OFFENCES RELATING TO ENFORCEMENT AGENTS

Intentionally obstruct a person lawfully acting as an enforcement agent 

Paragraph 68(1) of Schedule 12 Tribunals Courts and Enforcement Act 2007


CJS CODE TC07001

Definition  


A person is guilty of an offence if he intentionally obstructs a person lawfully acting as an enforcement agent



 

Full Legislation


Powers and Punishment


Summary offence only


Imprisonment for a term not exceeding 51 weeks

A fine not exceeding level 4 (currently up to £2,500) on the standard scale

Or both


Intentionally interferes with controlled goods without lawful excuse

Paragraph 68(2) of Schedule 12 Tribunals Courts and Enforcement Act 2007


CJS CODE TC07001






Definition 


A person is guilty of an offence if he intentionally interferes with controlled goods without lawful excuse.

 

Full Legislation


Powers and Punishment


Summary offence only


Imprisonment for a term not exceeding 51 weeks

A fine not exceeding level 4 (currently up to £2,500) on the standard scale

Or both





Breach of the Peace

Bibby v Chief Constable of Essex Police [2000] EWCA Civ 113; (2000) 164 JP 297:


A bailiff may not be arrested for a Breach of the Peace during the execution of his lawful duties.


Background: This case involved a bailiff, Mr. Bibby, who was executing a court order to seize goods from a debtor's shop. Both the bailiff and the debtor called the police when the situation escalated.


  • Facts:
  • Mr. Bibby, a certificated bailiff, entered a debtor's shop to enforce a liability order. The debtor, Mr. Brannan, became uncooperative, leading to a heated exchange.
  • Police were called by both parties. Upon arrival, the police, fearing a breach of the peace, instructed Mr. Bibby to leave. When he refused, he was arrested and taken to the police station in handcuffs but was later released without charge.
  • Legal Issues:
  • The primary issue was the legality of Mr. Bibby's arrest by the police to prevent an apprehended breach of the peace, despite him acting in the lawful execution of his duties.
  • Court's Decision:
  • The Court of Appeal allowed the appeal against the Assistant Recorder's decision.
  • Key Points:The police's power to arrest to prevent a breach of the peace is exceptional when the person acts lawfully.
  • The arrest of Mr. Bibby was deemed unlawful because the threat of violence seemed to come from the debtor, not from Mr. Bibby's execution of his lawful duties. The police should have addressed the debtor's behavior rather than arresting the bailiff for not leaving.
  • The use of handcuffs was also found to be unreasonable under the circumstances.
  • Judgment: The Court of Appeal held that Mr. Bibby's arrest was unjustified. The court emphasized that for an arrest to prevent a breach of the peace to be lawful, it must be directed at the person likely to cause the breach or whose behavior might provoke violence, which in this context, was not Mr. Bibby but potentially the debtor or others present.
  • Significance: This case clarifies the boundaries of police power in arresting individuals to prevent breaches of the peace, particularly when those individuals are engaged in lawful activities. It highlights the need for police to carefully assess the source of threat or provocation in such situations.


POWERS RELATING TO ENFORCEMENT AGENTS - ILLEGAL ENCAMPMENTS

Unauthorised Encampment – The Powers in Summary


Common law powers

• can only be used by the landowner;

• are used to regain possession of land;

• does not require the involvement of the courts;

• enforced by the landowner and/or private bailiffs where necessary;

• does not provide any sanctions offence for the return of trespassers onto land.


Part 55 Civil Procedures Rules • can only be used by the landowner;

• are used to regain possession of land; • require civil court procedure;

• possession is enforced by county court bailiffs, where necessary;

• do not provide any sanctions for the return of trespassers onto land.


Sections 77-78 Criminal Justice and Public Order Act 1994

• can only be used by a local authority; • can be used on any land within the local authority’s area, irrespective of ownership;

• are used to remove identified individuals from land;

• only require the involvement of the courts when unauthorised campers do not leave when directed to do so;

• possession is enforced by local authority officers or private bailiffs employed by the local authority;

• the return of unauthorised campers and/or their vehicles to the location within three months carries criminal sanctions.


Sections 61-62 Criminal Justice and Public Order Act 1994

• can only be used by the police;

• can be used on any land except the highway;

• are used to remove identified individuals and/or their vehicles from land;

• there must be two or more persons trespassing on the land before the power can be used;

• do not require the involvement of the courts; 7

• possession is enforced by the police;

• the return of unauthorised campers to the location within three months carries criminal sanctions.


