Laws that seem to be pure commonsense when the press is demanding them and MPs making stirring parliamentary speeches backing them can soon look very different when they come into force and are tested to destruction in the courts. This will inevitably be the case with the criminalisation of squatting provision in the Legal Aid Sentencing and Punishment of Offenders Act 2012.
Criminalisation will have unintended consequences as a result of squatters’ response but also the response of property owners and the police – none of which can be predicted.
There follows a list of such actual and potential unexpected outcomes which it is intended will be updated as more become apparent.
Squatting non-residential property
The new law only covers residential buildings, defined at S.144(3)(b) as “designed or adapted, before the time of entry, for use as a place to live”. It therefore does not criminalise those entering non-residential property and subsequently adapting it for residential use. Expect extended use of this by squatters. It is bound to be called a “loophole” by the press – though, strictly speaking a clear provision in an Act cannot be a “loophole”. It is part of the Act and must be deemed an intended part, whatever the consequences.
Already a group of squatters has taken over a library closed by the council in Friern Barnet intending to bring it back into public use as well as reside there. They are unlikely to be the only ones. See also First case below
Human rights claims
Immediately upon the law coming into force the occupier of a Welsh cottage, Irene Gardiner, instituted a human rights test case against the police and Crown Prosecution Service, demanding assurance that she would not be prosecuted or removed from the home she has squatted with her children for 11 years.
This is an interesting and is likely to become a complex claim founded on the European Convention on Human Rights Article 8 (1):
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
The argument will be that the cottage is the legitimate home of Gardiner and her family even though the law has made them criminals and that her removal would be a breach of Article 8, a state interference in her home and family life.
The counter-argument will be that the right is qualified thus:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Lawyers for the CPS and police may well claim that since squatting is now criminal and the law was passed because it was “necessary in a democratic society” for some purpose (including public order or even economic well-being, if the rights of property owners who abandon homes can be seen as such), then the police can legitimately act to prevent it, including by prosecuting Gardiner.
The counter-counter argument to that will be that the Convention and Section 3 of the Human Rights Act 1998 comes close to barring the passing of laws contravening the Convention and that courts should interpret any laws in conformity with the Convention. In effect lawyers for Gardiner will be asking the courts, not quite to strike down the law, duly passed by Parliament, but at least to declare it inapplicable when family life claims can be made.
If the Gardiner claim succeeds one would expect many more from people in long-term squats, including much court-room debate about what constitutes a “family” in these modern times.
The Ministry of Justice has already clarified the new provision (see Offence of Squatting in a Residential Building pdf) so as to exempt those squatters who have a reasonable belief that they aren’t squatters:
“[For the offence to apply] the person must know or ought to know that he or she is a trespasser. The offence will not capture someone who enters the property in good faith reasonably believing they had permission to do so. This might arise, for example, where a bogus letting agent encouraged an unsuspecting tenant to occupy somebody else’s property.”
This is odd since the latest outrage in the anti-squatter press, before the new law, was exactly about this issue, that Romanian squatters “have found a loophole in the law that involves producing for inspection a tenancy agreement, real or not”.
The claim is that gangs give the bogus agreements to usually foreign squatters for money, but the possibility is that the “squatters” may be victims of fraud themselves – not knowing they are not in a legitimate tenancy.
This would make the police’s job very difficult if they are shown such an agreement. It is not indicated by the MoJ whether the police would then have to investigate the matter or leave it to the courts, particularly, to a civil procedure. Either way, they would be most unwilling (and unwise) to arrest first and get the questions asked later.
Those who really do have a “good faith” belief will be protected not least because they did not have the intent, or mens rea, of the offence. But this leaves the property owner … who knows where? There will doubtless be much courtroom wrangling about the definition of “reasonable” and what standard of reasonableness should apply. Does “ought to know” mean any rational person would know or that those actual Romanians in those actual circumstances ought to have known what they were getting themselves into? Should an objective or subjective approach apply?
The matter is muddied further by the fact that the “good faith” exemption doesn’t actually appear in the legislation – the MoJ notes are only guidance. And to an extent the legislation may contradict that guidance. At S.144(4) it says:
“For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.”
So if the Romanian gets her bogus tenancy from someone who is a trespasser, she can be treated as a criminal. Householders and prosecutors may wish to argue that a gang member who has entered a building with intent to fraudulently let it is just as much a “trespasser” (albeit not as defined under this particular Act) as a squatter intending to live there.
All this is a recipe for confusion and long courtroom debate.
Holding over, licences and adverse possession
Holding over is when a legitimate tenant or someone with a licence to remain in a property fails to leave at the end of the tenancy/licence period. This will not be caught by the legislation and will remain a civil issue.
It is likely that some squatters will argue that they have a licence from the owner of a property to remain by virtue of the fact that they entered when squatting was not illegal per se and the owner has since been aware that they are squatting.
