Misrepresenting the law on squatting
26 September 2011
Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.
I am one of the letter’s signatories. Amongst other things, it states that:
a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.
The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.
I have written regularly on the misrepresentation of human rights law in the media (see the articles here) and housing law appears to suffer from a similar problem, prompted by mischievous tabloid campaigns and politicians who are too willing to stoke prejudice.
The Prime Minister has recently said that he is worried by the “twisting and misrepresentation of human rights“. Will this letter, written by some serious housing lawyers (of which I am not one), prompt him to worry about the twisting and misrepresentation of housing law?
The letter and signatories are reproduced in full below:
We are legal academics, solicitors and barristers who practise in housinglaw acting for landlords, tenants, owners and occupiers. We are concerned that a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation. This is legally incorrect, as the guidance published by the Department for Communitiesand Local Government in March this year makes clear. We are concerned that such repeated inaccurate reporting of this issue has created fear for homeowners, confusion for the police and ill informed debate among both the public and politicians on reforming the law.
Further, various MPs and ministers have given statements to the press that are misleading. For example, Housing minister Grant Shapps told the World Tonight, on the issue of people’s homes being squatted, that “the police don’t act because the law does not support the police acting”. Similarly, Conservative MP Mike Weatherley, who has campaigned in support of the proposed change in the law, was quoted in the Daily Mail as saying that for someone finding squatters in their “home” the situation is that: “If those squatters claim that they did not break into your property – though they almost certainly will have done – you have no powers to throw them out”. Where the property is someone’s home, these statements are quite simply wrong.
By making misleading statements and failing to challenge inaccurate reporting, ministers have furthered the myths being peddled around squatting.
We want it to be clear that it is already a criminal offence for a squatter to occupy someone’s home, or a home that a person intends to occupy, under the Criminal Law Act 1977. A homeowner will be a displaced residential occupier, or if they are intending to move into the property, a protected intended occupier. In either case, it is a criminal offence for a squatter to remain in the property as soon as they have been told of the displaced occupier or a protected occupier. The police can arrest any trespasser who does not leave. The displaced or protected occupier can use force to enter the property and reasonable force to remove the trespassers.
Thus it seems that recent high-profile cases, such as those of Dr Oliver Cockerell and his wife, or of Julia High, could and should have been dealt with under existing criminal law. If they were not, it is likely that this was due to a lack of understanding of the law on the part of the homeowners or the police, who apparently considered these to be civil law matters.
Unfortunately, government ministers like Mr Shapps and Crispin Blunt have not taken the opportunity to make people’s existing remedies clear when giving interviews or quotes for such prominent articles. For example, in a front-page article in the London Evening Standard, Grant Shapps was quoted as saying that the case of the Cockerells showed the need to speed up the timetable for the introduction of the new proposals into law. However, the new proposals would make very little or no practical difference to a case such as the Cockerells’, if the current law was actually used. Instead of clarifying the scope of the law, statements by ministers have at times obscured it.
Squatting of vacant property that is not a home is not a criminal offence. The person with a right to the property who wants to recover possession should go to the civil courts for a possession order to protect their position. However, they can apply for an interim possession order, which typically takes a few days. Once the interim order is made and served, the squatters must leave within 24 hours or commit a criminal offence. The current law therefore provides a range of options for immediate or rapid possession for those with trespassers in their homes and those seeking to regain possession of vacant property. But newspaper articles have frequently misrepresented this, stating that homeowners face weeks of civil proceedings to regain their homes and that the trespassers have “squatter’s rights” in occupying a home.
We are very concerned that a proper debate over the value and effect of the new proposals to further criminalise occupation of buildings is threatened by widespread distortions of the current law. As the proposals would have far reaching consequences for many vulnerable people, there is a need for informed factual discussion rather than a response based on sensationalist misrepresentation. We believe that ministers should make clear the extent of the current law and the actual nature of the proposed reforms and correct any statements they have made which are likely to have confused the public. We further believe that newspapers and other media have a duty to inform their readers, rather than create fear and confusion through misrepresentation.
