I was watching a cross party parliamentary debate on Parliament TV last week, where the discussion at one point turned to the lack of prosecutions for Protection from Eviction Act offences by local authorities. The general consensus being lack of staff.
This is true…….but it’s only partly true.
Even before the great TRO cull of 2015 prosecutions were low and as someone who has been a TRO since 1990 I thought I’d provide a more nuanced picture of why this is.
THE PROCESS.
The act of actually doing a PFEA prosecution is inordinately time consuming. If a full on illegal eviction comes through the door the person dealing with it will be taken out of action for several days, just in the initial stages.
First priority is trying to get them back in if it’s possible. A phone call to the perpetrator is the first job, which garners you a range of stock responses:-
· They don’t answer the phone.
· They answer the phone but hang up on you when you say who you are.
· They shout and become abusive so you can’t get a word in….then they hang up.
· They say they know nothing about it.
· They say they have never heard of the person you are speaking about.
· They tell you they know the law and have spoken to their solicitors and you don’t know what you are talking about.
· They threaten to kill the tenant if they return.
Negotiations having failed, you turn to using force is an option but is dependent on whether senior managers are happy backing such an action, many are too nervous and then there is the wherewithal.
Back in the day many TROs had their own breaking and entering kits in the office but with the proliferation of UPVC and composite doors, a strong boot and a crowbar don’t get you very far. You need a locksmith these days and whilst many are used to the work there isn’t always the facility within the council to commission one.
This leaves injunctions as the main option. If you use a solicitor its very costly and out of the reach of anyone not eligible for legal aid. Then of course you have to find a solicitor who actually has capacity to do it, which is a task in itself.
If you decide to assist the tenant in applying for an injunction, the cheaper option @£308, you have to factor in rights of audience for non solicitors and the abilities of the tenant to stand up to the court process and strange and sometime eccentric behaviours of not a small number of district judges, plus at the moment simply procuring the court time to even do it.
Meanwhile you get involved trying to help the household source temporary accommodation while you try and get them back in, which can drain you of all time. If the household aren’t in priority need then your own homelessness unit doesn’t owe them a duty to provide temp accommodation, so you end up speaking to Streetlink to try and get them off the street.
All of this while trying to keep in contact with the displaced occupier while their phone keeps dying because they haven’t got a charger, because its locked up in the property and all of this is going on during the first week, meanwhile there are more complaints, even more illegal evictions turning up in reception and don’t forget, we’re just in the initial phase here, we’re nowhere near legal action.
THE EVIDENCE.
PFEA breaches have to proven to a full criminal standard of “Beyond all reasonable doubt”, meaning you have to investigate proofs. What documentary evidence is there? Texts? Notes stuck to doors? Anyone who might have actually seen it happen? Etc.
You might have to take several witness statements. Usually taking of a statement of roughly 4 pages takes me around 3 -4 hours just in the interview, as people’s recall and time sequencing can often be all over the place and if English is not their first language it can take even longer.
You have to append all evidential documents in sequence as well and in many cases, because the person’s belongings are locked in the flat or have been destroyed, it can often be difficult to get crucial items such as tenancy agreements.
Meanwhile, witnesses can disappear, just move or stop answering their phones, or simply decide they don’t want to be a witness after all, scuppering plans, days, weeks or months into the investigation.
LOCAL AUTHORITY LEGAL TEAMS.
It is a common complaint of TROs and other enforcement officers, that so often the council’s own legal teams arent massively enthusiastic about prosecutions. I have often found meetings to progress the case frustrating and dispiriting affairs when things go beyond a helpful “Devil’s advocate” approach and distinctly into “I don’t think we should be doing this” territory.
I understand lawyer caution. It’s as natural to their role as “We’ve got to get this bastard” is to TROs but there is often a real resistance to taking legal action that isn’t laziness or lack of evidence but uber-caution. I have often pondered on why this might be the common experience of so many and have come to the conclusion that the chief focus for local authority legal teams is on protecting the council from being sued. In the case of PFEA prosecutions, sued for malicious prosecution or accused of bringing the council into disrepute.
I don’t think many legal teams trust their TROs either. They are, like so many lawyers, uncomfortable with the very thought of non- lawyers being involved in any form of legal work. We’re always thought of as loose canon’s, liable to do something rash or ill thought out, although to be honest, maybe its just me they worry about on that front.
PERPETRATORS.
The problem these days is even down to as basic an issue as just identifying who the various involved parties are. The use of aliases is standard, as are chains of companies, some real, some not and some dissolved but still trading.
The person who collects the rent may not have any connection to the landlord on paper and whilst being known to everyone as Joel, may in fact be called Rudy and have a name similar but with different spelling on the land registry form, whilst using an email address connected to someone called Pete, who everyone thinks might be employed by one of the 3 different lettings agencies involved.
When there is a criminal standard of evidence to be satisfied, all of these identities and companies have to be clarified before being in a position to call anyone in for an Interview Under Caution (IUC) which is voluntary. So often the invitation is ignored, so you have to decide, with the assistance of your legal team, whether you can move forward without their testimony.
THE CLIENT.
Then you have the displaced person who you are working with to factor in.
One of the most surprising things I learnt when starting out as a TRO is that some people will never get justice, simply because their spoken English is poor to non-existent, they may lack confidence to stand up to a barrister’s cross examination without folding into a quivering wreck, they are inconsistent in their memories or as so often the case, in the year or 2 between the incident and the hearing they move on with their lives and lose interest, gradually getting slower at replying to emails and being less and less prompt in returning requested documents as their interest wanes.
In the initial stage, anger is the dominant motivator, they want justice done and they want to see the perpetrator suffer but this quickly gives way to more pressing things like where they are going to live now and how do they get their possessions back, not to mention, where they are going to store the possessions when they have nowhere to live.
After a few weeks they realise that having the law and the council on their side isn’t a magic wand or sword of justice they first thought. It’s a long, slow, procedural process of evidence gathering which, as time goes on, seems to have less and less to do with them and their life.
The TRO, who was the new best friend for the first few weeks has to fit their justice around that of others they have taken on since they were first illegally evicted, including other people who have been illegally evicted, where all of the above is applying in the same, overlapping way.
TO END.
I just glanced quickly at some of Safer Renting’s statistics and saw that between July and September 2020 we dealt with 17 illegal evictions in just one of our 7 partner London boroughs. Imagine undertaking the process I have listed above in 17 cases? And this doesn’t take into account all the cases of serious harassment or just complex housing law advice a TRO gets involved in.
So yes, staffing levels are a big factor in the low number of prosecutions but as you can see, it’s only one factor. The procedural unwieldiness of criminal prosecutions in illegal eviction is at best daunting and at worst impractical. The fraudulent activities of landlords and agents involved is a huge problem that we didn’t really see too much of until about 10 years ago and the extra time this adds to the whole process leaves the victim concluding that the law doesn’t work for them.
And don’t get me started on the pathetic penalties meted out by magistrates even if you are successful, god knows I’ve written enough about this elsewhere. Where the PFEA allows for potentially unlimited fines and 2 years in prison, the real world levy is more often than not a few hundred pounds and a few hours community service.
As Roger Daltrey sang on “Who are you” – “You know there’s got to be a better way”
by Ben Reeve Lewis
