Ignorance May Not Be Bliss As Court Of Appeal Overturns Possession Claim

Article

07 July, 2009

The recent decision of the Court of Appeal in Knowsley Housing Trust v Paul Prescott & Linda Prescott [2009] EWHC 924 has shown how the Courts will view and interpret the convictions of one member of a household and their impact upon the other members and their tenancy. The strict approach taken by The Hon. Mr. Justice Blair may be welcomed by landlords and taken into consideration in the future when dealing with such tenants.

The Facts

The case concerns a house in Knowsley, of which the Prescotts had been joint tenants since 1988. In 2006, Mr Prescott pleaded guilty to the charge of conspiracy to supply cocaine and amphetamines, for which he was sentenced to eight years imprisonment.

The Housing Trust brought proceedings for a possession order on the basis of rent arrears and for the convictions. At trial, the Trust submitted that due to the convictions, an immediate possession order should be granted. The decision of the St Helens County Court was instead to postpone the order on the grounds that the current rent was paid by the Prescotts, their arrears were reduced and the property was no longer used for drug dealing.

The judge stated that he felt that Mr Prescott had been punished enough for his crimes by being sentenced to imprisonment and that it would be inappropriate to penalise him further by taking away his home. He also indicated that there was no suggestion that Mrs Prescott (P) had been involved at all in the conspiracy. In her written statement, P said that she accepted that her husband may have been involved in serious criminal activity in the area, it was not in the vicinity of their home in geographical terms and also said she had not realised what he had been doing. She also denied that she was bound to appreciate what had been happening.

An appeal was brought by the Trust on the basis that the trial Judge had both erred in principle and was obviously wrong. They submitted that the value of the drugs seized (for which Mr Prescott was said to be a key player) was in the region of £7,100,000 at 'street level' and that Mr Prescott himself had benefited to the tune of £696,383. It was the Trust's contention that P was well aware that her husband was dealing drugs at a high level, which had resulted in them becoming more affluent. Evidence was cited of decking being laid in the garden, a new fitted kitchen and other high standard improvements made to the property at a time when they had been in receipt of housing benefit and job seekers allowance. References were also made to the purchases of a caravan, a car and a foreign holiday, all paid for in cash. When the Police searched the property, they uncovered cash totalling £14,236.75.

The Court of Appeal Decision

The Court of Appeal, in allowing the Trust's appeal, first considered that the trial judge had given too little weight to the scale of Mr Prescott's drug dealing and too much weight to the fact that it was not happening in the property itself (when it was in the vicinity).

Furthermore, it was held that the trial judge had made no findings about P's case as to her knowledge of her husband's activities. Although the trial judge seemingly accepted that P had benefited personally from this conduct, it appeared to have been discounted as a relevant factor when determining whether an outright order should have been made. The Court of Appeal felt that the question of P's knowledge was relevant to the issue of whether the order should be postponed as a clear assurance needed to be given that there would be no such conduct in the future. It was highlighted that P had failed to explain how her family's lifestyle was otherwise supported and also had failed to give oral evidence at trial, with the inference to be drawn that her denials would not stand up to the scrutiny of cross-examination.

Before the Judge contemplated whether the order should have been postponed, there had to be cogent evidence that the drug dealing had ceased and would not be repeated. There was said to be no such indication. This, combined with the Trust's duty to keep its social housing estates free from criminal activity, persuaded the Court that the proportionate order to make was for outright possession.

The case was remitted to the County Court for a re-hearing in accordance with Article six of the European Convention on Human Rights.

Conclusion

The case has shown that the Court views convictions of drugs related offences very seriously and, regardless of whether or not other members of the family or household were aware that they were involved in such activities, such convictions can help to provide solid grounds for orders for outright possession of properties to be made.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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