Andrew Arden QC Arden Chambers
Housing Law Practitioners Association Justin Bates, Vice-chair executive committee
Yinka Adedeji 1 Pump Court Chambers
James B. Allie Spence & Horne Solicitors
Michael Ashe Southwark Law Centre
Abimbola Badejo 5 Pump Court
Rebecca Bahar Cambridge House
Christopher Balog Arden Chambers
Samitra Balu Tyndallwoods Solicitors
Frances Barratt South West Law (Legal Services in the Community) Ltd
Justin Bates Arden Chambers
Ian Beachley Moss Beachley Mullem & Coleman
Sophie Bell Hodge Jones & Allen LLP
Lucia Benyu Peters Legal
Ann Bevington Fisher Meredith LLP
Sara Blandy Reader in property law, University of Leeds
James Bowen Garden Court Chambers
Lisa Bowman David Gray Solicitors
Charlotte Brans BKS Solicitors
Professor Susan Bright Oxford University
Caroline Brosnan Hodge Jones & Allen LLP
Jackie Brown Peters & Company Solicitors
Katie Brown Philcox Gray
Robert Brown Arden Chambers
Simon Buckhaven Hardwicke Chambers
Andrew Byles Garden Court North Chambers
Dr Helen Carr Reader in law, University of Kent
Rebekah Carrier Southwark Law Centre
Sylvester Carrot 1 Pump Court Chambers
David Carter Arden Chambers
Ben Chataway Doughty Street Chambers
Richard Cherry Lamb Building
Eva Chrysostomou Southwark Law Centre
Keith Clarke Burke Niazi Solicitors
Lisa Clarke Staple Inn Chambers
Charles M Clements S A Law Chambers Solicitors Ltd
Ken Cohen Moss Beachley Mullem & Coleman
Marisa Cohen 1 Pump Court Chambers
Justine Compton 1 Pump Court Chambers
Rachel Cooper BHT Advice
Stephen Cottle Garden Court Chambers
Keith Coughtrie Davies Gore Lomax LLP
Professor David Cowan Arden Chambers and University of Bristol
Laura Coyle Fisher Meredith LLP
Lou Crisfield Tower Hamlets Law Centre
Lesley Curtis Hopkin Murray Beskine
Joshua Dubin 1 Pump Court Chambers
Thom Dyke Barrister
Catherine Evans Southwark Law Centre
Kelly Evans Swain & Co
Vicky Fewkes Fisher Meredith LLP
Daniel Fitzpatrick Hodge Jones & Allen LLP
William Ford Osbornes Solicitors LLP
David Foster Foster & Foster
Deirdre Foster Powell Forster Solicitors
Simon Foster Tyndallwoods
Kay Foxall Southwark Law Centre
Viv Gambling Lambeth Law Centre
Kevin Gannon 1 Pump Court
Martin George CSET lecturer in property law, University of Birmingham
Gurbinder Gill Eric Bowes and Co
Polly Glynn Pierce Glynn Solicitors
Elis Gomer St Johns Buildings
Sue Grebby David Gray Solicitors
Sarah Green South West Law (Legal Services in the Community) Ltd
Lucie Greene Philcox Gray
Ian Greenidge Hodge Jones & Allen LLP
Rosie Grewal Powell & Co Solicitors
Tony Griffin Cartridges
Kaite Groves Switalskis Solicitors LLP
Bethan Harris Garden Court Chambers
Michelle Harris 1 Pump Court Chambers
Andrew Harrison Blackfriars Advice Centre
James Harrison Edwards Duthie
Ron Heywood Open University
Alice Hilken 1 Pump Court Chambers
John Hobson Doughty Street Chambers
Jane Hodgson Arden Chambers
Martin Hodgson 1 Pump Court
Mary Hughes 1 Pump Court Chambers
Adam Hundt Pierce Glynn Solicitors
Jenny Hunt Fisher Meredith LLP
Arnolda Hunter Hereward and Foster Solicitors LLP
Professor Caroline Hunter University of York
James Hurford Swain & Co
Rita Jackson Solicitor & Mediator
Sue James Hammersmith & Fulham Law Centre
Chris Johnson Community Law Partnership
Douglas Johnson Specialist advisor, Sheffield Law Centre
Rosaleen Kilbane Community Law Partnership
Angus King King Cambridge House
Andrew Lane Hardwicke Chambers
Jonathan Litchfield Burke Niazi Solicitors
Alan Lodge Newsome Vaughan LLP
Keith Lomax Davies Gore Lomax LLP
Hadley Long Traymans LLP
Sam Madge-Wyld Arden Chambers
Alan Masters 1 Pump Court Chambers
Derek McConnell South West Law (Legal Services in the Community) Ltd
Ben McCormack Garden Court North Chambers
Dr Morag McDermont Senior lecturer, University of Bristol
Claire McGregor Garden Court Chambers
John McNulty Turpin & Miller LLP
Vanessa Morgridge Hereward and Foster Solicitors LLP
Nicola Muir Hardwicke Chambers
Alan Mullem Moss Beachley Mullem & Coleman
Zia Nabi 1 Pump Court
Nik Nichol 1 Pump Court
Kate O’Brien South West Law (Legal Services in the community) Ltd
Richard O’Sullivan 1215 Chambers
Emily Orme Arden Chambers
Julia Osmond Southwark Law Centre
Michael Paget Garden Court Chambers
Michael Parry Island Advice Centre, Tower Hamlets
Nina Patel Quality Solicitors Jackson & Canter
Jacky Peacock OBE Brent Private Tenants’ Rights Group
Giles Peaker Anthony Gold Solicitors
Sean Petit 1 Pump Court Chambers
Stephen Pierce Pierce Glynn Solicitors
