Well there’s a gauntlet being slapped down if ever I heard one.
Today I participated in an online event over redrafting the laws used to punish perpetrators of harassment and illegal eviction with some excellent people from my area of expertise.
We discussed many potential issues but one idea came up that split opinion among very experienced practitioners, the subject of whether the current criminal sanction for these offences, the Protection from Eviction Act 1977 (PFEA) was really effective or even relevant in 2022 and whether the concept of the Civil Penalty Notice (CPN) ushered in with the Housing and Planning Act 2016 was a more fitting alternative.
A brief explanation:
Where a person harasses or illegally evicts a tenant, the current criminal route to redress is under the PFEA is for the local authority to prosecute the offender in either the Magistrates court or the Crown Court. In such cases the victim/renter becomes merely the witness for the council’s prosecution.
The renter can also seek damages through civil courts but they have to be eligible for legal aid and be able to source a legal aid lawyer to do this.
A CPN, currently used for breaches of property licensing and HMO regulations is again a local authority route but results in and award of up to £30,000, which unlike a fine, the council can keep to pay for further enforcement activities.
Neither route precludes the renter from civil action of their own but the PFEA and CPNs are the local authority’s legal machinery.
PFEA Pros.
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· The perpetrator gets a criminal record.
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· They will be subject to a banning order.
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· They will potentially be subject to an unlimited fine and two years in prison.
PFEA Cons.
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· They take an age to do, eating up officer time and costs.
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· Magistrates court penalties are often in the hundreds of pounds, miles away from unlimited fines and many perpetrators are given community service, conditional discharge or even a curfew.
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· The tenant gets nothing out of it.
CPN Pros
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· They have far more financial clout, so are a more effective punishment and deterrent.
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· They are quicker to do.
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· The council gets to keep the money to pay for more enforcement.
CPN Cons
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· They aren’t a criminal sanction.
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· The tenant gets nothing out of it.
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· They cant be used for harassment or illegal eviction.
So what are the arguments over both approaches? And these are admittedly biased towards my own views.
The PFEA.
I am not convinced that the sorts of landlords and agents who harass and illegally evict their tenants care one bit about a criminal record. Many of the people I have dealt with down the years already have one and just add it to the list.
Being shamed in their community is not a big concern.
PFEA prosecutions can take an age to get to court. In the cases I’ve done down the years the fastest I have ever had a case in court is 18 months after the offence, during which time the complainants just get on with their lives, move away, put the past behind them, meaning you lose your star witness. Criminal prosecutions just take too long.
Records of sentencing by magistrates is truly appalling, take these examples for the past 3 years and bear in mind that the potential is an unlimited fine and a custodial sentence of 2 years
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Flintshire landlord Mr Gruffydd Edwards fined £1,040
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Oxford landlord Riasat Ali fined £180
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Swansea landlord Sean MacManus fined £105 for illegally evicting his tenant and depositing all of his possessions on his parent’s drive.
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Clacton landlord Lisa Bottone, 12-month community service.
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Derby landlord Mr Sajad Ahmed sentenced to a 16 week curfew.
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Peterborough landlord, Jeffrey Reeve, who carried out an illegal eviction in 2020 and whose tenant was hospitalised with hypothermia after sleeping outside, was given a conditional discharge by local Magistrates.
CPNs
Are much faster. The council can impose one and give the offender time to appeal but the threat is all the more immanent and therefore worrying to the offender.
It costs them money and that is the big thing for me. Criminal landlordism is all about the money. You punish and deter future offenders by making it expensive.
The stark evidence in PFEA prosecutions is that magistrates treat harassment and illegal as minor offences which in itself is something that needs addressing urgently and also acts as a deterrent to local authority commitment to pursuing that route. Possibly 100 hours of officer time for community service? Do the council even get costs back?
I am I confess, deeply uneasy about the idea of decriminalising harassment and illegal eviction but at the moment it simply isn’t a credible alternative for local authorities, considering poor staffing levels and the sheer length and complexity of PFEA prosecutions
It’s no wonder there is little appetite in local authorities for PFEA prosecutions and that is even if they have any staff skilled up to do it. Prosecuting under the PFEA is not a duty incumbent upon on a local authority, its just an option. A nice idea if you have the funding.
Whenever I read an article of a successful PFEA prosecution a councilor is quoted with a rote statement “This send a powerful message………..” No it doesn’t, The powerful message it sends out is that even if prosecuted the landlord will get a slap on the wrist and the other powerful message is that a fine is still cheaper than evicting through the courts.
I know I’m sounding like a broken record but rogue and criminal landlordism is just about the money, so deterrents and punishments should also just be about the money.
Landlords and agents literally laugh all the way to the bank on PFEA prosecutions and the threat of them. Taking £30,000 out of their bank account, denying them rental income for the next 12 months through imposition of an Interim Management Order and clawing back the previous 12 months rental income through a Rent Repayment Order are the sort of things that hurt, they deter and they punish. The sort of thing that makes dismissive people sit up and take notice.
CPN routes are faster and more immediate to criminals than a PFEA prosecution. If we have to amend regs on CPNs to include harassment and illegal eviction then I am behind that, if we have to decriminalise the offence to get there, that’s a price I think is worth paying.
By Ben Reeve Lewis
