BAILIFF AND POLICE ROADSIDE OPERATIONS - ARE THEY LEGAL?

[Web Admin]

See pages 30 and 31 of Credit Collection & Risk (CCR) magazine (attached)

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BAILIFF AND POLICE ROADSIDE OPERATIONS - ARE THEY LEGAL?

With increased fees facing debtors and third parties, it is surely time to consider bailiff and police roadside operations – as their legality is in serious doubt

By Sheila Harding

On 6 April new regulations were introduced on bailiff reform, and time alone will tell whether or not the regulations go far enough to ‘curb aggressive bailiffs’. In the December edition of CCR-PS, I wrote extensively about the introduction of Part 6 into the regulations (Third Party Claiming Controlled Goods) and
my concerns that such ‘interpleader’ applications by ‘third parties and debtors’ have the serious potential to
damage the regulations and expose local authorities, the Information Commissioners Office, DVLA and the
Local Government Ombudsman to complaints at a level never seen before (“Should bailiffs be allowed to use
ANPR?”, p10-11).

A little known fact was that just a few days after the regulations took effect on 6 April, the court fee for filing
an ‘interpleader’ suddenly almost doubled, going from £80 to £155! Also, it would seem that as a direct
consequence of introducing the ‘interpleader’ procedure, the Ministry of Justice deemed it ‘necessary’ to allow
enforcement agents to apply ‘storage fees’ when removing goods. This was not, of course, revealed during the consultation paper and again, only time will tell whether allowing this ‘additional’ fee to be charged will lead to enforcement agents immediately removing goods. I suspect that in time it will.

With third parties (and debtors) now being exposed to increased application fees, and the further risk of costs
resulting from any subsequent trial, it must surely be time that the serious subject of bailiff and police roadside operations is looked at – and, hopefully, immediately banned. These operations, many of which are
shrouded in secrecy, have been ongoing for more than 10 years, mainly in London, and mainly with the assistance of the Metropolitan Police. In fact, for the past three weeks these operations have featured in the BBC television series Parking Mad, attracting more than five million viewers each week.

How do these ‘roadside operations’ work?

As viewers to the TV series will have seen, a bailiff will upload details of warrants in relation to unpaid parking
tickets onto an ANPR-equipped vehicle. The warrant will have upon it the name and address of the debtor and the vehicle registration number of the vehicle that had been driven by the debtor on the day of the contravention – possibly as much as two years earlier and, in the case of one local authority, seven years earlier.

If a vehicle with the same registration number passes the ANPR vehicle a signal will be given to another bailiff at a nearby location alerting them that the vehicle is driving in the direction of the roadside operation. The bailiff will then alert the police, who then force the driver of the vehicle to pull over. The driver will be questioned by the police officer, normally concerning insurance or ‘number plate irregularities’, and once the officer is satisfied with his enquiries he will then ‘introduce ‘the driver to a bailiff to ‘discuss’ the matter of an unpaid parking ticket’.

In each case shown on the TV programme the bailiff is seen advising the driver that his or her car has been
stopped by the police as ‘the vehicle has an unpaid parking ticket against it’. This statement is clearly utter nonsense given that a parking ticket is registered against the vehicle keeper and not the vehicle. It would seem that many local authorities (in particular those in London) have independent contracts with the police in relation to these operations.

Are these police and bailiff ‘roadside operations’ legal?

It would seem that His Honour Judge Cryan (sitting at Clerkenwell & Shoreditch County Court in 2011) had
severe doubts as to their legality when he was cross-examining a bailiff during a complaint hearing. During the intense questioning the bailiff confirmed that he had played a part in such operations (mainly with the Metropolitan Police) approximately once a month for at least 10 years. He also stated that such operations
had, in the past, been a ‘familiar feature’ in Manchester but had ceased in 2008. HHJ Cryan stated that he had himself observed such a police/bailiff roadside operation at Heathrow and asked the bailiff whether it had ever occurred to him that “what might be happening could be of doubtful legality”?