Steve Povey Shelter Cymru
James Presland 1 Pump Court Chambers
Beatrice Prevatt Garden Court Chambers
Azmon Rankohi Brightstone Law
Simon Read Zenith Chambers
Stephen Reeder Doughty Street Chambers
Paul Ridge Bindmans LLP
Tony Ross 1 Pump Court Chambers
Amy Rought-Brooks Hodge Jones & Allen LLP
Catherine Rowlands 2-3 Grays Inn Square Chambers
Sasha Rozansky Pierce Glynn Solicitors
Jacqueline Rubens 1 Pump Court Chambers
Faisel Sadiq Arden Chambers
Satvir Sahota Hodge Jones & Allen LLP
Mensah Sarbah GT Stewart
Jim Shepherd Doughty Street Chambers
Tessa Shepperson Landlord Law
David Smith Anthony Gold
Stephanie Smith Arden Chambers
James Stark Garden Court North Chambers
Sarah Steinhardt 1 Mitre Court Buildings
Sara Stephens Anthony Gold Solicitors
Michelle Stevens-Hoare Hardwicke Chambers
David Thomas GT Stewart
Joanna Thomson Pierce Glynn Solicitors
Patricia Tueje 1 Pump Court Chambers
John de Waal Hardwicke Chambers
Adam Wagner 1 Crown Office Row
Timothy Waitt Anthony Gold Solicitors
Camille Warren Garden Court North Chambers
David Watkinson Garden Court Chambers
Jenny White Fisher Meredith LLP
Peter Whitehead NMB Group Ltd
Claire Wiles Hanne & Co
Marc Willers Garden Court Chambers
Sue Willman Pierce Glynn Solicitors
Debra Wilson Anthony Gold Solicitors
Zubier Yazdani Pierce Glynn Solicitors
Fraser Young Fieldings Porter
Barbara Zeitler Clarendon Chambers
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“As a final point, in my opinion the reason the police give removal of squatters a low priority is because, in reality, squatting is not the epidemic that the media suggest. Squatting in occupied residential properties is incredibly rare. For me, that’s the main problem I have with the Government and media’s coverage of squatting: massively over-exaggerating it’s extent and making the public afraid of an issue that just isn’t there.”
Well said.
Matthew
On the evidence point – what you need to be able to assess the position is numbers of a) CLA arrests, b) police attendances for DROs/PIOs where the squatters left without arrests, c) numbers where squatters left when a DRO/PIO announced themselves with no police involvement and d) numbers of IPO and possession claims where it was a home, rather than vacant property at issue. Let us assume you can get a) & b), though I doubt it. You can’t get c) and you can’t get d) as the MoJ only has figures for IPOs and Possession orders in general for trespasser cases. There is no homeowner/vacant property breakdown. So any figures you might be able to get (although I suspect success would be doubtful) are meaningless in trying to assess the overall position.
On anecdotal evidence of police not assisting. Yes, I have heard of the odd instance. Viz my reply to Obiter J above. You can point to anecdotal reported cases, sure – about two, maybe three. And you have no way of knowing if these are in any way representative. I’ll add in the unreported one I know of, so you have 3 or 4 cases. But without being able to say what proportion of the total of ‘homeowner’ cases these represent, the figure is meaningless.
I am not necessarily a supporter of the law as it stands, for all your efforts to insist that I am. However, I think that such changes in the law should be based on evidence of need and a reasoned basis for the change.
Your position, however, is that there is a definite need for a change – even going beyond that proposed – on the basis of your assumptions made on no evidence beyond newspaper reports (themselves inaccurate as noted in the letter) of maybe 3 cases. I am certainly open to persuasion but not keen on making sweeping changes in the law based on 3 or maybe 4 cases, which may or may not be exceptional, or shaped by the decisions and actions of those involved. Of course, one case be would be sufficent on your logic, regardless of its facts, which is an indication of how precarious that logic is.
You fail to produce any analysis of the reasons in each of those few cases why civil proceedings were used and yet want to make a sweeping change based upon what you presume to have happened. This is, to say the least, a recipe for very poor law.
On rarity – a simple definition. Doesn’t happen very often. Or indeed very infrequently. Anecdotal, of course, but then my anecdotal experience, and that of colleagues across the country with whom I am in contact, is clearly broader than yours, which consists of newspaper accounts.
