Bailiff and Policed Forced Entry?

[wonkeydonkey]

This came from House of Commons Library

 

 

 

 

Bailiffs

Standard Note:

SN/HA/4103

Last updated:

4 January 2011

Author:

Lorraine Conway

Section

Home Affairs Section

[Thegreenpimpernel]

Wonkey said:

 

"This came from House of Commons Library"

 

What did? The previous post, or is something not showing in post #26?

[hallowitch]

good find WD post me a link so i can read it in full

[wonkeydonkey]

http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04103.pdf

[ploddertom]

Case law dictates that Distress for Rent should not take place between sunset & sunrise, therefore as I said earlier it looks as if they called out of time - even if it was just a few minutes - therefore they were committing trespass.

 

Entry Rights of the Bailiff

Case law also says that a bailiff may "do that which, if any other person did it, would be a trespass". Acting lawfully he has a right to enter premises although this right is based on 2 important conditions:

 

1 - the right of entry must be exercised in a peaceable manner, if entry is obtained through force it is an illegal act and the distress is trespass. A criminal offence may also be committed.

 

2 - Case law restates that his entry must also be with permission. At the Court of Appeal it was stated that entry may only be made "with the consent of the occupant or person in in possession of the premises".

 

It can be seen that the Bailiffs rights of entry are less than what they think they are.

 

A challenge brought under Section 8 of the ECHR has confirmed that the Police must strike a fair balance between the right to respect for the home and the prevention of crime & disorder, and must ensure that their actions are proportionate to the degree of risk existing at the time. Officer Dibble had no right assisting the Bailiff in this matter.

 

PT

[Thegreenpimpernel]

PT

 

Any details or links to those rulings / case law? I understand if there isn't - i can't remember where and when i read things.

 

Besides, this case still boils down to whether 'a foot in the door' is 'forced entry'.

 

Putting your foot into the space that appears when ANY inward opening door is opened certainly does not involve any use of force.

 

We really need to sort this one out. If we don't, we may as well post a sticky saying "Once you open the door by six inches, they are in - that's it" then put our keyboards away....

 

I don't believe this is the case, but we need to back it up with facts and win this one.

[ploddertom]

PT

 

Any details or links to those rulings / case law? I understand if there isn't - i can't remember where and when i read things.

 

 

I'll send you a PM with the details of them but give me a day or three to do it as the back end of the week is my busiest period. It's not that I want to keep the details secret but don't want to alert the enemy too much on the arsenal at ones fingertips.

 

PT

[ploddertom]

I do have something on the "foot in the door" trick somewhere but can't find it at present.

 

PT

[Thegreenpimpernel]

Thanks.

[scouseseamus]

If you have a look at this site below it proves that foot in the door is forced entry

 

direct.gov.uk/en/MoneyTaxAndBenefits/ManagingDebt/DebtsAndArrears/DG_10034289

 

I have the sergeant visiting me this morning so will be gathering all the information together and will post an update after the visit.

[brassnecked]

If you have a look at this site below it proves that foot in the door is forced entry

 

direct.gov.uk/en/MoneyTaxAndBenefits/ManagingDebt/DebtsAndArrears/DG_10034289

 

I have the sergeant visiting me this morning so will be gathering all the information together and will post an update after the visit.

 

"

What bailiffs can and can't do

 

If the bailiffs come to your home, you don't have to let them in. They can't force their way in, but they can enter through an open window or an unlocked door.

Forced entry includes pushing past you once you have opened the door to them, or leaving their foot in the door to prevent you closing it. Such action would make the whole process illegal.

Bailiffs recovering unpaid magistrates' court fines, however, do have the power to force entry, but this is always a last resort.

Bailiffs trying to recover money you owe to HMRC are allowed to break into your home, providing they have a magistrates' warrant - but this method is rare and only used as a last resort."

 

 

Quoted from that very site, Officer Dibble, Dutti Babylon, Plod or whatever we call him was way out of order, as it was therefore forceable entry. the bailiff has committed a criminal offence imho, and should lose his certificate (in a perfect world he would)

[ploddertom]

You need to push the point of what did the PC who attended know of Bailiff rights and wrongs - I would guess very little.

