Tenancy Relations Officers (TROs) investigate and prosecute criminal offences relating to private rented housing.
The most important offences are those of unlawfully making a lawful occupier leave, contrary to the Protection from Eviction Act 1977.
Enforcement of the Protection from Eviction Act 1977 requires officers to have extensive knowledge of the civil law relating to residential occupancy rights. However, officers must also have a firm grasp of the legal duties and responsibilities which apply when criminal investigations are being conducted.
The information which follows is only intended as broad guidance to investigating Protection from Eviction Act offences. From time to time ATRO runs a one day training course one day training course providing comprehensive guidance on investigating offences. We will also consider requests from officers to provide training to one particular authority or a group of authorities. If you would like to request training, please contact us.
Don’t forget that there are also other offences which it falls to the local authority to investigate, and which would generally be seen as the responsibility of a TRO :
Rent Book offences [Landlord & Tenant Act 1985, s.5 and Rent Act 1977 s.57(4)] Leaseholder offences [Landlord & Tenant Act 1985, s.21, 22 & schedule] Landlord’s failure to provide name and address and notification of change of landlord [Landlord & Tenant Act 1985, s.1, s.3, Protection from Eviction Act s.7]
Where a Council Officer is investigating any criminal offence it is crucial to be aware of the main codes of practice which apply to criminal investigations. These include:
- Police and Criminal Evidence Act 1984 (Code C – The detention, treatment and questioning of persons by police officers including the need for the caution and Code E – The Tape Recording of Interviews by police officers at police stations with suspected persons)
- Criminal Procedure and Investigations Act 1996 (Code of Practice)
- Regulation of Investigatory Powers Act 2000
- Protection of Freedoms Act 2012
Protection from Eviction Act – Investigation Guidance
Introduction – Customer Care
The First Interview
Threatened Unlawful Eviction
Formal PACE Interviews
Written Referral for Prosecution
Contact with Complainant/Witnesses
Closure of Case
Appendix 1 Criminal Law Act 1977, sections 6 and 7
Appendix 2 Taking Statements
1 Procedure Flowchart
2 Introduction: Customer Care
All complaints that could give rise to a criminal prosecution require information and evidence, but you also need to remember customer care.
Most of these guidelines refer to TRO aims and TRO actions. However before deciding on any course of action, you need to be clear as to what the customer wants, and they need to know what you can do for them.
Possibilities to consider include:
1. Reinstatement (will they be safe?)
2. Civil action (Injunction? Costs/Legal Aid? Damages?)
3. Criminal proceedings (will they support criminal prosecution?)
4. Urgent temporary accommodation
(It is sometimes possible to get temporary accommodation from Homelessness section even if otherwise the person may be considered non-priority – if they are very shaken up by events, for example).
5. Permanent re-housing (priority/non-priority? resources? etc.).
And keep consulting/informing the customer until you close the case.
3 The First Interview
You may get referrals directly, or through another service. Referrals may be better targeted if a pre prepared standard form is used. A similar form can also be used as an “aide memoire” by the TRO to ensure that you have taken all the relevant information.
If the person is alleging unlawful eviction, ask:
When did this happen?
If the incident is stale (i.e. older than, say, 2 weeks) why has the person taken so long to get to you? They may have a very valid reason, but if not, beware. Any evidence may be gone and the Courts are very reluctant to look at old complaints/suspicious of people who bring up old complaints.
If recent – did they take advice/report it to the police? Officer names/numbers?
Where have they stayed since?
Where are their possessions? Are they safe?
Is it possible to get back into the property? i.e. is the landlord resident, or has there been violence and/or threats?
In other words, has there been an unlawful eviction?
Was the person a “residential occupier” according to the PfEA?
If they are excluded, was proper notice given?
If not excluded, what was their status?
Has notice been served?
Did they give the landlord reason to believe they had left?
How long were they away?
Was the rent paid?
Did they tell the landlord they were going?
What did they leave behind? Was it sufficient to show an intention to return? e.g. clothing, food, papers, etc.
Did they agree to leave? Unfortunately, some people leave when asked, and then discover they did not have to go. Sometimes they are then wrongly advised that they have been unlawfully evicted. e.g. if they’ve returned from being away.
4 Emergency Action
Are they alleging their key “doesn’t work”? Or that their goods are on the pavement? Or that the landlord is there and keeping them out? If so, urgently consider attending the property – with the complainant, a colleague and/or police back-up if violence is anticipated. Tell the police you need them “to prevent a breach of the peace”.
a camera and mobile phone
copy of the Protection from Eviction Act
copy of extracts from the Criminal Law Act (see Appendix 1)
personal visiting cards
Other suggestions include things such as Croydon’s extensive tool kit, including new barrels and locks and all the equipment necessary for effecting entry and making a property secure. They also take a torch – which can be invaluable for searching for scattered possessions, and a fuse kit in case a landlord has left a tenant in the dark.