And, bluntly, I’m a bit tired of trying to argue with someone who is actually arguing against a position of their own invention. I’m sure that you are sure what it is you are arguing against, but sadly it isn’t me and I have no great desire to impersonate your strawman.
But, as a last point, you will find the direct quote from Shapps in the letter – made on the World Tonight. And – pace the response to the letter – Shapps’s press releases are not accurate, though the DCLG guidance was, as we point out.
@NearlyLegal: This made me smile:
And, bluntly, I’m a bit tired of trying to argue with someone who is actually arguing against a position of their own invention. I’m sure that you are sure what it is you are arguing against, but sadly it isn’t me and I have no great desire to impersonate your strawman.
I would certainly be interested to read your position on the current law – rather than the presumably negotiated terms of the mass letter – elsewhere, if that’s of interest to you. I have formed a clear impression as to what that would be from the inception of the letter and this exchange, but I am not setting out to construct one against you (as it were).
All of the points made about evidence apply to both sides. You accuse me above of making precarious and sweeping assumptions based on reported examples which are inaccurate. I’ve made clear my view on the reliance placed on rarity, both in response to you and @Mike above, and the rhetrocial focus on terms of the law as against the reality for those affected.
We clearly won’t agree on this!
While I completely agree that Ministers and the press should not get away with misrepresenting housing law for political gain (and I also acknowledge that the signatories of the letter are far, far greater experts than I in the matter of housing law), I think aspects of the letter itself are disingenuous. To put it another way, the letter simplifies matters to the extent that it is misleading. There are difficulties with the Criminal Law Act 1977 that make the law more complex to enforce than it should be.
The letter says: “We want it to be clear that it is already a criminal offence for a squatter to occupy someone’s home, or a home that a person intends to occupy, under the Criminal Law Act 1977. A homeowner will be a displaced residential occupier, or if they are intending to move into the property, a protected intended occupier. In either case, it is a criminal offence for a squatter to remain in the property as soon as they have been told of the displaced occupier or a protected occupier. The police can arrest any trespasser who does not leave.”
1. First: It is not a criminal offence for a squatter to occupy a person’s home. It is a criminal offence to remain there having been asked to leave by a “displaced residential occupier” or a “protected intending occupier” (Section 7(1), Criminal Law Act 1977). This is a small but significant difference, because of what follows.
2. A person is only a displaced residential occupier or protected intending occupier if they have been “excluded from occupation of the premises” by the trespasser (s.12(3) and 12A(2)). A trespasser who allows the owner back into the house, but still refuses to leave, commits no offence.
3. Also, in order to be a protected intending occupier a person must first have served upon the trespasser a statement of their interest in the property, which must have been witnessed by a justice of the peace or commissioner for oaths (s. 12A). I know nothing of the Cockerells’ case, but if someone arrived at their new house on a Friday evening, to find it in occupied by squatters, (1) how would they find a solicitor or magistrate to witness a statement before Monday morning (2) how would they even know that this is what the law requires? In that situation the police would indeed be pretty powerless to help them get into their house over the weekend.
4. The squatter has a defence if they believe the person asking them to leave was not the displaced occupier or their representative (s.7(2)). There isn’t even a “reasonable” belief requirement.
Where squatters are occupying residential premises the police ought to be able to require the trespassers to leave, or arrest them for not leaving, if the owner/occupiers can demonstrate their right to the premises, and give the police a statement that the property is their home. Giving a false statement could be made an offence, thereby providing the necessary safeguards that the JP/commissioner for oaths is presumably meant to provide. The requirement for the householder to have been excluded is also surely unnecessary. It is strongly arguable that to find squatters in your home should be enough in its own right to give the police powers to intervene. Despite what the many learned signatories have sought to persuade us, it is not quite that simple.
Mrs Markleham
I don’t think that there is anything in the letter that contradicts any of your points 1 to 4 (save perhaps 2). Indeed you quote us making point 1.
Point 2 is perhaps a bit otiose. Hardly a loophole and has anyone, ever, heard of this happening? And what if the trespasser retained part of the property, excluding the homeowner from that?
Point 3 – yes. That was in fact in an earlier draft, but this was, after all, a letter for printing in the press. We felt it had to be trimmed back from some 2 and a bit pages and had to loose procedural details in doing so. The Cockerells were talking about more than a weekend by the way, but I have no idea why they didn’t pursue the PIO route – save that it was reported that the police told them it was ‘a civil matter.
On 4. yes, but ‘I don’t believe it’ alone isn’t enough. It might not have to be ‘reasonable belief’ but there has to be a reason.
