Q, R. v [2011] EWCA Crim 1584

[2011] EWCA Crim 1584

Case No 201100399/C5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 17th May 2011

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE BEATSON

MR JUSTICE FOSKETT

Between

R E G I N ACrown

Between

PROSECUTION APPLICATION FOR LEAVE TO APPEAL AGAINS A TERMINATING RULING UNDER SECTION 58 CRIMINAL JUSTICE ACT 2003

Computer Aided Transcript of the Stenograph Notes of

WordWave International Limited

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Mr J Earle appeared for Applicant

Mr L Bruce appeared for Respondent

J U D G M E N T

LORD JUSTICE LAWS:

This

[1]is a prosecutor's appeal against a terminating ruling given on 14th January 2011 by Mr Recorder Lucraft in the Peterborough Crown Court. The appeal is brought pursuant to section 58 of the Criminal Justice Act 2003. The ruling was to the effect that the prosecution evidence in the criminal proceedings before the Recorder disclosed no case to answer.

[2]The appellant prosecutor is the Peterborough City Council. The indictment which the respondent, Mohammed Quereshi, faced contained four counts. Counts 1 and 2 alleged offences contrary to section 1(3A) of the Protection from Eviction Act 1977. Counts 3 and 4 alleged offences of unlawful eviction contrary to section 1(2) of the same Act. The alleged victim on counts 1 and 3 were Salmo Dabo and on count 2 and 4 Demba Jamanca.

[3]At the close of the prosecution case no evidence was offered on counts 3 and 4. The ruling under appeal related to counts 1 and 2 to charges section 1(3A). We should set out section 1(3A) and 3B of the 1977 Act:

"(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 (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. (3B)A person shall not be guilty of an offence under subsection (3A) above if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question."

Section 1(3A) was inserted by the Housing Act 1988. In light of the points raised in argument we should also set out section 1(3). It is reads as follows:

"(3)If any person with intent to cause the residential occupier of any premises— (a) to give up the occupation of the premises or any part thereof; or (b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts [likely] to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence."

[4]The particulars of offence given in count 1 and 2 of the indictment are identical save for the name of the alleged victim. Thus count 1 reads:

" PARTICULARS OF OFFENCE 5. MOHAMMED QUERESHI between 25 June 2009 and 21 September 2009, did acts likely to interfere with the peace and comfort of SALIMO DABO and others, the residential occupiers of 97 Bishops Road, Peterborough, namely the disconnection of services and failure to reconnect them within a reasonable time; attending the premises and unlawfully requesting the occupiers to permanently vacate the premises; and moving into the premises members of his family knowing, or having reasonable cause to believe, that that conduct was likely to cause the residential occupier to give up the occupation of whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises."

PARTICULARS OF OFFENCE

[5]The relevant factual allegations are as follows. Salimo Dabo and Dembo Jamanca, the two victims or complainants on counts 1 and 2, were residential occupants of rooms in a multiple occupancy house. It was either owned by the respondent or managed by him on behalf of his niece.

[6]It was accepted that the respondent desired the tenants to leave the premises. On 25th June 2009 a company called City Homes Ltd served 2 months notice to quit on the tenants on the respondent's behalf. On 29th June 2009 Dabo's wife, Fato Sano, moved into the accommodation with their young child. The notice requiring the tenants to vacate was defective. However, when it expired on 25th August 2009 the respondent's son together with five other men visited the house. One of them was carrying a knife and loudly demanded that the tenants' belongings should be thrown into the street. The men eventually left but promised to return. Shortly after their departure the respondent arrived and asked whether everything was in order. A complaint was made about the respondent's son's behaviour. The respondent left.

[7]On 25th August 2009 the water and gas supplies to the house were turned off. The Council Housing Team contacted the respondent. Services were restored albeit on an intermittent basis: the hot water was apparently never restored. The supplies were severed on each occasion without any warning or explanation. The respondent was later to say that essential maintenance work was being carried out but the tenants said they saw no such work on their floor, although it was contended that the condition of the property was always poor.

