Unlawfully arrested for failing to allow bailiffs into your home?

An Englishman’s home is his castle goes the old saying, enshrined in law by the judgment of Lord Camden (who probably did live in a castle) in the 1765 case of Entick v Carrington: 

Every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my licence, but he is liable to an action though the damage be nothing.

Of course, there was an important qualification to this, in the words of Lord Camden –  “Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good” – or in other words, the right of legitimate agents of the State, principally bailiffs and police officers to enter private property in a number of situations which are carefully limited and controlled by the law.

What rights do bailiffs have to enter your home ?

The starting point for Bailiffs (whose correct legal description following the Tribunals, Courts and Enforcement Act 2007 is “Enforcement Agent” – quite a mouthful of a title replaced a historic but well understood term; I will use the two terms interchangeably in this blog) is that they have a right to peaceful entry of premises only i.e. they cannot force their way in, although they could open and go through an unlocked door.  At the same time there is no obligation on you as the occupier of the premises to let the Bailiff in.

What a Bailiff cannot do (except in certain circumstances which are specified below) is break open a door or window, use a locksmith to pick a lock, or to force their way past someone at a door (the classic bailiff manoeuvre being to try to put their foot in the doorway to prevent the door being closed).

A Bailiff will only have a right to force entry to your home on a first visit if they are there to collect unpaid Magistrates’ Court fines.

Even then –

  1.  They are only allowed to use reasonable force  i.e. a locksmith who will unlock the door – not a battering ram!
  2. They cannot force their way past you if you are blocking the door (Paragraph 24 (2) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 expressly states that “Power to use force does not include power to use force against persons”)
  3. They can only enter through a door, not a window.

On a first visit in respect of enforcement of any of other types of debt however, the Bailiff is simply not allowed to use any force at all, eg –

  • Tax arrears
  • Credit card/catalogue debts
  • Parking fines
  • Money owed to Utility Companies (e.g. water, energy or telecoms).

I talk about a ‘first visit’ because if you do allow the Bailiffs into your home and they make an inventory of your belongings and/or you enter into a “Controlled Goods Agreement” (i.e. they agree not to remove your belongings provided you comply with a repayment plan to discharge your debt) then on their return visit the Bailiffs would be able to use reasonable force to gain re-entry to your property, notwithstanding what kind of debt was being recovered.

Visits by Bailiffs are obviously in their nature very stressful and tense affairs, often exacerbated by aggressive actions and behaviour from the Bailiffs, some of whom don’t know the limitations on their powers of entry and others of whom are prepared to abuse those powers in order to ‘bully’ debtors into giving them what they want.

Often, one or both sides to the dispute – the debtor and the Bailiff/Enforcement Agent will call the Police if matters become heated or a ‘stand-off’ occurs.

It is important to understand that the role of the Police is not to automatically side with the Bailiffs. The Police in attending any given situation should have as their priority preventing a Breach of the Peace, but if none is occurring, nor any other crime being committed, it is not their business to get involved.  They are not supposed to function as ‘cavalry’ coming in to back up the Bailiffs and to help them get their job done. As explained above, there are many situations where the Bailiffs may be enforcing a valid warrant for a valid debt but nonetheless still do not have the right to come into your home unless you let them.  Neither they nor the Police have the power to compel you in that situation to open your door and let the Bailiffs in.

It is open to the Bailiff to go back to the Court to seek permission from a Judge to use reasonable force to gain entry if this is denied to them, but as stated above on a first visit there are only a very limited number of situations in which they can resort to force without further permission from the Court.

On the other hand, if a Bailiff is operating within his legitimate powers and a debtor or other occupier of the premises obstructs them from carrying out their job then that can amount to a criminal offence in accordance with Paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007 (which codifies the law in regards to the powers of Enforcement Agents in England and Wales, as referred to above).

The question of course, as to whether the Bailiffs are acting within the boundaries of the law, and therefore whether your ‘obstruction’ of them is unlawful or not is the key question – a question often, in my experience, incorrectly answered by Police Officers who have attended at the scene under the mistaken apprehension that they are there as the Bailiffs’ ‘big brothers’.

And it is a question which was very much at the heart of a case I recently concluded on behalf of my client Harry Bush (name changed).

Unlawfully arrested for refusing entry to Bailiffs

Mr Bush instructed me to bring a  claim for compensation against Sussex Police as a result of the following incident.

On the evening of the 25 July 2015 my client made an emergency call to Sussex Police to report that Bailiffs were attempting to unlawfully enter his home address in Eastbourne in order to execute a High Court Order (Writ of Control).  It is understood that at about the same time one of the Bailiffs, a certified Enforcement Agent, Mr Neckett also contacted the Police requesting their assistance to enforce the Writ of Control.

