, but they should do so for offences under the Criminal Law Act 1977 (see the section on the Criminal Law Act and the section on Squatters for details) or where there has been an assault or threats.

Under the Protection from Eviction Act 1977, local authorities are given the power to prosecute landlords.[2] Advice workers should encourage local authorities to use all of their powers to assist a harassed or illegally evicted occupier, including the prosecution of the offender. The Ombudsman (see the section Complaining to the Ombudsman for more on this) has severely criticised authorities that have failed to do so.[3]

Procedure

Criminal proceedings are begun in the magistrates' court for the area in which the offence was committed. Proceedings can be heard in the magistrates' court or in the crown court. A local authority will present the information to the court, which will issue and serve a summons and set a date for a hearing. However, this may be adjourned more than once because of the absence of a witness or shortage of time.

For a prosecution to be successful, there has to be strong evidence to support the charge, and the occupier will have to go to court as a witness (the occupier's evidence is crucial). Other witnesses (eg an advice worker who may have tried to persuade the landlord to reinstate the occupier) should attend so that as much evidence as possible is available to the court.

As part of a prosecution, the local authority can apply for compensation on the occupier's behalf, but any damages awarded in this way are deducted from any damages received as a result of a civil action.[4]

If the landlord is convicted, s/he can be fined and/or sent to prison.

Warrant of arrest

In serious and urgent cases the local authority can apply for a warrant for the arrest of the perpetrator.[5] The police carry out the arrest and the offender is brought before the magistrates. The offender will normally ask for bail (as the alternative is to be remanded in custody) and the local authority can ask for 'bail conditions' that the court can impose. These could include the reinstatement of the occupier and a restriction on the landlord approaching the premises in order to avoid further harassment. However, because warrants for arrest are only granted in serious cases, an occupier who wants to be reinstated after an illegal eviction must normally obtain an injunction from a county court.

[1] R v Khan [2001] CA 29 March.

[2] s.6 Protection from Eviction Act 1977.

[3] Isles of Scilly, 86/B/852 (failure to investigate); LB Lewisham 89/A/1581 (failure to prosecute); LB Tower Hamlets 89/A/1230 (failure to consider powers).

[4] ss.35 and 38 Powers of Criminal Courts Act 1973.

[5] s.1(b),(3) and (4)(a) Magistrates Courts Act 1980.

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