H, R. v

MR JUSTICE DAVIS: It is a relatively unusual case in which an appeal made to the Court of Appeal (Criminal Division) is said to be one that the Court has no jurisdiction to entertain. It is also a relatively unusual case in which an appeal to the Court of Appeal (Criminal Division) includes a detailed debate on principles of land law. This particular case before us today involves both features.

It arises in this way. The defendant (the respondent to this appeal) was charged on indictment with six counts of doing an act likely to interfere with the peace or comfort of residential occupiers, contrary to section 1(3A)(a) of the Protection from Eviction Act 1977 (as amended). She pleaded not guilty. At the outset of the trial at Kingston Crown Court, on 3rd October 2007, before the jury was sworn, it was submitted on behalf of the respondent to Her Honour Judge Barnes, the trial judge, that even taking the prosecution evidence as unchallenged, counts 2 to 6 did not show sustainable counts in law. For its part the prosecution accepted, if that was right, the remaining count, count 1, taken on its own, could serve no useful further purpose.

On 4th October 2007 Her Honour Judge Barnes gave her ruling. She decided that, had the jury been sworn and the prosecution evidence been adduced in its then form, she would then have directed verdicts of not guilty on those counts. Counsel for the Crown accordingly, and at the invitation of the judge, offered no evidence on any of the counts and verdicts of not guilty were duly entered.

It was common ground before the judge and before us that the judge's ruling was a ruling within the ambit of section 58 of the Criminal Justice Act 2003. It indeed had the effect of terminating the proceedings. This is where the jurisdictional point arises.

Immediately after the judge gave her ruling counsel then appearing for the prosecution indicated, by reference to section 58(4) of the 2003 Act, that the prosecution may wish to appeal. It was said that would need instructions from senior officials within the prosecuting authority (agents only being present in court) and consideration was also needed, it was said, of the wider implications of the judge's ruling and possible impact on other cases.

There was then this exchange. The judge having queried whether the matter before her was of any general application, then said:

Within that seven day period the prosecution returned to Kingston Crown Court and informed the judge that the prosecution did intend to appeal; and an appeal was then promptly lodged. No suggestion was at that time made on behalf of the respondent that the appeal was being brought without jurisdiction, as being out of time or on any other basis. The suggestion was, we gather, first mooted by the Criminal Appeals Office. Having considered that suggestion Mr McGuire, on behalf of the respondent, has decided to adopt the point.

The provisions of the primary legislation, that is to say the Criminal Justice Act 2003, impose no prescribed time limits for prosecution appeals in this context. On the contrary, within section 58 of the 2003 Act, which relates to prosecution appeals, it is provided:

As it happened, just three days before the judge's ruling, on 1st October 2007, the relevant rules relating to section 58 of the 2003 Act contained in Criminal Procedure Rules was changed. The earlier version of the rules in Rule 66(2) had provided, in the context of adjournment sought under section 58(4):

The argument of Mr McGuire, on behalf of the respondent, is quite simply that under new rule, and by reason of the words "but instead must allow until the next business day" the court has no power to grant any greater extension of time. The court is required, it is submitted, if the court decides not to require the appellant to decide there and then, to allow the prosecution only until the next business day to make its decision. Accordingly, it is said, the purported adjournment of seven days to enable that decision to be made was invalid and the subsequent appeal was a nullity.

We are in no doubt that that argument is incorrect. First, the primary legislation (section 58 of the 2003 Act) imposes no set time limits. Second, so far as the subordinate legislation is concerned (that is to say, Rule 67.2) it is, in our view, incorrect to read rule 67.2(2)(b) as only and mandatorily permitting the would-be appellant until the next business day to decide. On the contrary, that sub-rule is prefaced, and significantly so as it seems to us, by the words "the general rule is...". General rules connote by their very nature exceptions. That is what the drafting here clearly contemplates. It is further to be noted that the words "the general rule" embrace the entirety of the subsequent words set out in 67.2(b). Third, and for good measure, it is very difficult to see why the rules should mandate so rigid and inflexible approach as advanced by Mr McGuire and there is good practical reason why it should not. It remains the case that the general approach is to ask whether it is the purpose of the legislation that an act done in breach of the relevant provision should be invalid (see R v Soneji [2006] 1 AC 340, R v Clark & Day [2008] UKHL 8). One can readily and easily think of very good reasons why that should not be intended here. Indeed, that it was not so intended is borne out by the very wording of the sub-rule. Such an interpretation manifestly accords with the overriding objective, as set out in Rule 1.1 of the Criminal Procedure Rules, and the principles of interpretation by reference to the overriding objectives set out in Rule 1.3 of the Criminal Procedure Rules.

