The defendant was the landlord of a house held by a husband (“H”) and his wife (“W”) on a a periodic tenancy following the expiry of an assured shorthold tenancy. One day when W was at home the defendant 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 which resulted in the builders disconnecting the water supply and removing a section of the water pipes. W 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. W called H again and he spoke to a housing officer of the local authority. H returned home from work at lunchtime, and he later attended at the offices of the local authority. While there he e-mailed the defendant to advise that there was no emergency accommodation available and that, if the house were uninhabitable, she would be required to provide accommodation. He then returned to the house and told the defendant that she was obliged to house them. He and the defendant later attended the offices of the local authority, where a housing officer told the defendant that she was to make the necessary arrangements for accommodation as she had made the house uninhabitable. H and the defendant returned to the house. The defendant left shortly thereafter without having given H and W a set of new keys. They remained inside the unlocked house. H spoke further to a housing officer of the local authority, who later advised the defendant that withholding the new keys might give rise to an accusation of illegal eviction. The defendant said she would arrange for a set of new keys to be given to the tenants. Those were ultimately delivered to H and W at the house just after midnight on the following day. Throughout the period concerned W had been in the house. The defendant was charged with two offences of unlawful eviction contrary to section 1(2) of the Protection from Eviction Act 1977 and two counts of unlawful harassment contrary to section 1(3A) of the same Act. During the trial the defendant accepted that H and W had in fact been deprived of occupation of the house, in consequence of which the indictment relating to the counts of unlawful eviction was amended so that “did or did attempt to unlawfully deprive” was altered by deletion of “or did attempt to”. During the trial it was also agreed, in relation to the counts of unlawful harassment, that the defendant had arranged the disconnection of the water services and had refused to reconnect them when requested, and that those acts were likely to interfere with the peace or comfort of H and W. The defendant was convicted on all four counts. She appealed against conviction. In relation to the counts of unlawful conviction the ground of appeal was that section 1(2) of the 1977 Act required the prosecution to establish that the residential occupier was put and/or kept out of physical occupation, that neither complainant was in fact deprived of physical occupation of the house, and the concession that they had in fact been deprived of occupation of the house should never have been made. In relation to the counts of unlawful harassment two grounds of appeal were advanced. One was that “acts” in section (3A)(i) of the 1977 Act required more than one act and did not include omissions and the requirement was not met because there had been only one act, the disconnection of the water supply, and one omission, the failure to reconnect the supply within a reasonable time. The other ground was that the judge should have directed the jury that one of the ingredients for the offence under sub-section (3A) was that there had been a “course of conduct” by the defendant within the meaning of the offence of harassment under the Protection from Harassment Act 1997.
On the appeal—
Held, appeal dismissed. The part of the actus reus of section 1(2) the Protection from Eviction Act 1977 which required that the resident occupier had been deprived of occupation of the premises did require actual physical deprivation of occupation, namely that the occupier had by the defendant’s conduct been put and/or kept out of physical occupation of the property. The natural reading of section 1 was that the actus reus of the completed offence under sub-section (2) required that the defendant’s conduct had in fact put or kept the residential occupier out of physical occupation. That was 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 was a distinction which would be readily explicable to a jury in straightforward, non-technical, language. It followed that the agreed direction to the jury that “by changing the locks the defendant did deprive the case of occupation of the premises” was wrong in law. The consequence of that direction was that the prosecution withdrew the alternative offence of attempted deprivation of occupation from the particulars of the counts. If that alternative had remained on the indictment, the prosecution would have had to make the jury sure on each count that the defendant, (i) with intent to commit the section 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. 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 defendant guilty of the statutory alternative under sub-section (2). It followed that the convictions on the first two counts were safe, and that it would be quite unjust to permit the defendant to resile from the concession which was made. In relation to the counts of unlawful harassment it could not be accepted that the judge should have directed the jury that one of the ingredients for the offence under sub-section (3A) was that there had been a “course of conduct” by the defendant within the meaning of the offence of harassment under the Protection from Harassment Act 1997. There was no basis for importing the language of the 1997 Act into the 1977 Act. While the headnote of section 1 of the 1977 Act referred to “harassment”, the operative words of the relevant offences were those identified in sections 1(3) and 1(3A) and neither included the word “harassment” . If the legislative intent of the 1997 Act had been to create a comprehensive definition and code for all offences of “harassment”, the statute would have so provided, but, on the contrary, the 1997 Act made no such provision and left the 1977 Act unamended. Further, previous authorities provided no support for the defendant’s submission, but simply used “course of conduct” as a non-technical description of the conduct in the particular case and, had the view been taken that it was a necessary ingredient, that would have been said. As to the ground that “acts” in section (3A)(i) of the 1977 Act required more than one act and did not include omissions, it was clear that one act sufficed . Moreover, there was no discernible policy reason why an individual act should not attract criminal liability if the other ingredients of the offence were established. In any event, the defendant had had a duty to reconnect the water supply to her tenants and a refusal to rectify a previous action (as opposed to a failure to do so) was capable of constituting a positive act rather than a “mere” omission. The convictions for unlawful harassment were, therefore, also safe (see paras 43–48, 49–53, 67–68, 69–72, 72).
Alex Stein and Rhys Rosser (instructed by Rustem Guardian Solicitors) for the defendant.
Gordon Menzies and Angelica Rokad (instructed by Chelmsford City Council Legal Services) for the prosecution.