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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Boyd v Incommunities Ltd [2013] EWCA Civ 756 (26 June 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/756.html Cite as: [2013] EWCA Civ 756

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Bradford County Court
Mr Recorder Salter
1BD02670

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/06/2013

Lord Justice Tomlinson:

1. On 2 and 3 July 2012 in the Bradford County Court Mr Recorder Salter heard a straightforward possession action. The Claimant social housing landlord sought possession of 12 Fenwick Drive, Woodside, Bradford, BD6 2NH. The Defendant John Boyd, now the Appellant, occupied the property by virtue of an assured tenancy granted pursuant to the Housing Act 1988. The tenancy agreement was dated 5 February 2010. His occupation as tenant had begun in January 2010 after his release from prison after serving a five and half year sentence imposed in July 2005 for aggravated burglary. The Claimant sought possession pursuant to Grounds 10, 12 and 14 of Schedule 2 Part II to the Housing Act 1988. Section 7 of that Act states:-

"(1) the Court shall not make an order for possession of a dwelling house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act;…"

Those grounds provide, so far as relevant:-

"Ground 10

Rent lawfully due from the tenant –

(a) Is unpaid on the date on which proceedings for possession are begun; and

(b) Except where sub-section (1)(b) of Section 8 of this Act lies, was in arrears at the date of the service of the notice under this section relating to those proceedings

Ground 12

Any obligation of the tenancy other than one related to the payment of rent, had been broken or not performed.

Ground 14

The tenant or a person residing in or visiting the dwellinghouse-

(a) Has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaged in lawful activity in the locality,

Or

(b) Has been convicted of –

(i) Using the dwellinghouse or allowing it to be used for immoral or illegal purposes, or

(ii) An indictable offence committed in, or in the locality, of the dwellinghouse."

2. The claim for possession was defended and the Defendant counterclaimed damages for unlawful eviction.
3. More particularly, the grounds relied upon by the Claimant were:-

1. arrears of rent in the sum of £2989.58 – Ground 10;

2. antisocial behaviour during the period January – November 2010; and

3. use of the house as a drugs den in December 2010.

It was common ground at trial that if either anti-social behaviour or use of the house as a drugs den was proved, both Grounds 12 and 14 would be made out.

4. The Recorder found in favour of the Claimant on arrears of rent and anti-social behaviour, but not in relation to the use of the house as a drugs den. The house had indeed been used as a drugs den during a period in December 2010. During that period the Defendant was not in occupation. He had left Yorkshire in early 2010 in order to live with his mother in Winchester. He did that in an effort to evade arrest pursuant to a warrant issued for that purpose. Prior to his going to Winchester no complaints had been made about his occupancy of the house. The Defendant denied that the property had been used in his absence by persons authorised by him. The judge said that on this issue the Claimant had not discharged its burden of proving that the property had been used as a drugs den by persons authorised by the Defendant.
5. By way of history the Defendant returned to Yorkshire in early January 2011. He was unable to regain entry because the premises had been sealed and secured by the police on 30 December 2010 when they discovered the use to which the house had been put over the previous few weeks. With a view to collecting the new keys the Defendant attended the Claimant's Housing Office on 25 January 2011. He was then promptly arrested and taken into custody. The counterclaim for wrongful eviction related to the events on 25 January 2011. It failed and I need say little more about it.
6. Following his arrest the Defendant appeared before Bradford Magistrates' Court. He was in breach of the community requirements of a suspended sentence order. He was ordered to serve four months imprisonment unserved from the original sentence and a further four months imprisonment, consecutive, was imposed in respect of an offence of theft and a racially/religiously aggravated offence under the Crime and Disorder Act 1998. On 18 February 2011, whilst in prison, the Defendant was served with a notice of intention to seek possession. He was released from the terms of imprisonment to which I have just referred on 16 May 2011.
7. The judge found, indeed it was common ground, having regard to the availability in evidence of his record of convictions, that the Defendant has a long history of criminal convictions, including offences of dishonesty, violence and intimidation.
8. The Defendant returned to occupation of 12 Fenwick Drive on his release from prison on 16 May 2011. There were no complaints made concerning his occupation between then and the trial in July 2012.
9. Having found Grounds, 10, 12 and 14 established the Recorder asked himself whether it was reasonable to make an order for possession – Housing Act 1988 Section 7(4). He noted that having found Ground 14 made out, he was required by Section 9(A) of the Act to consider the effect and continuing effect of the nuisance and annoyance.
10. The Recorder reached two independent conclusions. He found that the arrears of rent were sufficiently large to merit the making of a possession order. He also found that the anti-social behaviour continued for such a period and had a sufficiently adverse effect upon the Defendant's neighbours to make it reasonable to make a possession order on that ground too.
11. The judge then turned to the question whether he should suspend the execution of the possession order under Section 9 of the Act. He concluded that he should, for a period of two years in relation to Grounds 12 and 14 and in relation to the arrears of rent on payment of the current rent together with £3.55 per week towards the arrears.
12. Although the judge did not expressly advert to it, Section 9(3) of the Housing Act required him to impose conditions with regard to payment by the tenant of arrears of rent unless he concluded that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable. In addition, the judge had the power to impose such other conditions on the suspension of the order for possession as he saw fit.
13. The order made by the judge recited in the preamble that the court had found breaches of Grounds 10, 12 and 14 of the Housing Act 1988 Schedule 2 Part 2 as set out at paragraph 4 of the Particulars of Claim and "as per the Schedule of Incidents attached hereto." The incidents found proved were:-

