London Borough of Southwark v Williams and another, London Borough of Southwark v Anderson and another

COURT OF APPEAL, CIVIL DIVISION

[1971] Ch 734, [1971] 2 All ER 175, [1971] 2 WLR 467, 69 LGR 145, 218 EG 1161, [1971] EGD 423

HEARING-DATES: 15, 16 DECEMBER 1970

16 DECEMBER 1970

 Whether defence of necessity available in proceedings for possession.


HEADNOTE:
The defendants were two homeless families who were unable to obtain housing accommodation. They sought the help of a local squatter's association and made an orderly entry into some empty houses owned by the local borough council. The council sought an order for immediate possession. It was contended by the defendants that their action was justified on the grounds that the council were in breach of their duty under s 21 (1) (b) a of the National Assistance Act 1948 to provide 'temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen's and that they were entitled to occupy the property under the doctrine of necessity.



 INTRODUCTION:
Appeals. These was appeals by Peter Williams and Shirley Williams, the first defendants, and George Anderson and Marion Anderson, the second defendants, from the order of Pennycuick V-C dated 28th October 1970 that the London Borough of Southwark were entitled by virtue of RSC Ord 113 to an order for possession of 32 and 38 Harders Road SE15. The facts are set out in the judgment of Lord Denning MR.

COUNSEL:
R B Tansey for the first defendants. Nina Stanger for the second defendants. I D L Glidewell QC and P H Danbury for the council.

PANEL: LORD DENNING MR, EDMUND DAVIES AND MEGAW LJJ

JUDGMENTBY-1: LORD DENNING MR.

JUDGMENT-1:
LORD DENNING MR. This case arises out of the extreme housing shortage in London. In September 1970 some people who were homeless and others who were living in bad conditions sought the assistance of a squatter's association. They made an orderly entry into some empty houses in the Borough of Southwark which were owned by the council. They squatted there. The council applied to the court under the new procedure which has been brought in to deal with urgent cases of squatting. RSC Ord 113 n1 enables the court to make an order for immediate possession. It is a summary procedure and should be used only when there is no arguable defence. The squatters here admit that they have no title to these houses. They admit that the houses belong to the council. But they seek to justify or excuse their action on the ground that it is the duty of the council to provide temporary accommodation for persons who are in need thereof: and that it was of necessity that they entered the houses.



n1 RSC Ord 113 was added by RSC (Amendment No 2) 1970 (SI 1970 No 944)

I would first tell how these houses have become empty. Under the Housing Act 1957 it is the duty of a local authority, such as the Borough of Southwark, to consider the housing conditions in their district. In order to relieve the need, it may provide housing accommodation by building houses, converting others, acquiring houses, pulling them down, or repairing them. This has been done on a large scale in the Borough of Southwark. The council have proclaimed development areas which it means to develop so as to accommodate many more people than have hitherto been there. As and when houses have become empty, it has bought them from their owners. If they are capable of repair at a reasonable cost, the council has repaired them. If they are incapable of repair at a reasonable cost, the council has boarded them up until the time comes when they can be pulled down and new houses erected in their stead. The council has a housing list which it keeps for those in need. There are nearly 9,000 persons on the waiting list now. Nearly half of those are people who are overcrowded and at least one bedroom short. Some have occupants who are ill and sick; and should be moved for health reasons. Others are young couples who have no home of their own. All these are waiting their turn. The council feel that others should not get priority by 'squatting' in the empty houses. Each should take his turn in the queue.

Now let me turn to the squatters themselves. Everyone has the greatest sympathy for them. Two cases are taken as representative. One is the defendant Mr Peter Williams. He is a married man with two children -- one aged five years living in Deal as boarders in a house; but the landlady died, and they had to leave. They could not find accommodation in Deal at a rent which they felt they could pay. So Mr Williams brought his family to London in an effort to find somewhere to live.They stayed with friends for a little while, but then they were told to leave. They were desperate, he says. They had not any relatives to assist them. They went in desperation to the housing department. They could not help them. They were forced to walk the streets. They approached the squatters' association. Mr Peter Williams states what happened:

'On the 7th to 9th days of September, 1970, inclusive, we had no accommodation at all, save that on the 8th day of September, 1970, a stranger allowed us to sleep in her home that night, making it clear that she was unable to help us beyond the one night. My wife and I feared that because of our homeless condition the [council] might take the children and deprive us of them. Consequently, with assistance, on the 10th day of September, 1970, we occupied 32 Harders Road, SE.15, in the Borough aforesaid. I do not like the idea of squating, but it was literally the only way out for us. On the 10th September, 1970, we moved into 32 Harders Road which was boarded up with sheets of tin, and the windows broken. We took down the tins and mended the windows. This house is in a redevelopment area and there are dozens more houses in the neighbouring roads which are empty, and neighbouring families have informed us that some of them have been like it for years.'
The other case is that of the defendant Mrs Anderson. She is a married woman with a husband and two children aged three and a half years and 16 months. They were living at 52 Lausanne Road. She states: 'We were living in one room of an eight-roomed house, where seven other families were also housed.' She stated that it was damp. They had to send for the rodent officer to get rid of the rats, mice and cockroaches which were a constant problem. The landlord, she says, refused to give them a key. He locked them out on one occasion; but they got back again. She says her husband became very nervous and anxious; his health was affected, the children were nervous and lost weight. Then she states:

'Faced with this terrible situation we could stand things no longer. The harassment and the locking out was wrecking our marriage, and having a disastrous effect on the children... so that we could live together as a family, we, therefore, on the 10th September, 1970, squatted in 38 Harders Orad in the Borough aforesaid, a house in which the floor boards had been ripped up, windowsashes smashed, and the toilet concreted up. Since we have moved in, we have repaired all these.'
So those families occupied empty houses which the council evidently had thought were not worthy of repair and were not fit to be occupied. The evidence shows that there are some hundreds of empty houses in Southwark -- 400, we were told, at any rate -- and there is some evidence that their actual conversion or development may not take place for some little time. These squatters, in their distress, felt that they were morally justified in entering into occupation. But have they any legal justification?

I will first deal with the point on the statute. Section 21 (1) of the National Assistance Act 1948 provides:

'It shall be the duty of every local authority, subject to and in accordance with the provisions of this Part of this Act, to provide... (b) temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine.'
Section 24 (2) provides:

'The local authority liable under this Part of this Act to provide temporary accommodation for any person shall be the authority in whose area the person is.'
It is said that, by reason of those sections, it was the duty of the council to provide accommodation for these two families. I have considerable doubt whether these families come within s 21. The need must arise 'in circumstances which could not reasonably have been foreseen'. Take Mr Williams. He was down in Deal. He came to London, without arranging any accommodation for himself and his family. He ought reasonably to have foreseen the circumstances. Mrs Anderson too. She did have accommodation in a house, bad as it was. She ought reasonably to have foreseen the circumstances. But, whatever the rights or wrongs of the matter, it seems to me that, if the council was in breach (I do not say it was), the only way of enforcing the duty is to approach the Minister and ask him to make an order under s 36 (1) of the National Assistance Act 1948. That subsection provides:

'Where the Minister is of opinion, whether on representations made to him or otherwise, that a local authority have failed to discharge any of their functions under this Part of this Act, or have in the discharge thereof failed to comply with any regulations relating thereto, he may after such inquiry as he may think fit make an order declaring the authority to be in default.'
Seeing that is the remedy given by the Act, I do not think there is any other remedy available. The case falls within the principle that:

'... where an Act makes an obligation, and enforces the obligation in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.'
See Doe d Bishop of Rochester v Bridges n2. A good instance of that principle is Pasmore v Oswaldtwistle Urban District Council n3, where a local authority was put by statute under an obligation to make sewers for draining their district. It was held by the House of Lords that the only remedy was the specific remedy given by the statute, namely, a complaint to the Local Government Board. Policy and convenience dictated that decision in the case of sewers. Likewise here in the case of temporary accommodation for those in need. It cannot have been intended by Parliament that every person who was in need of temporary accommodation should be able to sue the local authority for it; or to take the law into his own hands for the purpose.



n2 (1831) 1 B & Ad 847 at 859, [1824-34] All ER Rep 167

n3 [1898] AC 387, [1895-99] All ER Rep 191   

I will next consider the defence of 'necessity'. There is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property. That is shown by Mouse's Case ([1608] 12 Coke's King's Bench Reports = Co Rep 63), where the ferryman at Gravesend took 47 passengers into his barge to carry them to London. A great tempest arose and all were in danger. Mr Mouse was one of the passengers. He threw a casket belonging to the plaintiff overboard so as to lighten the ship. Other passengers threw other things. It was proved that, if they had not done so, the passengers would have been drowned. It was held by the whole court that 'in any case of necessity, for the safety of the lives of the passengers' it was lawful for Mr Mouse to cast the casket out of the barge. The court said it was like the pulling down of a house, in time of fire, to stop it spreading; which has always been held justified pro bono publico.