You will learn what you personally need and can use efficiently. But whatever you take, remember:
MAKE SURE YOUR TEAM LEADER KNOWS WHERE YOU ARE GOING
ARRANGE TO REPORT BACK
If you don’t call in by a predetermined time, the police should be informed urgently.
The purpose of your visit is threefold:
To collect evidence (photographic and with your own eyes. Make accurate notes! – these are primary evidence and can be referred to in court)
To attempt to persuade landlord to reinstate
To take direct action to reinstate
When discussing the case on the doorstep with the landlord, first try and determine his/her name and address. You should consider PACE, [the Police and Criminal Evidence Act 1984 Code of Practice C] and formally caution –
“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything which you do say may be in given in evidence”
if you believe a criminal offence may have been committed.
Sometimes landlords take exception to being cautioned, even though it is intended for their protection. Be ready to explain – they are not under arrest, they can consult a solicitor and they can just walk away – but telling their side of the story now could assist them.
Remember that PACE relates to interviews with the alleged perpetrator of a criminal offence. It does acknowledge that discussions on the doorstep and in the heat of the moment cannot be recorded with the same formality and thoroughness as an office interview. But make short notes and a fuller file note as soon as possible. Use a proper notebook. Note date, time and place of any caution given.
If you cannot write a full note at the scene, do it as soon as things calm down – or at the latest as soon as you get back to the relative peace of your car or the office. A dictaphone can be handy if you’re used to them – they’re easier to use in the dark than pen and paper!
If things are peaceful, remember that the complainant may be a displaced residential occupier, and therefore entitled to use reasonable force to regain access to their accommodation. This could be with the aid of a locksmith [See s.6 Criminal Law Act]. Remember – this is only a possibility if the tenant is confident of his or her own safety and you are sure it will not exacerbate the situation.
If anyone is inside the accommodation refusing to let the complainant in call the police. There could be grounds for an arrest under s.7 Criminal Law Act.
If none of the above is effective/appropriate, watch and photograph as the complainant tries to use their key. Note and photograph any black bags. Ask any loitering neighbours if they’ve seen anything. Get their names and addresses if they have. You may want to come back to them to see if they’ll agree to be witnesses. Warn the landlord (if present) that this is not the end of the matter.
Do remember however that the landlord’s tale may be completely different from the tenant’s. Say “Mr. Bloggs tells me ….”, “It appears that there may have been a misunderstanding about ….” If you accuse the landlord straight out, you may precipitate a violent reaction.
5 Threatened Unlawful Eviction
What if there is only a threat?
Firstly – how has the threat been delivered? Are there any witnesses to the threat? Why does the tenant think the threat has been made?
In such cases your aim is to prevent any threat being carried out. What you do will depend very much on how much time you have. When is the threat due to be carried out? If it is outside officer hours, you should warn the police and give them background information.
Try and contact the landlord by phone, or by letter – hand-delivered if necessary, with a copy for the tenant (and extra copies to give to the police if they have to be called). Tell the landlord what you have been told and by whom. Ask for his version of events (if you have time) and remind the landlord of the PfEA.
Remember that you will frequently be acting on only half the story. The landlord may think he has the right to take action, and may need gentle advising. Or he may know exactly what he’s doing ……. Or the main problem may be rent arrears or housing benefit delay – in which case, you may be able to offer the landlord positive assistance and stop the threats that way.
On the other hand, if the landlord really is determined, you are now ready to start preparing for a prosecution, and planning what evidence/witnesses/proof you might require if the landlord does go ahead and carry out the threat.
Remember it is an offence to evict someone from all or part of their accommodation [Protection from Eviction Act 1977, s. 1(2)]
6 Harassment Allegations
Many people claim to be being harassed when what is going on may be very distressing – for instance, barking dogs, unruly children or the local fish and chip shop – but not harassment under the Protection from Eviction Act. Some of what is complained of may amount to statutory nuisance, which is an issue for an Environmental Health Officer. New harassment legislation provides remedies for harassment outside the residential situation. It should be the police who prosecute in these cases.
For our purposes, harassment refers to things done deliberately in order to interfere with someone’s peaceful occupation of their own home, knowing that the likely effect will be for the occupier to leave, or that they’ll stop making demands (e.g. for repairs to be done, or whatever). [Protection from Eviction Act 1977, s.1(3) and (3A)].