I don’t think we tried to say ‘it was that simple’. We did say that the ‘simple’ version of ‘they have squatters rights and you have to bring civil proceedings taking weeks’ was wrong.
I think your conclusion is otherwise more or less how it is supposed to work now (save that it is a ‘home’ not just ‘residential property’). Obviously there is a further hurdle for a PIO – and I wouldn’t disagree that that could be satisfactorily updated. But I do disagree on the exclusion point. It would be all too easy for abuse to happen otherwise – say by in a lodger arrangement gone sour.
NL – thanks for your reply – all fair enough points, and I do applaud your having tackled the misinformation coming out of government. I’m no housing lawyer, and have never had to deal with squatters in any capacity, and I’m sure you’re right that point 2 never arises in practice. My point really was that why does the law introduce a requirement (i.e. showing you have been excluded) that serves no purpose? Arguably, the protection of the criminal law should be available where trespassers occupy your home, whether you’re technically “excluded” or not. The same argument might also be made in respect of the need to show forced entry.
Of course, I hadn’t thought about the lodger-gone-sour argument. This does rather throw a different light on it. Whether the “exclusion” requirement is a proportionate way of addressing this is a moot point. Perhaps the law could make some distinction between people who have previously been in lawful occupation and those who have not.
My main objection to the law as it stands (leaving aside the practical difficulties in getting the police to actually intervene, dealt with admirably by other commentators here) was the pointless and bureaucratic need to have a statement witnessed by a JP or commissioner for oaths before you can even call yourself a PIO and claim the police’s protection (point 3). The law seems by all accounts to be difficult enough to enforce, without having to leap this hurdle to even bring yourself within its purview. No wonder the police, let alone the general public, are confused. I’m glad you agree this aspect could be updated.
Mrs M
@Barry Pearson: I think overgraduate’s referring to a couple of apparent discrepancies in your blog post. The reference to “as long as I can’t prove they broke in themselves” is another example of the misinformation about the legality of squatting that’s commonly recited. It’s not true that squatting is only illegal if the squatters break in. As stated above, if it’s a residential property, they’re breaking the law if they don’t leave when they’re requested to, regardless of how they entered.
Also, if it’s a residential property you don’t need to get a possession order to regain possession.
@Matthew Taylor: You seem to be arguing at cross purposes with Nearlylegal. The argument raised in the open letter is that the Government is being misleading as to the current state of the law, which I entirely agree with for the reasons given in the letter. Your response, however, seemed to be that regardless of what the black and white legal position currently is, in practice the police don’t intervene even when they do have the power to do so. That’s a position entirely consistent with Nearlylegal’s letter.
I would ask you this though. Assuming you’re right, and that the police don’t get involved when they could, then what good would tightening the law do? If squatting is already illegal, and the police don’t do anything about it, what makes you think they will after a change in the law? This is clearly an operational matter, and if the Government do want to crack down on squatting then it could be done under current legislation by ordering police to give removal of squatters a higher priority and, importantly, by better training police forces as to the legal status of squatting and their powers in relation to it, rather than continuing to make misleading and confusing statements to the media.
As a final point, in my opinion the reason the police give removal of squatters a low priority is because, in reality, squatting is not the epidemic that the media suggest. Squatting in occupied residential properties is incredibly rare. For me, that’s the main problem I have with the Government and media’s coverage of squatting: massively over-exaggerating it’s extent and making the public afraid of an issue that just isn’t there.
@Mike – I am also taking issue with the argument NearlyLegal and other signatories make about the government misrepresenting the law, and with their contention that the current position is satisfactory – the reference to the Cockerell case, for example, is in terms of that being an unfortunate failure by the police, rather than (as the anecdotal evidence suggests) the routine position.
On police involvement, I’ve outlined my thoughts on the signalling effect of the current position above. The existence of a twin track process – a criminal offence of failing to leave when asked, and a civil process for obtaining possession – provides a basis for the police to view residential squatting as “not a police matter”. Similarly, the maximum sentence permitted for the offence (six months IIRC) signals that this is not a serious offence.
The rarity of the matter is, imv, irrelevant. Many criminal offences are rare, but I doubt we’d debate the need to deter and deal with them effectively simply because of their rarity. Citing rarity also ignores the potential impact of residential squatting on its victims. I have referred to it elsewhere as functionally equivalent to burglary, and I think that’s a reasonable way to characterise it. I would be very surprised to find that the impact on its victims is markedly different.
What the Government certainly has done is to use residential squatting as a leading edge for its push to criminalise all squatting, but that’s not the same as misrepresenting the current legal position.
