Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
I saw a statement recently on a website [sorry, can't pinpoint it, but I assume it
may have been about bailiffs] that said that the introduction of the Human Rights Act may lead to a reduction in the use of bailiffs in the future.
At first I found it hard to see how since the Act is mostly concerned with how we are treated by public authorities-government departments, councils and the police for
example. And no way could a DCA be described as a public authority. However,
on further reading of what constitutes a public authority put things into perspective.
In clarification of public authorities, an example was that a private security company
transporting prisoners from one prison to another, because they were working on behalf of a public authority, were subject to the Human Rights Act, but would not be subject to it when going about their normal duties.
So a dca collecting on behalf of a private company would not be so classified. But
when chasing an unpaid Court fine, or a parking ticket issued by a Council [or TFL] would
be subject to the Human Rights Act. This is what article 8 says
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
And protocol 1 says this "You have the right to the peaceful
enjoyment of your possessions. This means that
public authorities cannot usually interfere with
things you own or the way that you use them."
It also means that bailiffs cannot clamp your car as a first resort. While they may be able to clamp them under other Acts, that puts them in conflict with the
Human Rights Act since that prevents interference by public authority.
I am sorry this post has gone on for so long, but it appears to me that the Act
is another weapon in our armoury. THere is a fair bit more ground to cover, but
it would be interesting to hear other views first.
Just as long as you remember that it is only when bailiffs are acting for a public
authority that the act can be used. But things like harassing you at your front door,
even forcible entry could come under the act. As the government is bringing out
new rules for debt collection, the sooner some of these practices are questioned, the better.
Bear in mind also , that if something like clamping a car is deemed contra to the Human rights act, then it cannnot be right for bailiffs to do it when not working
for a public authority either.
I saw a statement recently on a website [sorry, can't pinpoint it, but I assume it
may have been about bailiffs] that said that the introduction of the Human Rights Act may lead to a reduction in the use of bailiffs in the future.
At first I found it hard to see how since the Act is mostly concerned with how we are treated by public authorities-government departments, councils and the police for
example. And no way could a DCA be described as a public authority. However,
on further reading of what constitutes a public authority put things into perspective.
In clarification of public authorities, an example was that a private security company
transporting prisoners from one prison to another, because they were working on behalf of a public authority, were subject to the Human Rights Act, but would not be subject to it when going about their normal duties.
So a dca collecting on behalf of a private company would not be so classified. But
when chasing an unpaid Court fine, or a parking ticket issued by a Council [or TFL] would
be subject to the Human Rights Act. This is what article 8 says
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
And protocol 1 says this "You have the right to the peaceful
enjoyment of your possessions. This means that
public authorities cannot usually interfere with
things you own or the way that you use them."
It also means that bailiffs cannot clamp your car as a first resort. While they may be able to clamp them under other Acts, that puts them in conflict with the
Human Rights Act since that prevents interference by public authority.
I am sorry this post has gone on for so long, but it appears to me that the Act
is another weapon in our armoury. THere is a fair bit more ground to cover, but
it would be interesting to hear other views first.
Not too sure what might be deemed ' but not whilst going about their normal business '. but it's a very useful observation you have made here.
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Any private company who's activities are overseen by a statutory body (OFT) is subject to the Human Rights Act as follows
When can the Human Rights Act be used?
The Human Rights Act applies to public authorities, including bodies which carry out public functions. It does not generally apply to disputes with a private individual or company, unless it is carrying out a public function (for example, a home providing accommodation for the local authority).
However, section 6(1) says: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." Public bodies must therefore be proactive in promoting user rights. If a private company is disregarding your Convention rights, you may be able to use the Human Rights Act if you can show that the Government, or another public body, has a legal duty to intervene.
As the the police are just such a body who won't act then it may be the HRA applies
Quote=Andrew1.Not too sure what might be deemed ' but not whilst going about their normal business =quote
That would be instances where bailiffs were pursuing debts that they own [even
had they originally been from a public authority], or debts that they are collecting
on behalf of a bank or credit card company.
You make a good point Joncris. Up to now, I took it that only if bailiffs were acting
on behalf of a public authority could we invoke the Human Rights Act [partly 'cos
I skimmed article 6], but
that statement should mean that any act by a bailiff that contravenes the Act
can be referred to the OFT as well as the police, since the OFT have a legal duty to intervene as they licence bailiff companies.
