Thread: Devon and Cornwall police guidelines for police and bailiffs alike (Home office guide lines issued to all Forces)

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DEVON & CORNWALL
C O N S T A B U L A R Y
Force Policy & Procedure Guideline Attending Premises with bailiffs
Reference Number D222
Policy Version Date 11 June 2008
Review Date 01 June 2009
Policy Ownership: Criminal Justice Department
Portfolio Holder: Assistant Chief Constable (JPS)
Links or overlaps with other policies:
DEVON AND CORNWALL POLICE AND PROCEDURE GUIDELINE D222
ATTENDING PREMISES WITH bailiffs
Version dated: 11 June 2008
1. POLICY AND AUDIT IDENTIFICATION
1.1 This policy has been drafted and audited in accordance with the principles of
Human Rights legislation and the Race Relations (amendment) Act 2000. Under
the Freedom of Information Act 2000, the document is classified as OPEN.
2. POLICY STATEMENTS/INTENTIONS
2.1 This document is designed as a reference point for officers when dealing with
bailiffs and other officers of the court legally authorised to collect a debt on behalf of
a creditor.
2.2 The policy gives officers guidance on their role when attending premises with
bailiffs, and for their information also provides summaries of the rules bailiffs should
follow when lawfully conducting their business.
2.3 Policy Contents:
3. Introduction
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4. Procedures
5. Determining Criminal Liability
6. Review
7. Appendix A – Range of Bailiffs and Enforcement Officers
8. Appendix B – Bailiff Rules: Gaining Entry to Premises
9. Appendix C – Bailiff Rules: Inside Premises
3. INTRODUCTION
3.1 The law relating to bailiffs and their powers is extremely wide. Using legal
authorisation, they may collect debts for any number of creditors. This can
sometimes be a difficult experience for both debtor and bailiff, which is why officers
may be called to attend.
3.2 The usual authority of a bailiff is a warrant issued by a county court to recover
goods or monies owed, or goods to the value of monies owed, from a debtor. The
alternative authority officers will likely experience is a distress warrant or liability
order issued by a Magistrates’ Court.
3.3 The Constabulary's involvement with regard to the policing of bailiffs – as with any
other civil dispute - is to prevent a breach of the peace from occurring, or to attend
an incident when a specific criminal offence has occurred or is likely to occur.
3.4 These instances will largely be confined to: disputes by debtors over a bailiff’s entry
to their premises when executing a warrant or liability order; the lawful conduct of
the bailiff when entering and inside the premises; and any criminal/illegal activity
committed by either a bailiff or debtor.
3.5 Further Guidance on Bailiffs is available in the Appendices, and:
The National Standards for Enforcement Agents, which are advisory and not
mandatory minimum standards for bailiffs. Available at:
Department for Constitutional Affairs - Enforcement - National Standards for Enforcement Agents
The Association of Civil Enforcement Agencies’ Guide to Bailiffs & Bailiff Law for
Police Officers. Available at:\\hqdc2\hqdc2dfs\Crimi nal Justice
Department\HQ\Operations\ Guidance and Legislation\Attending Premises with
Bailiffs\ACEA Police Guide to Bailiffs & Bailiff Law v1.1.pdf
4. PROCEDURES
4.1 When first called to a scene, or if attending a scene with a bailiff by prior
arrangement, a constable should be satisfied of:
a. The bailiff's identity and status,
b. The authority on which the bailiff has or seeks to enter the premises;
including any relevant documentation which gives the bailiff the power to
enter the premises,
The fact that the bailiff has located the correct premises or correct debtor.
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4.2 Advice for bailiffs is that they should always, upon request, produce relevant
identification, such as a badge or ID card, together with a written authorisation to
act on behalf of the creditor.
4.3 If a bailiff or court officer is unable to provide evidence of identity, status, authority
or power, and is causing a breach of the peace or committing an offence, the police
constable should prevent the bailiff from entering the premises, or if already on the
premises, should remove the bailiff/court officer at once.
4.4 If the documentation is in order, the constable should remind the bailiff that entry
must be obtained without force, except in the circumstances highlighted in
Appendix B. N.B. Bailiffs can take goods from outside the premises such as a
debtors car on a driveway (if they have a clamping order), or garden equipment.
4.5 Constables should be aware of their duty to keep the peace. If there is a sufficiently
real and imminent threat of a breach of the peace, the constable should be very
careful when determining who is acting unlawfully, then act accordingly by arresting
the prime culprit of the potential breach, or using his/her discretion to diffuse the
situation. It is vital to remain impartial to determine whose conduct is unlawful.
4.6 However, it is not the responsibility of the Officer to act as an arbitrator between the
bailiff and the debtor, nor to determine the rights and wrongs of the issue, and in no
way should the officer assist in the seizure of any goods.
5.0 DETERMINING CRIMINAL LIABILITY
5.1 When determining that there is a sufficiently real and imminent threat of a breach of
the peace, which justifies an arrest, the officer must decide whose conduct is
causing that breach.
5.2 If the bailiff were hindered in any way whilst acting lawfully and reasonably in the
course of their duties, then that would constitute a breach of the peace by those
causing the obstruction.
5.3 If a debtor is present when a bailiff is entering and levying distress, he/she could
face arrest and criminal liability if:
a. They forcibly exclude the bailiff from his/her premises should they have
gained peaceful entry. N.B. This could result in subsequent forced re-entry
by the bailiff, as outlined in Appendix B.
b. They conceal or remove goods that have been allocated as the subject of
distress during an earlier visit (this is known as ‘Walking Possession’). N.B.
in other cases a debtor is well within his/her rights to conceal or remove