Mr McGuire objected that that would mean that a judge would be left with an unfettered discretion as to how long an adjournment was granted and that, he submitted, would subvert the scheme of Rule 67.2. But the practical reality is that judges well appreciate, both from the wording of the rule itself and from the general context of prosecution appeals, that there has to be a real justification for an extension of time at all and that expedition is always requisite: as indeed is illustrated by the judge's approach in this particular case. Accordingly, neither on a literal nor on a purposive interpretation of Rule 67.2 is the objection to jurisdiction well founded. That being so, Mr McGuire fairly concedes that, if he failed on the jurisdiction point, he could not raise any further challenge to the judge's decision in her discretion to extend the time in which the prosecution should indicate its decision for a period of seven days.

We turn, then, to the substance of the matter. The points raised with the judge in the court below were, it has to be said, rather esoteric. They derive from the language of the Protection from Eviction Act 1977, as amended. The relevant provisions for present purpose are as follows. By section 1(1):

The background facts on the prosecution evidence in summary were these. Mr O'Brien and his partner, Miss Matassa, in autumn 2004 were looking for accommodation. The respondent owned a house in Chillerton Road, Tooting, living there in attic rooms with her partner. She permitted others to occupy bedrooms on the ground and first floors. All the occupants shared the use of communal kitchen, drying room and living room/dining room on the ground floor and a bathroom and separate WC on the first floor.

Mr O'Brien and Miss Matassa saw an advertisement indicating a vacancy at the house. They were, in due course, told that it would be for a rent of £495 per calender month including all bills. They inspected the house and orally agreed with the respondent to take the room, a furnished double room on the first floor. They were told of the other occupants in the house, a couple and a single man, as well as the respondent and the respondent's partner. According to them, they said to the respondent that they wanted the room indefinitely and the respondent made no reference to any time limit for their stay.

They moved in on 8th October 2004. They paid £990 to cover an initial month's rent and a deposit. Shortly thereafter they were presented by the respondent with a typed agreement to sign. It was in its final form dated 8th October 2004. The agreement was headed:

4 7) provided that the lounge area was to remain private to the landlord and should be used for personal dining by the tenant and not for entertaining. By 4 10), there was an obligation not to assign, sublet or otherwise part with the possession of the property without the prior written consent of the Landlord and so on.

Paragraph 5 of the agreement set out a provision to the affect that the landlord, if the rent was in arear or if there was any breach of the agreement, could re-enter upon the property and the tenancy would thereupon immediately determine. By paragraph 6, the landlord in effect gave a covenant for quiet enjoyment in relatively orthodox terms; and there were then other provisions, including a provision at the end that the landlord and the tenant agreed to provide written notice of the intention to leave the property either a minimum of one month prior to the end of the agreed term, or, should the tenancy continue on as a statutory periodic tenancy, one month before their intended departure.

Mr O'Brien and Miss Matassa studied this agreement. They noted that it now included a term of 6 months, which had not previously been mentioned. They had concerns about the lounge area now being said to be a private area other than for dining purposes; and they also noted the repairing obligations which they thought inappropriate. In the event, however, they decided not to object and to sign the agreement and they did so without querying the terms with the respondent. Mr O'Brien, according to his witness statement, did say to the respondent when doing so that it was questionable practice to wait for tenants to move in before presenting them with a written agreement.

Quite soon thereafter difficulties arose between Mr O'Brien and Miss Matassa, on the one hand, and the respondent on the other hand. It is not necessary to go into details. At all events by letter dated 22nd December 2004, the respondent gave written notice, or purported notice, requiring the complainants to vacate on or before 8th February 2005. The document is, to put it mildly, somewhat unusual. It says this:

Mr O'Brien and Miss Matassa then took advice from a local legal advice centre. The legal advice centre wrote on 13th January 2005 to the respondent, saying that the purported notice was not valid, as a tenancy was in existence and there were no grounds of breach. By this time at all events Mr O'Brien and Miss Matassa were evidently becoming rather fed up. They decided that they had had enough and did not want to carry on with the property any longer than was necessary. By letter, also dated 13th January 2005, they gave notice that they would leave the property on 8th April 2005, on termination of the tenancy. We add that in the event they left rather before then.

