What needs to be proven for a conviction?
The offence of unlawful eviction requires each of its elements to be proven by the prosecution. It is for the prosecution to prove that the relevant act has been performed and done with the necessary intent, this must be to the extent that the Magistrates or jury are sure. The standard of proof in criminal cases is high, if there is reasonable doubt about any element of the offence the proper verdict is one of not guilty.
Section 1 of the act provides what is known as a statutory defence, this means that there is a specific line of defence recognised by an act of parliament. Proving a statutory defence is very different to proving the elements of the offence itself. It is for the defence to establish the elements of the statutory defence once the prosecution have proven the elements of the offence; to this extent it is for the defendant to prove their own innocence.
The reversal of the usual burden of proof is counterbalanced by the fact that the defence needs only be proven on the balance of probabilities, meaning that it must be shown to be more likely than not. The balance of probabilities is a significantly lower standard than that faced by the prosecution of making the tribunal of fact sure ‘beyond all reasonable doubt’. Successfully establishing a defence on the balance of probabilities allows for an element of doubt. ‘Probable’ is less than ‘sure’, but is enough for the purposes of the statutory defence and therefore acquittal.
The Residential Occupier
Unlawful eviction can only be committed against the ‘residential occupier’. The term is given a wide definition by section 1 subsection 1 of the act that defines the phrase as:
“a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.”
This necessarily includes, but is not limited to, those in occupation of a property by virtue of a lawful tenancy agreement.
Unlawful eviction: the act
Section 1 subsection 2 of the act sets out the offence of unlawful eviction as follows:
“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence…”
The definition includes the physical act of unlawfully depriving the occupier of the property or part of it. The unlawful deprivation does not have to be successful due to the inclusion of attempts within the statutory definition.
The Court of Appeal in R. v. Yuthiwattana, 80 Cr.App.R. 55, CA, stated that the deprivation was required to be of the ‘character of an eviction’; overnight locking out was considered to be better characterised as within the scope of harassment. This definition was further nuanced in Costelloe v. London Borough of Camden  Crim.L.R. 249, DC, in which it was stated that a short exclusion could be considered to be an unlawful deprivation if it was in furtherance of eviction.
Unlawful eviction: the defence
After defining the criminal act of unlawful eviction, section 1 subsection 2 of the act goes on to provide a statutory defence, namely that where the act has been proven the defendant will be guilty:
“… unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
The defence requires a two stage approach to the question of belief:
The first is whether, as a question of fact, the defendant did actually believe that the occupier was no longer in residence, see R. v. Davidson-Acres  Crim.L.R. 50, CA.
The second is whether that belief was an objectively reasonable one. This means whether a reasonable person, aware of the circumstances, would have come to the same conclusion as the defendant that the residential occupier had ceased to reside.
How offences under section 1 are tried in England and Wales
Offences under section 1 of the act are ‘triable either way’, this means that a trial can take place in either the Magistrates’ Court or the Crown Court. Depending upon the seriousness of the allegation, the defendant may be given the option of deciding which court they would prefer to be tried in. The choice of venue can have serious implications and so quality legal advice should be sought in relation to the ‘pros and cons’ of each court.
The maximum sentence for an offence under section 1 of the act is two years imprisonment in the Crown Court and six months imprisonment in the Magistrates’ Court. Maximum sentences reflect the appropriate sentence for the most serious examples of the offences, as such the majority of cases will attract significantly lesser sentences many of which will be noncustodial such as a fine.
If you have been accused of unlawful eviction it is vital that you seek professional advice. The sooner you receive legal advice the better. If possible it is always preferable to discuss your case with a barrister before you are charged. Offences under the Protection From Eviction Act can involve complicated legal arguments on both the law of property and criminal law. Quentin Hunt is an expert at dealing with this highly technical area of law and has an excellent track record of defending high profile clients facing serious allegations. Contact Quentin for a free initial conversation about your case.
POSTED: Thursday, March 10, 2016