With fears that the COVID-19 pandemic will lead to a rise in unlawful evictions, and local authorities’ ability to take action limited, is it time to re-examine the role of the police?
Introduction
In 1971 the American sociologist and criminologist Albert J. Reiss Jr wrote[1] that:
…many citizens have only a vague understanding of the difference between civil, private and criminal matters. They fail to comprehend the legal grounds for police intervention in the affairs of citizens. Much of their ignorance stems from the belief that they are morally right; therefore, the law is on their side and the police should side with them as complainants, disciplining any errant parties. When a citizen, for instance, gets into an argument with a landlord over the payment of rent and the police are called, both the tenant and the landlord may view the action of the other as criminal; each may demand the police take action against the other. A complainant may fail to understand or believe police when he is told the dispute is a civil matter, private legal counsel is advised, it is a matter for the civil courts to resolve, or purely a private matter. Further confusion results when people are aware that the police intervene in some landlord-tenant matters, as in the eviction of renters…
More problematically, however, it has long been reported that police in the UK are themselves often unclear about their powers to intervene in cases of unlawful eviction, refusing to do so on the basis that eviction is a “civil matter” between landlord and tenant.[2]
Data provided by a number of police forces in January 2019, in response to a freedom of information (“FOI”) from an unidentified enquirer, seem to suggest that the levels of enforcement action – and training provided to officers – by most forces in relation unlawful eviction offences is limited.[3]
This position has been of growing concern for some time, due to the decline in local authorities’ capacity to take enforcement action as a result of funding cuts[4]. However, it is of particular concern during the current COVID-19 pandemic, given fears that temporary protections introduced for tenants - combined with the financial difficulties that will be faced by many of those tenants in paying rent - will lead to an increase in unlawful evictions by landlords[5]. Indeed, some solicitors have already reported a spike in enquiries in relation to threatened evictions.[6]
The police’s powers in relation to unlawful eviction
The problem
It is very clear that unlawful eviction is not simply a “civil matter”. For more than four decades, unlawful eviction of a residential occupier (together with various related offences) has constituted a criminal offence under section 1 of the Protection from Eviction Act (“PEA”) 1977. The offences are triable either way and punishable by up to 2 years’ imprisonment.
Although the question of whether an eviction is unlawful might sometimes involve determination of difficult issues of civil law (a) this is by no means unique to unlawful eviction (consider e.g. disputes that might arise in relation to ownership of property in the context of offences of theft or criminal damage) and (b) as with those offences, the position will usually be relatively straightforward. As one commentator has put it[7]:
To any police officers who may happen to read this, it is not difficult. Unlawful eviction is an indictable criminal offence – Protection from Eviction Act 1977 s.1.
If someone has belongings in a property and has a key for the property, it is an odds on bet that they have a right to reside there and fall under the Protection from Eviction Act (not certain, granted, but more likely than not)…
In fact, if the occupant has a tenancy agreement and the landlord doesn’t have court orders, you may want to consider actually arresting the landlord
The bigger difficulty, however, is that section 6 PEA 1977 provides that “proceedings for an offence under this Act may be instituted by any of the following authorities: (a) councils of districts and London Boroughs; (aa) councils of Welsh counties and county boroughs; (b) the Common Council of the City of London; (c) the Council of the Isles of Scilly”. Accordingly, in Dacorum BC v El-Kalyoubi [2001] EWHC Admin 1052 it was suggested (per Kennedy LJ at para 1.8):
On the face of it, it would appear that a police authority does not have power to prosecute under that section, but for the purposes of today's proceedings it is unnecessary to reach a final conclusion as to that.
However, for the reasons set out below, it is not clear that Kennedy LJ’s obiter suggestion is correct and in any event, even if it were, it would not necessarily mean that the police were powerless to intervene in cases of unlawful eviction.
