Crime-based evictions and injunctions challenges and strategies

53-54 Doughty Street, London WC1N 2LS Telephone 020 7404 1313 Fax 020 7404 2283/84 DX 223 Chancery Lane Email enquiries@doughtystreet.co.uk Website www.doughtystreet.co.uk Crime-based evictions and injunctions challenges and strategies Introduction 1. Practitioners representing tenants frequently encounter proceedings initiated by local authorities and registered providers that rely upon criminal convictions to establish grounds for possession. 2. Such cases may present as being narrow, or even straight-forward, but one of the aims of tonight s seminar is to state, and then re-state, the importance of recognising the complexities and difficulties inherent in such proceedings. 3. Those advising tenants may often become engaged at the outset of proceedings and after providing an overview of the legal framework practical thinking will be encouraged about the approaches that may be taken as matters ultimately move towards a final hearing. Legal framework 4. The key statutory provisions relating to claims for possession and demotion orders are of course found in s.82a-85a of the Housing Act 1985 ( the HA 1985 ) and s.6a-9a of the Housing Act 1988 ( the HA 1988 ). 5. Claims for both possession and demotion orders require the service of a relevant Notice. It is to be remembered however that in possession claims brought on the basis of anti-social behaviour and which rely upon Ground 2 of Schedule 1 of the HA 1985/Ground 14 of Schedule 2 of the HA 1988, proceedings may be commenced with immediate effect. 1

6. Furthermore, the notice requirements may be dispensed with if the court considers it to be just and equitable to do so 1. 7. In many cases, a possession claim may follow a previous application for injunctive relief. In others, tenants may be facing applications for enforcement of a suspended possession order made on the basis of past rent arrears, but where reliance is now placed on matters of anti-social behaviour 2. The crime-based grounds for eviction 8. Ground 2 of Schedule 2 of the HA 1985 and Ground 14 of Schedule 2 of the HA 1988 are identical in their reading, specifically: The tenant or a person residing in or visiting the dwelling-house- (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of- (i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii) an arrestable offence committed in, or in the locality of, the dwelling-house. 9. There may also be overlap with the general obligation not to breach the tenancy - Ground 1 of Schedule 2, HA 1985/Ground 14 of Schedule 2, HA 1988 and at the outset the tenancy agreement itself should be checked where such grounds are relied upon. 10. Claims brought on these grounds will frequently concern convictions for drugrelated offences 3 and violence 4. 1 See Manchester City Council v Pinnock Legal Action Dec 2006 for a demotion case that was struck out, the court refusing to exercise its discretion to dispense with service. 2 See Sheffield City Council v Hopkins [2002] HLR 12. 3 For example, see Bristol City Council v Mousah [1998] 30 HLR 32; Sandwell MBC v Hensley [2007] EWCA Civ 1425. 4 see Birmingham City Council v Ashton [2012] EWCA Civ 1557. 2

Evidence 11. Whilst many tenancies may have had the attention of landlords due to complaints raised over months or even years, legal proceedings in other instances may flow from information-sharing processes between agencies, very often initiated by the police. 12. Of central importance will be the Memorandum of Conviction from the criminal proceedings and which is very likely to be present in the earliest paperwork. 13. In many drugs-related cases there will be witness statements from police officers who for example were involved in police raids at a property 5. 14. Every case in the county courts concerning possession proceedings will of course necessarily require a careful analysis of the facts specific to the tenancy in question, its context and history. 15. Whilst a case may principally be brought on the basis of criminal conviction, any alleged attendant matters falling within the nuisance/annoyance branch of anti-social behaviour need to be carefully scrutinized. 16. The use of diary sheets for the making of contemporaneous notes by complainants is a common feature of anti-social behaviour claims. Where appropriate, police records/logs should also be sought and examined. 17. In cases involving voluminous records of allegations/counter-allegations for example, the court will often be interested in corroborative evidence. 5 It is important to check assertions that may be made, for example of estimations made of street value of recovered drugs compared with eventual charges laid/proven. 3