Section 62A-E Criminal Justice and Public Order Act 1994

• can only be used where an alternative site is available;

• can only be used by the police;

• can be used on any land;

• is used to remove identified individuals and/or their vehicles from the land;

• does not require the involvement of the courts;

• possession is enforced by the police;

• the return of unauthorised campers to the local authority area within three months carries criminal sanctions.


The Powers in Detail -Common Law Powers

  1. All landowners can use their common law rights to recover land (i.e. the tort of trespass against property). This allows the person in possession of land to evict an individual from their land, seek damages for their trespass on their land, and/or seek an injunction to prevent the trespass from occurring again.
  2. Case law has established that a trespasser who enters land peaceably is entitled to a request to leave the land before being forcibly removed, while a trespasser who has entered land with force and violence may be removed without a previous request to depart.
  3. If the trespasser does not leave the land the possessor of the land may use no more force than is reasonably necessary to evict him or her.
  4. Private bailiffs (Enforcement Agents) may be used to carry out the eviction.
  5. The issue of what is ‘reasonable force’ is a question of fact to be decided in each individual case, however it must be an honestly held belief that in the particular circumstances the force that is used is reasonable, rather than excessive. Use of excessive force could give rise to a claim against the landowner by the trespassers.
  6. Whenever a landowner is considering the use of common law rights he/she should notify the police of his/her intentions so that police officers can be present to prevent any breach of the peace. 18. If the police advise that, in the particular circumstances, it is inappropriate to attempt an eviction, action should always be delayed until such time as the police believe that it is safe to continue.
  7. Private bailiffs employed on their behalf may remove the unauthorised campers and their vehicles from the land. As with any eviction, police should be present to ensure that no breach of the peace takes place.


Sections 61-62 Criminal Justice and Public Order Act

  1. If the landowner or his agent has asked the unauthorised campers to leave the land by a particular date and time, and they have failed to do so, and any of the three following conditions have also been met:  • the unauthorised campers have caused damage to the land or property on the land; • they have used threatening, abusive or insulting words or behaviour to the occupier, a member of his family or his employee or agent; • there are six or more vehicles on the land (currently - changes in legislation will read 2 vehicles).
  2. The police can use Section 61 of the CJPOA to direct unauthorised campers to leave the site.
  3. They can do this without reference to the courts..
  4. The initial step is for the landowner to make a formal request to the police that they use their powers under the CJPOA.
  5. A senior police officer then considers whether it is appropriate to use the power, based on various factors:  • whether there are there other activities on the encampment, such as serious breaches of the peace, disorder, criminal activity or anti-social behaviour which would necessitate police involvement under their wider powers;    • given the impact of the unauthorised encampment on the environment and the local settled community, is it reasonable and proportionate to use police powers; • is action by the police legally sustainable; • are sufficient resources available.
  6. Case law (R v The Commissioner of the Metropolitan Police ex p. Small) has established that police officers are not under any obligation to undertake welfare enquiries with unauthorised campers,

Once a decision to use police powers is made, a uniformed police officer visits the encampment and advises the occupiers that they are required to leave by a certain date and time, and provides them with a copy of the legislation.

The police may determine the period of notice to the unauthorised campers to leave, and this may be hours or days.

The police may also videotape their visit to the encampment in case of later challenge or dispute.


If the unauthorised campers fail to leave by the date and time specified by the police officer, or return to that location within three months of the direction, they are then committing an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding £2,500.


Further, if a direction issued under Section 61 is contravened, a police officer may then seize and remove the vehicles under Section 62 of the CJPOA. Vehicles would be impounded in an appropriate police facility with a fee payable for their return.


