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

[letsmakeamark]

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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\Criminal 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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[Mr lex]

Thank you for posting this.

 

Very useful and very interesting reading.

 

Lex

[letsmakeamark]

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

[Mr lex]

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

 

Lex

[Mr lex]

This bit sort of gives it away

 

Policy Ownership: Criminal Justice Department

[letsmakeamark]

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

[Mr lex]

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 !!

[letsmakeamark]

That the criminal justice dept for you.

[letsmakeamark]

Bumping It Up .

[Mr lex]

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

[letsmakeamark]

Dont look like anybody is reading this ?

[Mr lex]

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

104,736

 

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

[caxtonman]

Hi there. Great thread and very useful. Does the 'not allowed forced entry" also include opening locked cupboards, cabinets or safes within the home/premises that a bailiff has gained entry to?

Would that constitute criminal damage?

All the best, Stu:)

[Mr lex]

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

 

Lex

[ploddertom]

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

[paddygibbons]

Really eye opening stuff my ex-partner had a problem with HCEO on the 01/11/2010 I posted a topic under Intimidation by HCEO they come to her addresslooking for me, for a start I have never lived at the address and I had not seen my ex in 5 months, she told them this and she also told them she was the tenant of the address not the person they were looking for, her pet dog moved the parlour door at this moment the 2 HCEO barged pasted her to see who it was, she told them to get out of her house as the person they were looking for did not live here but the HCEO bailiff a MR Roberts from Marston Group based in Waltham told her if you don't let me look around your house I will seize your goods, with this my ex became scared so she let them she told Mr Roberts that she was going to her room to change as she had her pyjamas on and she later told me it was a good job she wasn't about to change clothes because the HCEO Mr Roberts came behind her she told him to get out the room but he said just am just doing my job, and began looking through draws wardrobes etc. My ex-partner is getting some assistance with from a user of this site who is going to prepare her some Template letters to write to Merseyside Police, Liverpool City Council and Marston Bailiff Group. My ex has been to the Police to put in a complaint and the Police did ring the HCEO in question and put it to him why did enter the property without consent, Mr Roberts the HCEO told him that my ex, invited him in and he produced ID, something I did not mention before he did not show my ex any ID or paper work whatsoever. The police said their hands are tied but they gave my ex a number to ring encase they return and a level 3 alert.

[DeeDee401]

Funny. We contacted Devon and Cornwall police to complain about Bailiff who was repeatedly harassing us. (including phoning us up to 6 times a day) and even vandalized our vehicle. They didn't want to know and completely fobbed us off letting us deal with the matter ourselves! Nice.

[smouk]

Adding my tuppence worth...

 

Encounter with a violent hired goon (self-employed but masquerading as Jacobs) in Penzance. D&C Plod called, arrived after 15mins, confirmed warrant was "valid" - even though I couldn't be shown it 'cos I might rip it up - and then chatted merrily away to my assailant while I harrangued Cornwall Council (to no avail) over their almighty cock-up.