Bear in mind that this is a comparitively recent Act, probably with not too much
case history, especially as it appears councils are caving in rather than go to
Court in some cases involving Human Rights.
Now I'll have a look at my own case and see if I can use the act to my advantage.
There is something in this. I suspect that why all be they changed the law allowing forced entry by baliffs colecting magistraits court fines. They have not been useing the power.
as I suspect they have relised there in for a slaping by
europian court of human rights if they do.
Iv been saying for a while i belive there an inconpatablitiy with the humanrights act on this one and that why there not been a flood of fourced entrys done.
I am not sure that bailiffs exercise their right to forcibly enter very often anyway.
Usually the threat is more effective than actually attempting a forced entry.
The resultant publicity often reflects badly on the bailiff and they mainly seem
to do it when ejecting squatters, with police in attendance.
Our Human Rights Act differs from the European Convention of Human Rights.
And though the bailiffs do not have the right under the HRA to forcibly enter, it may not always be unlawful to so enter, particularly as there are other laws in
existence where forcible entry is permitted. However, under the HRA unless
certain conditions are in place, the use of force would not be considered as
lawful unless as a means of last resort. Every case would need to be judged on its merits, and incompatability may not always apply.
As we have seen the police & the OFT will not act even when there is a clear breach of the law by the DCA's.
This makes a bit of a joke when the government states they do not intend bringing in any new regulation governing the conduct of these people as & I quote "there are already laws in place to which the public can turn & (this is the best bit) they have a voluntary code of conduct to which they are required to adhere"
As we have seen the police & the OFT will not act even when there is a clear breach of the law by the DCA's."
As regards the OFT, it would be unrealistic to expect them to revoke the licence
of a bank for example. But to be fair to the OFT, they have forced the credit card companies to halve their charges for infringing the T&C's: they are working on
doing something similar with regard to bank charges;they have referred PPI
insurance to the Competition Commission; they have forced RyanAir to amend
several terms on their tickets which they considered unfair as well as revoking
Consumer Credit Licences et, etc. Not bad for a years work.
That the OFT have failed to act in other instances may be that the approach was wrong, just as the Court can reject a case that is not properly brought to Court.
I still have the hump with the Police for not dealing with my case, but I do accept
that an awful lot of their time and manpower are fully committed to thwarting
any further terrorist acts in the London area.
Some interesting posts!First, it is confusing to refer to bailiffs as DCAs. They are not debt collectors as I've said many times before. They are not collecting debts but executing warrants issued by the courts. Again, as I've previously noted, bailiffs do not have to have a consumer credit licence; you only need one to collect debts (see above - they are executing warrants not collecting debts).On the comments made regarding the Human Rights Act.Under the terms of the European Convention on Human Rights (ECHR) which, in the UK, is legislated through the Human Rights Act 1998 (HRA) everyone has basic rights. However, in line with the democratic processes of civil and criminal law, there are exceptions. For example, Article 8 states, “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary …… for the prevention of disorder or crime….”What this means is that a bailiff executing the order of a court may seize goods and HRA offers no protection against such seizure, except, for example, if the bailiff acts in an excessive (disproportionate) or abusive manner (Articles 1 and 8) or conducts a wrongful entry (Article 8).As bailiffs recovering council tax, business rates, unpaid fines, parking penalties etc, are acting on the order of a court, the general exemption applies. You could only bring an action against the bailiff’s public body client, if the bailiff has acted inappropriately as described above.One final point for those thinking that the seizure of a car for a £60 parking penalty is disproportionate. Yes it is, but only if there are other goods of a more appropriate value available. If the bailiff cannot access anything else (as will be the case when the debtor refuses to let the bailiff in the house), it is NOT disproportionate to seize a valuable car.
My apologies for confusing DCA's and bailiffs it is a fault I have-possibly because they are both after ones' money.