Squatters may also have a right to make a claim for adverse possession – to be registered on the Land Registry as the legal owner. This is no longer an automatic right after 12 years (only now for unregistered land) but involves a process after 10 years under the Land Registration Act 2002 that includes informing the owner who can then register an objection – resulting in a transfer of ownership being an unlikely outcome. Adverse possession is not mentioned in the legislation and it may be that no thought has been given to how it meshes with the new criminalisation.
Since residential squatting is criminal now, does that mean the provisions for adverse possession in the LRA 2002 no longer apply? Or do they still apply and can squatters put in an application based on their 10 years of legal (albeit now retrospectively illegal) squatting? Or can they include their post-Legal Aid Act squatting too? If they put their application in before the police arrest them under the new law, would that offer any protection from such arrest? The mind boggles, but there must be a fruitful source of courtroom argy-bargy here.
It is argued here (Britain’s ‘stand your ground law’) that criminalisation of squatting could prompt an element of vigilantism with owners or locals taking the new law into their own hands to turf out squatters. They may argue the long-standing citizen’s right to prevent crime and protect property since squatters are all criminals, even if they entered the property before the new law came into force on 1 September 2012.
But there is a further twist to the logic of the law on “defence of property”. It may give rise, in certain circumstances, to squatters using legitimate force to resist eviction. “Defence of property” actually means “defence of property rights” and does not apply merely to owners of homes.
The case of R v Hussey (1924) is often quoted by the “tough on crime, stand your ground” lobby as precedent for violent action in defence of property. In this case it was a tenant who benefited from the principle. He shot and wounded his landlady’s accomplices as they were trying to evict him illegally by smashing down the door of his rented room, armed with a hammer, poker and chisel.
The Lord Chief Justice, granting Hussey’s appeal against a wounding conviction, said: “No sufficient notice had been given to the appellant to quit his room, and therefore he was in the position of a man who was defending his house” – even though he was merely a tenant. It was as much an issue of self-defence as in the case of “a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary”.
It may well follow, then, that those squatters who have a legitimate right to continue squatting, perhaps for one of the reasons above, also have a legitimate right to resist eviction – and that police could put themselves at risk of a charge of wrongful arrest.
The squatters would have to be pretty confident of their legal ground for any such resistance. It would be unwise to bash a police officer then hope a kindly Lord Chief Justice would come to the same view as in the Hussey case. (This blog does not give legal advice but would not recommend individuals taking on police officers in a physical sense.)
By the same token, though, the police also would be wise to bone up on human rights law, landlord and tenant and property law as well as refresh their minds on criminal case law before weighing in to the legal quagmire that criminalisation of squatting may well have created.
Three people were arrested for squatting above a lighting shop in Brighton two days after the law came into force. The defence team called for the case to be thrown out since police had not established the squatters were living in a residential property. Two were told they had no case to answer; the third was given a 12 month community order and ordered to undertake 40 hours of unpaid work. A report is here
Note: See also Anti-squatting law and the death of Daniel Gauntlett
Earlier consideration of the issues thrown up by criminalisation of squatting is here: Criminalisation of squatting will cause problems, not solve them
A ministry of Justice explanation of the new law is here: Offence of Squatting in a Residential Building (pdf).
A House of Commons background note on the new law is here: Squatting in residential premises (pdf)
The Crown Prosecution Service guidance on the new law is here
Being superglued to a property is not necessarily “residence” for the purpose of the law
Paradoxically an of anti-squatting law protestor (the sort of people alleged to be the real target of the new law) has been cleared under S.144 LASPO (R v D Duputell 31 October 2013 Hove). Dirk Duputell had been superglued around the “joists of a wooden beam” of the property.
For a successful prosecution, S.144(1)(c) says “the person is living in the building or intends to live there for any period”. Judge Tain suggested the police had provided no proof of residence or intention to reside. Duputell might have been a visitor or “had gathered in support with this group making a political point”. Nearly Legal on this case here. And Brighton Argus here.
Note: A constable’s right to arrest without a warrant if s/he “has reasonable grounds for suspecting that an offence has been committed” derives from S.24 of the Police and Criminal Evidence Act which adds that it should be done “only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”. These reasons include S.24(5)(c)(iii), to prevent a person “causing loss of or damage to property” and at (e): “to allow the prompt and effective investigation of the offence or of the conduct of the person in question”. Pace Code G applies. This says: “Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court.” (PACE Code G pdf)
Police can arrest, not evict
This case involves just the sort of fraud mentioned above as a possibility: a couple who gave money to an allegedly fraudulent ‘letting agent’ but found they had no tenancy at all with the real owner of the property. Police were called in to evict them – but police can’t evict them under LASPO S.144 – they can only arrest them for illegal squatting. In this case the family did not “enter as a trespasser” knowing they were trespassers, as required by S.144. They had the agreement they had signed and although it was fraudulent (on them, not on the owner) it was evidence of entering bona fides. An arrest under these circumstances may have been unlawful – and could have exposed the police to civil claims. Which is why, as Stoke Newington Chambers, the source of this case, point out that “Police are unlikely to expose themselves to Criminal liability for unlawful eviction. Hence, their usual, ‘Civil, not Criminal’ mantra in these situations.”