Criminal action against harassment and illegal eviction
A number of legislative provisions provide criminal sanctions for harassment and unlawful eviction.
Rent (Scotland) Act 1984
The Rent (Scotland) Act 1984 makes harassment and unlawful eviction criminal offences for which landlords can be prosecuted. [1] Civil action by the use of interim interdicts, and claims for damages, may be the best remedy for a tenant but the successful criminal prosecution of a landlord can act as an effective deterrent. In addition, the existence of a criminal conviction against a landlord can also be a significant cornerstone in any civil action for damages. Thus those affected by harassment and unlawful eviction should always be encouraged to report the matter to the police.
Protection from Harassment Act 1997
If a non-harassment order were breached, the harasser would be guilty of a criminal offence. [2] Enforcement of a non-harassment order is not the responsibility of the applicant, but of the police and the procurator fiscal. This takes the decision-making away from the applicant, but also removes from the individual tenants the burden and expense of raising numerous court actions.
Responsibility for prosecution
In Scotland it is for the police and the procurator fiscal to decide whether or not to prosecute. If a crime is reported to the police, they have a duty to investigate the matter. On completion of their investigation they may then refer the matter on to the procurator fiscal who will decide whether or not to charge the landlord or the agents of the landlord. The residential occupier should be advised that s/he would almost certainly have to give evidence at any subsequent criminal trial.
It is extremely rare for private prosecutions to take place in Scotland and the tenant/residential occupier would have to be very wealthy in order to raise such a prosecution (legal aid is not available for such an action). It has never happened in the area of harassment or unlawful eviction.
Penalties and enforcement
Where a landlord is prosecuted on an indictment (usually a more serious offence), the penalty is a fine, or up to two years imprisonment, or both. In a summary prosecution the fine may not exceed the statutory maximum, and the maximum period of imprisonment is two months. [3]
If a non-harassment order is breached the harasser would be guilty of a criminal offence and could be fined and/or jailed for up to five years. [4]
Last updated: 29 December 2014