That being said, the HRA 1998 is not quite as clear cut as you seem to suggest BLF
since the right of a bailiff [or anyone else]under the section 8 of the Act is a qualified one
"There shall be no interference by a public authority with the exercise of this right except such is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom"
there is nothing there that allows a bailiff to enter ones house, forcibly or
otherwise to remove goods, since there are no national security interests, public
safety, economic wellbeing, prevention of disorder or crime, or protection of
health or morals at stake. My feeling is that merely to take goods following a
previous visit, especially without taking into account offers to pay, would be an
offence under the Act. And so is removing/ clamping/ securing a car especially at
an early stage. Until all other avenues have been explored and failed then the
Court may feel that the action was appropriate. So, with respect, to secure a
valuable car just on the grounds of being refused entry, is not in itself an
appropriate action.
My apologies for confusing DCA's and bailiffs it is a fault I have-possibly because they are both after ones' money.
That being said, the HRA 1998 is not quite as clear cut as you seem to suggest BLF
since the right of a bailiff [or anyone else]under the section 8 of the Act is a qualified one
"There shall be no interference by a public authority with the exercise of this right except such is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom"
there is nothing there that allows a bailiff to enter ones house, forcibly or
otherwise to remove goods, since there are no national security interests, public
safety, economic wellbeing, prevention of disorder or crime, or protection of
health or morals at stake. My feeling is that merely to take goods following a
previous visit, especially without taking into account offers to pay, would be an
offence under the Act. And so is removing/ clamping/ securing a car especially at
an early stage. Until all other avenues have been explored and failed then the
Court may feel that the action was appropriate. So, with respect, to secure a
valuable car just on the grounds of being refused entry, is not in itself an
appropriate action.
I disagree. It is entirely appropriate to seize goods which are available according to law. The key wording, which is very clear is - except such as in accordance with the law. If a court of law orders the seizure of goods under the authority of a warrant issued by that court, then the seizure of goods is in accordance with the law.bailiffs acting under a warrant to seize goods may seize goods in accordance with the laws which govern such seizure. There is no breach of HRA provided the seizure is not excessive nor irregular. That's all there is to it.
Tbern-that was established as a yes several weeks ago.
Blf- it looks as if we are going to disagree on this, but I believe the reason that
almost the opening statement of my first post would hopefully confirm my stance-
viz" the introduction of the Human Rights Act may lead to a reduction in the use of bailiffs in the future."
It goes to incompatability. Yes there are laws that allow the seizure of goods, but
they conflict with the HRA. In such circumstances, the Court would have to
decide whether an action of the bailiff to seize goods, or secure a car, thus contravening the HRA was appropriate. And as the action is taken is to recover a
debt, that action does NOT come under any of the actions that qualify it as
allowable under article 8[2]. It may be in the interests of the bailiff to recover the money, but it is not in the national interest or any of the other reasons so specified.
Moreover,if you look at the post by Joncris [post 5] he has a link that indicates
Councils are already aware that the HRA gives them a problem when towing cars,
and are not contesting claims when the HRA is cited in towing cases. .
A bailiff is bound to fight their corner & disagree with the victims of debt collectors otherwise admitting you may be wrong sort of blows it.
However any comment from insiders such as bank, bailliff, CRA is welcome If nothing else it reveals their mindset & their absolute certainty that they are correct in their interpretation of the laws of this land. This is not withstanding that after some delay more & more people are turning to the HRA to obtain justice even though much of it is as yet untried in the areas it's being applied
Blf- it looks as if we are going to disagree on this, but I believe the reason that almost the opening statement of my first post would hopefully confirm my stance the introduction of the Human Rights Act may lead to a reduction in the use of bailiffs in the future
Everyone is entitled to their opinion. However, the courts looked at HRA when it was introduced in 1999. At that time there was a reduction of work issued by magistrates' courts (for example), which lasted only a short while as new procedures were introduced to satisfy ECHR BEFORE issuing warrants to bailiffs. In every case now, when a warrant is issued (for every type of work), it has already gone through a process which satisfies ECHR and HRA. Several attempts have been made to challenge bailiff action under HRA in the courts - all have failed. The Starsbourg jurisprudence agrees that all current bailiff action in England and Wales (provided it conforms to the relevant laws, of course), is in line with ECHR. While you may not agree, the courts in UK and Strasbourg have already ruled.
Human Rights Act 1998
] that said that the introduction of the Human Rights Act may lead to a reduction in the use of bailiffs
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Originally Posted by lookinforinfo
Thank you.