The charge of misrepresentation, if it stands up at all, stands up against the media generally and one or two specific MPs. It doesn’t stand up against the government, but attacking the media is rather less likely to get your letter published in the Guardian.
i think barry pearson does not understand the law and has not read the post on which he is commenting. i fully support the argument of the blog which is both factually correct and humane.
Please tell me what (if anything) I got wrong. I certainly read the above post, plus lots of other things, as can be seen from my blog (reached via the link in my name).
Note what I am asking for: people who might currently contemplate squatting for a few days in my home under the current law, because they could not be convicted of a criminal offense if they leave within 24 hours of an IPO, would under the changed law be committing a crime whether or not they leave on time. This should make it less likely that they enter and squat in the first place.
It is roughly equivalent to saying (in some hypothetical country) “instead of it just being an offense not to hand goods back within a day of taking them, we are making it a criminal offense to take goods in the first place”. I suggest the latter deters theft, while the former wouldn’t.
I am not claiming the above article is inaccurate; that is the problem! For a householder like me, with just one property which is my dwelling, the current law appears to be inhumane towards me.
Barry, if they are squatting in your home, they are committing a criminal offence by not leaving as soon as you tell them that it is your home.
It is also a criminal offence not to leave within 24 hours of an IPO being served, but you don’t have to serve an IPO for their remaining in your home to be a criminal offence.
My response to the Government’s Squatting Consultation, and which I’ve just put on my blog, is:
… There doesn’t appear to be a deterrent against squatting in my house in the first place, (as long as I can’t prove they broke in themselves), just against staying there after I get an IPO. That is too late. Having had my house broken into and robbed in the past, I know that I don’t want anyone potentially defiling and contaminating my house for a minute, let alone the few days it would take to force them to leave. Who knows what damage and invasion of privacy they would do, especially in the 24 hours after they know they are being forced to leave? …
… I can understand arguments for making sensible use of long-term-empty property. But my position here is much simpler in scope: I want it to be a criminal offense for anyone to squat in my home. That may be sufficient to deter anyone from trying it, and so avoid all the problems that I would otherwise face until the squatters leave. …
@NearlyLegal: Not even close, hence “The failure to engage with practical matters leaves the signatories correct as to the law and woefully out of step with reality”.
As a profession we get stereotyped as obssessed with “the law” to the expense of actuality, and I fear your response is proving the point. The financial and personal costs of regaining possession – which, on the basis of your comments, you are well aware of – are significant, and the current law places that burden solely on the occupier. I’ve outlined above why I think it has a direct impact on police priorities, which you choose not to engage with.
As an aside, since you’re mostly interesting in legal accuracy, it’s specifically not a criminal offence to displace occupiers – the criminal offence arises upon a failure “to leave…on being required to do so by…” one of the designated persons, directly analogous to the s.61 power under the 1994 Act – hardly surprising since the current s.7 CLA1977 was inserted by the 1994 Act.
I might also mention that, until the 1994 Act, it had been a criminal offence to use force to effect entry to premises even if you were the displaced occupier. It would be interesting to see whether the same arguments you and others now deploy to prevent criminalisation of squatting weren’t also deployed at the time to avoid decriminalisation of forcible entry.
Perhaps you might now set aside your own glass of Kool Aid, and look again at the points above? You might particularly wish to consider the signalling effect of the terms of the current legislation, and explain why you think criminalising the original act of unauthorised entry and occupation (rather than the refusal to leave), and imposing stiffer penalities, would not alter police priorities.
OK – let’s just say you weren’t exactly clear in saying “the fact that putting innocent people out of their homes is not a criminal offence” (of course, actually turning someone out of their home would be) – and then when suggesting that CLA is a ‘twin track’ process with a possession order, you are wrong. It is not a twin track process.
As for shorthand – yes, I’m well aware of the law ;-)
As far as I understand you, you want occupying a home to be made a more severe criminal offence on the basis that then the police might do something about it?
So, where is your evidence that there is a problem for DROs and PIOs? You ask us for statistical evidence (which no-one including the DCLG or MoJ actually has – see the consultation) but you are the one asserting that something further needs to be done. On what basis do you make that assertion?
Likewise, you taking it as ‘undisputed’ that ‘most occupiers’ finding their property squatted have to bring civil possession proceedings is a whopping assumption and one that you will have to justify, because, well, it isn’t undisputed.
After all, if a DRO or PIO turns up with the police and the squatters promptly leave, that is a result, but not one that would be recorded as either an arrest & prosecution or as a civil possession claim.
My anecdotal experience and that of colleagues is that occupation of a home is very rare. This also makes rational sense. If looking for somewhere to occupy for more than the immediate short term and without risk of arrest, why pick a home?