[8]On 6th September 2009 the respondent went to the property with his son. According to the complainant, Jamanca, there was a crowd of up to 25 men. The police attended. They noted only four men sitting in a car outside the property. Dabo said the respondent's son offered him racial abuse in the respondent's presence. In the early hours of that morning there had been a break-in at the house. The intruder had broken Dabo's bedroom door. The tenants did not tell the respondent about this. However he arrived at the house at the same time the police got there. The respondent allowed a police officer to draw up a handwritten agreement requiring the tenants to leave within three days. The respondent signed the agreement himself. The tenants however did not. They had been told that the respondent needed a court order to evict them. Dabo said the respondent was advised to leave by his son so that his son could "deal with the problem".

[9]On 7th September 2009 Jamanca wrote to the respondent, helped by the council's Housing Option staff. The letter explained the tenants' rights and was signed by each of them. The letter received no response but members of the respondent's family began to move into an empty self- contained ground floor flat at the house. The family did not confine themselves to the flat. They tended to wander into the kitchen shared by Dabo and Jamanca. Dabo identified the respondent and his son and daughter-in-law among the people who came there.

[10]On 21st September 2009 Fato Sano tried to enter the first floor accommodation. She found her way blocked with furniture from the tenants' bedrooms. Dabo gave evidence that from outside he was able to see both the respondent and his son among the people who were shouting at the tenants inside. Dabo and Jamanca then went to the Council Housing office and Dabo together with his wife and child were offered alternative accommodation in a hostel. They went back to the premises to collect their belongings but had to move a mattress that was blocking their way. Jamanca was the last to leave the house. He encountered some difficulty in getting in to collect his belongings. He said the respondent's family had put keys in the door lock to stop him opening it from the outside. Eventually he got in, collected his belongings and returned the keys to the landlord on 24th September 2009.

[11]It will be plain from this summary that the respondent's son played a very large part in the events alleged by the prosecution. In his ruling of no case to answer the learned Recorder summarised the acts relied on under three heads:

"(i) disconnection of services and failure to reconnect them within a reasonable time; (ii) attending the premises and unlawfully requesting the occupiers to permanently vacate the premises. (iii) moving into the premises members of his family."

[12]The learned Recorder proceeded to make the following specific findings and we set out paragraphs 5, 10 and 24 of the ruling as follows:

"5. Having looked at the 1977 Act, as amended, it does not seem to me that it catches within this section the acts, declaration or omission of others - it is aimed at a course of conduct by a landlord. If the landlord can be shown to have taken acts, or done things through another that is one thing, but a mere assertion that things were done on his behalf - and there is no evidence to show his involvement in much of the activity - is quite another."

Then paragraph 10:

"I do not think it right as a proposition that this defendant can be held responsible for things done or said by others that are said or done in his absence or without evidence to show his orchestration of it or them, or them being done under his control. Even if done or said in his presence, there has to be some additional evidence to show some degree of participation by him - mere presence at the scene alone would not be sufficient. In my judgment this case must focus on what the defendant did, what he said, and what was done or said by others under his control or in his presence. In those circumstances the evidence of what the defendant's son or others said to be members of his family, did or said - where relied upon by the prosecution is in my judgment not evidence the prosecution can rely on to prove these allegations against this defendant."

Then lastly 24:

"In terms of whether what I have termed particular (i) in counts 1 and 2 [we interpolate that is the disconnection of services] there is the question of whether that evidence amounts to harassment, I have considered that issue as well. If I were summing-up this case to a jury I would have to give them some directions on 'harassment' or more accurately - as it is put in the particular of the offence - what amounts to the phrase 'likely to interfere with the peace and comfort' of the persons named or others. In my judgment this case should not proceed further on that allegation alone. The state of the evidence on that matter is not sufficient to amount to 'interference with the peace and comfort'. On the basis of the evidence called, there is a conflict between the evidence of Mr Dabo and his wife as to what was off and when, and also as between them and Mr Jamanca. The height of the case seems to be a lack of hot water, but in my view that conduct would not of itself then be sufficient to meet the final element of the offence of being conduct likely to cause the residential occupier to give up occupation."

[13]The grounds of appeal make it clear that the appeal is brought against the first of these three findings, it being said that the second and third were largely dependent on the first; and against the consequent ruling that there was no case to answer.

[14]The primary question here is whether a defendant may be guilty of an offence under section 1(3A) on the footing that he is vicariously liable for the act of another or others. It seems to us to be clear that on its true construction section 1(3A) requires the actual participation of the defendant and in that case there is no room for vicarious liability.