i) The claimant has received complaints from residents that the defendants visitors cause a nuisance and a disturbance at the property as they arrive at all times of day and night and knock loudly on the door usually in the early hours of the morning causing them to wake up.

ii) On a date that cannot be particularised the defendant intimidated a resident when he asked the resident if they could lend him £30.

iii) On or around the end of Spring 2010 the defendant and his partner caused a nuisance annoyance to a resident by repeatedly asking to borrow things or begging for money.

iv) On a date that cannot be particularised a resident was caused nuisance and annoyance by the defendant's visitors turning up at the property at all hours of day or night and banging loudly on his door causing the resident to wake up.

v) On a date that cannot be particularised a resident was intimidated by the defendant as the defendant used to run around the green outside the houses with his arms waving about which caused a nuisance and annoyance to residents.

vi) On or around the Summer of 2010 a resident was disturbed by the sight and sound of the defendant's partner on the grassed area outside the property shouting and screaming in the early hours of the morning.

vii) On a date that cannot be particularised a resident was intimidated by a visitor of the defendant when the visitor peered through a resident's garden fence then knelt down on the ground and started sniffing around like a dog. Then he suddenly leapt up and jumped around like a bird trying to take off.

viii) On dates that cannot be particularised the defendant has intimidated residents in the locality of 12 Fenwick Drive by begging for money from residents at the bus stop."

14. The substantive part of the Order reads, so far as relevant, as follows:-

"1. The Defendant do give up to the Claimant possession of the property situated at 12 Fenwick Drive, Woodside, Bradford in the county of West Yorkshire (hereinafter the property) on or before 18 July 2012.

2. Paragraph 1 above is suspended for a period of two years upon the Defendant's compliance with paragraphs 3.4, 3.19, 3.20, 3.21, 3.22, 3.24, 3.26 and 3.29 of his Tenancy Agreement dated 05 February 2010 (page 105 of the trial bundle).

3. Paragraph 1 above be suspended upon the Defendant paying the current rent in addition to £3.55 per month towards arrears totalling £2989.58.

4. In the absence of an application to enforce paragraph 1 above on or before 04 July 2014 paragraph 2 above be dismissed.

5. For the avoidance of doubt paragraph 3 above continues in that the Order for possession continues to be suspended on the terms set out at paragraph 3 above until the Defendant discharges in full arrears of £2989.58."

The reference to the numbered paragraphs of the Tenancy Agreement are to the conditions to be observed by the tenant, including such basic obligations as being responsible for the behaviour of persons living in or visiting the house, not using the house for drug dealing or other illegal activity, not using violence or threats of violence in the property or in its locality and not to do anything on the property or in its locality which could annoy or disturb anybody.