There was then further correspondence and on 4th February 2005, before the expiry of the previous purported notice, solicitors acting on behalf of the respondent wrote enclosing a further notice, purportedly under section 21(1)(b) of the Housing Act 1988, relating to assured shorthold tenancies, requiring possession on 7th April 2005. (That, we comment, indicates an intention not to rely further on the previous purported notice.)

It was after that that the incidents alleged to constitute counts 2 to 6 occurred. In short, it was alleged that the respondent on 15th February 2005 attempted forcibly to enter the complainants' bedroom and remove pictures and picture hooks (count 2). Count 3 alleged that on or about 4th March 2005 the respondent disconnected the communal washing machine. On about 15th March 2005, it was alleged, the respondent removed the occupiers' food and kitchen utensils from the communal kitchen and locked it so as to deny access (count 4). On about 15th March it was alleged that the respondent disconnected the hot water used by the occupiers (count 5). On 24th March 2005 it is alleged that the respondent removed the shower head and pipe fittings from the bathroom shower (count 6). All this was done, it was alleged, to cause the complainants to give up their residential occupation at the house. Count 1, we should add, related to an incident on 14th January 2005, whereby the respondent, it was alleged, excluded the complainants from the communal living room.

The arguments advanced by Mr McGuire to the judge were in summary that by the time of the incidents which were the subject of counts 2 to 6, the complainants were not entitled to be in occupation. They had occupied the premises as licensees under what was an excluded licence under the provisions of section 3A of the 1977 Act. That licence was, it was said, validly terminated by the notice contained in the letter dated 22nd December 2004, with effect from 8th February 2005; and accordingly the complainants thereafter had no protection by reason of the wording of section 3 of the 1977 Act, this being an excluded licence or excluded tenancy.

Those arguments were accepted by the judge. In the course of her ruling she said this:

In our judgment the judge was persuaded into error and her conclusion cannot be sustained in law.

The principal reason can be quite shortly stated and is this. The notice to quit, purporting to terminate the right of possession or occupation as from 8th February 2005 was, in our judgment, of no effect: just because under the written agreement dated 8th October 2004 the complainants were entitled to occupation for 6 months under the written agreement, until 8th April 2005.

Mr McGuire sought to argue before us, as he had before the judge, that the initial oral agreement was for indefinite occupation and that, on ordinary principles, carried with it a right to terminate on notice being one months' notice in this case.

But that argument necessarily involves completely suppressing the written agreement and deprives it of any effect. Indeed it is somewhat remarkable that the argument of Mr McGuire connotes denying any validity at all to a written agreement which it was the respondent herself who had requested the complainants to sign. Moreover, as Miss Higgins pointed out in the course of her excellent argument, the respondent herself, as did the complainants, acted in accordance with the terms of the written agreement: for example, by the respondent on occasion giving 24 hours' notice before asking to inspect the bedroom.

It may be that that written agreement was concluded after the initial oral agreement and after Mr O'Brien and Miss Matassa had moved in. But a concluded agreement it was; it being freely entered into and also being entered into for mutual consideration - the mutual consideration, among other things, lying in the agreement to grant and agreement to take the premises question for a term of 6 months, for payment of rent and also lying in the mutual obligations that were set out in the document.

It is common ground before us that notwithstanding the labelling used in the written agreement, there could not here be an assured shorthold tenancy, if only by reason of the fact of the shared accommodation and the landlord being resident on the premises. But it does not follow at all from that that the agreement did not create a contract. That contract, replacing the prior oral contract, gave a right of occupation for 6 months and only permitted prior termination or re-entry in the event of a breach of that contract. That this is so, as a matter of ordinary contractual law set in the context of land law, is supported (if authority is needed) by the decision in Foster & Robinson [1951] 1 KB 149.