The Writ of Control in question related to a debt owed by Mr. Bush to South East Water – and hence, it will be noted, was one of those types of debt in relation to which Bailiffs/Enforcement Agents do not have an automatic right to force entry to a person’s premises.

Furthermore, Mr. Bush had on the 1 July 2015 agreed a 30 day suspension of any enforcement action against him with the Bailiff Company.

Notwithstanding the fact that he had been given this ‘period of grace’ in which to arrange payment, and which should have took him up until the 31 July, two Bailiffs attended at his premises on the 25 July, only one of whom – Mr. Neckett was a certified Enforcement Agent.

My client explained to Mr. Neckett and his colleague that it had been agreed that enforcement action would be suspended against him until at least the 31 July, but not withstanding this Mr. Neckett insisted on being allowed into his premises. Hence the telephone call from my client to Sussex Police.

As Mr. Bush subsequently attempted to exercise his right to close his front door to the Bailiffs, Mr. Neckett’s assistant Mr. Ball wedged his foot across the threshold, thereby preventing closure of the door.

This use of force by one of the Bailiffs to prevent the door being closed was doubly unlawful, as explained above, in relation to the nature of the debt which the Bailiffs were seeking to enforce. They had neither the right to use force against the door, nor any person present (in this case Mr Bush, who was trying to close the door). The Bailiffs should not have done it.  Mr. Bush was entirely within his rights to close the door to them and not to allow them on the premises if he chose not to.

Nevertheless (though probably unsurprisingly) when four Officers from Sussex Police then attended at the scene, they immediately took the side of the Bailiffs.

When the Officers arrived, Mr. Bush was still standing in the doorway, only being prevented from closing the door by Mr. Ball’s foot.  As explained above, the Bailiff did not in fact have a legal foot to stand on (shall we say) but the Police chose to overlook this. I would suspect this is because of the Police Officers’ ignorance of the law surrounding the rights of Enforcement Agents and (probably of equal importance) their natural inclination to side with the Bailiffs against the debtor.

My client explained to the Police Officers that the Writ was supposed to be on hold for 30 days, but was ignored.

Furthermore, and in any event, my client  asserted the right that he knew he could refuse entry to the Bailiff if he chose to do so. His conversation with the Police officers about this was recorded on one of the officer’s body cam, and throughout the conversation Mr Bush comes across as calm and entirely reasonable; he does not shout or behave in any way aggressively. He simply asserts the law which governs Bailiffs and which he fully understood – but which sadly, no one else present apparently did.

This resulted in a bizarre exchange in which one of the Police officers accepted that the Bailiffs had no right to force their way in – but then asserted that if Mr Bush did not let them in, he would be arrested.

Indeed, one of the officers  then stated that he was arresting Mr. Bush for obstructing an Enforcement Agent (contrary to paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007).

The relevant provision states –

A person is guilty of an offence if he intentionally instructs a person lawfully acting as an Enforcement Agent.

Here of course, either overlooked or disregarded by the Police Officers, was the fact that the Enforcement Agents were not acting lawfully because they had attempted to use force to enter the premises, by way of placing a foot in the door. Furthermore, at the moment Mr Bush was arrested, the Bailiffs were standing outside the property, with no right to enter, and he could not therefore have obstructed them.

Sadly, the Bailiffs had overstepped their powers in using force to keep the door open, and now the Police Officers were overstepping their own powers in arresting Mr. Bush without an actual offence having been committed.

On a side note – but one which is not unimportant – the arresting officer handcuffed my client as soon as he arrested him despite no physical resistance being offered. All force including handcuffs must be proportionate to the situation, and Mr Bush’s calm and reasonable demeanour in no way justified tying his hands behind his back.

Whilst in handcuffs, Mr Bush tried again to make the arresting officer understand the law asserting “He [the Bailiff] doesn’t have the right to enter my house without me letting him in”. To this the arresting officer  again agreed that the Bailiff’s warrant doesn’t give an automatic right to enter Mr Bush’s house without his permission, which begs the following question as asked by my client “Then why did you let them in?” (With the doorway now clear because Mr Bush had been handcuffed and taken into the living room by the Police, the Bailiffs had come into the house). The officer’s reply (which you almost couldn’t make up) was “Because you’re obstructing them from doing their job”!

In other words- the officer was agreeing that the Bailiffs had no right to enter without permission, but then asserting that if  permission was refused, a criminal offence would be committed – which of course is exactly the same as saying the Bailiffs did have a right to enter without permission. With respect, it should have been blindingly obvious to the officer that what he was saying made no sense, something the officer perhaps reflected on when he then asked Mr Bush to stop asking him questions.