The Appeal

15. The appeal for which permission has been given relates only to the finding of anti-social behaviour by the Defendant and by persons for whose behaviour he was responsible. Mr Ian Pennock for the Defendant contends that the Recorder erred in making those findings in partial reliance on three anonymous witness statements from neighbours of the Defendant. Giving weight to those statements, he submitted, contravened Article 6 of the European Convention on Human Rights in that the Defendant did not know who his accusers were and was unable to test their evidence by cross examination. In short, admission of the evidence was unfair.
16. Mr Pennock submitted that the finding of anti-social behaviour should be set aside. That of itself would have no effect on the substantive order, although expunging the finding from the record is of obvious potential importance to the Defendant in the event of an application in the future to remove the suspension and permit enforcement of the order for possession. Indeed, the finding of anti-social behaviour has the potential to prejudice the Defendant more generally should it be necessary for him in the future to seek the suspension of an order for possession.
17. However Mr Pennock did also submit that in the event that the finding of anti-social behaviour is set aside then so too should be set aside paragraph 2 of the Order. It is true that that paragraph requires no more than compliance with the terms of the tenancy agreement, but its presence in the Order is he submitted unjustified if the findings of anti-social behaviour cannot themselves stand, because the tenant would not on that hypothesis be shown to have broken the terms of his tenancy agreement other than by non-payment of rent.
18. This last point is somewhat academic. Mr Pennock accepts that the order for possession was justified on the basis of the rent arrears, and section 9(3) of the Housing Act 1988 requires the court to impose terms as to the payment of arrears and gives it the power to impose such other conditions as it thinks fit, subject in either case to the reservation as to exceptional hardship and reasonableness to which I have already referred above. Section 85(3) of the Housing Act 1985 was in identical terms. In Sheffield City Council v Hopkins [2001] EWCA Civ 1023 this court held that the power to impose conditions under that provision was exercisable without formal proof of conduct on the part of the tenant which would justify the imposition of the condition. All that is required is production of some prima facie evidence that there had been conduct on the part of the tenant which would justify the imposition of the condition, or, as Lord Woolf CJ put it "the production of some material which would satisfy the court that the application for the imposition of the condition was justified." There can in my judgment be no serious argument but that the material produced by the Claimant, to which I must shortly turn, amply justified the imposition of the condition. The real point on the appeal is whether it justified the finding of anti-social behaviour.
19. The incidents of anti-social behaviour on which the Claimant relies and which I have set out above were particularised in the Particulars of Claim which were served on the Defendant on 16 May 2011. At the same time there was served upon the Defendant a witness statement dated 4 May 2011 of Neal Wells, Tenancy Enforcement Officer for the Claimant. In that statement he said this:-

"3. Fenwick Drive is situated within the Woodside Estate in Bradford. It is a quiet residential area which is made up of most semi-detached houses. A significant number of the properties on Fenwick Drive are owned by the Claimant.

……..

10. In the course of my investigation [which I interpose must have been carried out between January and May 2011] I interviewed a number of residents local to the Defendant's property. The residents I spoke to were very fearful of the Defendant and were extremely reluctant to make any formal statement about the Defendant. Three of the residents did agree to make anonymous statements regarding the conduct of the Defendant provided their identities were not disclosed. These witnesses are referred to in their statements as Witness A, B and C. I have attached these to this statement and exhibited them as [identified Exhibits].

…

15. In the course of my investigation I have interviewed a number of witnesses all of whom are too afraid to be identified. I believe their testimonies to be truthful and genuine and in all cases made only because they have been genuinely frightened and disturbed by the conduct of the Defendant."

20. Witness A said, inter alia:-

"1. I live in the vicinity of 12 Fenwick Drive and have witnessed various incidents which have occurred around 12 Fenwick Drive. I make this statement on the condition that my identity is not revealed. I am afraid to come to court or make my identity known as the Defendant frightens me and I have heard from other people in the area that he is a dangerous man. I am afraid of serious repercussions if I were to attend court and make my identity known.

2. The Defendant moved into 12 Fenwick Drive in December 2009. There were no problems at first, and he lived there for the first month with his mother. The Defendant's mother moved out of 12 Fenwick Drive at the beginning of January 2010 just after New Year's Day. I think it was the 3^rd or 4^th January 2010.

3. As the year progressed to the end of spring 2010 we started to get the Defendant or his female partner coming and knocking on our door asking to borrow things or to ask for money. It would usually only be to ask for £2 - £3 but I would then see him go to knock on other neighbours' doors presumably to do the same thing. The knocks on the door became more frequent and were a nuisance.

…

5. The police often turned up at the Defendant's house. I could hear them banging on his door late at night/early in the morning. The noise of this often woke me up. I could hear the police threatening to break his door down before he would let them in.

6. The Defendant's behaviour was very strange. There is a communal grassed area which is outside the Defendant's and the surrounding neighbours' houses. Before the Defendant came to live at 12 Fenwick Drive, the children and grandchildren of residents used to play on the grass: they don't now. They are too afraid. The Defendant used to run around on the green outside the houses. He would run around with his arms waving about, it was very disturbing behaviour coming from an adult. He was unpredictable, he seemed like he was on drugs. Sometimes he was very jumpy and manic. Other times he seemed completely vacant.

7. As the year went on his behaviour became more erratic and it seemed as if he was taking more and more drugs. People were turning up at his house at all hours of the day and night. Sometimes they would go in and come out very soon afterwards, other times we saw and heard people banging aggressively on his door looking for him. They looked like people you'd want to stay away from. By this I mean that they were intimidating looking people.