After questioning the bailiff as to the accuracy of the information held on the warrant and how often the
computer was updated, HHJ Cryan stated: “Some people might be sceptical about whether what you are
describing to me is the real world, or not. What actually happens is that, as a motorist, you are stopped by a police officer, who shows you his warrant card and says he is carrying out checks. ‘Here is the bailiff. He is going to carry out checks as well.’ “The entire impression that is given is that this is some lawful stopping with
which the motorist has no right to object, even after the police have finished their business.”

Most importantly, HHJ Cryan stated that: “Here is a bailiff who is going to ask you more official questions... the overall impression of the whole of this is that the engagement of the bailiff is no less involuntary – in other words, the obligation on the motorist to remain is no less present when the bailiff takes over as when the police officer was there.”

During the intense questioning the bailiff confirmed that the ‘protocol’ for such operations is clear in that it is the Metropolitan Police who will force the driver to stop and it is the police who will introduce the driver to the bailiff. Keeping to the subject of the ‘legality’ of these operations, a major important development arose in April when the Metropolitan Police finally responded (after five months) to a Freedom of Information (FOI) request about their part in such operations. Initially, the FOI request was rejected as it was not considered to be within the ‘cost threshold’ (of £450). Further excuses were made and the individual seeking the information sought an internal review and wrote to her MP.

The response in April was extremely worrying, not least because from the reply it would appear that the Metropolitan Police realised that their ‘assistance’ in these ANPR roadside operations’ should not be given to
private sector bailiffs and instead, should only operate in partnership with either Civilian Enforcement Officers
(CEOs) – employees of the Magistrates Court – enforcing non-payment of criminal fines (distress warrants) or with the execution of judgments under Section 85 Crucially, under Part 3 of the FOI response the  Metropolitan Police outlined the legal position and it is here that they ‘drop their bombshell’ by stating as follows: “It has been often quoted that police officers have a duty to assist officers of the court executing
these warrants by virtue of Section 85(4) (of County Courts Act 1984) which states ‘It shall be the duty of
every constable within his jurisdiction to assist in the execution of every such warrant’.

“However this section has been restricted by virtue of Statutory Instrument 1993/2073 – The Enforcement of Road Traffic Debts Order 1993 (article 6). “This section does not afford police officers with a power to execute the warrant and there is no power for police officers to detain a person in order for CEOs to execute the warrant.

“Police officer powers in relation to these warrants would be limited to the common law power to prevent a breach of the peace.” Having finally realised that they should not be ‘assisting’ private sector bailiffs to enforce unpaid local authority issued parking charge notices the Metropolitan Police then attempt to absolve themselves from any wrongdoing by using their old chestnut excuse of Section 163 of the Road Traffic Act.

On 30 April 2014 the home secretary Theresa May announced a major package of measures to reform the way in which the police use “stop and search” powers and she confirmed that this review would include similar powers used by the police under Section 163 of the Road Traffic Act – with a view to eliminating any unfair or inappropriate use.

Conclusion

The ANPR vehicle is not seeking to locate the debtor named on the warrant. Instead, the ANPR equipment is seeking to locate the vehicle that had been driven by the keeper on the day of an alleged contravention. With the frequency in which vehicle owners sell or trade-in their vehicles (in particular in London) it is common for the new vehicle owner to be forced to pay the previous owner’s debt during these operations in order to avoid their car being removed.

Worryingly, many vehicle owners stopped by the police have no knowledge of the PCN as statutory notices had either been wrongly addressed or had been sent to a previous address. Accordingly, they are deprived of the legal right to either appeal the ticket or to make payment at the discounted rate. The use of ANPR technology in this way raises wider concerns about data protection and privacy issues such as transparency, fairness, accuracy of data, and the proportionality of using a surveillance technology.

It beggars belief that these operations have ever been allowed. They must stop... now. CCR-PS

Sheila Harding is the founder and principal of xxxxxxxxxxxxxxxxxxx

[Darcus]

It is amazing to see this con operation in action on 'Parking Mad', especially when police officers stand by as the bailiff clearly acts beyond the law in making various threats, such as 'We will go to your mum's house and take her stuff' etc.

They also have been seen taking a driving instructors vehicle, a scaffolders and licensed minicab, which is clearly in breach of the law in regards to 'tools of the trade'.

How this is allowed to happen is a clear indicator of how corrupt are bureaucratic system has become.

