Baliff petition;Stop them getting a legal right to forced entry;Peter Bard

[Francesco]

Greetings all.

I have been following this matter with considerable interest (personal as well as principled) hence my first post here, rather than the intro dept.

I must tell you that this forum/site has the best contributions from members and most up to date info of any I discovered perusing the web, congratulations and my heartfelt thanks to everyone.

Yes! I have signed the petition.

 

During the Ministers' session in Parliament (I'm sorry I haven't pasted the exact quote from Hansard - limited IT skills) she said something to the effect of "after the locksmith has enabled access, new locks will be fitted to secure the property"

 

This poses questions, the first must be, what do you think she meant? awkward one I realise.

'Property' could mean goods, it may mean the home itself.

'Secure' I genuinely dread to think, but I will have a small stab,

Locksmith call out fee £200

Arranging locksmith £50

All to be paid before handing over of new keys (£20) for access to ones' own home = £270, plus anything I haven't thought of.

 

So, I guess I'm asking,

If this is allowed to pass into law in it's present form, is the implication that bailiffs will have to decide what the law is, or is there yet time and space for objections to this dreadful and draconian bill?

[The Watcher]

Locksmith call out fee £200

Arranging locksmith £50

All to be paid before handing over of new keys (£20) for access to ones' own home = £270, plus anything I haven't thought of.

 

Bailiffs "waiting time" ... all plus VAT !

 

There are small signs that they are having a slight rethink - but we MUST keep up the pressure.

 

I'm feeling a lot more heartened, though. After the local election results - which will be meltdown for Labour - the Labour MPs would not dare to pass this law, too terrified for the repercussions at the election.

[kennyh]

"the Labour MPs would not dare to pass this law, too terrified for the repercussions at the election."

I have to say I wish their desire for self-preservation outstretched their fear of their whips but.........

[The Watcher]

See if you feel the same after the results on May 3rd !

[kennyh]

I don't doubt that they're going down mate, but I wonder whether their animal cunning extends to lateral thinking!

[Peterbard]

HI

I have just read a letter that has made me even more incredulous about the complete lack of understanding that some of our friends in Whitehall have about the problems of living on a low income and debt. I cannot repeat the exact words or print the letters but I can give you the gist.

This respected parliamentarian says that he was once in the situation of being out of work but he didn’t find himself in trouble so why should others.

Honest this is virtually a direct quote.

Not a clue, no idea that two thirds of the population of this country are the second or third generation living just one pay check away from losing their home.

With no savings no family to help, they are all in the same boat often not even any insurance.

These fortunate people get paid thousands of pound a year to represent us and they don’t know the first thing about how people outside their closeted existence survive

.

This same person also said that there was bound to be enough goods in a home to pay any creditor’s bills.

Well I don’t know about him but most of us do our shopping at IKEA or Carpet world and I am afraid the second hand value of those e goods doesn’t correspond with what he might get if he auctioned his antique furniture and art deco figurines.

 

I was discussing the meaning of the words, “reasonable force” and what it actually means.

 

You see to me the term means the amount of force required in proportionality to what can be gained by the use thereof.

 

If a bailiff is in pursuit of a CCJ for say £50 would it be reasonable for him to kick the door in, no ok £100? £200? £1000?

 

When does it become reasonable to use violence in pursuit of money?

 

This brings us to the extreme importance of having good law, because when it is bad, well how about this scenario.

 

The bailiff applies to the judge for a warrant to force access to a debtor’s home and gets it.

The reason for obtaining the warrant, the amount owed, is no longer relevant all that matters to that Bailiff is that he has a duty to gain entry to that person’s home.

 

All vestiges of proportionality have gone, he has to do his job he has to fulfil the action described in the warrant.

He gets to the house and the debtor won’t let him in so it is reasonable for him to try to push past, but the debtor isn’t having any so he pushes back.

 

The bailiff gets assistance, the debtor gets a baseball bat, the bailiff gets more assistance and a couple of three by twos.

 

Still reasonable just reacting to the situation and trying to fulfil the action required of him by his warrant.

 

Next the man goes in the kitchen and gets a knife so the bailiff s reasonable response is to call a police armed response squad.