…

12. At the moment, the Defendant is not living in the house. I am anxious that he might return. The year he has spent in the property has caused a lot of problems for me and other residents. His disturbing behaviour, constant begging and the people attracted by his lifestyle and apparent illegal drug use have interfered with our quiet enjoyment of our homes. I am willing to support any action the court can take to prevent this behaviour from reoccurring. I am afraid to come to court or make my identity known as the Defendant frightens me and I have heard from other people in the area that he is a dangerous man."

21. Witness B said inter alia:

"1. I live in the vicinity of 12 Fenwick Drive and have witnessed various incidents which have occurred around 12 Fenwick Drive. I am prepared to make this statement on the condition that my identity is not revealed. I am afraid to come to court or make my identity known as the Defendant frightens me. I have heard from other people in the area that he is a dangerous man.

2. The Defendant moved into 12 Fenwick Drive sometime around Christmas 2009. I first met the Defendant when he came to my door asking for money. When I answered the door I could tell he was on drugs. He didn't look "with it". He came to my house a couple of times asking for money.

3. I noticed that there were always a lot of young people going to the Defendant's house and hanging around with him.

4. Now and then during 2010, I think it was mainly during the summer, I was disturbed by the sight and sound of the Defendant's partner on the grassed area outside 12 Fenwick Drive shouting and screaming in the early hours of the morning.

5. The Defendant's behaviour and that of his visitors was very strange. I presume this to be because they were on drugs. On one occasion, someone came to call for the Defendant. This young man came to my garden fence and was peering through. I found this rather disturbing. He then knelt down on the ground and started sniffing around like a dog. All of a sudden he leapt up and jumped around like a bird trying to take off.

6. I've seen the Defendant go into the bus shelter near to 12 Fenwick Drive and pester people who were waiting for a bus. He did this quite often. He seemed to be asking them for money. He often approached young people at the bus stop to ask them for money and they looked visibly frightened. I felt very sorry for them."

22. Witness C said:-

"1. I live in the vicinity of 12 Fenwick Drive and have witnessed various incidents which have occurred around 12 Fenwick Drive. I am prepared to make this statement on the condition that my identity is not revealed. I am afraid to come to court or make my identity known as I find the Defendant and his associates intimidating.

2. I met the Defendant when he came to my front door. He seemed like he was on drugs. His eyes were half closed. He definitely wasn't drunk, it was something other than drink that had put him in the state he was.

3. When I opened the door he said "I wonder if you could help me, we've got no money to go shopping. Could you lend me £30?"

4. I said "no" and shut the door. £30 is a lot of money to ask someone for on their doorstep. I didn't believe for one minute that he would give me the money back and I didn't believe that it was for "shopping" I think it's more likely that he wanted it to buy drugs with.

5. I am willing to support any action the court can take to prevent this behaviour from re-occurring."

23. The witness statements are all signed and dated below a confirmation that the facts contained in the witness statement are true. The signatures and the dates have been obliterated in the copies before the court. Plainly the witness statements must have been signed between January and May 2011.
24. The hearing of the trial was repeatedly adjourned. On 3 October 2011 the Claimant served on the Defendant a Notice of Intention to rely on hearsay evidence. That Notice read:-

"Notice is hereby given that the Claimant intends to rely on hearsay evidence at trial and that evidence is contained in the witness statement of:-

1. Neal Wells dated 4^th May 2011

which has already been served.

Reasons why witnesses will not be called:-

(a) Neal Wells is a tenancy enforcement officer who has been provided with information that has been relayed to him by other housing officers and by witnesses of incidents who have either moved away and cannot be contacted or are too frightened due to fear of reprisals by the Defendant. Those witnesses whose names are known and were content for their identity to be disclosed are given in the statement. The remaining witnesses are either not known to the applicant or are too afraid to have their names disclosed.

(b) In regard to all other statements in order to deal with the matter expeditiously and at reasonable cost.

This notice is served to facilitate disclosure of evidence and to allow presentation of evidence in support of the claim for possession, which may not be disputed by the Defendant.

Service of this notice will avoid the requirement for witnesses to attend unless the Defendant makes a successful application to Court thereby saving considerable time court time and costs."

