Well he would, wouldn’t he?

The mass letter on misrepresentation of trespass will be going out this morning (Monday 26 Sept). The letter will be sent to all the major newspapers, and BBC and ITN news, probably before you read this.

The Guardian has what I think is a good article on the letter on the website here and hopefully also in today’s paper (Monday’s paper which I haven’t seen yet), headlined “Squatting law is being misrepresented to aid ministers’ reforms, claim lawyers”. The Guardian also has an edited version of the letter on the Letters page and the full version with signatures on the website here.

If there is any further media reporting, I’ll add it in to this post.

In all 158 lawyers and academics signed, as did HLPA as an organisation. A huge thank you to everyone who took part. That almost 160 people were prepared to add their names – and those from a wide range of practices – goes to show the strength of feeling (mostly being highly annoyed) on the issue.

For anyone not inclined to click through to the Guardian’s publication of the letter, the full text of the letter reads:

Dear Sirs

cc Grant Shapps, Crispin Blunt

We are legal academics, solicitors and barristers who practise in housing law 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 Communities and 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 Miss 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 Mr 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.

Yours faithfully,

When writing the article for today’s paper, the Guardian asked Grant Shapps, the Minister named as one of those perpetuating the misrepresentation, for his comment. Mr Shapps’ response was, in full:

Housing Minister Grant Shapps said:

“The guidance I published earlier this year makes clear to homeowners where the law stands on squatters, however commonsense suggests there should be quick and tough sanctions available when someone’s home is squatted, without the homeowner necessarily needing to bring a civil case.

“That’s why we’re consulting on making squatting a criminal offence, to shut the door on so-called ‘squatters rights’ once and for all, and end the misery and expense that homeowners can endure.

mandy rice daviesAnd so finally, after waiting for so many years, my Mandy Rice Davies moment arrives. Shapps said that? Well, he would, wouldn’t he?

The more eagle-eyed readers might have spotted that saying that homeowners had to bring civil cases and definitely not saying that squatting a home was already a criminal offence was exactly the misrepresentation of which the letter complains.

Mr Shapps gets top marks for persistence, but keeping on with the same schtick in response to a letter from a lot of annoyed lawyers calling him out on precisely that point is not necessarily the brightest of responses.

There would appear to be only three possible explanations:  i) The Minister is genuinely unaware of the current law – not a very attractive position when he is bringing proposals to change it and suggesting a considerable carelessness about his brief; ii) The Minister is very badly advised – also not attractive, given that these are the people behind the proposed change in the law; or iii) The Minister is knowingly and flagrantly misrepresenting the current law.

I hope to get some clarification from Mr Shapps as to which of the three applies…

Mr Shapps has also responded to the Guardian article on twitter (@grantshapps), saying:

“grantshapps Grant Shapps MP
These lawyers are sadly out of touch for believing that taking “a few days” to clear squatters is a reasonable outcome!”

Both the Guardian journalist and I responded, both asking for his confirmation that he actually knew that squatting a home was already a criminal offence, but so far, utter silence and tumbleweed.

Of course,  how Mr Shapps’ proposals would result in regaining possession in fewer than ‘a few days’ is very much open to question, given the existing police reluctance to respond even where there is a DRO or PIO and an existing offence. Will the police actually get a sudden surge of enthusiasm for dealing with occupied properties? Or does Mr Shapps propose to interfere with the police’s operational independence? Now that would be politically interesting.

But these are issues for the consultation currently underway. Our concern right here is with people being unable – for whatever reason – to get the current law right. And Mr Shapps has failed to get it right even when 158 lawyers advise him on it. And pro bono at that – think what he would have to pay for that kind of advice. Never let it be said that we are not public spirited.

Posted in FLW article, Housing law - All, Licences and occupiers, Possession and tagged , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

13 Comments

  1. Posted 26/09/2011 at 1:13 am | link to comment

    One can only wonder whether Mr Shapps is just winding us up at this point. He surely cannot have missed the whole thrust of the letter.

  2. Kris
    Posted 26/09/2011 at 9:00 am | link to comment

    He knows. He has to stick with the BS story he and the Mail ran with – and with his last tweet, trying to brazen it out.

  3. Rudy
    Posted 26/09/2011 at 9:23 am | link to comment

    Mr Shapps will only retract or revise his earlier statements when the Daily Mail prints the headline “Conservative minister admits – “I exaggerated useless squatting law claims” “. Don’t hold your breath. But while he’s playing to a different constituency, this sort of rancid tosh still must not escape without censure.