 

Now let’s stand back and see where we are, a normal man who is down and his luck and owes Marks and Sparks £75 being put under siege.

Ridiculous! or reasonable force?

 

You see to my mind there is no difference between the understanderble warrant to use force on a drug dealer and the warrant to use force on a law abiding citizen, the warrant does not recognise proportionality it just empowers an action right or wrong.

This is why it is so important that law should be good law because when it is bad, and all the worst case scenarios are not taken into consideration it can be obscenely bad.

 

Best regards

 

Peter

[maybelline]

well said Peter! did anyone see a film called The Winslow Boy, all about a heavy handed approach to a small matter, the apparent stealing of a postal order, that was taken to parliament, I know that its fictionalised and romantic but not the premise that right be done (is that correct?)

 

dont know if this was based on a true story or if the basis of their argument about 'right' still exists today???? but I found it interesting

 

ok now you can laugh:):)

[Peterbard]

well said Peter! did anyone see a film called The Winslow Boy, all about a heavy handed approach to a small matter, the apparent stealing of a postal order, that was taken to parliament, I know that its fictionalised and romantic but not the premise that right be done (is that correct?)

 

dont know if this was based on a true story or if the basis of their argument about 'right' still exists today???? but I found it interesting

 

ok now you can laugh:):)

Hi

Yes i am old enough to remember the film well i am pretty sure it was based on a true story.

I bet m55dic could tell you the year he's a bit of a film buff.

 

Regards

Peter

[maybelline]

hello, a remake was shown last night, it s impact was just as good. (but I do rememer the first one)

[elsinore]

The Winslow Boy - Wikipedia, the free encyclopedia

 

Els

[Peterbard]

Hi Thanks Elsinore

 

Robert Donat!

Don't make em like that anymore

 

Regards

Peter

[The Watcher]

The bailiff applies to the judge for a warrant to force access to a debtor’s home and gets it.

 

Hi Peter

 

I was just thinking this through.

Who is going to pay for the cost of making sure that the home is secure when the bailiff leaves?

 

Does this mean that the bailiff would not force entry without the debtor being home (in the hope that they can leave him/her to sort out the problem, or get them to pay for the locksmith that they have called out)?

 

If the debtor cannot pay the fine - I doubt they can pay for a new door either !

 

This simply isn't thought through.

[The Watcher]

Last few days before the local elections - remember to bring this up with any canvassers etc - make sure THEY know our opposition !

This new law is nothing more than a legalized assault of people in their own homes.

Let's look at a few possible examples -

If a bailiff finds no one at home how is he supposed to know whether there are any goods worth levying? There may be few goods - or the house could actually be empty. Is he really going to break in, knowing that there is no one there to pay his fees anyway - let alone the costs (which will be his responsibility) for ensuring that the property is safe? He's not going to earn anything - and now it's going to cost him too!

If the house is then secured - how is the debtor, when they return, supposed to get in?

Even if the debtor is at home, and refuses entry, the bailiff will still not get any of his fees (ie attendance / van fees) let alone costs of repairing door/locks etc if the debtor simply cannot pay. And until the bailiff has got inside he will simply have no idea whether there are goods sufficient to recoup these costs (and he will be personally out of pocket until such goods are sold).

This new law will be used in one scenario - and one scenario only .... to legalize an assault on a person in their own home.

When you open the door on a chain, a pair of boltcutters will be used to break the chain so that they can force their way in.

If you half-open a door in order to speak to them they will simply force the door open, knocking you aside, in order to gain entry.

No other scenario makes any sense .... and once debtors realise that a visit from the bailiff means they will be automatically assaulted then it's only natural that they will take steps to protect themselves.

[Peterbard]

HI

As usual you paint a vivid picture of life to come after the Bill is passed Watcher, Lets hope it wakes a few people up.

 

I cannot stress the importance enough of bending your local councillors ear about this mater. I grabbed my councillor and candidate at the door yesterday as he was leafleting and asked him about his position, being a labour councillor his answer was pretty much what you would expect.

The thing is that if more people new the issues involved perhaps the effect of that knowledge on the ballot box would change his perseption.