25. There was a Case Management Conference before District Judge Goldberg on 6 October 2011. The trial date then set for 23 October 2011 was vacated. The Defendant appears to have made no application to the court concerning the Claimant's intention to rely upon the anonymous hearsay evidence. A further CMC was set for 3 January 2012. At that hearing, before Deputy District Judge McClure, the Defendant made an application for disclosure directed to West Yorkshire Police, but appears to have made no application in relation to the Claimant's intention to rely upon anonymous hearsay evidence. The trial was listed for three days in the period 26 March – 27 April 2012. However the trial did not then take place. On 5 April 2012 there was a yet further CMC before Deputy District Judge McClure. The trial was now listed for 2 July 2012. Again, no application appears to have been made by the Defendant in relation to the intention to rely upon the anonymous evidence.
26. For completeness I would add that on 18 January 2012 Mr Wells made an updated witness statement which again exhibited the three statements of witnesses A, B and C. On 8 June 2012 there was issued, and presumably shortly thereafter served on the Defendant, an updated Notice of Intention to rely on hearsay evidence which now made reference to both Mr Wells' statement of 4 May 2011 and his witness statement of 18 January 2012. Nothing turns on this.
27. We were told that at some stage before trial, although we were not told when, the Defendant's solicitors wrote to the Claimant's solicitors requesting the details of the anonymous witnesses in order that the Defendant could serve them with witness summonses. Unsurprisingly the Claimant's solicitors declined to supply this information.
28. The Defendant produced a long witness statement for the purpose of the trial. It is dated 23 November 2011. He denied the allegations made against him in the anonymous witness statements, saying that he could not answer them more comprehensively given the lack of particularity and without knowing by whom the complaints were made. The extent of any begging or asking for money was he said that on occasion when new to the area he may have asked a neighbour for a cup of sugar or something of that sort and on one occasion he had borrowed money from a neighbour which was given voluntarily and subsequently returned together with a £5 top-up voucher for the neighbour's mobile phone by way of thanks.
29. It is clear that at trial Mr Pennock for the Defendant objected to the use of anonymous witness statements and suggested that the Recorder should give that evidence no or little weight. Given the terms of the Recorder's judgment, it seems unlikely that Mr Pennock formulated any very focused submissions based on either Article 6 or the provisions of the Civil Evidence Act 1995. Mr Crossley for the Claimant directed the Recorder's attention to the decision of this court in Moat Housing Group v Harris [2006] QB 606 although he did not actually refer him to any passage therein. No copy of the report of this case was apparently available at trial. The Recorder evidently looked at the case himself before preparing his reasoned judgment and at paragraph 22 of that judgment referred to the guidance given therein as to the reliance on anonymous evidence in cases of this type.
30. Mr Wells was questioned extensively at trial as to the circumstances and manner in which local residents had been approached and their evidence taken and prepared in statement form. He explained that he and a plain clothes police officer had simply knocked on the doors of a variety of properties in the area and asked the residents if they had had any problems with anti-social behaviour in the area. These were very general questions. Mr Wells and his companion did not indicate that the questions might be directed to a particular property. His evidence on this was:-

"A. They all seemed to know straight away, to be - to be quite frank. They all sort of came out with - you know, they came out with what - what they gave us in the statements quite quickly. It seemed to be something which was at the forefront of their minds.

Q. Did you have any reason to believe what they were telling you was not genuine?

A. No, no. People were from a variety of different sort of - you know, parts of society, effectively, and they were all - everything they told me was corroborating what the others were telling me. And they didn't all - they weren't all immediately known to each other as individuals, they weren't sort of all immediate next door neighbours, or anything.

Q. Why did they indicate to you that they were reluctant to attend Court?

A. They were all, without exception, afraid of the Defendant. As I said, I can't go into too much detail because - they'd been - they'd had - they'd been told about the Defendant behaving in a threatening manner towards other people in the area, and so they were all - they were all quite afraid. And certain people were not in any position to defend themselves against a person - a person like that, and they perceived that person to be very threatening. They perceived the Defendant to be scary."

Mr Wells was cross-examined as to the lack of contemporary complaints. In his experience he did not find this surprising. He said this:-

"They were - they were afraid. They were afraid of the man who lived there. And I often find people are afraid to even report people who are causing anti-social behaviour in case there will be repercussions."

31. The Defendant was also cross-examined about the allegations made in the anonymous witness statements. We have no transcript of his evidence, only the Recorder's note. His evidence of course has to be evaluated as a whole. Whilst maintaining that the three witnesses were "fictitious", that he got on with his neighbours, had had not one complaint and denying the allegations one by one, he did make some important concessions. Firstly, he acknowledged that he and his partner had a drugs problem and that their state benefits were insufficient to fund it. He acknowledged that he had committed two thefts during the period in respect of which the allegations were made. He acknowledged that his behaviour had been unpredictable and that he could have appeared vacant. The Recorder noted one answer as:-

"I am not saying that the statements are made up: they have been cajoled. Bits are true."