The doctrine so enunciated must, however, be carefully circumscribed. Else necessity would open the door to many an excuse. It was for this reason that it was not admitted in R v Dudley and Stephens ([1884] 14 Queen's Bench Division = QBD 273, [1881-85] All England Reports =ER Rep 61), where the three shipwrecked sailors, in extreme despair, killed the cabin-boy and ate him to save their own lives. They were held guilty of murder. The killing was not justified by necessity. Similarly, when a man who is starving enters a house and takes food in order to keep himself alive. Our English law does not admit the defence of necessity. It holds him guilty of larceny. Lord Hale said (Hale's Pleas of the Crown, i 540) that 'if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely, and animus furandi, steal another man's food, it is felony'. The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man's. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good. Applying these principles, it seems to me in the circumstances of these squatters are not such as to afford any justification or excuse in law for their entry into these houses. We can sympathise with the plight in which they find themselves. We can recognise the orderly way in which they made their entry. But we can go on further. They must make their appeal for help to others, not to us. They must appeal to the council, who will, I am sure, do all it can. They can go to the Minister, if need be.  But, so far as these courts are concerned, we must, in the interest of law and order itself, uphold the title to these properties. We cannot allow any individuals, however great their despair, to take the law into their own hands and enter these premises. The court must exercise its summary jurisdiction and order the defendants to go out.
 

<Bibliography on the Defense of Necessity>

JUDGMENTBY-2: EDMUND DAVIES LJ.

JUDGMENT-2:
EDMUND DAVIES LJ. Nobody of even ordinary sensitivity could have read the affidavit evidence presented in this case without experiencing a feeling of deep depression. It serves to illustrate afresh the extent of the grave social problem presented by the dire shortage of adequate housing accommodation. But in fairness it has to be remembered that the circumstances present great difficulties to the local authorities concerned as well as to the benighted who are living in deplorable conditions or who may even be lacking a roof over theirheads. The one question presented by these appeals is whether the defendants have shown that a triable issue has been raised in answer to the action for possession brought by the council -- that and nothing else has now to be determined. If there is a triable issue, leave would have to be granted and the appeals allowed.

The background of these appeals is that there are undoubtedly in the Borough of Southwark a number of families living in dreadful conditions, many of them reaching the point of desperation. It has been urged that there is at least some ground for holding that the council is in breach of its duty under s 21 of the National Assistance Act 1948. It is said to be established that there are a number of homeless families; that (as the press statement issued by the council itself in September 1970 shows) there are, and have been for an unspecified period of time, several hundreds of houses standing empty; and that there are indications that some of those houses will remain empty until the year 1973. Accordingly, it is urged by both counsel for the defendants -- who, if I may be allowed to say so have aroused my admiration by the clarity of their submissions -- that there is a prima facie case of a breach of the duty imposed by s 21 (1) on every local authority:

'to provide... (b) temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine.'
I do not understand either of those young advocates, if I may so describe them, to be submitting that the defendants have a right as private citizens to bring proceedings to enforce compliance with s 21. Section 36 of the Act, to which Lord Denning MR has adverted, when looked at in the light of such well-known authorities as Pasmore v Oswaldtwistle Urban District Council n7, seems to negative the possibility of private citizens instituting proceedings in relation to a breach of s 21. But the allegation of such a breach is, as I understand counsel, relied on by them as underlining the reasonableness of the steps that the defendants have taken.They say that there were no homes for the homeless; there are no suitable homes for those living in quite deplorable conditions; on the other hand, there are empty houses which are fit or capable of being rendered fit for habitation which have in fact been, as the defendants put it, vandalised by the deliberate action of the council in order to render them uninhabitable.



n7 [1898] AC 387, [1895-99] All ER Rep 191

These appeals raise in an acute form the questions whether a plea of necessity is a defence to otherwise unlawful acts, whether such a plea has any place in English law, and, if it does exist, what are the limits and extent of its application. First, then, does it exist? The matter has been learnedly treated by Professor Glanville Williams n8. That the plea may in certain cases afford a defence does emerge from the recorded decisions: see, for example, Mouse's Case n9. In Moore v Hussey n10 Hobart J said:



n8 In (1953) 6 Current Legal Problems 216 and also in Criminal Law, The General Part, 2nd Edn, paras 229 et seq

n9 (1608) 12 Co Rep 63

n10 (1609) Hob 93 at 96

'... all laws admit certain cases of just excuse, when they are offended in letter, and where the offender is under necessity, either of compulsion or inconvenience...'
But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -- necessity can very easily become simply a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril, e g the forcible feeding of an obdurate suffragette, as in Leigh v Gladstone n11, where Lord Alverstone CJ spoke of preserving the health and lives of the prisoners who were in the custody of the Crown; or performing an abortion to avert a grave threat to the life, or, at least, to the health of a pregnant young girl who had been revished in circumstances of great brutality, as in R v Bourne n12 in 1939; or as in the case tried in 1500 n13 where it was said in argument that a person may escape from a burning gaol notwithstanding a statute making prison-breach a felony, 'for he is not to be hanged because he would not stay to be burnt'.Such cases illustrate the very narrow limits with which the plea of necessity may be invoked. Sad though the circumstances disclosed by these appeals undoubtedly are, they do not in my judgment constitute the sort of emergency to which the plea applies.



