Property – Matrimonial home – Protected intended occupier – Appellant securing entry to former matrimonial home using violence – Appellant being convicted of criminal offence – Section 12A(2) of the Criminal Law Act 1977 – Whether appellant having defence as protected intended occupier – Appeal dismissed The appellant and his wife were joint owners of the matrimonial home. Following their separation, the wife moved back into the property with her daughter on the basis that the appellant was moving away from the area. A few days later, the appellant visited the property and shouted abuse. When he was unable to gain entry he damaged the front door, leaving it insecure. When the police were called, the appellant said that he was the owner of the property and could do what he liked to it. He was convicted of using violence to gain entry to a property, knowing that there was someone present on the premises who opposed the entry contrary to section 6(1) and (5) of the Criminal Law Act 1977. Section 6 of the 1977 Act provided that any person who, without lawful authority, used or threatened violence for the purpose of securing entry into any premises would be guilty of an offence if there was someone present on those premises at the time who was opposed to the entry, which the violence was intended to secure, and the person using or threatening the violence knew that that was the case. Section 6(1A) stated that that did not apply to a person who was a displaced residential occupier or a protected intending occupier of the premises in question. However, the fact that a person had any interest in or right to possession or occupation of any premises did not constitute lawful authority for the use or threat of violence for the purpose of securing his entry into those premises. Under section 12A, an individual was a “protected intending occupier” if: (a) he had a freehold interest or a leasehold interest with not less than two years still to run; (b) he required the premises for his own occupation as a residence; (c) he was excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser. The appellant appealed by way of case stated. A question arose whether, in circumstances where a defendant such as the appellant was the co-owner of a matrimonial home from which he had not been excluded, he was a protected intending occupier under section 12A of the 1977 Act so that he had a defence under section 6(1A) to any charge under section 6. Held: The appeal was dismissed. In all the circumstances, it could not be said that the appellant was a protected intending occupier within section 12A. Accordingly, the justices had correctly concluded that he had no defence under section 6(1A) to a charge under section 6. The appellant had contended that the separate provisions of section 12A (2)(a), (b) and (c) were disjunctive, not being joined by the word “and”, so that a person was a protected intending occupier if he either had a freehold interest or required the premises for occupation as a residence. However, it was clear that the provisions of section 12A had to be read cumulatively. In particular, section 12A(2)(b) provided that an individual was a protected intending occupier where “he requires the premises for his own occupation as a residence”. If that subsection stood alone, it would have the startling consequence that any person spying a desirable house could proclaim that he required those premises for his occupation and then seek to gain entry as a protected intending occupier. Moreover, a freeholder who used violence did not come within section 12A and could be properly convicted of an offence under section 6. Henry Gow (instructed under the Direct Access Scheme) appeared for the appellant; Benedict Leonard (instructed by the Crown Prosecution Service) appeared for the respondent. Eileen O’Grady, barrister
Property – Matrimonial home – Protected intended occupier – Appellant securing entry to former matrimonial home using violence – Appellant being convicted of criminal offence – Section 12A(2) of the Criminal Law Act 1977 – Whether appellant having defence as protected intended occupier – Appeal dismissed
The appellant and his wife were joint owners of the matrimonial home. Following their separation, the wife moved back into the property with her daughter on the basis that the appellant was moving away from the area. A few days later, the appellant visited the property and shouted abuse. When he was unable to gain entry he damaged the front door, leaving it insecure. When the police were called, the appellant said that he was the owner of the property and could do what he liked to it. He was convicted of using violence to gain entry to a property, knowing that there was someone present on the premises who opposed the entry contrary to section 6(1) and (5) of the Criminal Law Act 1977.
Section 6 of the 1977 Act provided that any person who, without lawful authority, used or threatened violence for the purpose of securing entry into any premises would be guilty of an offence if there was someone present on those premises at the time who was opposed to the entry, which the violence was intended to secure, and the person using or threatening the violence knew that that was the case. Section 6(1A) stated that that did not apply to a person who was a displaced residential occupier or a protected intending occupier of the premises in question. However, the fact that a person had any interest in or right to possession or occupation of any premises did not constitute lawful authority for the use or threat of violence for the purpose of securing his entry into those premises.
Under section 12A, an individual was a “protected intending occupier” if: (a) he had a freehold interest or a leasehold interest with not less than two years still to run; (b) he required the premises for his own occupation as a residence; (c) he was excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser.
The appellant appealed by way of case stated. A question arose whether, in circumstances where a defendant such as the appellant was the co-owner of a matrimonial home from which he had not been excluded, he was a protected intending occupier under section 12A of the 1977 Act so that he had a defence under section 6(1A) to any charge under section 6.
Held: The appeal was dismissed.
In all the circumstances, it could not be said that the appellant was a protected intending occupier within section 12A. Accordingly, the justices had correctly concluded that he had no defence under section 6(1A) to a charge under section 6.
The appellant had contended that the separate provisions of section 12A (2)(a), (b) and (c) were disjunctive, not being joined by the word “and”, so that a person was a protected intending occupier if he either had a freehold interest or required the premises for occupation as a residence. However, it was clear that the provisions of section 12A had to be read cumulatively. In particular, section 12A(2)(b) provided that an individual was a protected intending occupier where “he requires the premises for his own occupation as a residence”. If that subsection stood alone, it would have the startling consequence that any person spying a desirable house could proclaim that he required those premises for his occupation and then seek to gain entry as a protected intending occupier.
Moreover, a freeholder who used violence did not come within section 12A and could be properly convicted of an offence under section 6.
Henry Gow (instructed under the Direct Access Scheme) appeared for the appellant; Benedict Leonard (instructed by the Crown Prosecution Service) appeared for the respondent.
Eileen O’Grady, barrister