32. The Recorder noted that it was a matter for him what weight to attach to the anonymous hearsay evidence. He summarised the allegations and noted that the three witnesses were from different households and that there is no suggestion that they knew each other.
33. Paragraphs 21 and 22 of the Recorder's judgment read:-

"[21] The Defendant admits a history of drug use, although he denies intravenous use. He acknowledges that the benefits he was receiving did not support his drug habit and that the behaviour of a person on drugs could be unpredictable. He admitted taking drugs whilst at 12 Fenwick Drive in the period from February 2010 to November 2010.

[22] Because of the hearsay nature of the evidence adduced by the Claimant, it must be approached with caution. Mr Crossley draws my attention to the decision of the Court of Appeal in Moat Housing Group South Limited v Harris and Hartless [2006] QB 606, which indicates that the court should analyse the direct oral evidence before moving on to the evidence of absent named witnesses and anonymous witnesses. The only direct oral evidence I have is from the Defendant who admits drug usage and that the behaviour of someone using drugs could be unpredictable. He denies the specific allegations made by the Claimant's three anonymous witnesses describing them as outlandish. I accept that it is reasonable for the Claimant's three witnesses to remain anonymous in view of the Defendant's history of criminal convictions and fear of possible reprisals. All three witnesses complain of the Defendant begging for money and of detailed instances of nuisance or annoyance. The allegations may be bizarre but are entirely consistent with someone using drugs. The Defendant has not suggested any reason why the three witnesses should be lying. Having regard to all of the evidence including the Defendant's own admissions. I conclude on a balance of probability that these detailed allegations of anti-social behaviour made by the Claimant's three anonymous witnesses referred to in paragraph [20] and detailed in the Schedule of Incidents attached to the order referred to at paragraph [1] are made out. I have no doubt that local residents found the Defendant's behaviour intimidating. I therefore conclude that Grounds 12 and 14 are made out in that a nuisance and annoyance has been established which is a clear breach of the Defendant's obligations under his tenancy."

34. As Mr Pennock accepted in argument before us, not all of the allegations made in the anonymous witness statements are in fact bizarre. Only those itemised at paragraphs (v) and (vii) in the Schedule of Incidents which I have set out above could in fact be so described. The other incidents described are regrettably recognisable as typical anti-social behaviour.
35. There is an element of multiple hearsay in the anonymous witness statements in that witnesses A and B said that they had heard from other people that the Defendant was a dangerous man. However both also said that they found him frightening. Witness B had seen other people looking visibly frightened when asked by the Defendant for money at the bus stop. Witness C found him and his associates intimidating.
36. There was in evidence the Defendant's record of convictions which the Recorder relevantly summarised as containing a long history of convictions including offences of dishonesty, violence and intimidation. There were twenty two convictions recorded against him comprising sixty seven offences. Focusing on those committed after he achieved the age of 21 and thus since 2000, they include offences of common assault, intimidating a witness or juror with intent to obstruct, pervert or interfere with justice, using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence and aggravated burglary, aggravated apparently by use of a screwdriver as a weapon.

Discussion.

37. At the outset of the appeal Mr Pennock submitted that the court has no power derived either from the Civil Evidence Act 1995 or elsewhere to admit anonymous evidence in civil proceedings. As this far reaching submission had been neither made at trial nor adumbrated in the Grounds of Appeal or skeleton arguments in support thereof, we did not permit Mr Pennock to pursue it. Thereafter Mr Pennock developed a threefold submission which I hope I accurately summarise as follows:-

1. Whilst the Civil Evidence Act 1995 is not incompatible with Article 6 ECHR, the safeguards contained therein may not always be sufficient;

2. If, when assessing the weight to be given to anonymous hearsay evidence, proper regard is paid by judges to the considerations identified in Section 4 of the Civil Evidence Act 1995, this might be enough to be compliant with Article 6 ECHR: however

3. In assessing the weight to be given to the anonymous hearsay evidence, the judge here had failed properly to have regard to those considerations, alternatively this court could not properly subject the judge's approach to those factors to a proper appraisal.

More generally, Mr Pennock submitted that the admission of anonymous hearsay evidence in litigation of this type had been allowed to become routine. He reminded us that in the criminal jurisdiction a similar situation had been brought to an end by the decision of the House of Lords in R v Davis [2008] 1 AC 1128. Subsequent legislation (The Criminal Evidence (Witness Anonymity) Act 2008) giving to the court a power to make a witness anonymity order contains important safeguards, absent here. Finally, Mr Pennock submitted that the judge had found the Defendant a credible witness and had given no explanation of how in such circumstances the evidence of the anonymous witnesses, which he denied, could be accepted. The Recorder's decision was therefore perverse.

