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Criminal action for harassment and illegal eviction

This content applies to England

Harassment and illegal eviction are criminal offences, and while criminal proceedings are lengthy, they 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 page Harassment of occupiers by a landlord or agent 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 Local Government and Social Care Ombudsman (LGSCO) has severely criticised authorities that have failed to do so. For details about how to make a complaint, see the page Complaints to LGSCO about local authorities.[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.

Police and Criminal Evidence Act 1984

This Act gives police the power to arrest without a warrant where they suspect an offence has been committed or attempted and there are reasonable grounds for believing that an arrest is necessary.[6] They also have the power to make an arrest and to take action in order to protect a 'vulnerable person'.[7] The Act also gives the police the power to stop and search a suspected perpetrator (or her/his vehicle) if there are reasonable grounds for suspecting that s/he is carrying stolen or prohibited items.[8] Prohibited items include offensive weapons and/or any item made or adapted for use in connection with certain offences (including burglary and theft),[9] and can be seized.[10] It also allows for the entry and search of premises in some circumstances.[11]

Public Order Act 1986

This Act governs public order offences such as affray[12] (where a person threatens unlawful violence which would cause a reasonable person to fear for her/his safety) and violent disorder[13] (where three or more persons use or threaten violence which would cause a reasonable person to fear for her/his safety). Where three or more perpetrators use (or threaten to use) unlawful violence, each of the perpetrators is guilty of violent disorder.[14]

The Act also aims to combat racial hatred by introducing a number of offences, including using threatening, abusive or insulting words or behaviour and/or displaying any writing, sign or other visible representation which is threatening, abusive or insulting with intent to cause a person harassment, alarm or distress.[15]

Criminal Law Act 1977

This Act creates an arrestable offence where a person 'without lawful authority' uses violence in an attempt to secure entry to premises while there is someone on the premises who is opposed to the entry.[16] The right to possession of the premises does not give 'lawful authority' to a landlord.[17] It is also an offence to threaten to use violence in any way. The Act applies equally to violence against another person or against the property. Such acts could be punished by up to six months imprisonment and/or a fine.

Landlords committing such an offence may also be subject to a:

Trespassers (eg squatters) can use this Act in some circumstances, but the offence does not apply if the person forcing entry is a displaced residential occupier (DRO), a protected intending occupier (PIO) or someone acting on her/his behalf.[18] See the section on Squatters for more information.

Criminal Damage Act 1971

This Act creates a number of arrestable offences, including:

  • destroying or damaging property belonging to someone else[19]
  • damaging any property (including the perpetrator's own property) with the intention of endangering the life of another person[20]
  • possession of equipment that the perpetrator intends to use to destroy or damage property and/or to damage any property (including her/his own property) with the intention of endangering the life of another person
  • arson.[21]

The Act also makes threatening to cause this type of damage an arrestable offence.[22]

Offences against the Person Act 1861 and Criminal Justice Act 1988

This Act created a number of arrestable offences including:

  • common assault,[23] which can involve a range of violent acts including pushing, slapping, hitting, or inciting a dog to attack a person
  • actual bodily harm,[24] such as where a person is assaulted and suffers bodily hurt or injury, which interferes with her/his health or comfort. A visible physical injury is not necessary; pain or tenderness is sufficient. Actual bodily harm can also include shock or other nervous conditions
  • grievous bodily harm and malicious wounding.[25] Wounding is an assault with or without a weapon, whereby the skin is broken. Grievous bodily harm occurs where the perpetrator caused, or intended to cause serious injury, or did something deliberate which caused the person to be injured.

Any offence under this act should be reported to the police. The maximum sentence for wounding/grievance bodily harm under this Act is five years imprisonment, and assault and battery will usually have a maximum of six months.

Assaults under these Acts, criminal damage and harassment under the Protection from Harassment Act 1997 can all be treated as racially or religiously aggravated crimes, in which event they will carry higher sentences than would otherwise be the case.[26]

There are further offences of violence or disorder that may arise in the housing context but those summarised above are the most likely to arise. There are, for example specific assaults, such as assault of a police officer, and certain aggravating factors, which are not further discussed here.

[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.

[6] s.24 Police and Criminal Evidence Act 1984 as amended by Serious Organised Crime and Police Act 2005.

[7] s.25 Police and Criminal Evidence Act 1984

[8] s.1(3) Police and Criminal Evidence Act 1984.

[9] s.1(8) Police and Criminal Evidence Act 1984.

[10] s.1(6) Police and Criminal Evidence Act 1984.

[11] s.8 Police and Criminal Evidence Act 1984.

[12] s.3 Public Order Act 1986.

[13] s.2 Public Order Act 1986.

[14] s.2 Public Order Act 1986.

[15] s.4A(1) Public Order Act 1986.

[16] s6(1) Criminal Law Act 1977.

[17] s6(2) Criminal Law Act 1977.

[18] s.6(1A) Criminal Law Act 1977.

[19] s.1(1) Criminal Law Act 1971.

[20] s.1(2) Criminal Law Act 1971.

[21] s.1(3) Criminal Damage Act 1971.

[22] s.2 Criminal Damage Act 1971.

[23] s.39 Criminal Justice Act 1988.

[24] s.47 Offences Against the Person Act 1861.

[25] s.20 Offences Against the Person Act 1861.

[26] s.29 Crime & Disorder Act 1998.

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