I must also point out that whatever it is you want as the new offence, you do not appear to be arguing for anything that the consultation puts forward as an option. There is no discussion of increasing the severity of offence for those occupying a home.
I look forward to being shown the extent of the problem.
Now, on the misrepresentation, where a minister stated that the police have no power to act when a home has been squatted, I take it that you would agree that this is wrong? Or where an MP stated that the homeowner has ‘no powers’ to throw out the occupiers, that this is also wrong?
Or where the Daily Telegraph stated
“Squatting is not currently a criminal offence in England and Wales and instead it is up to the owners to use the civil courts to enforce their rights, which can turn in to lengthy and expensive legal battles.
They must also prove to the courts that they are either a ”displaced residential occupier” – someone who has returned from holiday to find squatters in their house – or a ”protected intended occupier”, who is intending to move into an empty property”, you would also accept that this is an inaccurate account of the law?
Or from the same Evening Standard article you link to, when, “Housing minister Grant Shapps said he would speed up plans to criminalise gangs who take over family homes”, would you agree that this omits any mention that such occupation is already criminal and that, in combination with the next sentence which you quote, the Minister implies that there is no current alternative to ‘a legal battle’. (That is itself an odd description of getting an IPO and then full order, given that there is no defence to a possession claim for trespass at all.).
If the newspaper report and the Ministers had said ‘it is a criminal offence but the police are usually reluctant to enforce it and this is a problem’, then we wouldn’t be here, now.
Probably my last reply on this, as I’m unlikely to be near a PC.
The evidence point is an interesting one, and possibly one for FOI – I mentioned on Twitter why I suspect your assumption about police records is incorrect. As things stand, however, I can point to anecdotal, reported cases in which DROs and PIOs have not been assisted by the police, despite the existing criminal law, and have had to pursue the matter through the courts. I’m still not aware of anything you’re offering which says otherwise (see below on “rarity” of residential squatting).
CLA as twin track process
Yes, in principle, an occupier can proceed simply by demanding the squatters leave and police take action, or by pursuing a possession order through the courts. In practice, however, I’d assume any sensible solicitor would advise a client seeking prompt re-entry to his property to do both in parallel given the anecdotal evidence to support the view that the police will be reluctant to take action.
(And, of course, the fact that the occupier could take civil action is something that may encourage the police to take the view that the occupier should, and that it “not a police matter”.)
Basis for asserting that something needs to be done
We have clear anecdotal evidence of cases in which individuals who are clearly DROs or PIOs are displaced by squatters who the police fail to take immediate action to remove. Where I suspect you and I differ is that I do not consider it acceptable that such individuals should have to go through a court process to have those individuals removed, both due to the costs and due to the delay (again, I suspect we differ as to our view of whether it acceptable for someone to be displaced from their home for at least 24 hours).
Whether it is undisputed that DRO/PIOs must bring possession orders.
Here you’re attempting to place the onus on me, but you’re forgetting the anecdotal (reported) cases: in most some form of possession proceedings are brought. If you wish to claim that these cases are unrepresentative, or that they are exceptional, the onus is on you to produce evidence.
Rarity of home squatting
I’d be interested to know what measure of “rare” you’re using here. I suspect you are using “within mine and colleagues practice, which includes non-residential squatting, residential non-occupied squatting, and residential occupied squatting. In the context of all squatting, I suspect you are probably correct, and the last is “rare”. I don’t really see how that’s of any relevance, however.
Rationality of choosing a home to squat
There are perfectly rational reasons to choose a home: connected utilities, furniture, already weather tight, likely to be easy to secure. That’s before we get into the question of access to and use of the possessions of the displaced occupier.
Content of the consultation
You’re right – I don’t think the consultation goes far enough. It should be considering a more serious offence where an occupier is displaced, with stiff penalties as a deterrent. Again, not clear why the fact my view isn’t that of the government is relevant to the questions being discussed – it has no bearing on the specific question of whether there’s a problem.
Misrepresentation
By all means identify “…where a minister stated that the police have no power to act when a home has been squatted” or an MP stated that the homeowner has ‘no powers’ to throw out the occupiers. I agree that both are incorrect statements, but I’d be very interested to see a direct quote from Shapps in those terms (I can believe that an MP said the latter).
Daily Telegraph
“Squatting is not currently a criminal offence in England and Wales and instead it is up to the owners to use the civil courts to enforce their rights, which can turn in to lengthy and expensive legal battles.
They must also prove to the courts that they are either a ”displaced residential occupier” – someone who has returned from holiday to find squatters in their house – or a ”protected intended occupier”, who is intending to move into an empty property”
It’s an incomplete statement of the law, and inaccurate as a result. If the first clause of the first sentence read “The Police often fail to take action and…”, I think it would be accurate and reflective of the anecdotal (reported) cases.