38. I will deal with the last point first. It is true that in relation to the question whether the use of the premises as a drugs den had been with his authority, the judge said at paragraph 24 that "on a balance of probabilities, I prefer the evidence of the Defendant on this issue." However the judge went on to point out that the Claimant had only been able to rely upon Witness A, who could not be cross-examined as to whether or not he was mistaken as to the identity of the person entering 12 Fenwick Drive in December 2010. The Recorder continued:-

"The onus is on the Claimant to show that the property was used as they seek to claim and damage caused by visitors authorised by the Defendant. They have not in my judgment discharged that burden."

This is not a ringing endorsement of the Claimant's overall credibility, which is perhaps unsurprising in the light of the Defendant's long list of convictions for offences involving dishonesty. The Defendant's evidence was also not accepted by the Recorder in relation to the counterclaim. There is no inconsistency let alone perversity in the judge having accepted the anonymous evidence in preference to that of the Defendant. In passing I note that the judge did not uncritically accept the evidence of Witness A in circumstances where the reliability of his identification evidence could not be tested.

39. Mr Crossley for the Claimant told us that in his experience the introduction of anonymous hearsay evidence in this type of case is not routine practice, but it is in the nature of what are in effect neighbour disputes that witnesses are reluctant to be identified. This is obviously correct. Moreover, it is intimidating to most people of ordinary firmness to be approached for money by a person whose behaviour can reasonably be assumed to be unpredictable. Mr Crossley suggested that it is both common and good practice for the anonymous witness statements to be exhibited, as they had been in this case, to the witness statement of a person such as a housing officer or other investigator who will be available at trial to be cross-examined as to the circumstances in which the statements were taken, as again occurred in this case.
40. In the Moat Housing case at page 641 Brooke LJ said, at paragraph 131 of his judgment:-

"It is now well established that hearsay evidence is available on an application for an anti-social behaviour order or the trial of a possession action: for this rule in relation to anti-social behaviour orders see R(McCann) v Crown Court at Manchester [2003]1AC787, paragraphs 35-36 and Solon South West Housing Association Limited v James [2004]EWCA Civ1847 at paragraphs 14-41."

41. Solon was in fact concerned with the admission of anonymous hearsay statements in a possession action. In both Moat Housing and Solon it was recognised that the admission of hearsay evidence in civil proceedings is governed by Sections 1-7 of the Civil Evidence Act 1995 and CPR rr 33.1- 33.5.
42. The Civil Evidence Act 1995 relevantly provides:-

"1. Admissibility of hearsay evidence

(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

(2) In this Act--

(a) "hearsay" means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and

(b) references to hearsay include hearsay of whatever degree…

3. Power to call witnesses for cross-examination on hearsay statement

Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.

4. Considerations relevant to weighing of hearsay evidence.

(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which an inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following--

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

43. CPR 33.4 is the rule of court made pursuant to section 3 of the 1995 Act. Its purpose is to ensure that a litigant may cross-examine a witness whose hearsay evidence is relied upon against him in the event that that person is not called to give evidence by the party wishing to rely upon the evidence but is available to be called and is called by the opposing litigant. Without this provision a litigant wishing to call to give oral evidence at trial the maker of such a statement would face the difficulty that he could not impugn the evidence of his own witness. However I accept that it is inherent in section 3 and indeed in the Act as a whole that the maker of a statement whose evidence is to be relied upon as evidence of the matters stated without his giving oral evidence at the trial will ordinarily be identified.
44. This notwithstanding, the practice of admitting anonymous hearsay evidence in litigation of this type is well-established and has had the imprimatur of this court on at least two occasions as the decisions in Moat House and Solon demonstrate.
45. In Welsh v Stokes [2007] EWCA Civ 796 this court was concerned with the hearsay evidence of an unidentified witness to an accident as related by that witness to another motorist in the vicinity at the time, which second motorist had not however witnessed the accident, which involved a horse rearing and throwing its rider. The first motorist, who had witnessed the accident, neither remained at the scene nor left his name and address. His account of the accident as related in turn by the second motorist at trial was the only evidence as to what had occurred. It was the only evidence on which the Claimant rider could rely in order to prove how the accident had occurred. At paragraph 23 of his judgment in this court Dyson LJ said this:-

"The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party."

There is no difference in principle between an unidentified witness and a witness who could be identified but gives evidence anonymously out of fear or for some other reason. Of course, the reasons for wishing to give evidence anonymously require careful scrutiny.

