What should a landlord or agent do if they are invited to an interview under caution? Do you have to attend?
If you are a landlord or agent and a local authority suspects you to have committed a criminal offence then you might be invited for an interview under caution. This is often called a “PACE interview” because the interview must be carried out in accordance with the Police and Evidence Act 1984.
Local authorities are responsible for investigating offences relating to housing and trading standards. This means that a landlord or its agent might be invited to a PACE interview if the local authority has reasonable grounds to suspect that they have committed an offence relating to a property which they let, manage or control. Such offences include a failure to hold a licence under the Housing Act 2004, breach of the HMO management regulations or a failure to comply with an improvement notice or prohibition order.
PACE Interviews are recorded and conducted “under caution”. The significance of the caution is that the person being interviewed has been told that they have been suspected of committing an offence and any evidence collected during the interview can be used as evidence against them.
The interviewing officer, who may be an environmental health officer, can vigorously investigate the suspected offence by asking a series of questions relating to the ownership and management of the property or other relevant matters. The questions are not limited and as a result, the Council can ask as many questions as it likes.
Where the landlord or agent is a company, the interviewing officer may even try to find out more about the business overall. This includes but not limited to, questions relating to the number of properties in its portfolio that it manages, the number of license applications it has made previously for properties in its portfolio, and even the number of employees working for the company. They may also contest any information given to them and produce documents which support their suspicions. This approach then allows the Council to investigate the offence, obtain relevant evidence and decide how to proceed next.
Any answers you give at the interview will usually be admissible as evidence in any prosecution proceedings and will form the basis of the local authority’s decision to prosecute or impose a financial penalty.
Anyone invited to interview has a right to obtain legal advice first, and to be accompanied by a solicitor. However, landlords and agents often do not obtain legal representation and either fail to attend the PACE interview or do not inform the Council of important facts which they have not realised are relevant and helpful to their defence. If the Council decides to start a prosecution, then a failure to attend the interview or give a complete account of facts could make it less likely for the Court to accept the landlord’s version of events. It might also result in a higher fine if a landlord is deemed to have obstructed the investigation.
Where a landlord or agent fails to mention relevant facts and seeks to rely on them at trial, the Criminal Justice and Public Order Act 1994 permits the Court to draw adverse inferences from the landlord or agent’s silence or failure to mention specific facts when questioned under caution. This means that where a landlord or agent was interviewed under caution and failed to give information which they later seek to rely on, it is less likely that their evidence will be believed at trial.
What you should do
Attending an interview is not compulsory but it is a very bad idea to simply ignore an invitation to a PACE interview.
Landlords and agents are entitled to obtain legal advice before and during a PACE interview; it is a very good idea to seek legal advice before attending the PACE interview. This advice applies as much to people who believe they are innocent as well as to people who believe that they are guilty.
A solicitor will not answer the questions for the landlord but they can help prevent problems arising where the questions are unclear, and advise whether it would be better to give a ‘no comment’ response instead. They might also recommend that the interview take place by letter when that is more appropriate, such as where precise technical details are needed, or documents will need to be checked before questions can be answered properly.
It is often better for interviews to be conducted by letter. This is less time consuming for Council officers, and it allows more detailed answers to be given. Investigating officers are not under an obligation to agree to conduct the interview by letter, but they also cannot insist on holding an interview in person.
Ignoring an invitation to a PACE interview might seem like the easy option but this could lead to severe consequences later on. Where landlords and agents do not wish to attend an interview it is usually better to at least provide the investigating officer with a statement in writing.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*