Magistrate Court fines.....does a bailiff have to apply to court for a warrant to allow him to force entry?

[Bailiff Advice]

Almost on a daily basis I receive an enquiry on this subject from either a debtor, solicitor or a police officer. Hopefully this thread will assist.

 

Under the new bailiff regulations an enforcement agent has a general right without a warrant to enter debtor’s premises to search for and take control of goods. The legislation is Paragraph 14.1 of schedule 12 of the Tribunal Courts and Enforcement Act 2007

 

In cases where a Controlled Goods Agreement has been previously signed, the bailiff may have re-entry rights into the premises under Paragraph 16.

[Bailiff Advice]

As outlined above, a bailiff has a general right under paragraph 14 to enter premises without a warrant to search for and take control of goods.

 

In relation to court fines a general power to use reasonable force to enter premises is permitted under Paragraph 18 of Schedule 12. This may only be allowed if the following apply:

 

The bailiff is acting under the power of a warrant of control under section 76(1) of the Magistrates’ Court Act 1980

and that:

He is entitled as an approved enforcement to execute the warrant by virtue of section 125B of the Magistrates’ Court Act 1980

[Bailiff Advice]

Where there appears to be a great deal of confusion and misunderstanding is in relation to Paragraph 20.2 of Schedule 12 and it's reference to an application to court for a warrant to force entry into specified permises under Paragraph 15

 

NB: It is important to take note that such a court application (for permission to force entry) would be to 'specified premises' as opposed to the everyday 'relevant' premises'.

 

Turning back to an application to court under Paragraph 15. It needs to be make clear that Schedule 12 merely outlines the 'procedure' to be taken (for such an application) and for the finer details regarding such an application readers need to refer to Regulation 28 of the secondary legislation (The Taking Control of Goods Regulations 2013).

 

As is clearly outlined, such an application may only be made if either the enforcement agent is attempting to:

Enforce a debt under a tax legislation (in this case

Section 127

of the Finance Act 2008

 

or:

 

The premises are premises to which the goods have been deliberately removed in order to avoid control being taken of them.

If such an application is made to the court Regulation 28 states that the enforcement agent would need to explain to the court the following:

 

The likely means of entry,

 

The type and amount of force that will be required to make the entry;

 

How, after entry, the enforcement agent proposes to leave the premises in a secure state

 

PS:

 

I will post up a copy of the revised (July 2014) Forced Entry Protocol from HM Courts & Tribunal Services later today.

[Bailiff Advice]

[ATTACH=CONFIG]57078[/ATTACH]The new regulations have introduced some important changes to the use of 'forced entry' to collect court fines and with these changes in mind, HM Courts & Tribunal Service issued revised 'Forced Entry Power Procedures' to replace the previous 'Force Entry Protocol' from 2009.

 

Below is a 'word ' version of the revised procedures with my own underlining etc of important points etc. A link to the pdf copy is above.

 

 

 

FORCED ENTRY POWERS PROCEDURE

 

 

This document replaces the previous document issued December 2009

 

Forced Entry Powers

 

This procedure covers the rare instances where the court’s contractor considers using force to gain entry to a defaulter’s

 

Within this procedure document forced entry refers to a circumstance where the defaulter is present in the property but refuses access to the contractors’ enforcement agent.

 

Monitoring actions to be covered in monthly and quarterly contractor monitoring meetings are recorded at Appendix A.

 

Where does this power originate from?

 

The previous protocol outlined legislation Magistrates Courts Act 1980 Schedule 4a. Part 3 and Schedule 12 of the TCE Act 2007, brought into force on 6th April 2014, introduced changes to the powers of entry under the new “taking control of goods” procedure. It is the contractors’ responsibility to comply with these changes and ensure that ensure that the relevant legal requirements are adhered to (Para 27.1 of Conditions of Contract).

 

What does the contractor have to do before using forced entry powers?

 

The contractor is responsible for ensuring that either the forced entry power which it is proposed to use is available without a court warrant, or that if such a power is not available, a warrant is obtained from the court under the relevant legislation.

 

However, no forced entry to arrest or take control of goods against the defaulter should be attempted without first attempting to seek the prior approval of the court Nominated Officer, although responsibility for the actual forced entry will remain with the contractor.

 

Before approval can be given the contractor’s enforcement agent /Manager must contact the Nominated Officer explaining their reasons to use forced entry and the method to be used i.e. use of a locksmith. This should be short and to the point. Once considered and if approved a written record must be maintained. This should be recorded at the earliest opportunity following the forced entry incident.

 

Where approval is withheld further dialogue should be undertaken to agree a suitable way forward.(3.5)

 

If the Court Nominated officer or any deputy is not available to give approval at the relevant time, then the contractor may proceed to use the powers of entry at their own discretion.