Can the police prosecute offences under s1 PEA 1977?[8]
As the Supreme Court explained in R v Rollins [2010] UKSC 39; [2010] 1 W.L.R. 1922 (para 20; original emphasis):
20. The technique usually employed by the legislature to indicate an intention to limit the class of persons who may prosecute a particular offence is the obvious one of stating expressly that a particular offence may only be prosecuted by a specified person or persons. …Other forms of words are sometimes used, but to the same effect. Thus section 66(1) of the Industrial and Provident Societies Act 1965 provides that proceedings for the recovery of a fine which is recoverable under that Act on summary conviction may be instituted by the persons specified … “and (except in Scotland) no other person may institute such proceedings”. Another example is to be found in section 96(5) of the Banking Act 1987 which provides that no proceedings for an offence under that Act shall be instituted in England and Wales “except by or with the consent of the Director of Public Prosecutions or the Bank [of England]”…
(For an example in the context of local authority prosecution, see section 298 of the Public Health Act 1936 which provides that: “Proceedings in respect of an offence created by or under this Act shall not, without the written consent of the Attorney-General, be taken by any person other than a party aggrieved, or a council or a body whose function it is to enforce the provisions or byelaws in question, or by whom or by whose predecessors the byelaw in question was made”).
No such express restriction is imposed in under section 6 PEA 1977.
Accordingly, Kennedy LJ’s suggestion would appear to be founded upon the maxim “expressio unius exclusio alterius”, i.e. that the reference in s6 to specific prosecutors is intended to exclude the power of all other potential prosecutors notwithstanding the absence of an express statement to this effect. However, the courts have long expressed significant caution in relation to the application of the maxim[9], which has been said to have “little, if any, weight where it is possible… to account for the ‘inclusio unius’ on grounds other than an intention to effect the ‘exclusio alterius’" (Dean v Wiesengrund [1955] 2 Q.B. 120). In the present case, it appears more likely that section 6 PEA 1977 is simply an enabling provision - granting local authorities a power to prosecute unlawful eviction offences without the need to satisfy the requirements for local authority prosecution of other offences under section 222 of the Local Government Act (“LGA”) 1972[10] - and not that it was intended to prevent prosecutions by the police.
Further, it is clear that the police do have the power – which local authorities do not (save for the general power in s222 LGA 1972) – to prosecute other offences which are likely to occur as part of unlawful evictions, e.g. using violence to secure entry contrary to section 6 of the Criminal Law Act 1977 or offences under the Protection from Harassment Act 1997. It would be a surprising, and undesirable, position for the police not also to be able to deal with offences under section 1 PEA 1977 arising out of the same facts. There are also other practical reasons why it would be desirable for the police to have the power prosecute offences under section 1 PEA 1977, including: the reduction in local authority capacity to do so (see above); police forces’ greater experience, expertise and resources to do so; and forces’ ability to deal with problem landlords whose properties span multiple local authority areas.
In any event, it would appear from the FOI data referred to above that the police do at least occasionally prosecute offences under the PEA 1977.
Can the police intervene to prevent an unlawful eviction?
Under section 24 of the Police and Criminal Evidence Act 1984, a police constable may arrest without warrant any person who is about to commit an offence, who is in the act of committing an offence or who has committed an offence; or in respect of whom the constable has reasonable grounds to suspect one of these things. However, section 24(4) provides that provides that the power can only be exercised where necessary for one of the reasons set out in section 24(5), namely:
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
Thus it can be seen that, if the police do have the power to prosecute offences under section 1 PEA 1977 (or where other offences may be being, or have been, committed) they will also have a power to arrest a landlord where this is necessary for the purposes of investigation (s24(5)(e)).
If they do not have the power prosecute, they may nonetheless still have a power of arrest in certain circumstances e.g. to prevent the landlord causing physical injury to the tenant (s24(5)(c)(i)) or to protect a child or vulnerable person (s24(5)(d)) (although in the former case the landlord would almost inevitably committed some other offence for which the police could arrest in any event). Beyond these circumstances, however, it is not clear whether it could be lawful to arrest for the purposes of section 24(5)(a), (b), (e) or (f) in aid of a prosecution by a local authority (particularly given that the local authority would be unlikely to be aware of the case at that stage); and it seems unlikely that “loss or damage to property” (s24(5)(c)(iii)) could be read to include loss of enjoyment of a property right by unlawful eviction (it would include damage to locks etc, if this has not yet occurred, but there may be a question as to the extent of any necessity for this purpose).