[DastardlyDick]

It is amazing to see this con operation in action on 'Parking Mad', especially when police officers stand by as the bailiff clearly acts beyond the law in making various threats, such as 'We will go to your mum's house and take her stuff' etc.

They also have been seen taking a driving instructors vehicle, a scaffolders and licensed minicab, which is clearly in breach of the law in regards to 'tools of the trade'.

How this is allowed to happen is a clear indicator of how corrupt are bureaucratic system has become.

I agree that the Bailiffs are acting beyond their powers, but since this is a Civil matter, the Police are powerless to act except to prevent breach of the peace.

[Coco]

I agree that the Bailiffs are acting beyond their powers, but since this is a Civil matter, the Police are powerless to act except to prevent breach of the peace.

Interesting point DD. The police are supposed to be in attendance to prevent a breach of the peace. However, we now have several instances - caught on camera - of bailiffs acing unlawfully to remove a citizen’s tools of trade. So why are they not acting to prevent the unlawful act? If, for example, the mini-cab driver had protested the bailiff’s actions who do you thin the officers would have acts against? No prizes for guessing the correct answer.

[DastardlyDick]

I agree that the Bailiffs are acting beyond their powers, but since this is a Civil matter, the Police are powerless to act except to prevent breach of the peace.

Interesting point DD. The police are supposed to be in attendance to prevent a breach of the peace. However, we now have several instances - caught on camera - of bailiffs acing unlawfully to remove a citizen’s tools of trade. So why are they not acting to prevent the unlawful act? If, for example, the mini-cab driver had protested the bailiff’s actions who do you thin the officers would have acts against? No prizes for guessing the correct answer.

I would guess it depends upon what you mean by 'protesting the bailiff's actions'.

My understanding is that the Bailiffs have to keep anything they seize for a certain amount of time to allow for appeals to Court.

[Coco]

I would guess it depends upon what you mean by 'protesting the bailiff's actions'.

I assume that you're having some difficulty with the word "protested" so here are some synonyms for you - any of which would serve equally well - "objected to", "challenged", "contested", "resisted", "opposed", "disagreed with", or "taken exception to"

My understanding is that the Bailiffs have to keep anything they seize for a certain amount of time to allow for appeals to Court.

This is a non sequitur!, and to save further confusion by this I mean "irrelevant".

[DastardlyDick]

My apologies for not being clear enough - when I said "it depends upon what you mean by protesting the bailiff's actions" I wasn't challenging the word "protest" I meant the methods used to make a protest - for example, if tools are in a vehicle, you could lock the vehicle up with the tools inside and then sit in it with the doors locked as the Bailiffs could not then force entry or tow the vehicle IMHO no breach of the peace occurs. If on the other hand, you were to grab a large hammer, raise it above your head, say "you ain't having my stuff you ****" and advance towards the Bailiff, then IMHO you would be comitting breach of the peace (amongst other things) and would be arrested.

I don't see how the bailiffs having to keep whatever they seize to allow appeals is "irrelevant" - that's the Legal process which has been put in place, and as much as you or I may or may not disagree with it, unless/until the Law is changed that's the way we have to play it - unless of course you're suggesting that people act outside the Law, which I'm sure you're not.

[Coco]

There was a case some time back where a driver who was stopped in one of these operations was detained in handcuffs whilst the bailiffs put his vehicle onto a tow truck. IIRC the grounds the police officers offered were that it was to prevent a breach of the peace - despite the fact that the driver had not uttered any kind of threat to the bailiffs.

The fact that someone who has had their vehicle impounded by bailiffs might be able to get it returned later through the courts is irrelevant in that the vehicle has been unlawfully removed when there were police officers present witnessing the unlawful act.

[Ewan Hoosami]

………….. there were police officers present witnessing assisting in the unlawful act.

Plenty of those stories about as well. There's one on another site somewhere where a copper took the key from the motorist and handed it to the bailiff. Then again in the recent Parking Mad episode, officers were actively stopping a motorist from getting into his car. (the one who innocently bought the car and had to explain to the Police how the law works)

I'm not getting this 'preventing a breach of the peace' thing neither. If the bailiffs are not deliberately bullying anyone then there will be no breach of the peace. Anyone who has $chunted in Waltham Forest would have legitimate reason to request Police presence on a $chunt due to the violent nature of NSL employees. Try requesting their presence on a $chunt and see if they are keen on 'preventing a breach of the peace.'

