A young family signed a tenancy agreement, paid a deposit and the first month’s rent – all into a letting agent’s bank account.

A month or so later, a representative of the landlord stopped by the flat and was surprised to see the family living there. The family were stunned to discover they’d been duped by a bogus letting agent.

The family asked for a few weeks to find somewhere else to live. The landlord’s representative agreed – and they exchanged contact details with each other.

Meanwhile, the landlord’s solicitors got involved. They contacted the police and reported that the family were squatting residential premises – and the solicitors let the family know that the police would come around to evict them under s144 LASPO if they did not leave, “forthwith”.

Perhaps this is a good moment to clarify that police have the power to arrest – not evict. Landlords who want to evict occupiers must do it the old fashioned way via the County or High Court, as appropriate.

Would the police arrest on the facts of the above scenario?

I certainly hope not.

S144 states:

(1) A person commits an offence if –
(a) the person is in a residential building as a trespasser having entered it as a trespasser,
(b) the person knows or ought to know that he or she is a trespasser, and
(c) the person is living in the building or intends to live there for any period.
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).

There are a couple of issues here. Firstly, have the family entered into an unwritten licence with the landlord’s representative for the few weeks? Secondly, have the family entered with the requisite mens rea as per (b) above?

The (b) mens rea point is addressed in Government circular 2012/04 which states at paragraph 8:

“The person must know or ought to know that he or she is a trespasser. The offence will not capture someone who enters the property in good faith reasonably believing they had permission to do so. This might arise, for example, where a bogus letting agent encouraged an unsuspecting tenant to occupy somebody else’s property. In such circumstances, however, it might be reasonable to expect the ‘tenant’ to provide evidence of a tenancy agreement or rent payments to show they had a reasonable belief that they were not a trespasser”.

Paragraph 8 of the circular is echoed in the CPS Charging Guidelines.

In our case, the family initially entered the property reasonably believing they had permission to do so – and they can show their belief by way of the agreement they signed and the money they paid to the bogus letting agent. They further have the agreement of the landlord’s representative to stay for the remaining few weeks.

Some Civil lawyers seem to forget the following Criminal law points:

1. Prosecutors must consider whether (a) there is sufficient credible evidence to support a realistic prospect of conviction; and (b) whether it is in the public interest to bring a case to court.

2. The Crown has to prove its case – including the Defendant’s mens rea. The Defendant does not have to prove anything.

3. Police are unlikely to expose themselves to Criminal liability for unlawful eviction. Hence, their usual, “Civil, not Criminal” mantra in these situations.

Some of us have voiced concerns about the unintended consequences of s144 – and it’s time for it to go.