18. Footage from CCTV should also be carefully examined. Unravelling the extent and degree of the culpability of a tenant in allegations that have been raised is important, and transcripts provided by a Claimant should be checked carefully 6. 19. A common feature in claims involving anti-social behaviour is the reliance on hearsay evidence. 20. As well as managing a client s expectations about the admissibility of such evidence, it is of course important to be reminded of the approach that will be taken by the court. 21. The Court of Appeal considered the admission of hearsay evidence in detail in the case of Moat Housing Group v Hartless [2005] EWCA Civ 287. 22. It is important to consider the general rules that apply in civil proceedings, specifically s.4 of the Civil Evidence Act 1995 and CPR 33.1-33.5. 23. Section 4(1) of the Civil Evidence Act 1995 is set out in the case of Moat at paragraph 132. 24. CPR 33.2(2) provides that where hearsay evidence is contained in a witness statement of a person who is not being called to given oral evidence, the party seeking to rely on the hearsay must: `(a) (b) inform the other parties that the witness is not being called to give oral evidence; and give the reason why a witness will not be called. 6 For the relevance of culpability in the actions of others see Portsmouth City Council v Bryant [2000] 32 HLR 908. 4

25. Lord Justice Brooke stated: ` the experience of this case should provide a salutary warning for the future that more attention should be paid by claimants in this type of case to the need to state by convincing direct evidence why it was not reasonable and practicable to produce the original maker of the statement as a witness. If the statement involves multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable. It would also be desirable for judges to remind themselves in their judgments that they are taking into account the section 4(2) criteria so far as they are relevant.[para.140] 26. In the last analysis those defending claims will need to consider carefully the submissions that they wish to make regarding hearsay evidence relied upon. 27. There have been instances of claims for possession being dismissed where Claimants have relied upon poorly prepared hearsay evidence and which the courts have been persuaded to place little weight upon, if not discounting it altogether. 28. Assertions about Residents A-F in the area being afraid of reprisals with no formal presentation of witness statements, anonymised, or otherwise, have been a feature of a number of cases and which have provided fertile ground for undermining the assertions made by the Claimant. 29. Although mileage may be found in undermining evidence presented that surrounds the central conviction(s), such as that relating to neighbourhood blight/nuisance, the convictions per se will nevertheless prevent more difficult challenges. 5

Reasonableness 30. Once a Ground for possession has been established the court must consider whether in all of the circumstances it is reasonable for an order for possession or demotion to be made [s.84(2) HA 1985/s.7 HA 1988]. 31. All relevant circumstances as they exist at the date of the hearing must be taken into account (Cumming v Danson [1942] 2 All ER 653). 32. The matter of reasonableness confers a wide discretion on the court. Specifically, in the case of Cumming v Danson [1942] 2 All ER 653 it was stated that: ` in considering reasonableness it is, in my opinion, perfectly clear that the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in a broad commonsense way and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account. 33. The following points are examples of those that may be relevant to the question of reasonableness: The length of the tenancy (Gallagher v Castle Vale Housing Action Trust [2001] 33 HLR ); The extent of the Claimant landlord s consideration of options other than eviction; a swift move towards the ultimate sanction of eviction (Moat Housing Group v Hartless [2005] EWCA Civ 287); The absence of/failure to follow any procedures designed to tackle matters of anti-social behaviour, pursuant to the Anti-Social Behaviour Act 2003; 6

Recognition of identified improvements/periods of improvement in behaviour (London Borough of Wandsworth v Hargreaves [1994] 27 HLR 142); The vulnerability of Defendant (for example, history of drug/alcohol addiction/depression and anxiety); The proportionality of the sanction of a possession order as a response to the breaches of tenancy alleged, and where made out (Gallagher). The presence of children in the household; The extended discretion in claims for possession 34. Section 85 of the HA 1985 states: `(2) On the making of an order for possession of such a dwelling-house the court may- (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit (3) On such an adjournment, stay, suspension or postponement the court- (b) may impose such other conditions as it thinks fit 35. The Court of Appeal has considered the question of the extended discretion, and in view of the provisions of section 85A(2) of the HA 1985, introduced by the Anti-Social Behaviour Act 2003 specifically the effect of nuisance/annoyance on others. Those provisions are of course paralleled in the HA 1988. 36. It is submitted that those statutory provisions effectively codified existing judicial statements (Moat: para143, Lord Justice Brooke; confirmed: Manchester City Council v Higgins [2005] EWCA Civ 1423; paras.29 & 54, Lord Justice Ward & Lord Justice Gage). 7

