There’s Regulatory Crime, and then there’s Landlord Crime: from ‘Rachmanites’ to ‘Partners’
| DOI | http://doi.org/10.1111/1468-2230.00355 |
| Date | 01 November 2001 |
| Published date | 01 November 2001 |
| Author | Alex Marsh,Dave Cowan |
There’s Regulatory Crime, and then there’s Landlord
Crime: from ‘Rachmanites’ to ‘Partners’
Dave Cowan and Alex Marsh*
This article considers local authority strategies towards the regulation and
prosecution of private landlords who commit the criminal offences of unlawful
eviction and harassment. Generally, local authorities operate compliance-based
strategies, rarely (if ever) resorting to prosecution. In seeking to explain this
approach, the article draws upon the literature concerning regulatory crime, but
also distinguishes local authority responses to landlord crime from regulatory
crime as more typically conceived. Broadly, it is argued that, while there are clear
parallels with other areas of regulatory activity, there is much that is different
about landlord crime, particularly as a result of central government strategies
towards the private rented sector, the legislative background to landlord crime,
and the motivations behind local approaches to regulation.1
Introduction
Understanding and modelling strategies designed to deal with ‘regulatory crime’2
has been one of the pre-occupations of studies which cross-cut disciplines.3There
has been a recognition that few regulators adopt a strategy which places use of
criminal sanctions at the forefront.4On the other hand, regulators, it is commonly
found, actively seek to work with regulatees over a sometimes lengthy period of
time in order to ensure that the latter comply with the former’s often pragmatic
requirements. On this basis, the role of the regulator is one of bargaining,
negotiation and ‘constant vigilance’ – the aim is to secure the remedy of current
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.831
* University of Bristol.
1This paper is based in part upon research undertaken for the Department of the Environment,
Transport and the Regions, published as A. Marsh, P. Niner, D. Cowan, R. Forrest, & P. Kennett,
Harassment and Unlawful Eviction of Private Rented Sector Tenants and Park Home Residents
(London: DETR, 2000). We would like to thank the Department for their financial and organisational
support for the research. The views expressed in this paper are, however, those of the authors and
should not be ascribed to the Department. The authors are grateful to the other members of the
research team, Paddy Hillyard, Simon Halliday, Andrew Sanders and the MLR’s anonymous referees
for comments on earlier drafts – the usual caveats apply.
2This phrase commonly is used to mark out business-related crimes from ‘ordinary crimes’. The notion
of regulatory crime carries with it an ambiguity that is inherent in this sphere of activity. It is regarded
as ‘merely technically criminal and not socially considered on a par with ordinary crimes’: D. Nelken,
‘White-Collar Crime’ in R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology
(Oxford: OUP, 2nd ed, 1997) 900.
3The following are the most significant contributions for the purposes of this article: G. Richardson, A.
Ogus, and P. Burrows, Policing Pollution (Oxford: Clarendon Press, 1983); K. Hawkins, Environment
and Enforcement (Oxford: OUP, 1984); B. Hutter, The Reasonable Arm of the Law? (Oxford: OUP,
1988); I. Ayres and J. Braithwaite, Responsive Regulation. Transcending theDeregulation Debate
(Oxford: OUP, 1992); F. Haines, Corporate Regulation: Beyond Punishor Persuade (Oxford: OUP,
1997).
4For an exception, see the (critical) analysis of R. Kagan and J. Scholtz, ‘The ‘‘Criminology of the
Corporation’’ and Regulatory Enforcement Strategies’ in K. Hawkins and J. Thomas (eds), Enforcing
Regulation (Boston: Kluwer, 1984).
regulatory breaches and prevent future breaches. Prosecution is regarded as the
antithesis of such a strategy – although its threat may well be used to enforce
compliance – because it effectively ends the relationship.
In this article our aim is to examine one aspect of private landlord crime – that is,
harassment and/or unlawful eviction of ‘residential occupiers’5– in relation to the
insights generated by the literature on regulation. Our argumentis that, while there
are clearly parallels between activities directed at dealing with landlord crime and
regulatory activities in other areas, there are features of the situation in the private
rented sector which suggest that important distinctions should be drawn between
responses to landlord crime and the understandings of regulatory activity embodied
in the existing literature. We suggest that while the output of the regulation of
landlord crime is similar to that in other areas – few prosecutions and the
predominance of compliance-type strategies – the context and factors leading to
those outputs, together with the rationales supplied by the actors involved, are
distinctive. As such, the regulation of landlord crime provides a particularly rich
case study of the influences driving regulatory activity.
Local authorities are generally the regulators of this type of activity, and often
employ personnel termed ‘tenancy relations officers’ (hereafter TROs) for this
purpose. Our analysis draws upon fieldwork data gained during 1998–99,
commissioned by the Department of the Environment, Transport and the Regions.6
The purposes of the research were to provide information about the nature of
harassment and unlawful eviction, to assess the effectiveness of current legislation
and associated guidance and to identify good practice in preventing and dealing
with such incidents in both the private rented and park home sectors. Statistics
show an extremely low level of prosecutions takenfor these offences – in England
just 70 prosecutions were brought in 1999, of which 25 defendants were found
guilty.
Our first section provides a summary of our research methods. We then move on
to a brief overview of the literature concerning the activities of regulatory agencies,
enabling an initial comparison and contrast between, on the one hand, the findings
of previous studies of regulatory crime, and on the other hand, some of the
background understandings of landlord crime.
In the third section, we discuss the impact of policy directions imposed by
central government and the ways in which these structure and govern tenancy
relations work. Our argument is that contemporary policies emphasise – as never
before – growth in the private rented sector. In the late 1980s, for probably the first
time since the second world war, the private rented sector was regarded as having a
valuable role in the post-Fordist economy.7What is important, then, is toconstruct
an understanding of regulatory activity which is sensitive to historical context.8
Legislation – a single act of sovereign might – must be viewed at different
5The term ‘residential occupier’ is derived from the Protection from Eviction Act 1977, s 1(1): ‘. .. a
person occupying premises as a residence, whether under a contract or by virtue of any enactment or
rule of law giving him the right to remain in occupation or restricting the right of any other person to
recover possession of the premises.’ Hereafter in this article, we refer to ‘occupiers’.
6See Marsh et al, n 9 above, – hereafter ‘the report’.
7See C. Pierson, ‘Continuity and Discontinuity in the Emergence of the ‘Post-Fordist’ Welfare State’
in R. Burrows and B. Loader (eds), Towards a Post-Fordist Welfare State?(London: Routledge,
1994) esp 103–109.
8See W. Carson, ‘White-Collar Crime and the Enforcement of Factory Legislation’ (1970) 10 British
Journal of Criminology 383.
The Modern Law Review[Vol. 64
832 ßThe Modern Law Review Limited 2001
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