The arresting officer’s female colleague then offered her own interpretation of the law, telling Mr Bush the following –

“If they [the Bailiffs] can’t get in – they call us [see what I mean about Police Officers thinking they’re there as ‘reinforcements’ for the Bailiffs?] – we act to prevent a Breach of the Peace [at no point was Mr Bush ever arrested for Breach of the Peace] – and if you obstruct them we have legislation which entitles us to arrest you.”

Quite a jumble of misunderstood sections of the law, to which I would like to echo Mr Bush’s reply at this point to the officer –

“I’m really, really sorry but you’re wrong”.

My client was taken from his home in handcuffs to Eastbourne Police Station and there processed, including having to provide his fingerprints and a DNA sample.

He was held in a locked cell, interviewed under caution and not released until 2.35am the following morning after over 6 hours in Police detention.

Initially Mr. Bush was released on Police Bail, but on 2 September 2015 he was notified by the Police that they would not be proceeding with any charges against him.

Quite rightly upset by what had been done to him, my client submitted a formal complaint against the Officers who had dealt with his arrest, a complaint which he lodged on the very day he was released from custody.  The complaint outcome was that management action was taken against each of the Officers who had attended the scene.

Furthermore,  Mr. Bush pursued a complaint against the Bailiff Company,   who after investigation confirmed that his account should have been recorded as suspended for a period of 30 days from 1 July, but had in fact been suspended for unknown reasons for a period of 7 days only, and he was offered a written apology from the company in this regard.

In my opinion, however, the key point on which this case turned was not the failure of the Bailiff’s company to properly record the agreement they had entered into with Mr. Bush, but the failure of the Bailiffs to comply with the law, i.e. their unlawful use of force and the subsequent failure of the Police Officers to understand the illegality of the Bailiffs’ behaviour. The prevailing confusion which was evident amongst the Officers at the scene of the arrest as to what rights the Bailiffs had, and what conduct by the homeowner amounted to a criminal offence, was also apparent during the wider Police investigation in the weeks following Mr Bush’s arrest – the investigating officer  having to resort to an internet search, excerpting quotes from public advice websites, to find out what powers of entry Enforcement Agents had! It is really quite shocking that Police officers apparently routinely arrest people for ‘offences’ committed in relation to a law which they apparently haven’t been given the training to properly understand. Personally, I don’t think we should be conducting law enforcement by ‘Google’ search.

The Police Officer investigating Mr. Bush’s case, increasingly concerned that in fact no crime had been committed, eventually reached the following conclusion which is recorded in an Investigation Log entry dated 8 August 2015 –

Internet research has highlighted a common theme/issue when the EO’s put a foot over the threshold. This then enters the arena of ‘forced entry’ and an EO is not entitled to force entry to residential premises (they can however if dealing with a commercial property).  Rai and Rai v Birmingham City Council 1993 held that a boot in the door was illegal.  Essentially this act of putting a foot in the door is known as a ‘threshold manoeuvre’ and since 2008 this is not a recognised/lawful technique.

As I have stated above, the ‘foot in the door’ manoeuvre is also illegal contrary to Para 24(2), Schedule 12, of the Tribunals, Courts and Enforcement Act 2007.

The Investigating Officer also appears to have, albeit somewhat belatedly, taken into account the fact that on the evidence available, the force was only coming in one direction i.e. from the Bailiffs trying to force their way into the property, and the only ‘threat’ that my client could have been said to have made was his ‘threat’ to call the Police.  Other than this, his refusal to grant the Bailiffs peaceable entry onto the property, and his argumentative but not threatening stance in regards to what he honestly believed to be a ‘suspended’ Enforcement Writ, could hardly be said to constitute obstruction of the Enforcement Agent’s lawful powers. Hence the decision not to prosecute my client, which was very welcome, but had sadly been preceded by all the unnecessary stress, time and expense of his arrest and imprisonment at the Police Station beforehand.

On the basis of the above I brought a claim for compensation for false imprisonment and assault (principally in regards to the unnecessary application of handcuffs to Mr. Bush, and the psychological effect which his incarceration had had upon him) in response to which Sussex Police accepted that they had unlawfully arrested Mr. Bush and that the placing of handcuffs upon him amounted to an assault.

After I had commissioned medical evidence on behalf of my client I was eventually able to negotiate a settlement for him in the sum of £9,000 plus legal costs.

If you feel you have been unlawfully arrested during a dispute with Bailiffs then please contact me for advice.  As you can see, it is not only the Bailiffs themselves but often the Police Officers called upon to keep the peace who do not know or fully understand the law in this area, leading to the heavy-handed treatment and unlawful arrest of people that simply try to stand up for their civil rights.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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