46. In Solon Mance LJ observed that "there is certainly power under the CPR to exclude hearsay evidence." He went on to observe that there is very little, if any, relevant difference between asking a judge to exclude evidence and asking him not to rely on it, since under section 4 of the Civil Evidence Act 1995 a judge could determine that evidence was not worthy of any particular weight even after it had been admitted - see paragraphs 18 and 19 of his judgment.
47. In Moat House, Brooke LJ said, at paragraph 135, that "the willingness of a civil court to admit hearsay evidence carries with it inherent dangers in a case like this. As Mr McDonald said, rumours abound in a small housing estate, and it is much more difficult for a judge to assess the truth of what he is being told if the original maker of the statement does not attend court to be cross-examined on his or her evidence". He also stressed the importance of a landlord giving a tenant contemporary notice of any complaints that are made against about his or her behaviour, so that the tenant is not faced in court with serious complaints made by anonymous or absent witnesses about matters that took place, if at all, many months previously. The judge here of course had evidence from Mr Wells to the effect that the circumstances militated against contemporary complaint. At paragraph 136 of his judgment in Moat House Brooke LJ observed that the large volume of hearsay evidence in that case presented the judge with an unusually difficult problem, and that it might have been better if he had started his judgment with an analysis of the direct oral evidence which he had received, and made more transparently clear his approach to the evidence of the absent named witnesses and anonymous witnesses. Finally, at paragraph 140, Brooke LJ said this:-

"While nobody would wish to return to the days before the Civil Evidence Act 1995 came into force, when efforts to admit hearsay evidence were beset by complicated procedural rules, the experience of this case should provide a salutary warning for the future that more attention should be paid by Claimants in this type of case to the need to state by convincing direct evidence why it was not reasonable and practicable to produce the original maker of the statement as a witness. If the statement involves multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable. It would also be desirable for judges to remind themselves in their judgments that they are taking into account the section 4(2) criteria…so far as they are relevant."

48. The Recorder referred to part of this guidance at paragraph 22 of his judgment. He identified the direct oral evidence. He might in that regard have referred also to the evidence of Mr Wells that the residents to whom he spoke were fearful of the Defendant. Although not direct oral evidence, the judge was also entitled to take into account in this context, as he did, the Defendant's history of convictions for violence and intimidation.
49. The Recorder did not expressly refer to the section 4(2) criteria. He did however expressly refer to the considerations which are in fact referred to in sub-paragraphs (a), (d), (e) and (f) so far as they pertained in this case. As to the latter, his finding that he had no doubt that local residents found the Defendant's behaviour intimidating and that it was reasonable for the Claimant's three witnesses to remain anonymous in view of the Defendant's history of criminal convictions and fear of possible reprisals demonstrated that reliance upon anonymous evidence was not an attempt to prevent proper evaluation of the weight of the evidence. Those matters are obviously relevant also to sub-paragraph (a). I have already referred to the fact that the judge recorded that the three witnesses were from different households and that there was no suggestion that they knew each other. Those matters are relevant to sub-paragraph (e). The judge does not mention multiple hearsay - sub-paragraph (c). But the multiple hearsay aspect of the anonymous statements was corroborated by the Defendant's criminal record including offences of violence and intimidation and by Mr Wells' evidence.
50. Mr Pennock submitted that in view of the circumstance that there were no complaints recorded against the Defendant during the period January - November 2010 nor since his resuming occupation in May 2011, the judge should have concluded that the evidence in the anonymous witness statements was fabricated by the local residents in an attempt to ensure his eviction once it had come to their attention that the house had been used as a drugs den. It was however understandable, for the reasons explained by Mr Wells, that no complaints should have been made whilst the Defendant was in occupation. Evidently the point now made by Mr Pennock was not made to the Recorder since he stated at paragraph 22 that the Defendant had suggested no reason why the three witnesses should be lying. This point could have been put, but was not put, to Mr Wells in cross-examination. Mr Wells did give evidence as to the steps he took to ensure the integrity of the evidence and he told the judge that his enquiries were not specific to any property. He did not mention to the residents that his enquiries related to 12 Fenwick Drive or to the use of any property as a drugs den.
51. In my judgment the Recorder carried out the necessary evaluation exercise in an entirely proper manner. It might have been better had he expressly identified the section 4(2) criteria and tied his conclusions thereto, but it is the substance of his conclusions which matters, not the precise manner in which they are set out. His judgment demonstrates that he did indeed have regard to all the circumstances from which any inference could reasonably be drawn as to the reliability or otherwise of the evidence. I would pay tribute to the care with which the Recorder evidently conducted this exercise and with which he set out his conclusions.
52. There is in my judgment no basis upon which this court either can or should interfere with the judge's careful findings. Those findings were well within the ambit of reasonable decision making.
53. I would dismiss the appeal.

Lord Justice Lewison :

54. I agree.

Lord Justice Longmore :

55. I agree also.