[Darcus]

I think the ability to appeal is irrelevant, as the bailiff is not allowed to seize the goods in the first place, tools or vehicle, as I doubt a scaffolder could conduct his business without a vehicle to transport his tools and equipment.

It is clearly unlawful and I would suspect there is some criminal act occurring if a bailiff, in full knowledge of the law, attempts to take goods to which they have no lawful right, or even threaten to take goods which they know do not belong to the person named on a warrant.

[Darcus]

Courts Act 2003

Seizure of goods

9(1)This paragraph applies where an enforcement officer or other person who is under a duty to execute the writ is executing it.

(2)The officer may, by virtue of the writ, seize—

(a)any goods of the execution debtor that are not exempt goods, and

(b)any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to the execution debtor.

(3)“Exempt goods” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the execution debtor for use personally by him in his employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the execution debtor and his family.

[DastardlyDick]

Courts Act 2003

Seizure of goods

9(1)This paragraph applies where an enforcement officer or other person who is under a duty to execute the writ is executing it.

(2)The officer may, by virtue of the writ, seize—

(a)any goods of the execution debtor that are not exempt goods, and

(b)any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to the execution debtor.

(3)“Exempt goods” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the execution debtor for use personally by him in his employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the execution debtor and his family.

The keyword being "personally", so if the alleged debtor has a business partner or employee who he/she allows to use the tools this exemption is null and void.

[In the Clouds]

Courts Act 2003

Seizure of goods

9(1)This paragraph applies where an enforcement officer or other person who is under a duty to execute the writ is executing it.

(2)The officer may, by virtue of the writ, seize—

(a)any goods of the execution debtor that are not exempt goods, and

(b)any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to the execution debtor.

(3)“Exempt goods” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the execution debtor for use personally by him in his employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the execution debtor and his family.

Not sure whether you know but Section 7 of the Courts Act 2003 specifically outlines the role of  HIGH COURT ENFORCEMENT OFFICERS and their geographical areas etc. These 'officers' enforce judgments (with a value of £600 or more) which have been transferred to the High Court for enforcement purposes. High Court Enforcement Officers (HCEO's) do not enforce local authority debts such as parking charge notices.

Until just a few weeks ago the Met Police were of the opinion that they were allowed to 'assist' bailiffs in these roadside operations. Now they know different...whether they (and other police forces) cease their involvement will have to remain to be seen.

This same subject has been debated on the Consumer Action Group forum (below) and over there they have posted a link to the Met Police's response to an FoI request.

In their response they confirm that they can assist HCEO's and refer to Section 85 of the County Courts Act 1984. They also confirm that they have a duty to also assist Civilian Court Enforcement Officers (CEO's). These are employees of the Magistrate Court and enforce unpaid court fines. The reference to bailiffs is because since 2006 four private sector bailiff companies have been awarded contracts to also enforce these criminal fines.

From reading the Met Police's FoI response they confirm the following:



"It has been often quoted that police officers have a duty to assist officers of the court executing these warrants by virtue of Section 85(4), which states “It shall be the duty of every constable within his jurisdiction to assist in the execution of every such warrant”

However this section has been restricted by virtue of Statutory Instrument 1993/2073 - The Enforcement of Road Traffic Debts Order 1993 (article 6)

This section does not afford police officers with a power to execute the warrant and there is no power for police officers to detain a person in order for CEOs to execute the warrant"


http://www.consumeractiongroup.co.uk/forum/showthread.php?422834-Police-and-Bailiff-%91ANPR-Roadside-Operations%92...response-at-last-from-the-Metropolitan-Police-!!!
 

[Darcus]

The keyword being "personally", so if the alleged debtor has a business partner or employee who he/she allows to use the tools this exemption is null and void.

Where does it say that? As long as the debtor uses the equipment/vehicle themselves then it applies. And in the case of 'Parking Mad' the business owner was driving the vehicle.

[In the Clouds]

Courts Act 2003

Seizure of goods

9(1)This paragraph applies where an enforcement officer or other person who is under a duty to execute the writ is executing it.