The prime examples are interfering with supplies of gas, electricity or water, or constant/persistent visits and phone calls without reasonable excuse. Usually you are also looking at a series of events or a campaign of harassment. One event or act is unlikely to give rise to a complaint, unless it’s very overt.
Your first step when harassment is reported is to make sure the acts complained of amount to harassment. Next, you want to stop it! It may be a question of rent arrears irritating an otherwise amenable landlord, which can be solved by appropriate intervention before the situation gets out of hand. On the other hand, there are those who are deliberately harassing their tenants where the only remedy is an urgent prosecution.
Then again there are many landlords who have strong ideas about ownership which manifest themselves in inappropriately interfering behaviour – which may or may not amount to criminal harassment. You need to ask questions – motivation here is extremely important if the harassment cannot be stopped by arbitration and education.
Don’t forget either – although most harassment is by landlords (or their agents) against a tenant, you can take action against any person(s) who is/are trying to interfere with another person’s occupation of their home. [Protection from Eviction Act, s.1(3)]. Perhaps the prime example here would be neighbours/adjoining residents mounting a campaign against someone because of their ethnicity or sexual orientation. But in any such case you do need evidence of the identity of the perpetrator.
7 Taking Statements
Statements are evidence and have to comply with the Criminal Justice Act 1967, s.9. They are the written version of what the witness has to say, on which the decision on whether or not to proceed will be based if legal action is taken; copies will be given to the defendant. Statements should contain as much relevant information as possible. Investigating officers should always try and obtain as direct evidence as possible rather than relying on hearsay i.e. where possible, try and get statements from those who actually saw, heard, experienced events themselves.
You will usually have considerable knowledge of the complaint before taking a statement. Sketch out a plan, showing the facts you want to prove in the proper order, and the evidence you will require. Use this as an outline both for taking the statement and preparing your case for Legal. It is a good idea to prepare a rough draft with your witness and to check this carefully for absolute accuracy before preparing the final version for signing.
Remember that if the witness is not absolutely sure of something it is better to say this than to be categorical and wrong – i.e. “It was towards the end of September, I think a Saturday ….” rather than “It was Saturday 17 September ….” and then the alleged villain proves they were out of town on that day! Any draft statements will need to be retained, and may have to be offered to the other side under disclosure.
Write up your own statement in a similar fashion
Write to the landlord, formally putting allegations and offering an opportunity to respond and/or a formal interview under PACE
Arrange to interview any other witnesses, including police
Refer complainant to solicitor re civil action and LIAISE
Exhibits (rent books, correspondence photos, etc.) should be referred to in the text by initials and numbers, and marked accordingly. For example John Smith wants to show his rent book and tenancy agreement in evidence. When they are referred to in the text, follow the reference by brackets saying “(attached marked JS1)” or “(attached marked JS2)” and then mark the attachment to correspond. You can attach PHOTOCOPIES to the statement but must be prepared to produce the originals in court (or have a very good reason for their non-availability).
If the tenant has been locked out, or if goods have otherwise disappeared, list everything left behind (left on the premises/missing), with any approximate values, dates/proof of purchase, etc. This has two purposes: as evidence to counter any landlord defence that he thought the tenant had left, and also to indicate levels of compensation which might be appropriate.
8 Formal PACE Interviews
PACE only refers to interviewing suspects. Mostly it codifies good practice and common sense. “Doorstep” interviews are acknowledged to be less formal, but what if the landlord takes you up on your offer to hear his/her side of the story?
When making the appointment, advise the person that the interview is as a result of allegations that a criminal offence has been committed, and therefore must be under caution. They may wish to bring someone with them and you should suggest their solicitor.
Interview with a colleague. It may be possible to make tape recordings of these interviews – possibly sharing equipment with another section.. A conversational interview is much more informative than the straight “yes/no” answers which a manually recorded interview is inclined to deliver.
However if you are not using recording equipment you (and your colleague) should make every reasonable attempt to keep a verbatim record of the interview, recording all questions and answers. Draw up questions beforehand and write them down. Don’t be afraid to go slowly – the written record is very important. Again, do use phrases like “Mr. Brown alleges .…” “I have been told that ….” The interviewee must be formally cautioned (again saying “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”) before the interview commences, and reminded of the caution if there is a break in the interview.
The record of the interview should include:
Names of those present
Where the interview was held
Date and time of commencement of interview
Time interview ends
The time of cautioning, and of any breaks and repeat cautions.