I wrote an open letter to the local newspaper asking a question to all the candidates regarding their opinion of the bill needless to say it was not printed, so I e-mailed and wrote to them all individually so far I have had five response from 11 letters. None from labour candidate’s surprise, surprise.

It looks like the reports meeting, the last chance to get this squashed is going to be the week after the local elections so yet again we have a narrow window to get into the locals ribs and try to inform about the issue.

It is an uphill struggle but I know there are plenty of us that are not going to give up the fight just yet.

 

One of our most valuable and informed supporters is Mr Philip Evens who has kindly written an extremely informative letter that lays out both his views on the bill and the path that led us into the situation that we are in.

Bear in mind that his letter is based around the action of bailiffs issued with a warrant from the magistrate’s court and their current powers of forced entry to enforce income tax arrears and parking fines issued under the 1984 act etc. Bailiffs enforcing these fines can force entry on their own recognizance and do not need to go back to the court to get an additional warrant; he explains how this was slipped into the Domestic Violence, Crime & Victims Act 2004.

 

I will post his letter next, it is a very informative and enlightening letter, I must admit to being a bit of a fan we have not always seen eye to eye on certain issues but he has always been open minded and wiling to adjust his position in light of the evidence, he is also a very patient man, he has had to be to put up with my incessant and I am sure some times ill-informed questions.

 

Kind regards

 

Peter

[Peterbard]

Here is Philips Letter

Dear Peter

I thought you might find interesting some thoughts on the so-called 'secret' Guidance on how bailiffs should force entry using the power in the Domestic Violence, Crime & Victims Act 2004. I have been reviewing how we got into the current situation, how it's been used and the rather unhelpful reply to Lord Lucas' PQ about what it's achieved. I'm sorry it's a long read.

Please forgive me if I recite common knowledge but it all started with what are now sections 92-97 of the Access to Justice Act 1999. This transferred the enforcement of arrest warrants from the police to magistrates' courts - and so to private bailiffs. Previously bailiffs in many parts of the country had made arrests under local arrangement between magistrates' courts and the police but the Act was to formalise and standardise arrangements across England & Wales.

At the time, I was secretary to what is now the Enforcement Services Association and we were lobbying for powers of arrest to be given as well as the responsibility to make the arrests. The sorts of powers wanted were to peacefully enter private premises and to search the people arrested for weapons or anything that could be used in an escape.

Although there was a liaison group that was supposed to work through the practical implications of the change, the officials had refused to even discuss powers of arrest. It fell to me to write to members of the Commons' Committee and a number of MPs referred to my letters in Parliament. The Minister at the time responded by saying that we had had opportunities to speak to officials and implied that we shouldn't have written to MPs!

A colleague and I then had what sticks in my mind as the most fruitless and frustrating meeting of my entire professional life. Two officials listened politely to our concerns and then rejected them on quite spurious grounds. In the event, bailiffs got the responsibility for making arrests but no powers.

But you can't have a legal vacuum in a Common Law jurisdiction! No powers in the Act simply meant that the ancient Common Law powers were revived. John Kruse was commissioned by the Association of Civil Enforcement Agencies to re-interpreted Common Law powers of arrest, which the police used before getting statutory powers, in light of the Human Rights Act passed the previous year. (ACEA published John's guidance.)

The powers of forced entry in the Domestic Violence, Crime & Victims Act 2004 was a botched attempt to right this previous failing and give bailiffs the 'modern' powers of arrest they needed. I say 'botched' with good cause.

The powers are in Schedule 4A of the Act. As the numbering suggests, it was a late amendment to the Bill as it went through Parliament. In fact, it was a very late amendment which, unusually, the Department for Constitutional Affairs had been allowed to insert into a Home Office Bill. This was done without any consultation and, although I later discovered a press notice, none of the advice agencies or bailiff associations knew what was happening.

But worse, it seems to me that the eleventh hour amendment to give the powers of forced entry for arrest were, at about 59 minutes past the eleventh hour, supplemented by similar powers for distress warrants. That is why the bits of the 'secret' Guidance that are visible read rather oddly, as if references to distress warrants were added into a late draft.

