Adedeji & Anor v R

For unlawful subletting under Prevention of Social Housing Fraud Act 2013, the substance of the occupier’s rights determines whether there is a sub-tenancy. The central question is whether the occupier had exclusive possession, not the label used by the parties. A limited express or implied reservation of access may be compatible with exclusive possession.

Jury directions should address the real issues. An infelicitous expression will not invalidate a conviction where the directions as a whole were fair and caused no material prejudice. Prosecution costs must be properly particularised, actually and reasonably incurred, and broadly proportionate to the financial sanction.

The appellants, sisters and social-housing tenants, were convicted at the Central Criminal Court of unlawfully subletting their respective homes contrary to section 2(2) of the Prevention of Social Housing Fraud Act 2013. The prosecution relied on evidence that each had ceased to occupy her own tenancy as her principal home, received rent, and allowed another person to occupy the property.

They challenged the jury directions on subletting and exclusive possession. Blessing Adedeji also challenged several trial-management decisions concerning inadmissible material and the accommodation of her narcolepsy. Katheryn Adedeji separately challenged a prosecution costs order of £23,000.

The central issues were whether the convictions were unsafe because of legal misdirection or unfair trial management, and whether the costs order had been made on a proper evidential and procedural basis.

1. Disposition. The court dismissed the challenges to both convictions. It allowed Katheryn Adedeji’s appeal only in respect of costs, quashed the order below, and substituted a costs order of £16,000 against her.
2. Subletting and the jury direction. The decisive distinction between a sub-tenancy and a lodging arrangement was whether the occupier had exclusive possession. As explained in Street v Mountford 17 HLR 402, the parties’ description of the arrangement is not determinative. A reservation allowing access by the landlord or another person may coexist with exclusive possession. The judge’s phrase, “subject to any express or implied agreement to the contrary”, was linguistically awkward when read as a property-law proposition, but it conveyed the point about reservations of access and caused no material misdirection on the facts.
3. Safety of the convictions and trial management. The evidence, including Katheryn’s admissions, payments, messages and the evidence of occupation, entitled the jury to find subletting and cessation of principal occupation. The directions, read as a whole, were fair. The judge’s clear directions neutralised any potential prejudice arising from inadmissible or peripheral material. His management of Blessing’s narcolepsy, including regular breaks and adjustments during her evidence, disclosed neither error nor material unfairness.
4. Costs. Paragraph 3.7 of the Practice Direction (Costs in Criminal Proceedings) 2015 required timely and sufficiently detailed costs information. A costs order must compensate the prosecutor for costs actually and reasonably incurred, not punish the defendant: R v North Allerton Magistrates Court ex parte Dove [1999] 163 JB 657. The late, sparse schedules prevented proper scrutiny of claimed hours, rates, routine local-authority work and proportionality to the fine. The judge had therefore been driven to an arbitrary broad-brush assessment. The order was quashed and replaced with total costs of £32,000, for which Katheryn was liable as to one half.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 804, the court dismissed the conviction grounds and allowed Katheryn Adedeji’s appeal only as to the costs order.
• Crown Court at Central Criminal Court: HHJ Lucas QC convicted both appellants on 23 January 2017 under section 2(2) of the Prevention of Social Housing Fraud Act 2013. Katheryn Adedeji was fined £10,000 and ordered to pay £23,000 costs; Blessing Adedeji received a two-year conditional discharge.