  4. XF
    Posted 26/09/2011 at 10:32 am | link to comment

    I’m thinking deliberate. This is what is known as “refuge in audacity.” It works like this:

    1. Do something bad.

    2. Get caught.

    3. Don’t apologise or explain, just keep doing it. Better still, do something even worse.

    4. This wrong-foots one’s opponents massively as they can’t quite believe you’re doing this. Furthermore, your supporters and (crucially) elements of the undecided amongst the public just have to admire your bottle and think you’re onto something.

  5. 1215
    Posted 26/09/2011 at 5:55 pm | link to comment

    Report in the Standard quotes the ‘out of touch’. Who’s more likely to know what happens in court- a peddler of politics or a lawyer. Time to publish the question-does he know?-and state that we’re awaiting a response- this time let’s get it in the papers whose opinion he cares about

  6. Posted 26/09/2011 at 9:49 pm | link to comment

    perhaps he should be asked to discuss the matter (cos he obviously knows something the signatories don’t) and come up with some of that evidence stuff that boring old lawyers bang on about endlessly. obviously it wouldn’t be fair to expect him to go head-to-head with that pie-in-the-sky sadly misled communist andrew arden qc, but maybe he could take on one of the less celebrated signatories.
    what about a further letter calling his bluff and suggesting a heated debate, perhaps chaired by mrs merton or one of them judges? has to be done … doesn’t it???

    • Posted 26/09/2011 at 11:00 pm | link to comment

      Maybe so. But it will be up to someone else to try to make it happen. I am completely knackered. My campaigning is over for at least six months!

  7. Posted 26/09/2011 at 11:27 pm | link to comment

    fair enough – who on the list has the energy and the will to pick up the baton and make it happen?

  8. JAC
    Posted 27/09/2011 at 11:26 am | link to comment

    Without in any way disagreeing with the contents of the letter nor wanting to support Grant Shapps, there is a little more complication that can arise in respect of the situation where a squatter is faced by a Police Officer and a “Displaced Residential Occupier” or “Protected Intended Occupier”.

    s.7(2) of the CLA 1977 reads as follows: “(2)In any proceedings for an offence under this section it shall be a defence for the accused to prove that he believed that the person requiring him to leave the premises was not a displaced residential occupier or protected intending occupier of the premises or a person acting on behalf of a displaced residential occupier or protected intending occupier.”

    If at the front door of the squatted premises, a squatter states that he believes that the person or persons are not a DRO or a PIC and the person claiming to be a DRO or a PIC cannot provide irrefutable evidence to the Police Officer there and then, it will, perhaps, be the case that the Police Officer is unlikely to intervene at that stage. There could be some useful improvement to the law and its enforcement to help in such a situation.

    • Posted 27/09/2011 at 11:50 am | link to comment

      Personally (and I certainly don’t speak for all the people signing), I can see various bits of the existing law that could do with refining or streamlining. The PIO statement in front of a commissioner for oaths, for example. But that wasn’t the issue at stake in the letter, as you note.

    • jj
      Posted 27/09/2011 at 4:48 pm | link to comment

      Perhaps it is worth pointing out that s.7(6) provides: “(6)A constable in uniform may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of an offence under this section.”

      So it is indeed for the police to make the call ‘at the door’ and subsection you’re quoting is a defense once the trespasser was arrested and charged – at that stage not much to do with the police anymore.

      In practice there could be various things which may provide a ‘reasonable cause’. In case of an alleged DRO, an officer could ask to come in and verify whether the premises are indeed somebody’s home. In case of an alleged PIO there are certificates to be produced (s.12A CLA 1977) and additional inspection by an officer may further confirm/refute probability of a valid PIO.

      In the end of the day, squatters will probably not argue with police about this if they have reasons to believe that they’re in someone’s home (DRO) or that someone’s about to move in (PIO).

      Also it should be noted that s.6(1) CLA 1977 – violence for securing entry – does not apply to a DRO/PIO or persons acting on their behalf as per s.6(1A). That means nothing is there to stop a DRO/PIO and possibly police to force entry even if only for the purpose of verifying claims of both parties.

  9. Angus King
    Posted 05/10/2011 at 12:17 pm | link to comment

    Here is some of the evidence the government requested, although I am not sure that the conclusions will please Mr Blunt

    http://www.crisis.org.uk/data/files/publications/Crisis_SquattingReport_SEPT2011.pdf

    • Posted 05/10/2011 at 12:22 pm | link to comment

      Thanks Angus, I was going to put that up myself. Very interesting research. Confirms my anecdotal experience.

2 Trackbacks

  1. [...] And this analysis of the issue by some experts on Housing Law is a must read: Well he would, wouldn’t he? [...]

  2. [...] or misrepresentation – that the housing lawyers were picking up on in the first place. As the Nearly Legal blog notes this morning, there are three possible explanations. First, the Minister is unaware of or [...]

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