Cannabis factories and suspended orders25/07/16
Two recent Court of Appeal cases have created quite a stir on the issue of whether or not a possession order should be suspended, despite the judge not believing the tenant’s evidence at the trial.
Where a judge finds it is reasonable to make a possession order he/she has to decide whether it was reasonable to suspend it. This requires a sound basis for believing that the tenant would observe the terms of the tenancy in the future.
Where the court believes it is inevitable there would be a breach in the future, it should not suspend the order. This applies to any suspended order, including rent cases. It is though hard for a tenant to persuade a judge that there will no breaches in the future when at trial they had denied there had been breaches in the past.
In the two recent cases City West Housing –v- Massey and Manchester & District Housing –v- Roberts the tenants did not dispute that cannabis factories had been found at the property. However they denied knowledge of them or any responsibility. The judges disbelieved the tenants.
In both cases, despite that, the district judges suspended the possession orders. The condition of the suspended orders included terms that access had to be given to the landlord on two hours’ notice so they could check if cannabis was being grown again. Both were appealed by the landlord, one successfully, to a Circuit Judge. Further appeals were allowed to the Court of Appeal.
The Court of Appeal confirmed that judges at the first hearing have a very wide discretion and their decision should not lightly be overturned. They referred to the leading appeal case on the subject of Sandwell MBC –v- Hensley. That had referred to the need for “cogent” grounds for hope the tenant would cease his previous conduct. Cogent is defined generally as “clear, logical and convincing”.
The Facts of the Cases
In the City West case the tenant denied knowledge of the cannabis in one of the bedrooms, despite there being over 300 plants grown by her partner. She denied being aware of the smell of cannabis or the humming noise from the equipment. The judge said he did not believe a word of her case and that “on a very strong balance of probabilities she is lying to me.” Despite that, the judge suspended the possession order, for a period of three years.
On appeal the Circuit judge said he may well have reached a different decision but would not overturn it.
In the Manchester & District case the tenant said the cannabis was grown in a back bedroom used by a gang who kept it locked and threatened him. However when the police raided the room was unlocked and at trial the Defendant admitted he had been paid £1,200 by the gang. One of his arguments was that as the police had raided the property it would not be targeted by dealers again and that the landlord could do regular surprise inspections. The District Judge suspended the order on Mr Roberts complying with the terms of his tenancy and allowing monthly inspections.
On appeal, the Circuit Judge said that was a perverse decision and there was no sound basis for his findings. He made an outright order.
Court of Appeal Guidance
Somewhat reluctantly the judges gave guidance for when considering suspending orders. Each case though depends on its own facts.
- Cogent evidence (“that the previous behaviours will cease”) must be more than simply credible; it must be persuasive.
- The court has to focus on the future and not the past. A tenant does not have to provide a cast iron guarantee. But a landlord does not have to accept a tenant who sets out to breach the terms of his tenancy and disables the landlord from providing accommodation in more deserving cases.
- The cogent evidence does not all have to come from the tenant. It could for example come from the knowledge of future support or from the fear of future inspections.
- A landlord should not be expected to do more than is reasonable.
- Tenants should realise if they lie to the court the judge may not accept assurances from them for the future. There is though no absolute rule that a tenant who lied cannot have an order suspended in his favour.
- They would not create a check list for judges to use in the future. However the judges may want to consider issues such as cooperation with the landlord and prosecution, honesty and full disclosure of previous inappropriate behaviour, genuine remorse and early acceptance of culpability.
In each case the Court of Appeal said the District Judges were entitled to reach the decisions they had and so their orders would stand.
How can Capsticks help?
Capsticks Housing management team has vast experience of dealing with anti-social behaviour cases. The importance of preparing the case properly cannot be overstated. If you are not successful initially it is very difficult to win second time round. We can ensure your case is prepared and presented in the best possible way. For more information please contact Daniel Skinner, Bridget Stark-Wills or Michael Owen.