Safer Renting are beginning to roll out a campaign. “Illegal eviction is a crime”. Why? ……….because it is ……….and not just because we say so.
Its the Protection from Eviction Act 1977 (PFEA) that makes illegal eviction a criminal offence but it’s the local authority that prosecutes such offences, not the police, which leads to the common misunderstanding among officers that any dispute between a landlord and renter are civil matters only and nothing to do with them as upholders of the law.
So many local authorities have divested themselves of the Tenancy Relations Officer function in response to imposed austerity cuts, that people suffering illegal eviction have very few places to turn. Solicitors and law centres, if they are lucky enough to be eligible for legal aid, many aren’t, the CAB do sterling work but cant provide the detailed, hands-on casework required to take a landlord to task through the courts. This is traditionally the TROs sphere of activity but there are only a few of us left.
In the last couple of weeks 2 local authorities have told me that despite advertising for a Tenancy Relations Officer to investigate and prosecute breaches of the PFEA they received no credible applications. The TROs who were around in 2015 have moved into other work and the skills and knowledge are becoming lost.
Added to this gaping hole in staffing and resources is the fiendishly difficult legal procedures involved in pursuing illegal eviction under the PFEA and even the way illegal eviction is graded as an offence by society.
An illegal eviction offers the possibility for courts to impose an unlimited fine and up to 2 years in prison and yet so often the penalties amount to no more than community service or a fine of a few hundred pounds. Bear in mind that there are actually no sentencing guidelines for magistrates hearing illegal eviction cases and the unlawful downloading of films or music carries a ten year sentence and even shoplifting more than £200 worth of goods comes with a possible seven year sentence.
Leaving aside the fact that in the eyes of the law illegal eviction is a lesser crime than stealing knickers from M&S, is society also failing people by not considering the possible human rights breaches and solutions?
Is the right to live peacefully and enjoy the protection of the state not an essential human right?
Whilst discharging their function under the PFEA remains a power, not a duty, are local authorities failing in one of their basic functions and is the state failing it’s citizens by not empowering the local authorities to do more?
When the police so often fail to assist tenants being illegally evicted and even on occasion help the landlord to carry out the eviction, are they not also failing the public they are supposed to serve?
Article 8 of the European Convention on Human Rights (ECHR) reads:-
“1.Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society”.
So it would appear that when evicting a tenant for the landlord, quite apart from committing a criminal offence, the police, as a “Public Body”, mentioned in the ECHR, are also violating human rights legislation by interfering with a person’s home or family life.
The law differentiates between on the one hand, the police failing in a duty of care to protect tenants, as was the case with Cowan v Chief Constable of Avon & Somerset [2002] where the courts held that there was no negligence involved when the police failed to stop an illegal eviction; and on the other hand, the police actively carrying out the illegal eviction themselves, as was the case in Gibson v. Douglas (2016) where the landlord attended the property with the intention of carrying out an illegal eviction.
The tenant called the police for protection, who actually carried out the illegal eviction for the landlord. When the tenant attempted to sue the landlord for damages, the court held that it wasn’t the landlord who did it but the police, despite the fact that the landlord was present and with that specific intention.
PFEA breach for sure but also an ECHR breach.
There seems to be a body of case law and opinions of human rights specialists, of whom I am not one, that the ECHR itself is not merely a reactionary solution and that it places a duty on member states to proactively seek to protect its citizens from illegal eviction by private individuals. Given that a private individual cannot be in breach of the ECHR on their own, the state should set means in place, whether through the police or local authority but they never do this or even look at illegal eviction from an ECHR angle.
Amending the PFEA to place a duty on the local authority to deal with illegal evictions instead of merely the power, would at least go some way to addressing the failure.
There is also article 16 of the European Social Charter to consider, (The right of the family to social, legal and economic protection) which provides for the state itself, (here through the agency of the police) to proactively intervene in protecting citizens from illegal eviction, irrespective of the decision in Cowan.
Whilst the UK is not a signatory to the charter we wonder if this logic could still be applied and we would argue that this provision would also extend to local authorities and which should therefore inform the proposal that Safer Renting promotes, to create a statutory duty for local authorities to provide a Tenancy Relations service.
We are also of the view that that article 12 of the Universal Declaration of Human Rights can be engaged in demanding that no one should be subject to “arbitrary interference with his privacy, family, home or correspondence,” and everyone has the “right to the protection of the law against such interference or attacks’.
Its about time that human rights was acknowledged as the bedrock protecting people from illegal eviction and the main machinery to protect all renters (not just tenants). The PFEA works adequately enough as a means of punishing offenders, particularly if sentencing guidelines were introduced and lets not forget that the police have powers under s24 of the Police and Criminal Evidence Act 1984 to arrest anyone they believe may be committing a criminal offence, regardless of whether it is a housing offence or not.
Going back to the start, illegal eviction is a crime but it also a serious breach of human rights when the state has nothing in place to protect its citizens and the police are often actively working against the ECHR by siding with the landlords in the mistaken belief that protecting property is their valid function, which sits alongside complete ignorance of s1 of the Law of Property At 1925 that tells us that a tenancy is a form of ownership of land and that for the period the tenant holds the lease, they are to that limited extent, the actual owner of that land.
by Ben Reeve Lewis