goods in order to avoid distress.
5.4 However, should the bailiff be acting unreasonably or unlawfully whilst gaining
entry, whilst inside the premises, or so to provoke the debtor, then that will be
considered unlawful on their part.
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5.5 Police constables should also be aware that in very rare cases a bailiff's persistent
and frequent actions or demands for payment may constitute harassment under
Sec. 40 of the Administration of Justice Act 1970.
5.6 If other elements exist, such as a bailiff threatening or using violence to gain entry,
or assault or criminal damage by either party, then other powers of arrest should be
used.
6.0 REVIEW
6.1 The contents of this guideline will be reviewed annually by the Commander,
Criminal Justice Department.
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7.0 APPENDIX A – RANGE OF BAILIFFS AND ENFORCEMENT OFFICERS
7.1 County Court Bailiffs:
Enforce money owed under county court Judgement debt.
• Power: can Seize and sell goods, effect and supervise the possession of
property and the return of goods under hire purchase, and serve court
documents.
7.2 High Court Enforcement Officers:
Enforce money owed under high court judgement, or judgement transferred from
county court.
• Power: Can seize and sell goods, & enforce and supervise the possession of
property and the return of goods.
7.3 Civilian Enforcement Officers (CEO’s are employed by HMCS):
Enforce Magistrates’ Court Orders, fines and community penalty notices.
• Power: can Seize and sell goods to recover amount of money owed under a fine
and community penalty notice. Under certain statutes, have the power of
ARREST, committal, detention and distress.
7.4 Certificated Bailiffs:
Enforce debts on behalf of a variety of organisations, including magistrates’ courts
and local authorities.
• Power: They can seize and sell goods to cover the amount of debt. They hold a
certificate, which enables them (only) to levy distress for rent, road traffic debts,
council tax, non-domestic rates, and debts of Child Support Agency, Inland
Revenue, Customs & Excise (VAT), and Magistrates Court Fines. They cannot
enforce monies owed under High/County Court Orders.
7.5 Non-Certificated Bailiffs:
Enforce debts owed to a variety of organisations.
• Power: are only entitled to seize the goods that are subject of the to the
particular debt being pursued, e.g. a car bought on credit when the payments
have not been made.
7.6 The above list is not substantive, and there are a few other people/organisations
that have similar powers to bailiffs. These include Landlords enforcing rent and
Collectors of Taxes who enforce unpaid Income Tax and National Insurance.
7.7 In Devon & Cornwall, HMCS contracts the civil enforcement agency 'Drakes' (a
certificated bailiff) that works on its behalf with regard to executing warrants of
distress in respect of non-payment of fines. They are not contracted to execute
warrants of arrest, this is undertaken by CEOs and Devon & Cornwall
Constabulary.
8.0 APPENDIX B – BAILIFF RULES: GAINING ENTRY TO PREMISES
8.1 The actions of a bailiff lawfully entering a premises and seizing and selling goods to
cover monies owed by the debtor, including the bailiff’s fees, is called ‘levying
distress’. The term ‘distress’ used on its own generally means the procedure for
bailiffs just to ‘seize’ goods; this may not necessarily involve removing and selling
the goods.
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8.2 The basic rule for Bailiffs is that entry should be without force, thus they have the
right to peaceful entry only. There is no legal requirement by a debtor to let a bailiff
into their home.
8.3 To gain peaceful entry, the bailiff can walk through an open door, open an unlocked
door, climb through an open window, and even climb over a wall or fence, provided
no damage is caused in so doing.
8.4 The bailiff cannot, however, break open a closed but unfastened window or door,
open a closed latched window, or use a locksmith to open a door. Use of a
landlord's key is also illegal. They cannot force their way past someone at a door,
or wedge their foot in a doorway to prevent the door being closed. The protection
against forced entry extends to all buildings physically attached to the living
premises.
8.5 Reasonable Force may be used to gain entry in these circumstances only:
a. A bailiff is executing a magistrates distress warrant for non-payment of fines.
b. A bailiff has once previously entered a debtor’s home peacefully, or was
forcibly ejected by the occupier after gaining lawful entry, and is returning to
levy the goods.
c. The officer is a High Court Enforcement Officer and the premises to be
entered with force are separate non-domestic premises, which are not
connected to the living accommodation, e.g. a workshop or barn. Or, the
premises are a third party's house where goods have been taken to avoid
seizure by a bailiff. A demand for entry should always be made first.
d. More rarely, a Landlord has a County Court Possession order to evict a
tenant, or requires entry to a stranger's premises and has an oath sworn by
the Magistrates to the effect that there are grounds for believing goods have
been fraudulently removed to those premises.
E Or, an Inland Revenue Collector enforcing income tax for HMRC has a
warrant to force entry.
N.B. A County Court Bailiff must always obtain the permission of a District Judge
before a forced entry to separate non-domestic premises, stranger’s
premises, or when returning for a second time to remove a debtors goods.
8.6 With regard to time of calling, only bailiffs collecting rent are obliged to call after
sunrise and before sunset. There are no restrictions for when a levy of distress
shall commence in respect of unpaid fines, costs and compensation. N.B. The
National Standards for Enforcement Agents, which are advisory and not
mandatory, highlight that enforcement should only commence at a reasonable time
between 6am and 9pm, or during trading hours, excluding Sundays and Public
Bank Holidays, unless the court specifically orders otherwise or legislation permits
it.
9.0 APPENDIX C – BAILIFF RULES: INSIDE PREMISES
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Thank you for posting this.