At the end of the interview, you should ask the interviewee if they would like a copy of the tape or your interview notes. They may request a copy of the original. They ARE entitled to this – but might prefer the typed version!
The accused person should be asked to sign the original written record. Refusal to sign should be recorded, and countersigned by a senior officer.
The original of the notes should be kept, and a typed version made as well.
P.A.C.E. Interviews -The Caution
“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
Before inviting a suspect to nterview, you should provide them with the opportunity to get legal advice, inform them of the offence they are suspected of and give them an outline of the allegations causing you to suspect that they have committed an offence.
9 Next Steps
You will need to decide, with the tenant, what further action to take on the criminal side.
If the tenant has instructed solicitors, do share information – it saves time and duplication. Stress to the tenant that you are working towards the council’s criminal proceedings. Their solicitor is dealing with the tenant’s rights to damages. They are separate proceedings in separate court systems, but definitely complementary, not mutually exclusive!
If the evidence for criminal action is insufficient, it may still be possible to bring an action for damages. It can be helpful if the complainant signs a formal letter (LINK!)to his/her solicitor authorising disclosure of information and copy documents.
Apart from the tenant’s wishes, you will now need to consider whether it is appropriate to prosecute.
Seriousness of allegation (for example, petty nuisance v serious assault or damage to goods; persistent problems v one-off misunderstanding, etc.)
Likelihood of recurrence (consult files for previous complaints regarding same landlord, or same tenant)
Quality of evidence (remember if you wish to prosecute that the case will have to be proved beyond reasonable doubt)
Public interest – is this a common problem? Is it appropriate that the alleged perpetrator be taken to Court? (consider age, mental health, etc.) What about publicity value?
Every case must be considered on its own merits.
If an alleged perpetrator admits the offence and a prosecution is not appropriate, a caution can be given in writing.
The complainant should be consulted and their views considered. You must make sure that they are aware that a formal caution would deprive them of a compensation order in the Magistrates’ Court. However, if they are taking civil action, a caution could be to their advantage. The facts as put in the caution would be accepted by the Court as proved, and, when deciding the level of damages, the Court would not need to consider the question of any compensation the complainant might get in criminal proceedings.
The accused person must admit the offence, and agree to accept a formal caution. The caution must not be used where there is insufficient evidence to prosecute. The accused person needs to be properly advised about the meaning of the formal caution before it is given – either by their own solicitor or by a more senior officer who would also administer the caution.
The “Details of the Offence” should just give a narrative of what it is agreed has happened, where, and when, etc.
A system of recording cautions needs to be established as they are admissions of guilt which should be taken into account if there is a further incident involving the same landlord.
10 Written Referral for Prosecution
If you decide to go for a prosecution, cases which are to be passed to Legal Services should be done by formal written referral.
This should include:
A covering memorandum briefly outlining the details of the case, what evidence is enclosed and why the case seems a particularly appropriate one to prosecute. As this is a privileged communication between “client” and solicitor it can be quite subjective, and could include opinion on witnesses’/complainant’s/landlord’s character and/or ability to stand up to questioning
Formal “Section 9” [Criminal Law Act, 1967] statements from the complainant and any other witnesses, the investigating officers involved, police reports, photos, etc. There are forms for s.9 statements (see Appendix 2). It is not a bad idea to do draft statements and get them agreed before the final version is drawn up. However drafts may have to be disclosed to the defence and thus should be kept. Photographs should be marked with the date and time when taken and by whom. They should be accompanied by a s.9 statement signed by the photographer and stating where and when the photos were taken. Some landlords will not agree to formal PACE interviews, but the TRO can use properly dated file notes of any conversations with the landlord to prepare their own statements.
Any background information, e.g. early correspondence aimed at preventing unlawful eviction, file notes of telephone conversations/meetings etc. – hence the importance of accurate record-keeping. Include previous Formal Cautions if appropriate. Remember that evidence such as rent books or Tenancy Agreements should be attached to s.9 statements.
A statement of the TRO time spent investigating the case to date so that costs can properly be claimed in court.
Remember to try and clearly link your evidence/memorandum to the Protection from Eviction Act.
What do you have to show that the complainant is a residential Occupier? [s.1(1)] Can you show that they have not ceased to reside in the premises? [s.1(2)] What act(s) are complained of? [s.1(3), (3A)] Have you evidence of the identity of the alleged perpetrator? [s.1(3)] Are you claiming intent [s.1(3)] or reasonable cause? [s.1(3A)]
You should also highlight the question of a compensation award, especially if the complainant is unlikely to get legal aid for civil proceedings. Quantify (and provide evidence of, where possible) actual losses/damage.