 

PT

[brassnecked]

You need to push the point of what did the PC who attended know of Bailiff rights and wrongs - I would guess very little.

 

PT

 

Agreed PT this aspect should be stressed in any complaint made regarding the officers behaviour and actions in support of the bailiff.

 

Police should be properly trained in aspects of what bailiffs can and cannot do, when they attend as they are not there on behalf of the bailiff or the debtor, but to uphold the "Queens Peace" In the OP's situation it was indeed the bailiff who should have been arrested, as it was he, on the facts as presented who was "breaching the peace"

[scouseseamus]

Ok, new update on this one.

 

The police sergeant advised me to bring a civil litigation complaint against both the Debt Collectors and also Merseyside Police.

 

Anyone know of a decent legal aid solicitor who would look at this case?

[fork-it]

You dont need legal aid for this. The system is user friendly.

 

To make a claim against a debt collector, file a Form N1 at your local county court.

 

To make a claim against police or a specific officer then make a complaint with the IPCC and say what you want the police to do e.g. how much they should pay, compensate you for misfeasance, professional incompetence etc.

[caledfwlch]

So if I understand correctly then, if I hear a knock on the door whilst upstairs, look out and see a bailiff, tell him to bugger off, and he then walks in through an open door or window, it is still forced entry, since he does not have my permission?

[Leakie]

don't think it is quite as easy as that,

my understanding is you are correct if they have not made a legel levy

 

 

if the have a legel levy. then open window /doors fair game

 

But i stand corrected if others correct me.

Edited February 14, 2011 by Leakie
add sentence

[Surfer01]

Can they levy on first visit?

[hallowitch]

Can they levy on first visit?

 

yes thats why the bailiffs there (at the property) to levy

 

 

A For making a visit to premises with a view to

Levying distress (where no levy is made) -

(i) where the visit is the first or only

such visit): £24.50

(ii) where the visit is the second such

visit: £18.50

[spamheed]

They do not require a levy to enter through an open door or window, this would be considered peaceful entry.

 

Use of force can best be summed up as a situation where a person is opposing the bailiffs entry, ie, the householder trying to close the door and the bailiffs foot prevents its closure.

[seanamarts]

Placing a foot in the door to prevent you from closing it is classed as forced entry. Fact!

A judge ruled in my case that the Bailiff had overstepped his authority by way of preventing me from closing the door by leaving his foot in the door way. THEY CAN NOT PUSH OPEN A DOOR AND FORCE THEIR WAY PASSED YOU.

PT is correct when saying that a bailiff collecting for rent arrears can only collect between daylight hours.

The police cannot intervene and can only stand by to make sure no unlawful act has been committed by either party. the police are wrong in allowing the bailiff entry to your property. This is a civil matter. All the police should of done is advise.

[Thegreenpimpernel]

Hello seanam.

 

Thanks for posting that.

 

I had the pdf of your court judgement down loaded to my computer, but because the details are deleted i couldn't remember who it related to.

 

Now i know.

 

Can you divulge the case number?

 

Was it a 'form 4' complaint, or a normal county court action.

 

Ruling No. 1, is quite explict. The foot in the door was beyond the legal power of the bailiff.

 

It is relavent to this case, and indeed provides some basis to initiate action against the police and bailiffs.

[Thegreenpimpernel]

In addition to seanam's judgement, this from another thread:

 

LORD JUSTICE MORRITT:

 

"It is not in dispute that entry for the purpose of effecting the initial seizure may only be made with the consent of the occupant or other person in possession of the premises."

 

Read more: http://vlex.co.uk/vid/ur-judge-cox-5...#ixzz1E4xu4Gj2

[seanamarts]

Hello seanam.

 

Thanks for posting that.

 

I had the pdf of your court judgement down loaded to my computer, but because the details are deleted i couldn't remember who it related to.

 

Now i know.

 

Can you divulge the case number?

 

Was it a 'form 4' complaint, or a normal county court action.