Evening Standard
Or from the same Evening Standard article you link to, when, “Housing minister Grant Shapps said he would speed up plans to criminalise gangs who take over family homes”, would you agree that this omits any mention that such occupation is already criminal and that, in combination with the next sentence which you quote, the Minister implies that there is no current alternative to ‘a legal battle’. (That is itself an odd description of getting an IPO and then full order, given that there is no defence to a possession claim for trespass at all.).
I wouldn’t characterise it as a legal battle, but I think most civilians would consider obtaining any court order to be a legal battle, and I assume you’re not claiming it’s cost free – I’m guessing you don’t act pro-bono. Again, this comes back to the difference of perspective on involvement with the courts as between lawyers and civilians.
As to the Shapps quote, I agree the quote is an incomplete (and therefore inaccurate) statement of the legal position. Whether what Shapps said was similar inaccurate, neither of us knows – but we do know that Shapps’ press releases and the guidance CLG released was complete and correct.
When the Police are constantly being told that residential occupiers need a Court order to get their homes back, why should they act? It’s hard enough for them to know all the criminal law without expecting them to distinguish political rhetoric from legal fact. If Grant Shapps told them clearly that they should help displaced residential occupiers rather than consulting on criminalising squatters, that would be more helpful to all concerned.
Obiter J – The police do refuse – either saying ‘it is a civil matter’ (which it isn’t) or pleading resources and priorities. I act for property owners in regaining possession and am well aware of the realities. But the failure of the police to be of help doesn’t change the fact that the current law is being misrepresented. It would also cast doubt on the merits of the proposals. After all, if it were known that occupation of a home is a criminal offence, but that police don’t do anything much about it, what is the actual point in further criminalising trespass in practical reality? Bringing in new statute is a very poor way of attempting to respond to police lack of awareness or operational priorities, wouldn’t you say?
And then the ministers do cite their proposals as helping homeowners, when the actual proposals concern vacant buildings, not homes at all.
Now, Matthew Taylor appears to have got the wrong end of the stick entirely. We are pointing out that it IS NOW a criminal offence to ‘put people out of their homes’, contrary to what assorted papers and ministers are saying. You appear to have drunk that particular Kool-Aid.
As for any broader campaigning position? No, we haven’t got one. I suspect that those who signed up have quite different views on the merits of the Govt proposals. What we are annoyed about is attempts to justify it by recourse to a wrong account of the current law and suggestions that the proposals would ‘help homeowners’, as stated by Shapps, when they have nothing to do with homeowners.
I’d take ObiterJ’s point further – I think it’s the signatories who are engaging in misrepresentation: of the reality facing occupiers, and they are further at risk of misrepresenting the position of the people they’re attacking.
The reference to a front page article in the Evening Standard appears to be to this article: http://www.thisislondon.co.uk/standard/article-23984570-vow-to-slam-door-on-squatters.do In it, Shapps is quoted as saying:
“This anti-social and unfair practice causes misery and distress to law-abiding homeowners who should not face a legal battle just to gain access to their own home.”
I don’t understand it to be disputed that most occupiers who find their property taken over by squatters are forced to obtain an order from the court before they can get squatters removed. I don’t understand it to be disputed that obtaining such an order is expensive – in ordinary people’s terms, certainly – and stressful. I don’t understand it to be disputed that homeowners will recover their costs of the process only rarely.
(We can, of course, have the debate about police priorities and resources, but the maximum sentence permitted under CLA77, coupled with the twin track process, involving as it does possession orders, gives clear signals to police forces as to the priority attached to the offence.)
The failure to engage with practical matters leaves the signatories correct as to the law and woefully out of step with reality.
The situation over residential property is highly unsatisfactory. An individual who enters my home and deprives me of my property through theft is likely to be arrested and may then face a prison sentence; by contrast, someone who enters and deprives me of my property by changing the locks is rarely even arrested.
This is, of course, the first skirmish in the wider battle about squatting; in that context the signatories have committed a tactical blunder of the first order.
The Government wishes to criminalize all squatting. There may be a debate to be had about criminalizing non-residential squatting, but in defending the fact that putting innocent people out of their homes is not a criminal offence – which is what this letter functionally is, and is precisely how it will be perceived by a majority of civilians – these lawyers have squandered their credibility to make a defence of non-residential squatting.
Personally, I hope the pro-squatting lobby continues to acquit itself this well, but I’d hope for a better showing from this many lawyers!
Displaced residential occupier – what happens if the Police refuse to act? This appears to be all too often the case. Are the signatories really sure that the law AND practice are entirely satisfactory?