Section 62A-E Criminal Justice and Public Order Act 50. Section 62A of the CJPOA

  1. allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch on a relevant caravan site is available within the same local authority area (or within the county in two-tier local authority areas).
  2. A suitable pitch on a relevant caravan site is one which is situated in the same local authority area as the land on which the trespass has occurred, and which is managed by a local authority, registered social landlord, or other person or body as specified by order by the Secretary of State. In two tier authority areas, where a district council is situated within a wider county council area, the relevant caravan site may be anywhere within the county council area.
  3. The power may be used where the following conditions are met: • at least two persons are trespassing; • the trespassers have between them at least one vehicle on the land; • the trespassers are present on the land with the common purpose of residing there for any period; • it appears to the officer that the person has one or more caravans in his possession or under his control on the land, and that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans; • the occupier of the land (i.e. the freehold owner or lessee), or a person acting on the occupier’s behalf has asked the police to remove the trespassers from the land.
  4. If the unauthorised campers do not leave when directed to do so under Section 62A, or if they return to the district within three months after being directed, they are committing an offence, and the police may then use their powers under Section 62B of the CJPOA to arrest and detain them. If the campers are subsequently convicted of an offence under the Act, they may then be subject to a custodial sentence of not more than three months, or a fine not exceeding level 4 on the standard scale (currently, a maximum of £2,500).
  5. The police may also use their powers under Section 62C of the CJPOA to seize and remove the vehicles and property from the land.
  6. Vehicles would be impounded in an appropriate police facility with a fee payable for their return. 

Temporary Housing (Excluded Occupier) Evictions


  • No Requirement for Writ or Warrant: Enforcement agents, when dealing with the eviction of excluded occupiers, do not require a writ or warrant of possession. This is because excluded occupiers do not have the same legal protections as tenants with exclusive possession. Their right to occupy can be terminated simply by the landlord or the local authority providing them with notice, as per the terms of their agreement.


  • Use of Force: Enforcement agents are strictly limited in how they can enforce an eviction:
    Prohibition Against Force    : Under Section 6  Criminal Law Act 1977, , it's an offence to use or threaten violence for the purpose of securing entry into premises where there is someone present who opposes the entry. This means enforcement agents cannot forcibly enter a property if there is an occupier inside who objects to their entry.
  • Peaceful Entry: Peaceful entry does not imply that the occupier must invite the enforcement agents in. Rather, it means that entry must be gained without force against the person or against property. This could involve waiting until the property is unoccupied, or using legal means like changing locks after the occupier has vacated, but never involves physical threats or breaking into the property if the occupier objects to entry.
  • Legal Considerations:
    If an excluded occupier refuses to leave after the notice period, the enforcement agents can only proceed if they can enter the property without using force. They might ask the occupier to leave voluntarily or might take steps like changing locks if the occupier is not present.
  • If the situation escalates, and there's a risk of violence or breach of peace, Police Officers  might be involved to prevent disorder, but this would be to maintain public order rather than to execute the eviction itself. (see Bibby vs Chief Constable of Essex regarding breach of the peace)
  • Practical Application:
    Enforcement agents might coordinate with the landlord, housing officer or local authority to ensure the property is empty before they act. They might also be present to change locks or take possession of the premises once the excluded occupier has left or agreed to leave.
  • In cases where an occupier refuses to leave, and there's no legal way to gain entry without force, options might include returning at a time where peaceful entry can be gained or when the occupier is not in the house.


This process underscores that even though excluded occupiers do not have the same protections as tenants, the law still requires that evictions be conducted within the framework of legality, respecting personal rights and avoiding the use of force.


Bailiff powers when they visit domestic premises


What you can do when a bailiff visits

A bailiff (‘enforcement agent’) may visit your home if you do not pay your debts - such as Council Tax bills, parking fines, court fines and county court, high court or family court judgments.

This will happen if you ignore letters saying that bailiffs will be used.


There are different kinds of bailiffs, known as:

  1. ‘certificated enforcement agents’ (also known as ‘civil enforcement agents’)
  2. ‘high court enforcement officers’ (agents working under a high court enforcement officer are known as certificated enforcement agents'
  3. county court and family court bailiffs’
  4. bailiffs who enforce magistrates’ court fines and warrants for arrests (either ‘civilian enforcement officers’ or ‘Approved Enforcement Agents’)


A bailiff may also visit your home for other reasons, for example to serve court documents or give notices and summons.

An Approved Enforcement Agent can arrest you if there’s a warrant for your arrest forbreaking a community penalty order.


Bailiffs usually give you at least 7 days’ notice of their first visit but in certain cases do not need to give notice.


Paying what you owe before a bailiff visits

If you think a bailiff might visit you to collect debts, you can stop this by paying the money you owe. Get advice about how to pay your debt from whoever you owe money to as soon as possible.

You might be arrested if you do not pay criminal debts, such as fines or penalty notices.


Dealing with bailiffs

You usually do not have to open your door to a bailiff or let them in.