n11 (1909) 26 TLR 139

n12 [1938] 3 All ER 615, [1939] 1 KB 687

n13 See Glanville Williams, Criminal Law, The General Part, 2nd Edn, pp 725, 726

I would respectfully echo the doubts expressed by Lord Denning MR whether s 21 (1) has any application to this case. It appears to me to deal with a situation different from the grievous circumstances with which we are concerned in these appeals, a situation which arises from an emergency. The subsection speaks of temporary accommodation for persons who are in urgent need thereof. The whole structure and wording of the subsection seems to me to deal with an emergency. Unhappily, we are not here dealing with emergencies, but with an obstinate and long-standing state of affairs. No doubt each of the defendants with whom we are concerned is in urgent need of housing accommodation. But I venture to think that the subsection is dealing with case of dispossession or deprivation of accommodation by such sudden events as a fire, a flood, or something of that kind. Accordingly, while it is not necessary to express a conclude view on the matter, I do not at present regard this as a s 21 case at all.

Finally, even if necessity could be invoked in such circumstances as the present, it could surely at most justify merely an initial entry into premises in such circumstances as those to which I have referred. I do not see how it could possibly be permitted to extend to and authorise continuing in occupation for an indefinite period of time, which was the understandable aim of the defendants when entering these premises. I therefore have to concur with Lord Denning MR in holding that the public weal demands that these appeals be dismissed.

But I would add one parting note, if I may. In the adjoining Borough of Lewisham, the 'squatters' association' has come to an amicable arrangement with the local authority; they have contrived a working scheme which obviously needs to be carefully controlled, but which does appear to be relieving (if only to a limited extent) the dreadful plight of a certain number of homeless families. I go outside my judicial functions, I know, but I nevertheless do express the hope that the door is not closed finally, and that some consideration will be given in the Borough of Southwark to see whether something resembling the amicable Lewisham arrangement may be acived there also.

JUDGMENTBY-3: MEGAW LJ.

JUDGMENT-3:
MEGAW LJ. I agree. The real issue here, as it seems to me, is an issue as to policy in relation to this appallingly difficult question of present-day conditions of housing. The London Borough of Southwark take a particular view as to what is the best policy in relation to the use of houses in development areas which are for the time being unoccupied. The Southwark family squatting association takes a different view as to what would be the desirable policy with regard to such houses. Primarily the difference between them on policy, as I see it from the evidence which has been read to us, is that the squatting association think that more houses could properly be used for temporary accommodation than does the council; and, in particular, that houses which are going to be redeveloped, perhaps after a year or two years or three years, which require a considerable measure of repair, should be made available to those who are in great housing need in the borough, who could and would themselves, or with the assistance of others in the association, carry out the repairs. One factor which has to be borne in mind is that by allowing to be done what the squatting association wishes to be done there would at least be the danger that persons who are already on the council's housing list may find themselves, in relation to the obtaining of accommodation, falling behind those who are lower on the list or who have not been on the list at all; and it can well be understood that to such persons, who perhaps have been waiting their turn in the queue for a long time, it might be a matter of great heart burning, and perhaps the end of any possibility of maintaining the fairness to everyone which is inherent in an orderly queue. But in the end it is a matter of policy, and I have no doubt that the squatting association are firmly convinced that the policy which they urge and which they would wish to see adopted is indeed the one which is best not only for the members of their association, but for the community as a whole. I have no doubt that the council also is convinced that the policy which it has adopted is that which is best for their borough as a whole. It is a matter of policy in the widest sense of the word -- a political matter. The council is an elected body in a democratic society. If its poliy -- the policy which it prefers in a matter in which policy-making is for it -- is not that which is accepted by the community as a whole, then the community has its remedy in a democratic society. But what is sugested here is that individuals have the right in law to take steps to enter the property of the council with the intention and necessary result of defeating the policy which that elected body has decided to be the appropriate policy. In my judgment the doctrine of necessity in this country does not go so far, or anything like so far, as to say that those who take such a step in such circumstances are not committing an offence against the law, or that when they go on property of another they are not trespassing. I agree with the order proposed by Lord Denning MR for the reasons which have been given by him. I agree also with the views expressed by him and by Edmund Davies LJ as to the extent of the doctrine of necessity in our law.

DISPOSITION:
Appeals dismissed with costs. Orders for opossession in 28 days.

SOLICITORS:
Breeze, Benton & Co (for the defendants); E J Pitt, Deputy Town Clerk, Southwark (for the council).