Very useful and very interesting reading.

Lex

So would i be right in thinking this is a guide to other police authorities ?

It would seem to be, my guess is it is Home Office guide lines to all forces.

Lex

This bit sort of gives it away

Policy Ownership: Criminal Justice Department

So in theory all police forces should have this in one form or another ?

You would like to think so.

Doing a google doesn't bring up anything more from the Criminal Justice Department achives as a general release to all forces. In fact, this thread comes up fourth !!

That the criminal justice dept for you.

Bumping It Up .

Hi Letsmakeamark

I think this is a valubale thread to keep at the top. I have made it a 'Sticky'

Thanks again for posting it

Lex

Dont look like anybody is reading this ?

Sticky: Devon and Cornwall police guidelines for police and bailiffs alike (Home office guide lines issued to all Forces)(1 Viewing)
letsmakeamark

Today 15:46
by letsmakeamark

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4,736 views.

Reading some of the threads, that supprised me.

I've made it a 'sticky' and put it on Joomla. The rest is down to the membership.

Lex

As far as I can see, yes it would. A High Court enforcement officer may well be another story.

Lex

Unfortunately if a bailiff has gained peaceful entry to a premises he is allowed to force open any locked internal doors, cupboards, chests etc within the premises.

A HCEO has to gain peaceful entry like a bailiff to residential premises but is allowed to force entry to any detached buildings eg garage if he believes there may be goods inside to satisfy the debt. He is allowed to force entry to any commercial premises unless your residential accomodation is attached to it in which case he has to gain peaceful entry first.

PT