 

Ruling No. 1, is quite explict. The foot in the door was beyond the legal power of the bailiff.

 

It is relavent to this case, and indeed provides some basis to initiate action against the police and bailiffs.

Hi pimpernel

this is a strange thing there was no case number, not that I have seen on the paperwork, but I still have the Judgement some where so will try and get it out, Im moving soon so the paperwork is archived in a box some where.

Yes it was a form 4 and took about a year to get to the Judgment stage.

Also I dont know if I mentioned in my thread that the council sent a very long letter apologising for THEIR mistake and was very sorry for what had happened, they stopped the bailiff from ever working for them again. I have since found out that my council no longer uses Marstons because of their bailiffs behaviour.

[bladeboy]

Im afraid I dont have very good news for you, but here goes.

 

1. The police definition of "forced entry" is not the same as Breaking & Entering. A certificated bailiff carries a card that authorised him to enter a property "without permission" and the police call that "forced entry" and say its lawful. Its know in civil enforcement that jamming a foot into the door is called the Threshold Manoever.

 

2. He should have sown ID but im not sure of the legal position however I do know the law requires he must carry it. Check hios certificate is valid, if not then you have a noce ace up your sleeve on the bailiff and police officer (for failure to properly check the bailiff carried the appropriate authority) See Section 40 of the Administration of Justice Act 1970. http://www.hmcourts-service.gov.uk/CertificatedBailiffs/

 

3. Not as far as I know, but even if he did, proving it his word against yours and the police will close ranks, so you will need to sirect your complaint to the IPCC if you find a police officer has concealed evidence of a crime. A very difficult burden of proof.

 

4. Yes, its a criminal offence under the Offences Against the Person Act 1861. Dont expect the Crown prosecution Service to be entheusiatic about charging a bailiff or a police officer for assisting.

 

5. Yes, it a pre-existing contition has been aggravated, and that qualifies for a claim under the Personal Injury Protocol. You will need a Personal Injury Solicitor to file the claim against the authority that contracted the bailiff. Not a good idea to sue the bailiff company because they usually have a slush fund for this very purpose.

 

6. Dont know, unless anyone else was present when the bailiff and police officer spoke to each other in the police car. Its hard to prove whether a police officer was assisting an offender when nobody else saw it.

 

Sorry, but re paragraph 1, this is WRONG!!!!!

 

Bailiffs may ONLY enter 'peaceably' and with the 'permission' of the occupier. This permission may be implied - as in a front door being left open - but if the debtor finds a bailiff has just entered his hallway then it is perfectly lawful to ask the bailiff to leave and they must comply. Until the bailiff has actually started the process of compiling an inventory then they must leave.

 

The case law in this matter is: Khazanchi v. Faircharm [1998] 2 All ER 901 and Snook v. Mannion [1982] Crim LR 601

 

The 'threshold move' in this case, under the circumstances you describe, is nothing more than a 'forced entry' and as such is trespass. Under the circumstances you could forcibly resist the baillif attempts to enter the property and focibly eject them using 'reasonable force'. Using 'forced entry' even goes against the National Standards forn Enforcement Agents. The case law for 'forcible resistance' is: [1968] 1 All ER 1154; (1880) 44 JP 781 & (1894) 58 JP 350.

 

As is usually always the case, through ignorance more than anything, the attendance of the police in these cases is more hinderance than help. Officers at the scene will usually side with the bailiff and attempt to put pressure of the debtor to let the bailiff in. THIS IS WRONG. The role of the police is to 'prevent a breach of the peace' and not to assist in the recovery of civil debt. The aforementioned words are very important in wording your complaint to the police and the Independent Police Complaints Commission (IPCC).

 

Here the police have assisted in an 'unlawful entry' since the bailiff does not have a power on entry per se.

 

Complain to the police and the Bailiff Regulators. Copy the IPCC into the complaint to the police and make sure the local officers know you have done this.

 

As far as I see it, unless the bailiff at the time was able to produce a part completed and accurate inventory to prove peaceable access have been obtained then it's difficult for them to actually claim that the entry was lawful.