Bailiffs cannot usually enter your home

  1. by force, for example by pushing past you
  2. if only children under 16 or vulnerable people (with disabilities, for example) are present
  3. between 9pm and 6am
  4. through anything except the door


Bailiffs are allowed to force their way into your home to collect unpaid criminal fines, Income Tax or Stamp Duty, but only as a last resort.


If you do not let a bailiff in or agree to pay them they could take things from outside your home, for example your car you could end up owing even more money


If you do let a bailiff in but do not pay them they may take some of your belongings. They could sell the items to pay debts and cover their fees.


You may be able to get extra time to make a payment or get debt advice if you’re a vulnerable person (for example, you have mental health problems or are seriously ill).


Check the bailiff’s identity

Before you let a bailiff in to take your things or pay them, ask to see proof of their identity, such as a badge, ID card or enforcement agent certificate which company they’re from a telephone contact number, a detailed breakdown of the amount owed


All bailiffs must have a certificate unless they’re exempt or they’re with someone who does have a certificate.


Anyone who claims to be a bailiff when they are not is committing fraud.


To check a bailiff’s identity you can check the register of certificated bailiffs if they say they’re a certificated enforcement agent or contact the court that sent them if they say they’re a county court bailiff, family court bailiff or a civilian enforcement officer


Paying a bailiff

You can pay the bailiff on the doorstep - you do not have to let them into your home.

Make sure you get a receipt to prove you’ve paid.

If you cannot pay all the money right away, speak to the bailiff about how you could pay the money back.. The bailiff does not have to accept your offer.


What bailiffs can and cannot take

If you let a bailiff into your home, they may take some of your belongings to sell.

Bailiffs can take luxury items, for example a TV or games console.

They cannot usually take:

  1. things you need, such as your clothes, cooker or fridge
  2. work tools and equipment which together are worth less than £1,350
  3. someone else’s belongings, such as your partner’s computer

You’ll have to prove that someone else’s goods do not belong to you.


How to complain about a bailiff

You can complain about a bailiff (‘enforcement agent’) if you think they’ve broken the rules, for example if they:

  1. threaten or harass you
  2. try to break into your home without a warrant
  3. try to charge you incorrect fees
  4. take goods belonging to someone else
  5. take essential items, including things you need for work


You can complain both to: whoever the bailiff is working for or the people you owe money to


Complain to a court about a bailiff’s behaviour

If a bailiff has a certificate allowing them to carry out enforcement action (a certificated enforcement agent) you can ask the court to consider whether they should be allowed to continue operating. You need to:

fill out and submit an EAC2 form (https://www.gov.uk/government/publications/form-eac2-complaint-against-a-certificated-person)send it to the court where the agent is registered - you can find this on the certificated enforcement register.


The court can remove the agent’s certificate or order them to pay compensation.


It’s free to make a complaint, but you may have to pay legal costs if you complain to a court and they decide there were no ‘reasonable grounds’ for the complaint.


Writs of possession

As an alternative to enforcing a possession order by applying for a warrant of possession in the County Court, the landlord may apply to transfer the order to the High Court for enforcement by a High Court Enforcement Officer (HCEO). Enforcement in the High Court is usually quicker.


HCEOs are also referred to as enforcement agents, bailiffs or Sheriffs. They are private agents regulated by the High Court Enforcement Officers Association who operate under instructions received from the claimant landlord.


Between 17 November 2020 and 31 May 2021 there was a stay on enforcement of warrants and writs of possession, except in limited circumstances.


When a possession order can be enforced in the High Court

A possession order can be enforced in the High Court in two situations.


The first is when the possession hearing was in the High Court. This is unusual because if a landlord applies for a possession order in the High Court, it is transferred to the County Court unless there are exceptional circumstances, such as complicated disputes of fact or important points of law

The most common reason for High Court enforcement is because the landlord has applied to the County Court to have the possession order transferred to the High Court for enforcement by an HCEO.


Application for transfer of enforcement to High Court

The County Court judge has discretion whether to allow the transfer of enforcement to High Court. [3]

The landlord can request the transfer:


  • during possession proceedings in the County Court
  • after a possession order has been obtained, by making an application to the County Court.


From 20 September 2020, if the property is within the area of a District Registry and the landlord applies for a transfer to High Court, then, unless the County Court directs otherwise, the case will be transferred to the District Registry.


When an application cannot be made

An application for a transfer cannot be made if there are outstanding applications from the tenant, such as an appeal against the possession order.