The judge gave no reasons at all for her assertion that the subsequent written document did not reflect the true relationship between the parties. It is not a sustainable proposition. There was no evidence before the judge, on the prosecution case, to justify any argument that the agreement was a sham. Whether or not the agreement, in the context of the actual position for prevailing, gave rise to a licence or tenancy and whether or not it gave rise to an assured tenancy could certainly be debated. But what could not be debated is that the agreement gave rise to a contractual entitlement to occupation, consensually and bilaterally agreed for a term of 6 months with a payment of £495 a month. To that extent the written agreement superseded the previous oral agreement.

It follows that the respondent had no legal right to serve the remarkably worded notice to quit requiring possession on 8th February 2005. That notice was invalid and of no effect, as the complainants' solicitors rightly said at the time in correspondence. We add there has been no evidence that there was any breach on the part of the complainant, entitling the respondent to re-enter. As to the asserted ground in the notice of "incompatibility" that, it may be, has a role to play, or at least historically had, in the family courts; but it has no role at all to play in the law relating to re-entry.

It follows from all that that for the purposes of section 1(1) of the 1977 Act the complainants were occupying the premises as a residence under a contract; and so, at the time of the alleged offences, were "residential occupiers" entitled to the protection of the 1977 Act. The right of occupation has not come to any end. The counts therefore, on the prosecution evidence, disclosed a case to answer and the judge erred in law in not so deciding.

Having reached that conclusion, we think it is unnecessary to deal with Miss Higgins' other points or to decide whether or not what was created here was a tenancy or licence. Having regard to the terms of the written agreement (including, for example, the covenant for quiet enjoyment, the provisions relating to assignment and so on) and having regard to the actualities, we can see quite a lot of force in her submission that here there was a tenancy of the bedroom accompanied by a licence to use the other communal parts. But we need express no concluded view on that and we decline to do so. We think it is rather a pity that the debate in the court below, in focussing so heavily on the distinction between a tenancy and a licence, operated to distract the judge's attention away from what in truth was the central point here: which was that the complainants here had a contractual entitlement to occupation, absent any proven breach of contract, up until 8th April 2005. The appeal is therefore allowed on the basis that the ruling was wrong in law and that ruling must be reverses.

All the same, quite where that leaves this case for the future the prosecution may wish to consider. Harassment, if proved, designed to drive an occupier out, can be a very serious matter (although of course we stress nothing has yet been proved in this particular case). Moreover, occupiers in the position of these complainants are not always sufficiently equipped to obtain a remedy by bringing civil proceedings in a County Court. But the reality in this case is that a lot of water has by now flowed under the bridge. On no view can this case, on the facts alleged, be said to be one of the worst of its kind. Further, as matters now stand, these events occurred nearly 3 years ago. The prosecution may therefore wish to consider whether continued pursuit of these proceedings (the prosecution's legal position having now been vindicated in this particular case) will be of any true value.

MISS WILKINSON: May I deal with a matter that flows from the matter of the ruling. Paragraph 6 of the skeleton argument in respect of the issue of jurisdiction. The prosecution set out that what was being sought was a reversal of the ruling made by the Crown Court judge, and that an order being sought for the resumption of the proceedings in the Crown Court was therefore the relevant order. That is pursuant to section 61 of the Criminal Justice Act, which sets out the Court of Appeal's powers when dealing with prosecution appeals of this nature. Section 61(1)--

SIR IGOR JUDGE: Are you looking at Archbold?

MISS WILKINSON: The 2008 version, page 1143, paragraph 7 - 247.

SIR IGOR JUDGE: Yes, thank you.

MISS WILKINSON: Section 61(1) provides: "On appeal under section 58..." which this of course is "...the Court of Appeal confirm, reverse or vary any ruling to which this appeal relates." Subsection (2) reads: "Subsections (3) to (5) apply where the appeal relates to a single ruling" which in this case it did. Subsection (3): "Where the Court of Appeal confirms the ruling it must..." and then go on with what should flow. Subsection (4): "Where the court reverses or varies the ruling it must in respect of the offence or each offence which is the subject of the appeal do any of the following:- (a) order that proceedings to that offence may be resumed in the Crown Court; (b) order that a fresh trial may take place in the Crown Court for that offence; and (c) order that the defendant in relation to that offence be acquitted of that offence." Subsection (5) reads: "But the Court of Appeal may not make an order under subsection 4(a) or (b) in respect of an offence unless it considers necessary in the interests of justice to do so."