37. Each case must be decided upon its own facts (Higgins): `The recorder seeks the guidance of this court to assist the County Court in exercising its discretion. I fear I cannot be as helpful as he would wish simply because each case must depend upon its own facts and the weight to be given to various factors will vary depending on the circumstances. Without intending this to be an all-embracing guide, I would venture these few thoughts. First, the discretion is quite unfettered save that, of course, it must be judicially exercised. It follows that all the circumstances of the case are material to be borne in mind. On one case the facts giving rise to the making of an ASBO may be so serious that both the making a possession order and the refusal to suspend it will be self evident. In another case the making of the ASBO may have served its purpose of restraining future misbehaviour so that although past conduct might make it reasonable to order possession yet suspension might still be possible Secondly, if the misconduct by the tenant or even by a member of the household were serious and persistent enough to justify an ASBO then that will be strong but not conclusive evidence that the tenant will have forfeited his entitlement to retain possession [Lord Justice Ward; paras.34-36] 38. Another key passage in Higgins makes reference to the case of Canterbury CC v Lowe [2001] 33 HLR 53 where it was stated: Thirdly, since the court will already have found it reasonable to make a possession order, the question of whether or not to suspend its execution must be very much a question of the future. As Kay LJ held in Canterbury CC v Lowe:- There is no point suspending an order if the inevitable outcome is a 8

breach. Any factor which is relevant as to whether there will be future breaches must, in my judgment, be relevant to the question of suspension. This would include the fact that following an injunction things had considerably improved or that a person is likely to observe an injunction if one was granted at the same time Previous unheeded warnings point one way: genuine remorse the other. The level of support available to a parent who is making proper efforts to control an errant child will be relevant. There must, however, always be a sound basis for the hope that the anti-social behaviour will cease. [para.37]. Extended discretion points relevant to claims involving criminal activity/convictions 39. Claimants frequently seek to rely on the case of Bristol CC v Mousah [1997] 30 HLR 32, a case concerning the persistent supply of class A drugs at the premises to the alarm and distress of the neighbours. 40. Submissions are often based on the remarks of Beldam LJ: ` the public interest, in my view is best served by making it abundantly clear to those that have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an Order for Possession will be made in my view the public interest would best be served by the Appellant being able in a case such as this to re-let the premises to someone who will not use it for peddling crack cocaine. [p39] 41. In the case of North Devon Homes Ltd v Batchelor [2008] EWCA Civ 840 the Court of Appeal refused to interfere with a decision to make no order for possession in a case involving convictions for possession and intention to supply cocaine and possession of cannabis, although it is important again to be reminded that cases will turn on their own facts. 9

42. At paras. 31 & 32, LJ Wall with whom the other members of the CA agreed, held that the Learned Judge was entitled to find that the case did not fall within the Mousah category and rejected the argument that the wrong message would be sent out by a refusal to make an order. 43. The assertion often raised by social landlords is that a possession order in drugs cases should be made save in exceptional circumstances, but this should be resisted. 44. This issue was considered in an appeal to a Circuit Judge of an outright order for possession made at first instance in the case of Tai Cymdogaeth Cyfngedig v Griffiths (Legal Action, Feb 2003). 45. The tenant s partner had been convicted on four occasions of the possession of large amounts of amphetamines and cannabis resin and once for possession with intent to supply. 46. The housing association brought proceedings on the basis of Grounds 12 and 14 and the District Judge made an outright order for possession. The Circuit Judge allowed the appeal. 47. It had been suggested that the effect of Bristol CC v Mousah [1997] 30 HLR 32 was that where a serious crime has been committed at the premises then in the absence of exceptional circumstances an order for possession must be made. 48. The Circuit Judge rejected an assertion that a tenant must in effect prove the matter of exceptional circumstances, once again emphasising the wellrehearsed approach of considering all relevant circumstances in relation to the question of whether it will be reasonable to make an order for possession. 49. It was however acknowledged that where a tenant has committed a serious crime at premises then it would be rare that discretion would be exercised in 10