Legal should then advise:
If more evidence is required (and why)
If they feel the case is not good enough – and state why – so you can advise the complainant
If the case is good, they should issue a summons, and advise you immediately.
It is recommended that any Service Level Agreement clearly sets out responsibilities and response times.
11 Contact with Complainant/Witnesses
In most cases, contact with the complainant and witnesses will be through the TRO. There may be circumstances where Legal Section may wish to interview or otherwise contact the complainant and/or witnesses but in these circumstances, they must advise Housing Services accordingly.
Consequently, it is up to the TRO concerned, having been advised by Legal Services of the dates of any Hearings and who will be required, to ensure that the witnesses attend at Court. In other words, write advising when and where they are required as soon as you know. Nearer the date, contact them again to remind them and make sure they understand how important it is. Arrange transport if necessary.
Remember that your witnesses may never have been in court before and may be very nervous. Try and reassure them.
Keep checking (and advise the Legal Section) if any of the witnesses has plans/a job/a pregnancy or anything that will make them unavailable on certain dates.
If civil and criminal proceedings are running in parallel it does seem appropriate that the TRO should attempt to maintain a dialogue with the complainant’s civil solicitor. Information exchange can be invaluable to both sides. It is also positive in that it serves to highlight TRO work to local solicitors. This does not preclude direct contact from Legal Section, but copies of any correspondence or notes of telephone calls should be provided to the TRO.
Similarly, the TRO should ensure that Legal Section are fully aware of progress/problems in any parallel civil action. This could be very important if there are problems on the civil side, with Legal Aid for example. In some cases, it might be necessary to drop the civil action – in which case it will be essential to consider the size of any compensation claim considered in criminal proceedings.
The TRO will have to attend court for the criminal proceedings if s/he is a witness. Most local authorities will require that a witness summons is served on their officer if they are required in civil proceedings, but this is generally not a problem.
Do remember that once the Legal Section has been instructed, you should not communicate directly with the landlord’s solicitor – most especially if you are a witness yyourself. The solicitor will almost definitely know this, but may try to speak to you anyway!
12 Closure of Case
Once a case is completed, Legal Section should formally advise Housing Services in writing of the result of any Court proceedings. Similarly, Housing Services should immediately inform Legal Services if the complainant decides to withdraw. If Court proceedings result in a bind-over (basically a promise of good behaviour), the TRO should keep the file open and encourage the complainant to report any actions which might constitute a breach. Such a file should not be closed by either Section until the period of the bind-over has expired, or any breach of a bind-over has been dealt with by the Courts.
Successful prosecutions should be publicised in the press – get advice/assistance from your press office.http://www.legislation.gov.uk/ukpga/2000/23/contents
Criminal Law Act 1977 Part II
The parts of the Criminal Law Act most relevant to TROs are those parts relating to Offences of Entering and Remaining on Property in
section 6 and section 7 of the Act. You can see the full text of the Act here.
Points to include:
1. Accommodation – full address, extent and location (e.g. third floor front room, sharing W.C. with 2 others, etc.)
2. How accommodation found/entered into (e.g. Agency, ad in local paper, Post Office, friends)
3. Landlord’s or agent’s full name, address, etc.
4. Was there a depsoit, was it protected, was a gsc and epc given?
5. Rent and rent history (including reasons for any arrears)
6. Any previous problems/disputes
7. Other agencies involved, if any
8. History/description of events
9. Impact on the complainant
Use statement forms containing the wording below. Forms for hand-written statements have dotted lines across. Use only one side of the paper, and typed versions should be double-spaced. All surnames should be in capitals.
STATEMENT OF WITNESS
Criminal Procedure Rules 2011 R27.2, Criminal Justice Act 1967 s.9, Magistrates Court Act 1980 s.5B
Statement of …………………………………………………………………………………………………………………………..
Age of Witness (if over 18 enter ‘Over 18’) ………………………………………………………………………………
Occupation of Witness ……………………………………………………………………………………………………………
Address and Telephone Number …………………………………………………………………………………………….
This statement, consisting of pages each signed by me, is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
Dated the day of
Signed …………………………………………………………Witnessed by …………………………………………………..
Signed …………………………………………………………Witnessed by …………………………………………………..
STATEMENT OF WITNESS
Criminal Procedure Rules 2011 R27.2, Criminal Justice Act 1967 s.9, Magistrates Court Act 1980 s.5B
of ……………………………………………………………………………………..Page number …………
Signed …………………………………………………………Witnessed by …………………………………………………..