 

A record that contact was attempted with the Nominated Officer, including date & time, must be endorsed in the contractor’s database.

 

What does the contractor have to do after forced entry powers have been used?

 

In addition to the approval requirement a written record covering what happened during the forced entry incident must be entered onto the contractor’s database and be available for examination by the contractor’s court Nominated Officer. The record must include:

 

Name of defaulter(s)

 

Issuing court and warrant number

 

Name and number of contractor’s enforcement agent(s) and other staff in attendance

 

Address where forced entry was gained/attempted.

 

Detail of others in attendance i.e. police officer including name and number,

lock-smith including the name of the firm and locksmith

,court officials and others

 

Date and time court Nominated Officer approval obtained.

 

A concise narrative of the event as it unfolded, including if forced entry proved necessary and if any force was necessarily used to restrain the defaulter.

 

There should also be a record made of any damage to the defaulter’s or third party property. Where no damage has arisen then a nil return should be recorded

 

The outcome including if an arrest was made or taking control of goods was successfully executed

 

What, if any, further action has been agreed with the court Nominated Officer or the defaulter

 

Following a forced entry it is the contractor’s responsibility to secure the premises.

 

 

July 2014

HMCTS Enforcement

[GrumpyToSayTheLeast]

A very detailed and clear explanation BA. Thank you. Lets hope this answers the questions of those who are adamant that this cannot be done without a separate warrant.

[Bailiff Advice]

A very detailed and clear explanation BA. Thank you. Lets hope this answers the questions of those who are adamant that this cannot be done without a separate warrant.

 

Thank you.

 

The amount of inaccurate and misleading information is really harming debtors....both emotionally and financially.... and it is utterly shocking.

 

Early this morning I had another enquiry from a police officer who had been given a 'template' by a debtor that even suggested that if a bailiff enforcing a magistrate court fine uses the word 'locksmith' that the bailiff is committing a criminal offence under Section 1 of the Malicious Communications Act 1988.

[GrumpyToSayTheLeast]

Exactly. Its shocking. Not knowing the law or the regulations and making a mistake is fine, but there are those out there deliberately issuing letters to debtors to present to the bailiff or the police knowing that they are worthless, or worse yet, will land the debtor in even more trouble. They are some VERY unscrupulous people out there and they have the nerve to call other people ****.

[Peterbard]

Yes good thread.

I noticed the mention of the origin of the right to force entry in the DVCVA.

I take it this is now defunct as regards taking control of goods,as the provision is now contained within the TCE.

[Bailiff Advice]

Yes good thread.

I noticed the mention of the origin of the right to force entry in the DVCVA.

I take it this is now defunct as regards taking control of goods,as the provision is now contained within the TCE.

 

In July 2005 a dreadful (and most surprising) last minute amendment was introduced into the Domestic, Violence Crimes & Victims Act (DVCVA 2004) allowing a bailiff the right to 'force entry' to enforce magistrate court fines. This inclusion led to a new clause entitled: Schedule 4A being introduced into the Magistrates' Courts Act 1980....the most relevant part of which was Paragraph 3 (Entry to levy distress) and Paragraph 5 (Power to use reasonable force).

 

However, Paragraph 3 was repealed when the new bailiff regulations were introduced on 6th April 2014 and instead, the wording (or should I say 'some' of the wording) was introduced into Paragraph 18 of Schedule 12 of the Tribunal Courts & Enforcement Act 2007.

 

Unfortunately, item 3.2 (The power may be exercised only to the extent that it is reasonably required for that purpose) was not re-introduced into paragraph 18 (of Schedule 12).

 

Paragraph 5 of Schedule 4A of the Magistrate's Courts Act 1980 has not been repealed and remains in force.

[brassnecked]

In July 2005 a dreadful (and most surprising) last minute amendment was introduced into the Domestic, Violence Crimes & Victims Act (DVCVA 2004) allowing a bailiff the right to 'force entry' to enforce magistrate court fines. This inclusion led to a new clause entitled: Schedule 4A being introduced into the Magistrates' Courts Act 1980....the most relevant part of which was Paragraph 3 (Entry to levy distress) and Paragraph 5 (Power to use reasonable force).

 

However, Paragraph 3 was repealed when the new bailiff regulations were introduced on 6th April 2014 and instead, the wording (or should I say 'some' of the wording) was introduced into Paragraph 18 of Schedule 12 of the Tribunal Courts & Enforcement Act 2007.

 

Unfortunately, item 3.2 (The power may be exercised only to the extent that it is reasonably required for that purpose) was not re-introduced into paragraph 18 (of Schedule 12).