So, my Lords, it seems that the ruling has reversed that of the court below and therefore the powers are those available in subparagraphs (a) to (c).

SIR IGOR JUDGE: Having had an opportunity to listen to my Lord's observations giving the judgment of the Court, I think it might be sensible for you to take instructions about what order we should be considering making under subsection (4) and subsection (5).

MISS WILKINSON: I can certainly do that momentary.

SIR IGOR JUDGE: Take your time. Miss Wilkinson, I do not want to put you under any pressure about this. If you want to go out to reflect on it -- I think you have a pretty clear hint of our view -- but if you want to take time to do it, we will get on with the next case and you can come back in half-an-hour to hear.

MR JUSTICE WILKIE: My Lord, my instructions are that in any event, making a decision from the Crown's prospective today would likely lead to no final conclusion. What had been the instruction and hence it was set out at paragraph 6 that was the order being sought, would be the resumption of the proceedings in the Crown Court. It would be however a matter for this Court's discretion if this Court felt that it was not in the interests of justice, despite having reversed the ruling in law, still not in the interests of justice there should be the resumption of proceeding, it can so order the defendant be acquitted.

SIR IGOR JUDGE: Let us hear what Mr McGuire has to say.

MR MCGUIRE: On the basis of the judgment given, the usual order would be for the matter to be resumed in the Crown Court. However the Court has given certain indications as to its overall view. For my part, I am content to wait to hear what the prosecution view is in the light of those observations and proceed from there. My position is that the interests of justice are not served on the facts of this particular case by resuming the trial in view of those final comments. I accept that in respect of the arguments run below, they did not have force. Notwithstanding all of those points, what is to be achieved by a Crown Court trial now?

SIR IGOR JUDGE: Do you want to add anything, Miss Wilkinson? I should just say I am not happy -- I have not consulted my colleagues, expressing my own view, a view which is shared by all of us -- by the idea that you come to the Court of Appeal as counsel for Crown, with your solicitors behind you, and between you and your solicitor cannot make up your mind about what we should be doing, what submissions should be made.

MISS WILKINSON: The reason for that is this. The complainants need to be consulted.

SIR IGOR JUDGE: Do they in a case like this? That is my question. If they should be, why were they not consulted before?

MISS WILKINSON: My Lord, what has changed since the initial stance from the prosecution point of view from this morning are comments from your Lordship. Absent those comments, the prosecution felt it was in the interests of justice to bring this case in the first place. Accumulative effects of the acts conducted allegedly by the now respondent in this matter warranted the prosecution of this offence, and it also warranted the bringing of this appeal. That had been our stance this morning, hence the seeking of resumption of the proceedings in the Crown Court. The only additional matter that has changed are the views expressed in respect of the long length of time since this matter arose, about which the complainants do need to be properly consulted. They are the victims of alleged crime in this matter and had patiently, through a long history of a number of trial dates being vacated, attended on each and every occasion--

SIR IGOR JUDGE: I merely asked you why instructions had not been taken from the complainant before you came into court. That is all.

MISS WILKINSON: To the extent--

SIR IGOR JUDGE: You must have anticipated the possibility that you might win. You must have anticipated the possibility that, given the time that had elapsed since the original allegation, the facts on which the allegation were based arose, the cost of proceeding in the Crown Court and the public issues generally that somebody might raise a question of whether the case should go on. Obviously you did not. Another time that will be considered.

MISS WILKINSON: My Lord, we did to the extent that if this Court felt it was inappropriate in the interests of justice, this Court has the power by virtue of subsection (5). The prosecution feel it is in the interests of justice to proceed and have done to this extant.

SIR IGOR JUDGE: For the reasons given by my Lord in the judgment of the Court, we shall reverse the ruling below and to that extent therefore this appeal succeeds.

We have come to the conclusion that the interests of justice will not be served by ordering that the proceedings should now be resumed or that a fresh trial should take place. Our reasons are those explained by my Lord in the judgment of the Court. Dealing with it very briefly: first, there is of course the presumption of innocence; second, the delay that has taken place in the proceedings -- I am not blaming anybody for that, but that is the fact of it. Thirdly, there is the possible outcome of the case, if the defendant were successfully prosecuted and the likely sentence, bearing in mind that she is someone of previous good character and there is the overall public interest and the expense involved in this continued litigation.