27 May 2019

Sometimes the law seems grotesque, says ex-deputy chief constable – Tom Wood.

A friend who made an honest mistake as a new landlord received a greater punishment that a criminal who assaulted a police officer, writes Tom Wood.

I was reminded of the famous verse from The Crocodile Song when I attended a recent sitting of the First Tier Housing and Property Tribunal for Scotland.

In a long police career, I have been in most of Scotland’s courts, even given evidence in a couple of employment tribunals but this was a first. I was there to support a young friend, one of our accidental landlords who had recently taken over the management of an old family flat and who, in their naivety, had transgressed against the letter of the law.

But I was also interested to see the workings of one of the largely hidden parts of our justice system. We hear very little of the work of our various tribunals as they grind out the administration of our increasingly complex justice system, mostly behind closed doors. So I was looking forward to the hearing, confident that my friend’s error was minor and that any penalty would be proportionate.

The transgression was uncontested; as a registered landlord my friend had failed to lodge a tenants rental deposit in an approved scheme within the statutory time, this being contrary to the Tenancy Deposit Scheme (Scotland) Regulations 2011. An oversight by a new landlord, the mistake had been quickly rectified with no loss to the tenant.

The tenancy deposit scheme was introduced to protect tenants from unscrupulous landlords unfairly retaining deposits, fair enough. But since any penalty awarded is paid directly to the aggrieved tenant and there is no jeopardy for vexatious complaints, the legislation is also a gift to malice and opportunism.

Anyway, the hearing started well, a smart office in Edinburgh, helpful staff, a prompt start and a personable single legal member sitting to adjudicate. The process was explained in a friendly informal manner, not a wig or gown in sight, and since the facts of the case were simple and uncontested, the hearing was brief followed by a five-minute recess to consider what penalty, if any, was appropriate.

For their oversight, which I emphasise brought no detriment whatsoever to the tenant, my friend was penalised a sum of over£600. To put this in context, in the same week a criminal was fined £500 for assaulting a police officer to his injury and in Hawick a man was fined £425 for the possession of cocaine and cannabis.

An appeal is, of course, permitted and I would strongly recommend it, but I doubt my friend will pursue it. Bruised by their one and only brush with the justice system, I suspect they want nothing more to do with it.

And I am left with a question. Is this the balance of justice we want carried out in our name, is it fair and proportionate that an administrative error be punished more severely that crimes involving violence or drugs? But perhaps we also share responsibility, perhaps we should pay more attention, look more closely at the standards of justice meted out by our legal tribunals. In the meantime, the accidental landlords, the one without the legal back-up of big property companies, should beware. From my observation, the Housing and Property Tribunal is heavy-handed, the scales of justice weighted against you.

The application of the law is meant to be fair and proportionate in all cases. What I witnessed was arguably fair within the letter of the law but it was grotesquely disproportionate. We should pay more heed and not be taken in by their friendly grin.

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