that individual s favour. 50. The Circuit Judge then reviewed the facts, noting: the majority of convictions were for possession only. the drugs involved were Class B. there was no evidence of nuisance being caused, for example of people coming to the premises. the landlord had not produced any evidence that the tenancy agreement had been breached for 12 months before the hearing. the tenant herself was not involved, save in allowing the premises to be used. the partner had left the property, although it was possible that he may return. the tenant had not breached any other term and had always paid the rent. the tenant suffered from depression. The tenant s nine-year old grandaughter resided at the property with her. 51. The Circuit Judge varied the order to be suspended with the attached condition that the tenant complied with her tenancy. 52. Indeed, it is important to recognise that the case of Mousah does not provide guidance in assisting the courts in answering the specific question of: ` whether it would be appropriate to stay or suspend the order in circumstances of that kind [Mr Justice Lloyd, para.17, Stonebridge Housing Action Trust v Gabbidon [2002] EWHC 2091] 53. The terms of any suspension may clearly specify the matter of compliance with all, or specifically identified, tenancy conditions. 54. Nevertheless, it is important to consider the remarks of the Court of Appeal in the case of Sandwell MBC v Hensley [2007] EWCA Civ 1425: For my part, I would be cautious about accepting that there is a 11

general that where a tenant has been convicted of a criminal offence, there must be exceptional reasons before the court can suspend an order for possession rather than making an outright order. What in my judgment can be said is that the effect of Mousah is to stress the serious nature of a breach of a condition which involves the committing of a criminal offence. The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances, it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates, as Ward L.J. out it in Manchester City Council v Higgins [2005] EWCA Civ 1423, a sound basis for the hope that the previous conduct will cease. [para.17] 7. 55. The case of Greenwich London Borough Council v Grogan [2001] 33 HLR saw the intervention by the Court of Appeal with an outright order for possession against a tenant who had been convicted of handling stolen goods and served a sentence of 6 months imprisonment. 56. The Court of Appeal found that the judge had failed to consider suspending the order for a considerable time on condition that the Defendant committed no further breach of tenancy. 57. Liverpool HAT v Hankin [Legal Action, Oct 2002] concerned a secure tenant convicted of the cultivation of cannabis and the unlawful extraction of electricity. 58. The landlord sought possession on Grounds 1 and 2 but the application was dismissed. The judge reasoned that the breach was not serious, there were no complaints from other tenants and there was no evidence that the defendant had grown cannabis since his conviction. 7 The case provides useful guidance as to how the court is likely to deal with the question of criminal sanction already imposed, ie its relevance being to that of future deterrence, rather than the fact of punishment itself [para23, Gage L.J.]. 12

59. High Peak BC v Purser [Legal Action, Aug 2008] involved serious convictions including supply of a class A drug to a teenager leading to hospitalisation. Positive engagement with professional support that had followed conviction and with family support services led to the judge finding that there was real hope for her future and that of the tenancy. A postponed order for a period of 2 years was made. 60. Knowsley Housing Trust v Prescott [2009] EWHC 924 saw the substitution of an outright order for possession in place of a postponed order made after a trial concerning the supply of amphetamine that had been found in the criminal courts to be part of a drugs factory that was industrial and national in its scale, as well as intention to supply cocaine. 61. The court reviewed the authorities, noting the seriousness of the scale of drugdealing in the locality 8 and the lack of any evidence from either the tenant, or her convicted husband as demonstrating a sound basis for the hope that such conduct would cease. The duty of the Housing Trust to keep its estates free from drug activity was also relevant to the High Court s intervention. 62. Every case will obviously be different but it is pointed out that through the careful analysis of the facts and chronology of a case, it may be possible to put a different perspective on ostensibly clear grounds for possession and to ultimately make submissions, at the highest towards the making of `no order, otherwise for suspension of an order for possession. 63. Careful preparation prior to the hearing, for example through a conference prior to the drafting of a comprehensive defence will provide a basis from which to advance a case theory as well as assisting in dealing with any further allegations raised before, or even during, a hearing. 8 Locaility: a question of fact on the evidence (Manchester City Council v Lawler [1999] 31 HLR 119). 13