(2)The officer may, by virtue of the writ, seize—

(a)any goods of the execution debtor that are not exempt goods, and

(b)any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to the execution debtor.

(3)“Exempt goods” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the execution debtor for use personally by him in his employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the execution debtor and his family.

The keyword being "personally", so if the alleged debtor has a business partner or employee who he/she allows to use the tools this exemption is null and void.

DastardlyDick

I assume that your above comment is with reference to the Court of Appeal case of Toseland Buiding Supplies v Bishop (trading as Bishop Groundworks. You are correct in that the 'exemption' will NOT apply if the vehicle is also used by somebody else (this is most important in cases of Hackney Cab owners where they may use the vehicle for a 12 hour shift and rent the vehicle to a 2nd individual for the other 12 hour shift).  I will try to post a copy up a copy of the Judgment later but in the meantime, the following is an accurate synopsis of the case and the eventual outcome.



Toseland Building Supplies Ltd v Bishop (trading as Bishop Groundworks).


The case deals with the matter of whether a vehicle can be claimed as being “exempt from seizure”.

The statutory regulations applicable to Council Tax arrears, unpaid parking charge notices, Magistrates court fines or Judgments enforced by a Bailiffs High Court Enforcement Officers all provide that  certain items will be exempt from seizure by a bailiff.

In the case of unpaid parking charges notices, section 89(1) of the Enforcment of Road Traffic Debts Order 1993 specifically states the following:

89 (1) Goods which may be seized:

Every bailiff or officer executing any warrant of execution issued from a county court against the goods of any person may by virtue of it seize:

(a) Any of that person’s goods except:

(i)Such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation:

(ii)such clothing, bedding, furniture, household equipment and provisions as are necessary to satisfy the basic domestic needs of that person and his family.


In the case of a vehicle, the regulations provide that it must be "necessary to that person" and: "for use personally by him in his employment, business or vocation". It was this particular sentence that was the subject of the 'Toseland v Bishop'  Judgment.
 
In brief, the claimant, Mr Bishop was a sole trader trading as Bishop Groundworks. He had a JCB digger that had been seized by a High Court Enforcment Officer. He claimed that his vehicle should be exempt and accordingly, the enforcement company (which was Sherforce Ltd) sought directions from the court. On 20th Janaury 1993, the Judge ruled that the JCB digger was indeed exempt from seizure.
 
Given the seriousness of such a ruling, the enforcement company (as respondent) appealed to a Deputy High Court Judge and that appeal came before Sir Michael Ogden QC who gave judgment in the matter on 8th February 1993. He came to the conclusion that in fact the JCB digger was not exempt and accordingly was liable to seizure.
 
Bishop Groundworks appealed that decision to the Court of Appeal and the case was heard on 28th October 1993.
 
Mr Bishop describes the nature of his business as typically digging trenches for the footing of buildings, or digging out and laying a driveway. The JCB was owned by Mr Bishop personally and was used regularly.

Crucially, in his affidavit, Mr Bishop did confirm that he  normally used the JCB digger himself but that from "time to time" he employed others people  to drive the digger.

On behalf of the enforcement company, two affidavits were considered by the Court of Appeal Judges. One was from a person called David William who in his affidavit stated that he needed to hire a digger and a driver for two days and that he had approached Mr Bishop and was informed by him that he would be able to hire his JCB digger to Mr Williams but crucially, that he himself could not drive it and that instead, he would provide an employee.

The digger was used for two consecutive days and on each occasion was driven by an employee of Mr Bishop.

On Page 3 of the judgment the Appeal Court Judges states as follows:

“The Appellant ran a business in which a JCB digger was the most important piece of equipment. Sometimes he drove it, and sometimes his employees did. In these circumstances the judgment debtor has not demonstrated that it is necessary to him "for use personally by him in his business".


On the matter of exemption, it is important to note that at the previous hearing in this matter, Sir Michael Ogden QC stated as follows:

•   “The idea behind the legislation in my view is and always has been to protect the tools of the trade of the individual worker”

•   “If for example a motorcycle courier who owns his own vehicle and hires himself out to go and deliver documents in various places, then that motorcycle will be protected. So too would a van owned and driven solely by a person in which he drove about making deliveries in the course of his work as a delivery man"