The Minister at the time described the new powers as closing a loophole in the law. He didn’t mentioned that the powers were breaching two historic legal principles that were virtually part of the ‘British Constitution’: the right that an Englishman’s home is his castle and that a criminal fine should be treated as a debt to the State and no differently to any other civil debt.

I turn now to the blacked out sections in the ‘secret’ Guidance. I suspect they explain how a bailiff might force entry. If I was a gambler, I'd bet the latter contains really obvious guidance - like, it's better to break a window than demolish a wall; it's better to use a locksmith than a battering ram. And what I'd bet it doesn't say is anything at all about a bailiff getting permission to force entry: in other words, he does it on his own initiative.

All this leads me to the following conclusion: the only way we ever know if the power was used, or threatened, is when a bailiff submits a report after the event.

This brings me to what the Minister who closed the Commons' Second Reading of the TCE Bill said: ‘[simon Hughes MP] asked how often forced entry had been used under existing legislation. Apparently, between July 2005 and February 2006, six forced entries have been carried out...' But could the Minister know this with any certainty? Is there a system in place for monitoring the procedure? Why did the Minister prefixed the statistic with 'apparently'?

This brings me to Lord Lucas' Parliamentary Question about what these six entries achieved. He asked: 'Further to the remarks...stating that "apparently, between July 2005 and February 2006, six forced entries have been carried out", in each case, what was (a) the origin of the debt; (b) the amount of the original debt; © the amount for which the debt was enforced; and (d) the amount recovered as a result of the forced entry.'

Baroness Ashton answered on 27 March: 'From information Her Majesty's Courts Service has received from 27 areas, forced entries were attempted in six areas between July 2005 and February 2006 but no forced entry actually took place. In the majority of cases the threat of forced entry coupled with the attendance of police was sufficient, though in some cases open premises were entered to arrest defaulters.'

Many issues arise from this unhelpful answer.

First, HMCS had information from 27 magistrates’ areas: should we assume that it had no information from the other 23 areas? (In total there are 42 areas, grouped in seven regions.) From the way the answer was phrased, I conclude there is no established procedure for monitoring the use of the power or ensuring that only people who are properly authorised use it.

Second, the statement that 'the threat of forced entry coupled with the attendance of police was sufficient' implies that it was the need to summon the police that made the bailiffs submit reports - not the use or threatened use of the power. This would explain why anecdotal evidence suggests fairly widespread use of the power but the statistics suggest little use.

Third, the statement that 'though in some cases open premises were entered to arrest defaulters' implies that the power wasn't used for distress in all six cases. In fact, the failure to answer any of Lord Lucas' specific questions suggests that the power wasn't used for distress warrants at all – no goods were seized and no debts were cleared!

To my mind, this shows how DCA has failed to properly monitor the power enacted in the DVCV Act 2004 and it raises a huge question mark about the wisdom of additional powers of forced entry. The issue is not whether any power of forced entry is necessary to enforce court orders for debt – we’re not in a position to consider that yet. And the issue isn’t whether bailiffs can be trusted with the power. The issue we must consider is whether Government can be trusted with the power!

Ministers have been pressurised into saying that the new powers in the TCE Bill will not be implemented until bailiffs are properly regulated. But given Government’s poor track record monitoring the power of forced entry that already exists, can we have any confidence in its plans for the future?

It seems to me that the power to force entry for magistrates’ fines is redundant. If that’s the case, why is DCA so keen to keep a redundant power in the TCE Bill? Why couldn't bailiffs enforcing fines use the same forced entry provisions that are in the Bill for other debts? After all, if the threat of use is enough to provoke peaceful entry, the actual procedure for getting authority to force entry will make little difference to the outcome.

Personally, I think all this further supports the theory that officials (and perhaps Ministers, too) like the idea of bailiffs as loose canons who will get the job done – no questions asked! If this is the case, it also accounts for the Government’s determination that any regulation of bailiffs will be ‘light touch’. It would account for all the restrictions placed on a regulator that are set out in the consultation paper issued in January.

I don’t want to be misunderstood. I am not saying that all bailiffs are rogues – far from it! But the public perception of the bailiff industry generally does serve a useful Government purpose and could be why it puts its own revenue above social justice for its citizens.

