Suspension of possession orders in ASB cases: when is a checklist not a checklist?

Two joined appeals (City West Housing Trust v Massey; Manchester & District Housing Association v Roberts 2016), concerning cultivation of cannabis, have a much wider relevance as they reviewed the test for suspension that applies in all possession cases brought on discretionary grounds. The forward-looking test is whether there is “cogent evidence of a real hope that the previous conduct would cease”.

Background

In both the Massey and Roberts cases, the tenant had allowed a room in their rented property to be used for the cultivation of a substantial number of cannabis plants. Both tenants admitted breaching their tenancy by having cannabis plants in their properties, but they disputed the factual circumstances. Roberts, who was convicted, said that he was pressurised by a local gang to allow them to grow cannabis at his property. Massey claimed to have no knowledge of the cannabis, instead stating that her ex-partner was solely responsible. Neither tenant disputed that a possession order would be made but both sought to rely on the Court’s discretion to suspend the orders.

At trial the court found that each tenant had lied on oath.

In Massey, the tenant lied “without excuse” by denying that she knew about her partner’s cannabis farm. She showed no willingness to cooperate with her landlord and no remorse. However, because at the eleventh hour she agreed to concede to conditions including compliance with her tenancy, her ex-partner staying away and short-notice inspections, the court suspended the possession order.

In Roberts, the tenant’s evidence was also doubted, not least because despite claiming that the gang kept the room locked and threatened him, when police attended they found the bedroom open. The district judge nonetheless made a possession order suspended on similar terms of inspection and tenancy compliance.

Both landlords appealed. In Roberts the circuit judge overturned the suspended order as “perverse”, replacing it with an outright order as Roberts’ dishonest evidence gave no evidence of reform. Meanwhile, in Massey, the circuit judge found that while he may not have made a suspended order, he would not interfere with the district judge’s exercise of discretion. Further appeals were brought to the Court of Appeal.

Outcome

The Court of Appeal decided that both district judges had been entitled to make the orders they originally made, so Roberts’ regained his suspended order whilst Massey’s suspended order remained. In doing so, the Court of Appeal gave some cautious guidance on the correct approach for the exercise of the court’s discretion.

Emphasising the trial judge’s wide discretion, that each case turns on its own facts and that it would involve a common-sense assessment, Lady Justice Arden stated that the guidance the Court of Appeal would give did not amount to a checklist.

She clarified that for evidence of a tenant’s reform to be “cogent” it must not just be credible; it must be persuasive.  Although she found that dishonesty in a tenant’s evidence was not an automatic bar to the making of a suspended possession order because “even a tenant who genuinely wants to comply may give false evidence…because they think the truth is unlikely to be plausible or acceptable” she nonetheless made clear that a tenant who lies in their evidence runs the serious risk that the court will not accept their assurances about the future.

Lady Justice Arden then proceeded to provide the following non-exhaustive checklist that a court may wish to take into account at trial:

• Whether the tenant has cooperated with the landlord in its investigation of the breach(es) of tenancy;
• Whether the tenant has been honest and given full disclosure of any previous bad behaviour;
• Whether the tenant has shown genuine remorse;
• Whether the tenant has accepted culpability at an early stage; and
• The extent and duration of the tenant’s bad behaviour.

Comment

Although this case does not make new law as such, it does offer welcome clarification and guidance on the established position that a tenant must provide “cogent evidence…that the previous conduct would cease”. Although the Court of Appeal was clear that it was not providing a checklist for courts, it is inevitable that the guidance that effectively amounts to a checklist will be highly relevant in whether or not to suspend possession in anti-social behaviour cases in the future. This should provide greater clarity and may help landlords and their advisors to better refine which cases to pursue to trial.

While both appeals against the suspension of possession orders failed, they did so largely on the unwillingness of the appeal court to interfere with the discretion of the trial judge. The decisions reached in these cases should not lead practitioners to conclude that the Court of Appeal has taken a softer approach in cases such as this. Indeed, applying the guidance now provided by the Court of Appeal may well have meant that the district judges at trial reached different conclusions.

For further help or advice on managing anti-social behaviour cases please contact Robert Whitehouse.

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