[15]Our reasons are as follows: 1. The phrase "does acts" in section 1(3A)(a) suggests a requirement of actual participation by the defendant. 2. Perhaps most important, there is the requirement of knowledge or having reasonable cause to believe. This requires the prosecution to prove a subjective state of mind on the part of the defendant - compare McGowan

[2002] HLR 55

, paragraph 23 to 25 per Tuckey LJ. 3. The offence may be committed by "the landlord or an agent of the landlord", suggesting that if the impugned acts are said to be done by an agent and not the landlord himself, it is the former not the latter who is guilty of the offence. 4. In R v Phekoo

(1981) 73 Cr App R 107

it was held by this court that section 1(3) did not create an offence of strict liability. That conclusion is, in our judgment, unaltered by the substitution by section 29(1) of the Housing Act 2008 of the word "likely" for "calculated" in the subsection. It is true that the section 1(3A) offence is easier to prove than section 1(3) because although the actus reus is the same, section 1(3A) does not require proof of specific intent. However the two provisions have more similarities than differences and it is in our judgment very improbable that Parliament intended by section 1(3A) to introduce a crime of strict or near strict liability, of which a defendant might be guilty on the basis of vicarious responsibility, alongside section 1(3) which has no such attributes. We should add we are not, with respect, assisted by the very different provision contained in section 1(2), which involves a reverse burden of proof. There is no reason to import such a burden of proof into section 1(3A), nor any test of gross negligence, as was at one stage suggested by Mr Earle for the Crown. In all these circumstances we consider that the learned Recorder correctly held that a defendant could not be convicted under section 1(3A) on the basis of vicarious liability.

[16]We desire to make it crystal clear however that nothing in this judgment, nor indeed, as we read it, that of the learned Recorder is intended to suggest that an offender may not, on appropriate evidence, perfectly properly be convicted under section 1(3A) as a secondary party where his guilt would fall to be established on the footing of a joint enterprise, or incitement, or indeed (were it to arise in a particular case) as a co-conspirator. No such allegation was made in this case. We say nothing as to the possible outcome had that recourse been taken. Accordingly Mr Earle's first ground of appeal, that the Recorder was wrong to rule that there was no case because a conviction on the basis of vicarious liability should have been held available, fails.

[17]Mr Earle submits secondly that in any event the learned Recorder should not have held there was no case to answer as respects certain factual aspects of the case. They are essentially two in number. There is the disconnection of services and the fact that members of the respondent's family were moved into the premises. Those allegations, says Mr Earle, may properly survive notwithstanding our conclusions as to vicarious liability.

[18]It is well established that an appeal of this kind can only properly succeed, where the challenge is to the merits of a ruling that there is no case to answer, if this court is persuaded that the ruling is in truth perverse. The well-known public law test in the Wednesbury case

[1948] 1 QB 223

applies (see for a context such as that of the present appeal the case of B

[2008] EWHC Crim 1144

paragraph 19).

[19]However, that hurdle is not in our judgment met in the present case. The Recorder plainly took a view (see paragraph 24 which we have set out) as to the evidential force of the allegations on which, in this part of the appeal, Mr Earle relies. The truth is that counts 1 and 2 were presented as an overall package, albeit that the particulars of offence were divided into specific allegations.

[20]It does not seem to us that the Recorder's reasoning in paragraph 24 goes to the point where it would be open to this court to say that he has arrived at a perverse conclusion. In those circumstances that ground of appeal also fails and it follows that the appeal must be dismissed.

[21]MR BRUCE: It then follows, my Lord, that I ask for an order that the respondent be acquitted.

LORD JUSTICE LAWS: I think that has to follow. That is right Mr Earle?

[23]MR EARLE: It does my Lord, that is an undertaking of the prosecution.

LORD JUSTICE LAWS: We make that order then.

[25]MR EARLE: May I ask your Lordships to certify that there is a point of general public importance here that relates--

LORD JUSTICE LAWS: You need to draft or produce a draft form of words if you desire us to certify.

[27]MR EARLE: My Lord, yes.

LORD JUSTICE LAWS: I suggest that unless you have got a draft form of words prepared contingently, which perhaps you have not, you agree the draft with your opponent and submit it to my clerk and we will make a decision as to whether to grant the certificate and reach our decision in writing. I presume you would also wish us to grant leave to appeal to the Supreme Court?

[29]MR EARLE: My Lord yes please.