Outlook - Anti-social Behaviour, Crime and Policing Bill 64. Important changes are afoot regarding the tackling of anti-social behaviour, following the Government s consultation and its response Strengthening Powers of Possession for Anti-Social Behaviour there are proposals to: (i) (ii) Introduce a new mandatory route to possession 9, and To extend the discretionary ground for possession to cover offences committed at the scene of a riot 10. 65. The new mandatory power will be based on the possession process for introductory tenancies. There will be specified notice requirements and a statutory right to request a review. 66. For registered providers it is anticipated that registered providers will set down review procedures akin to those relating to starter tenancies. 67. Although the Government acknowledges the continuing working through of the judgments of Pinnock and Powell, Hall & Frisby it is nevertheless of the view that it is confident that where a landlord carefully considers which cases are suitable for use of the new mandatory power, such claims may be dealt with more expeditiously than where a discretionary ground is used. 68. The availability of the use of the mandatory power include conviction by a tenant/household member/visitor of a serious offence in the locality/elsewhere against a landlord or person employed by the landlord, or an established breach of an injunction made under s.1 of the new Act or of the new criminal behaviour order (see below). 69. The closure of a property and conviction for breach of a noise abatement notice relating to a property under the Environmental Protection Act 1990 are other triggers. 9 ss86-89 Absolute ground for possession for secure and assured tenancies. 10 s91 Offences connected with riot. 14

70. The proposed extending of the discretionary ground emerged following the urban unrest of August 2011 and will mean that a conviction for an offence that took place at the scene of a riot, wherever that occurred in the United Kingdom, may be relied upon in possession proceedings. 71. Other proposals will see a radical streamlining of the [anti-social behaviour] toolkit, reducing some 19 available tools to 6 and which replace ASBOs and other orders with two key orders: the criminal behaviour order ( CBO ) and the injunction to prevent nuisance and annoyance ( IPNN ) 72. The CBO will only be available upon conviction of an individual of a criminal offence whilst the IPNN will be available to those whose anti-social behaviour may not be criminal, thereby drawing in scenarios currently familiar to the ASBO. 73. An application for a CBO must demonstrate that the order is required in order to prevent harassment, alarm and distress. 74. The threshold test for an IPNN will reflect that of the current ASBI, ie the engagement in conduct capable of causing a nuisance or annoyance to any person, furthermore, that it is just and convenient to grant the injunction. 75. An application for an IPNN will be heard in the County Court for adults and the Youth Court for those aged 10-17, with interim relief/powers or arrest being available. 76. Both orders may contain positive requirements as well as prohibitive provisions and which these are aimed at addressing underlying problems identified/associated with the behaviour complained of. 77. Breach of a CBO will be a criminal offence, with a maximum term of 5 year imprisonment. 15

78. Breach of a CPI, established on the criminal standard of proof, will result in a civil sanction for contempt for adults. 79. For those under 18, curfews or activity/supervision requirements may be imposed, with custody being proposed for a period of up to 3 months for those aged 14-17 where there is serious/repeated breach. Conclusion 80. The discretion of the court in possession proceedings involving criminal convictions is wide, indeed `extended. The relevance of whether an injunction already in place is working may be a relevant factor to the exercise of that discretion. 81. That there is everything to be gained or rather, prevented from being lost, should, of course, always be borne in mind and inform the question of compromise/settlement at every stage of the proceedings. John Hobson Doughty Street Chambers j.hobson@doughtystreet.co.uk 24 th June 2013 16