 

Paragraph 5 of Schedule 4A of the Magistrate's Courts Act 1980 has not been repealed and remains in force.

 

So he can push or kick a debtor out of the way in effect?, one other point is as the WOC allows the EA to enter relevant premises to search for goods, and a forced entry power for magistrates court fines is the advice to deny the bailiff entry for Council Tax or civil debt invalid, insofasr as he has a right of entry, and could say the debtor is " Obstructing" him by keeping him out allowing EA to get plod to prosecute the debtor for the new offence of Obstructing an EA?

[Peterbard]

In July 2005 a dreadful (and most surprising) last minute amendment was introduced into the Domestic, Violence Crimes & Victims Act (DVCVA 2004) allowing a bailiff the right to 'force entry' to enforce magistrate court fines. This inclusion led to a new clause entitled: Schedule 4A being introduced into the Magistrates' Courts Act 1980....the most relevant part of which was Paragraph 3 (Entry to levy distress) and Paragraph 5 (Power to use reasonable force).

 

However, Paragraph 3 was repealed when the new bailiff regulations were introduced on 6th April 2014 and instead, the wording (or should I say 'some' of the wording) was introduced into Paragraph 18 of Schedule 12 of the Tribunal Courts & Enforcement Act 2007.

 

Unfortunately, item 3.2 (The power may be exercised only to the extent that it is reasonably required for that purpose) was not re-introduced into paragraph 18 (of Schedule 12).

 

Paragraph 5 of Schedule 4A of the Magistrate's Courts Act 1980 has not been repealed and remains in force.

Yes I know I remember it well.

 

Section 5 still refers to the rest of schedule 4a I think.

 

Interested to see the bit about the debtor being present, the common law possession on this was different, in that the bailiff had to show that the debtor had "locked the premises against them", so in effect if they were unaware of the bailiff visit the agent could not force entry, however this prevented them from just going out if they new the bailiff was calling.

 

I can see problems where the ea is enforcing against goods contained in a lock up for instance under section 15 with the power of forced entry included within the warrant.

[Peterbard]

So he can push or kick a debtor out of the way in effect?, one other point is as the WOC allows the EA to enter relevant premises to search for goods, is the advice to deny the bailiff entry for Council Tax invalid, insofasr as he has a right of entry, and could say the debtor is " Obstructing" him by keeping him out allowing EA to get plod to prosecute the debtor for the new offence of Obstructing an EA?

 

Section 24 forbids the use of force against the person.

 

he procedure should be for the EA to step back if being obstructed and call the police.

[Peterbard]

The common law situation retarding the collection of civil debts like council tax has not really changed, the debtor can still deny entry.

[brassnecked]

Section 24 forbids the use of force against the person.

 

he procedure should be for the EA to step back if being obstructed and call the police.

Thanks DB, the dreadful amendment mentioned by BA was originally intended expressly to allow force against the debtor's person if they tried to prevent a bailiff entering, thankfully it was killed at least the use of force against the person was.

[caledfwlch]

What rights of Entry do the new style "Warrant Officers" hold? On one of the currently de riguer "Benefits claimants are scumbags" programmes beloved of Channels Five and Four, they were filming in the property of a chap and his girlfriend when Warrant Officers came hammering on the door, looking for the chap, the chap told the cameras to "shush" as the WO's can force entry if they "hear a noise"

[Bailiff Advice]

What rights of Entry do the new style "Warrant Officers" hold? On one of the currently de riguer "Benefits claimants are scumbags" programmes beloved of Channels Five and Four, they were filming in the property of a chap and his girlfriend when Warrant Officers came hammering on the door, looking for the chap, the chap told the cameras to "shush" as the WO's can force entry if they "hear a noise"

 

HCEO is the best person to give a response to this query.

[GrumpyToSayTheLeast]

What rights of Entry do the new style "Warrant Officers" hold? On one of the currently de riguer "Benefits claimants are scumbags" programmes beloved of Channels Five and Four, they were filming in the property of a chap and his girlfriend when Warrant Officers came hammering on the door, looking for the chap, the chap told the cameras to "shush" as the WO's can force entry if they "hear a noise"

 

The only warrant officers now are, i believe, the magistrates own EA's. I think they may still be called Warrant officers. Is this who you are on about? I think they may be able to but wouldnt like to say for certain. Your comment doesnt really give us enough.

 

But yes, if we are knocking on the door on a magi fine as an EA and we hear a noise inside that we believe is human, we will call out asking for the debtor and explaining that if they come to the door and show they are not the debtor, then that will be the end of it. If they fail to heed the warning, then we will look to force entry as we then believe the debtor is within. The debtor being the only one at that point with any need to hide from us.