The problem with this approach is that it cannot be sustained indefinitely: there will come a point where the system is in such disrepute that ordinary people will rebel at an abuse of such a power. This is the eventuality I fear if the bailiff provisions in Part 3 of the TCE Bill are enacted.

With my best wishes,

Philip

Philip Evans

[email protected] (e-mail)

[Francesco]

One other consequence, if this bill succeeds and becomes standard practice, will be, I believe, a further surge in declared insolvencies.

 

If people have hit rock bottom and are not prepared (because of honesty about an uncertain future) to enter into binding agreements on repayments, if they then face a legalised molestation of their hearth and home to remove humble goods (and perhaps personal bric a brac), what incentive is there to stay afloat in the proverbial sea of debt, or even bother working?

 

It makes a mockery of 'joined-up goverment' (remember that one), which I thought meant right hand, left hand etc, but now one department talks of an enterprise culture, fresh starts etc, while another department thinks up new ways to knock the crap out of the hapless.

 

Personal bankruptcy has been made to look even more attractive and now the only defence of ones' home.

[Smoothy]

The trouble with personal bankruptsy, is that thos on the breadline cant afford it!

How are you suppose to go bankrupt and have an official receiver take charge of all your credit problems, if you cant afford it in the first place??!!

IVA's are ok but I have known a number of occasions when they just failed to solve the initial problem.

So were back to the baliffs again.

Vicious circle.

[The Watcher]

Also, most people's main asset is tied-up in their home ... and with bankruptcy they would almost certainly lose their home.

 

There will be a huge increase in the number of younger people though, going bankrupt, whose main debts are credit card related. They probably live with their parents or rent somewhere, so bankruptcy can be an advantage to them as it wipes the slate clean and they can start afresh - with virtually no risk (ie no lost home).

[Francesco]

Smoothy is right to be aware of the cost of declaring insolvency, moreover it is not a step to be taken lightly, it is a last resort, but I do

believe it will move further up the options list if this legislation is enacted.

 

We are, after all, seeking arguments against this bill.

[maybelline]

Also, most people's main asset is tied-up in their home ... and with bankruptcy they would almost certainly lose their home.

 

There will be a huge increase in the number of younger people though, going bankrupt, whose main debts are credit card related. They probably live with their parents or rent somewhere, so bankruptcy can be an advantage to them as it wipes the slate clean and they can start afresh - with virtually no risk (ie no lost home).

 

 

just a thought, 'they probably live with their parents' whose front door will be bashed down when the bailiffs call??!!

[Peterbard]

Smoothy is right to be aware of the cost of declaring insolvency, moreover it is not a step to be taken lightly, it is a last resort, but I do

believe it will move further up the options list if this legislation is enacted.

 

We are, after all, seeking arguments against this bill.

 

Hi

 

Hi the thing is as i have stated no one wants this bill to go through except the government the people don't want it,the advice and financial groups don't want it,even the bailiffs don't want it,so the questoin is who are the government working for ? themselves it would seem.

 

The reason they are getting away with it is a kind of slight of hand,firstly they use the Domestic Vilolence act of 2004 to sneak in an amendment to enable force to be used on a majistrates warrent at the bailiffs whim.

Now they use that as a stepping stone to allow the same powers to be used on a civil warrant.

How do they get away with not explain themselves to the media?

The researcher or reporter calls they say,"But bailliffs already have the power to use force," the media lose interest because they believe it is to difficult for the general public to grasp and would make poor copy.

Result, another chiunk of our rights away from us and nobody lifts a finger.

Unfortunately we may have to wait until a few enforcement officers get assulted or pensioners end up commiting suicide because they can't face the thought of someone breaking into their homes and rifling though their belongings before it wil be considered," good copy" it will also be to late.

 

Regards

 

Petr

[The Watcher]

just a thought, 'they probably live with their parents' whose front door will be bashed down when the bailiffs call??!!

 

 

That's right!

[kezzanottm2004]

will these new rights apply only too credit cards debts because this is what i have read

[The Watcher]

No - the media have tended to concentrate on credit card debt - but the rules will apply to all bailiffs, no matter what the debt is for.

[kezzanottm2004]

Thanks do you have any idea of when it will come into affect.

 

It has probably been posted but i cant find it.