Susan Wu v Chelmsford City Council

For the completed offence of unlawful eviction under section 1(2) of the Protection from Eviction Act 1977, the prosecution must prove actual physical deprivation: the defendant must have put or kept the residential occupier out of physical occupation. Changing locks is insufficient where the occupier remains in occupation, although it may support an attempt or a harassment charge. Under section 1(3A), a single act can suffice. The offence does not import the Protection from Harassment Act 1997 requirement of a course of conduct. A refusal to rectify a previous act may be a positive act. The appeal was dismissed.

Susan Wu v Chelmsford City Council concerned an appeal against convictions in the Crown Court at Chelmsford for two counts of unlawful eviction under section 1(2) and two counts of unlawful harassment under section 1(3A) of the Protection from Eviction Act 1977. The appellant, the tenants’ landlord, had changed the property’s locks, delayed providing keys and arranged for the water supply to be disconnected. She was convicted after trial and received community orders, a costs order and compensation.

The appeal challenged the meaning of deprivation of occupation, whether ‘acts’ required more than one act or excluded omissions, and whether the harassment offences required a course of conduct under the Protection from Harassment Act 1997.

The appeal was dismissed on all three grounds.

1. For the completed offence under section 1(2) of the Protection from Eviction Act 1977, the actus reus requires actual physical deprivation. The defendant’s conduct must put or keep the residential occupier out of physical occupation. The court rejected the prosecution’s broader rights-based spectrum. The general landlord-and-tenant approach in Commissioners of Crown Lands v Page [1960] 2 QB 247 did not govern section 1(2). The language of exclusion in R v Yuthiwattana (1985) 80 Cr App R 55 and Costelloe v London Borough of Camden [1986] Crim LR 249 supported that conclusion. The agreed direction that changing the locks had deprived the tenants of occupation was therefore legally wrong.
2. That error did not make the convictions unsafe. The appellant’s concession had led to the withdrawal of the statutory alternative of attempt. Given the jury’s finding of an intention permanently to evict and the admitted conduct of changing the locks, the prosecution would inevitably have established intent and acts more than merely preparatory under section 1 of the Criminal Attempts Act 1981. It was therefore unjust to permit the appellant to resile from the concession.
3. Under section 1(3A), one act is sufficient. R v Polycarpou (1978) 9 HLR 131 remained good authority, and R v Mitchell (1993) 26 HLR 394 was to the same effect. The word ‘persistently’ in section 1(3A)(b) did not create a contrary intention to the singular/plural rule in section 6 of the Interpretation Act 1978. A refusal to rectify a previous action could also constitute a positive act rather than a mere omission.
4. The Protection from Harassment Act 1997 definition of course of conduct could not be imported into the 1977 Act. Its heading was not operative statutory language, and Parliament had left the 1977 Act unamended while making express amendments elsewhere. The references to course of conduct in R v Ahmad (1987) 84 Cr App R 64 and R v Ishaque [2006] EWCA Crim 2538 were non-technical descriptions.

1. Court of Appeal (Criminal Division) — In [2023] EWCA Crim 338, the appeal was dismissed on all three grounds.
2. Crown Court at Chelmsford — The appellant was convicted on 23 May 2022 after trial and sentenced on 14 July 2022 to 12-month community orders on each count, prosecution costs of £14,000 and £1,000 compensation.