Although section 26 PACE 1984 repealed most other statutory powers of arrest without warrant, it did not repeal the common law powers of a constable to arrest a person committing a breach of the peace in his presence, a person who he reasonably believes will commit – or renew – a breach of the peace.[11] But although it had been suggested that “there is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it”[12], it would now appear that there can be no breach of the peace without either violence or the threat of violence to any person or property.[13] Thus it seems unlikely that a police constable could arrest a landlord for breach of the peace in respect of an unlawful eviction outside the circumstances in which s/he could arrest under section 24(5)(c) or (d).
Quite apart from any power of arrest, however, a constable would be entitled to use “such force as is reasonable in the circumstances in the prevention of crime” under section 3 of the Criminal Law Act 1967 and/or common law.
Further, even if the domestic law might otherwise have failed to allow a constable to prevent an unlawful eviction, the Human Rights Act (“HRA”) 1998 may well require the courts to interpret the relevant legislation (under s3) and/or the common law (as public authorities under s6) so as to allow him/her to do so, in order to ensure compatibility with the occupiers’ rights under Article 8 ECHR (see below).
The police’s duties and potential remedies
Since the beginning of modern policing it has been recognised that “the first duty of a constable is always to prevent the commission of a crime”.[14]
However, this duty is owed to the public generally and under the domestic law will not usually result in a duty of care to protect an individual member of the public from crime, unless the facts of a particular case give rise to an assumption of responsibility.[15]
In Cowan v Chief Constable of Avon & Somerset [2002] H.L.R. 44, for example, the Court of Appeal held that police officers who had been called to attend an unlawful eviction in progress, but failed to prevent the eviction, were not liable in negligence as there was no duty of care owed to the tenant. (By contrast, where the police actively assist a landlord to effect an unlawful eviction, they may be liable in trespass: see Naughton v Whittle and Chief Constable of Greater Manchester Police (2010) July Legal Action 29).
The events in Cowan, however, occurred before the coming into force of the HRA 1998 and there is some suggestion in the Strasbourg case law that Article 8 ECHR may require the member states to take positive steps to protect occupiers from unlawful eviction by other private individuals.[16] It is also well-established that article 16 of the European Social Charter (The right of the family to social, legal and economic protection) requires states to ensure protection against unlawful eviction[17] and, although the UK has not ratified the Charter, it may nonetheless be capable of informing the contents of ECHR rights.[18]
Accordingly, a tenant whom police have failed to assist to prevent an unlawful eviction may at least arguably be able to bring a claim for damages under section 7 HRA 1998.
Alternatively, it may be possible for any inadequate policy and/or training provision by individual police forces to be challenged by way of a claim for judicial review.
[1] ‘The Police and the Public’, 1971, Yale University Press, p77
[2] See e.g. Lorraine Barrie, ‘“It’s a civil matter”: a summary report on the treatment of tenants who are unlawfully evicted in Glasgow’, Govan Law Centre, 10 June 2008 (here); Association of Tenancy Relations Officers written evidence to the Communities and Local Government Committee, January 2013 (here); Ben Reeve-Lewis, ‘The Police who collude with Landlords who illegally evict tenants’, The Landlord Law Blog, 5 April 2018 (here)
[3] See responses from West Midlands Police (here), the Metropolitan Police (here) and Norfolk Constabulary (here), Hertfordshire Police (here).
[5] See e.g. Bristol Law Centre’s ‘Guide for Advisors – COVID 19 and Illegal Eviction (Guide 3)’ (undated)(here)
[6] Sophie Bell & Lottie Baldwin, ‘Unlawful evictions during COVID-19 pandemic’, 30 April 2020(here)
[7] Giles Peaker, ‘Illegal eviction and the police’, nearlylegal.co.uk, 11 July 2010 (here)
[13] Percy v DPP [1995] 1 W.L.R. 1382
[14] Halsbury’s Laws of England, Volume 84 (2019) (‘Police and Investigatory powers’), para 40
[15] Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] A.C. 1732
[18] See Güzelyurtlu v Cyprus and Turkey (2019) 69 E.H.R.R. 12 at para 240
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