R v Burke
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Roskill,Lord Griffiths,Lord Ackner,Lord Lowry |
| Judgment Date | 17 May 1990 |
| Judgment citation (vLex) | [1990] UKHL J0517-1 |
| Date | 17 May 1990 |
| Court | House of Lords |
[1990] UKHL J0517-1
House of Lords
Lord Keith of Kinkel
Lord Roskill
Lord Griffiths
Lord Ackner
Lord Lowry
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Griffiths. I agree with it and for the reasons he gives would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Griffiths. I agree with it and for the reasons which he has given I, too, would dismiss the appeal.
My Lords,
The appellant was tried at Knightsbridge Crown Court on an indictment containing six counts of unlawful harassment contrary to section 1(3) of the Protection from Eviction Act 1977. He was convicted on two counts. His appeal against conviction was dismissed by the Court of Appeal who certified the following point of law of general public importance:
"Whether it is necessary for an act by a landlord to be in breach of a tenant's rights in civil law in order also to be an offence under section 1(3) of the Protection from Eviction Act 1977."
The appellant now appeals pursuant to leave granted by the Appeal Committee of this House.
Section 1(3) of the Act of 1977 provides:
"If any person with intent to cause the residential occupier of any premises -
( a) to give up the occupation of the premises or any part thereof; or
( b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;
does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence."
The appellant purchased 43, Fitzroy Street, London W.l, in about April 1983. The indictment alleged harassment by the appellant against a number of tenants who had been living in the house at the time of his purchase. Mr. and Mrs. Esteban occupied a room on the third floor of the house, Mustafa Hassouni occupied a room in the basement and Mr. and Mrs. Gesto occupied a room on the first floor. The first and second counts in the indictment related to the Estebans. The first count alleged an offence contrary to section 1(3)( a) of the Act of 1977 namely that the appellant did acts calculated to interfere with the peace and comfort of the Estebans with the intent to cause them to give up occupation of the premises. The second count alleged an offence contrary to section 1(3)( b) of the Act namely that the appellant did acts calculated to interfere with the peace and comfort of the Estebans with intent to cause them to refrain from exercising their rights or pursuing their remedies in respect of the premises or part thereof. Counts three and four related to Mustafa Hassouni, counts five and six related to the Gestos and they were framed identically with counts one and two.
At the close of the prosecution case the judge upheld a submission that there was no case to answer on counts two, four and six which alleged offences contrary to section 1(3)( b) because it had not been established that the principal acts of harassment relied upon by the prosecution infringed any contractual rights of the tenants and the whole thrust of the prosecution case was directed to establishing an intent to oust the tenants from the premises rather than to cause them to refrain from exercising any right or remedy in respect of the premises. The judge therefore directed the jury to acquit the appellant on counts two, four and six. The judge left counts one, three and five to the jury. They acquitted on count one but convicted on counts three and five which concerned Mr. Hassouni and Mr. and Mrs. Gesto.
The principal acts of harassment relied upon by the prosecution in the case of Mr. Hassouni may be summarised as follows: Mr. Hassouni had been a tenant in the premises since 1972 and until the appellant purchased the premises Mr. Hassouni had used the lavatory and bathroom in the basement adjacent to his room. The appellant prevented Mr. Hassouni from using that bathroom and lavatory by storing furniture in the bathroom and corridor. The appellant padlocked the door to the lavatory on the half landing between the ground and first floors. The appellant deliberately disconnected a front door bell which communicated with the basement floor. The appellant attempted to get Mr. Hassouni to sign an application form for accommodation addressed to the local housing authority and treated him in a dictatorial way ordering him to go down to the basement when he was speaking to Mr. Gesto on the first floor. When Mr. Hassouni told the appellant to stop harassing him he replied: "If you don't want to be harassed go to the council to be rehoused."
The principal acts of harassment relied upon in the case of the Gestos were padlocking the lavatory between the ground and first floors and deliberately disconnecting the front door bell communicating with the first floor.
In relation to these counts the judge directed the jury that none of the principal matters complained of constituted a breach of contract on the part of the appellant because the tenants in question (a) although entitled to have the use of the bathroom and lavatory somewhere within the building, were not contractually entitled to insist upon a particular bathroom or lavatory being kept available and (b) were not entitled to require the appellant to maintain a system of front door bells. He then continued:
"The fact that these tenants were not entitled, as a matter of law, to have a system of front door bells, does not end the matter. You will have to decide (if you accept this man cut off the system of bells) why did he do it? If he padlocked the lavatory on the half landing and was entitled to take that lavatory out of use as a matter of civil law between the two of them, then why did he do it? If you are sure he did these acts (whatever the civil law may be) with the purpose or the aim of getting the tenants to leave, then you will convict."
In directing the jury in those terms the judge was applying the law as laid down by the Court of Appeal in Reg. v. Yuthiwattana (1984) 80 Cr.App.R. 55. The Court of Appeal in the present case held...
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