[GrumpyToSayTheLeast]

Its not a section 68 office to stop a bailiff entering your home if he has NO legal right to do so.

If he is trying to enter for one of the following reasons, the you risk a hefty fine and /or imprisonment for obstructing them.

Magistates warrant enforcing unpaid CRIMINAL fines.

ANY warrant where a CGA has been completed and a further NOTICE OF INTENT has been left(save for when goods are in jeapordy).

Writ of possession.

Specific entry order granted where for instance the bailiff was focibly removed on a prior attendance and left the area for his own saftey and with the order, can reattend and force entry to complete the job.

There are other but some are so rare and so difficult its pointless going into them.

 

They CANNOT have you charged under section 68 for just refusing access on any other warrant like council tax/parking/other civil debts.

[brassnecked]

"They CANNOT have you charged under section 68 for just refusing access on any other warrant like council tax/parking/other civil debts.

"

Thanks for the clarification Grumpy, as it appears some EA's will try to do just that, some from a well known company may be in the frame.

 

The main thing with magistrates fines then is not to let them get to Enforcement in the first place.

[caledfwlch]

The only warrant officers now are, i believe, the magistrates own EA's. I think they may still be called Warrant officers. Is this who you are on about? I think they may be able to but wouldnt like to say for certain. Your comment doesnt really give us enough.

 

But yes, if we are knocking on the door on a magi fine as an EA and we hear a noise inside that we believe is human, we will call out asking for the debtor and explaining that if they come to the door and show they are not the debtor, then that will be the end of it. If they fail to heed the warning, then we will look to force entry as we then believe the debtor is within. The debtor being the only one at that point with any need to hide from us.

 

I thought Warrant Officer was the new name - the guys who go out to arrest people to take them to the Magistrates Court, for non appearences, etc not for collecting fines

[GrumpyToSayTheLeast]

I thought Warrant Officer was the new name - the guys who go out to arrest people to take them to the Magistrates Court, for non appearences, etc not for collecting fines

 

I think they have always been called that. But not to forget there are other out there that ARE contractors(EA's) that cary out arrest warrant and bail warrants.

[GrumpyToSayTheLeast]

"They CANNOT have you charged under section 68 for just refusing access on any other warrant like council tax/parking/other civil debts.

"

Thanks for the clarification Grumpy, as it appears some EA's will try to do just that, some from a well known company may be in the frame.

 

The main thing with magistrates fines then is not to let them get to Enforcement in the first place.

 

Yes, exactly.

[Bailiff Advice]

So he can push or kick a debtor out of the way in effect?, one other point is as the WOC allows the EA to enter relevant premises to search for goods, and a forced entry power for magistrates court fines is the advice to deny the bailiff entry for Council Tax or civil debt invalid, insofasr as he has a right of entry, and could say the debtor is " Obstructing" him by keeping him out allowing EA to get plod to prosecute the debtor for the new offence of Obstructing an EA?

 

All bailiffs have a 'right of entry' to search for and 'take control of goods' but in the vast majority of cases such 'entry' may only be by 'peaceful' means.....usually by invitation. Debtors can continue to refuse entry (and in MOST cases I would advise them to do just this). The difficulty arises when the debt being enforced is a magistrate court fine. Of course the debtor could still refuse to allow 'peaceful entry' but this would most likely fall on 'deaf ears' given that in these circumstances bailiff have a legal right to force entry.

 

PS: Yesterday I suggested to two debtors that they should allow bailiffs into their property. Both cases were for court fines and in both cases, the goods in the property were of practically no value and I was pleased to hear that in both of the cases the bailiffs confirmed that the warrants would be returned back to the court.

[GrumpyToSayTheLeast]

All bailiffs have a 'right of entry' to search for and 'take control of goods' but in the vast majority of cases such 'entry' may only be by 'peaceful' means.....usually by invitation. Debtors can continue to refuse entry (and in MOST cases I would advise them to do just this). The difficulty arises when the debt being enforced is a magistrate court fine. Of course the debtor could still refuse to allow 'peaceful entry' but this would most likely fall on 'deaf ears' given that in these circumstances bailiff have a legal right to force entry.

 

PS: Yesterday I suggested to two debtors that they should allow bailiffs into their property. Both cases were for court fines and in both cases, the goods in the property were of practically no value and I was pleased to hear that in both of the cases the bailiffs confirmed that the warrants would be returned back to the court.

 

Modern day bailiffs are much more inclined to return the warrant to the court citing bulla bona than remove goods of little or no value. It is very VERY rare that household goods are actually taken. But if they have value, and you are not complying then yes, they will be removed.

 

Force applies to the method of entry, not to the actions carried out against the debtor. We are authorised to use force against the property to enter the property. We are not authorised to use force against a person to gain access.