High Court enforcement and rent arrears

If rent arrears together with any court costs total over £600, the landlord may also apply for a writ of control to recover the money owed. A writ of control provides for the seizure and sale of the debtor goods. This was previously known as, and is still commonly referred to, as a writ of fieri facias or writ of fi fa.

Interest, currently at the rate of 8 per cent, on the judgment debt for arrears will accrue from the moment of the transfer of the order.


Breathing space and High Court Enforcement

Landlords are prohibited from applying for a writ of possession on the basis of rent arrears, during a breathing space moratorium.


The landlord must notify the court if the tenant is in a breathing space moratorium. The court must ensure that any proceedings to enforce an order concerning a moratorium debt does not progress during the moratorium period.


Reasons for a landlord to apply for a transfer to the High Court

A landlord might ask for a transfer of the order to the High Court because:


  • enforcement in High Court is usually quicker
  • delays in County Court enforcement may result in increasing rent arrears, further damage to the property and/or anti-social behaviour


If money is owed, the writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the order which is to be enforced by the writ


Reasons for a tenant to oppose a transfer to the High Court

The tenant's reasons for opposing High Court enforcement could include:


  • lack of evidence that County Court enforcement would cause a significant delay
  • disproportionately high costs
  • requiring more time to find somewhere else to live before eviction.
  • The tenant's particular circumstances, such as whether they have significant rent arrears or children, can be relevant factors in the court's decision.


Requirement for High Court permission

If the landlord's application to transfer is granted by the County Court, the landlord must obtain the High Court’s permission before the writ of possession is issued, except in:


  • actions against trespassers
  • mortgage repossession cases
  • cases where a suspended possession order for non-payment of rent is breached.


Landlord's notice of application for permission

When permission to enforce a possession order in the High Court is sought, the landlord must give notice of the application to 'every person in actual possession' of the property. The High Court must not grant permission unless each tenant is given such notice as the Court considers sufficient. [10]

There is no requirement to give notice in any particular form. What is sufficient notice will depend on the facts of the case. Where a sole tenant was aware that the case had been transferred to the High Court, a reminder from the landlord of the terms of the court order and a request that to give up possession could be sufficient notice.


A writ of possession can be set aside even after its execution if the landlord fails to:


  • give sufficient notice
  • provide full information to the court about pending applications or appeals against the possession proceedings.


High Court practice note on HCEOs

Some HCEOs had tried to circumvent the correct procedure by applying directly to the High Court to take over the matter under section 41 of the County Court Act 1984, or by using Form N293A inappropriately against tenants, rather than trespassers. On 21 March 2016, the Senior Master of the High Court issued a practice note to ensure that these malpractices stop.


Notice of execution of a writ of possession

From 20 September 2020, a notice of eviction must be delivered to the premises at least 14 days before the eviction date, unless the court dispenses with this requirement.


  • The notice of eviction must be:
  • addressed to all persons named on the possession order and 'any other occupiers'
  • inserted through the letter box in a sealed transparent envelope or, if this is not practicable, attached to the main door or some other part of the land so that it is clearly visible, or, if this is not practicable, attached in a sealed transparent envelope to stakes in the land in places where they are clearly visible.
  • The notice must be delivered to the premises 14 days before the eviction date, unless the court:


  • dispenses with the requirement to serve a notice of eviction
  • extends or shortens the time by which a notice of eviction must be delivered.
  • The notice requirement does not apply to action against trespassers who have never had permission to enter or occupy the premises.


From 7 August 2021 if an eviction does not take place on the date specified on the notice, a further notice of eviction must be delivered to the premises at least 7 days before the new eviction date.[15]

Before 23 August 2020 HCEOs did not have to notify the tenants in advance about the eviction date, although some HCEOs did drop off the writ and return a day or two later. Before 23 August 2020, seven days' notice was required only if a HCEO was seeking to seize goods and money as well as recover possession of the property.


Applications to stay or set aside

The High Court has the power to stay or set aside a writ of possession, or writ of control. [18] Applications to the High Court should be made on form N244.


The application should be supported by evidence. The evidence can be included on the form, or by witness statement. A fee is payable, and applications should be made with notice of at least three clear days. Where an application is made with less than three clear days the court may agree to a shorter time.

If the stay or set aside is granted it is important that, where possible, the tenant informs the HCEO of this fact as the High Court may not have informed the HCEO.


An application relating to the possession order, such as to set aside or vary the original possession order, must be made to the County Court.