Feature Article

Licensed to smash and grab

A barely noticed government amendment has given bailiffs the right to force their way into homes and seize the assets of impoverished debtors. Now there is pressure on the Government to regulate the bailiffs' activities and ensure that their potential victims get proper advice and support

For 40 years now I have watched the most vulnerable members of our society being penalised by our legal system. People struggling to manage on limited incomes who have got into trouble, financial or otherwise, often find themselves even deeper in the mire once the courts have become involved in their affairs. But the new right of bailiffs to force entry into people's homes in order to settle debts is one of the most worrying developments in the way we deal with the poor.

The first time I went to court and saw what can happen to someone on a limited income was in 1966, when I was living in Littlemore in Oxfordshire and commuting to Cuddesdon Theological College. The person in the dock was a single mother, with one child, working as a cleaner in a hospital. She increased a hopelessly inadequate income by helping to clean our flat. She had been caught shoplifting and faced having to pay a fine. I told the magistrates about her inadequate income, said it was her first offence and that she was not a habitual thief. They gave her a conditional discharge. She fainted, hit her head on the dock, passed out and was taken to hospital.

Twenty years later, I was a vicar in a village in leafy Buckinghamshire. There were six council houses in the village of Turville out of a total of 35 homes. Gradually they were sold to the tenants under the right to buy at around £25,000, and sold on for £250,000 plus. This was a pattern repeated throughout the wonderful but expensive location of the Chiltern Hills. The only poor who live there now are priests, servants and farm labourers in tied houses. The indigenous poor have been shunted out of the Chiltern Hills into the estates of surrounding towns, particularly High Wycombe; research by the Joseph Rowntree Foundation shows that 28 per cent of children in the town's Micklefield Ward are dependent on benefits.

The children of our parishioners expelled from the countryside by the price of housing were asking for marriage, baptism and family burials back in their home parish. I discovered that they were struggling to pay the poll tax which reduced their already very inadequate unemployment incomes. Inevitable arrears were resulting in threats of prison and deep stress. So I went to court with them. When the magistrates heard the facts of their poverty, at a hearing which gives them the power to imprison, they used their discretion to remit or to set payment at a small level over a period of time. When 100 per cent council tax benefit replaced taxing unemployment benefits with the poll tax, enforcement remained unaltered; inevitable arrears occur due to poverty pay. They are deducted from unemployment benefits when people lose work.   

I then discovered that by assisting people at court I was lawfully acting as what is called a McKenzie Friend to litigants in person. People have been given the right to reasonable assistance in court by the High Court for many years and the system is named after the man who secured it. Equally important is the emotional support to vulnerable households experiencing such a trauma and, believing this to be important pastorally, I ran a course for McKenzie Friends with the Chiltern Christian Training Centre. We were assisted by the chairman of the magistrates and the chief clerk. After the course the organisation with which I am associated, the Zacchaeus 2000 Trust, entered into a contract with the court to provide McKenzie Friends to help people prepare their means statement to the magistrates on fines enforcement days, usually Wednesday mornings.

We have been doing this for nearly 10 years, and the work also involves helping vulnerable households to deal with local authorities when they have rent and council tax arrears; with HM Revenue and Customs for overpayments of tax credits; and with the Department for Work and Pensions for over- or underpayments of unemployment benefits.

Until two years ago, bailiffs had no right to force entry into a private dwelling. But that changed on 6 July 2004. Parliament abolished this common law right at a time when it seemed to escape the attention of MPs and peers in the House of Lords. The Parliamentary Under-Secretary of State for Constitutional Affairs, Christopher Leslie MP, introduced a government amendment, saying that a loophole was being closed. In fact, Parliament was being asked to get rid of the right of citizens to refuse entry to bailiffs, established in common law around 1300 and then confirmed in Semayne's Case of 1604, and upheld by the courts ever since. The Minister said he was "astonished to find that [bailiffs] did not have these powers" but was apparently ignorant of the common law, which had established that "an Englishman's home is his castle". 

Peers were told that it was necessary to give bailiffs the power to force entry in order to enforce criminal penalties, an argument echoed in the Lords when Baroness Aston announced, "these powers will relate only to criminal warrants"; and repeated frequently thereafter. But what was not explained to either the House of Commons or to the Lords was that the fines for many of the "criminal" offences involved are petty shoplifting, truancy, failure to buy TV licences, fare dodging, no tax disc for a car - all misdemeanours often fuelled by poverty. They result in disproportionate fines against vulnerable households receiving unemployment benefits or the national minimum wage, all of which are below the Government's poverty thresholds. This draconian change came into force in July 2005.

There was no attempt to legislate to protect vulnerable households against excessive or unreasonable use of forced entry. The National Standards for Enforcement Agents do in fact suggest that creditors should have an arrangement with the bailiffs to refer vulnerable situations back to them, before proceeding to take goods and sell them. The bailiff is often the first person in the system to know. 

These recommendations were ignored in the case of an attempt to enforce £1,072-worth of motoring fines. The bailiff forced entry on the first visit to mark some goods for possession by breaking, legally, the catch on a slightly open window. On the second visit, he arrived at the residence of the unemployed single mother (who had a four-year-old child), accompanied by an armed response unit. The police had wrongly advised him that there was a samurai sword on the premises. It did not exist. The mother locked herself and her child in the house. The armed police said that they would force entry if the bailiff was not allowed in. Once let in, he took the DVD player, 60 CDs not belonging to her, the television set and some ornaments that had been the property of her mother. It was all sold for £72, with £30 being paid to the auctioneer. Her 18-year-old pregnant daughter objected robustly when the bailiff began seizing her goods, because it was not her fine; she was arrested and taken to the police station, and then put before the magistrates, who sent her back to the police for a caution. We attended court with the mother and they settled for £5 a week for the balance, deducted at source from her benefit.

So, today, I can no longer say to vulnerable households receiving inadequate statutory minimum incomes, such as lone parents, pensioners, the illiterate and the disabled, "Don't worry, the bailiff has no right to break in. I will call him and get the matter back to court where I will argue that the payment should be proportionate to means." Bailiffs now simply force entry to enforce fines with the threat, "I have a legal right to break in".

We are now responding to the Draft Tribunals, Courts and Enforcement Bill which totally ignores the injustice of enforcing disproportionate fines and other debt repayments against poverty incomes. The effect of the bill would be to make the bailiffs untouchable. There are no limits on their use of reasonable force, which has never been defined by the courts, (a) to enter premises, (b) against the person - even inspection of the mouth. These are devastating powers to give to unregulated civilian companies of bailiffs.

We are asking for amendments to put into statute law: firstly, the common law protection against forced entry and, secondly, the common law prohibition of interference or use of force against the person. We also believe that the bailiffs' companies should be regulated by the Financial Services Authority.

Government departments making draconian laws against vulnerable people exonerate themselves by establishing appeal procedures and remedies. But the vulnerable have no advice on the doorstep, whereas the bailiff has a powerful company behind him with full knowledge of the law and procedures. There is no legal aid at the fines or council tax enforcement court or during the enforcement process, unless the magistrates are minded to imprison the defaulter. The situation is grossly unequal and unjust. The bailiff is under pressure from his employers to earn the companies' fees by extracting them from impoverished debtors, who would not be able to use the appeal procedure even if they knew it. Corners are inevitably cut.

The Revd Paul Nicolson is chairman of the Zacchaeus 2000 Trust, www.z2k.org. The trust runs courses for parishes UK-wide to help them train volunteers as McKenzie Friends.