Criminalisation of squatting will cause problems, not solve them

The criminalisation of squatting came into force on 1 September 2012. This article was written as the bill was going through Parliament and contrasts the previous legal position with the new law. The Criminal Law Act provisions described below and the civil remedies remain in force in addition to the new law and so householders and intended occupiers may continue to make use of them.

It looks as if the UK Government will soon have its law criminalising squatting on the statute books, overturning a centuries-old legal principle and turning an estimated 20,000 people into criminals overnight.

The measure is hidden deep within the dark cloak of the Legal Aid, Sentencing and Punishment of Offenders Bill. Clause 145 on squatting [now enacted as Section 144] is the result of a late amendment to a bill that, as it’s name implies, has nothing to do with squatting. The amendment was added just before the bill headed to the House of Lords with only an hour and a half of Commons debate and only days after the Ministry of Justice published its paper on Options for Dealing with Squatting. 

Now you won’t read here any sentimental romanticism about the joy or justice of squatting. The trespassing of people’s homes, implying as it does an interference in their property, privacy and peace of mind, deserves no legal protection. That is why in another context those things are deemed breaches of human rights.

Instead, the argument is that Clause 145 is unnecessary, disproportionate and likely to harm, not to help, residents trying to get back into their homes.

Crispin Blunt, Under-Secretary of State for Justice, introducing the amendment, said: “It will protect those who are likely to suffer most from squatting – those whose homes are taken over by squatters.” He made something of the case of Dr Oliver Cockerell and his pregnant wife Kaltun, kept from their home by squatters. In fact such people are already well served by the criminal law.

The claim for new legislation is generally that because squatting is a civil offence (of trespass), the police refuse to intervene; that you can’t enter your own property while squatters are there because of so-called “squatters’ rights”; and their removal is a long-winded and expensive process through the civil courts.

If any of that is true in practice, it isn’t the fault of the current law, which already criminalises squatters who enter someone’s home. Not only are they committing offences if they do any damage (including changing locks) or use gas, electricity or Fairy Liquid, they are also committing a criminal offence if they refuse to leave when the legitimate occupier arrives. This is thanks to the Criminal Law Act 1977 (Section 12A) (which came into force in 2001). This law is designed to be a quick, easy and cheap remedy to the specific problem highlighted by the press of residents barred from their homes by trespassers. So here is how to get rid of squatters:

If you are a resident (owner, tenant, licensee or leaseholder) and come back from holiday, for example, and find squatters, you are immediately deemed to be a “displaced residential occupier”. You don’t have to go to court to gain that designation and it means that if the squatters don’t leave when you tell them who you are and ask them to go, they are committing a criminal offence. You may therefore seek police assistance. If there is any reluctance on the part of police to help, it is not the fault of the law. They may, as alleged by one Conservative MP, Mike Freer, say: “Sorry, guv, but it is nothing to do with us; it is a civil matter”; but if they do say that they are falling down on their duty to deal with a criminal matter brought to their attention. Dr and Mrs Cockerell were in this position and protected by this law (though reports suggest they pursued more complex civil procedures instead).

Similarly if you are planning to move into your home but haven’t occupied the property yet you become a “protected intending occupier”. You make out a written statement to say what your interest in the property is and declare your intention to occupy it. This is then signed by you in the presence of a Justice of the Peace or Commissioner of Oaths, who also signs it. You then show it to the squatters. You must, of course, tell the truth in the document – and it is a criminal offence if you lie.

This process is elegantly simple. It is not like getting a court order or anything complicated like that. It can be done pretty quickly if you can find a JP. You might want a lawyer, but you don’t have to have one.

Once you have the statement and show it to the squatters, they are acting criminally if they don’t leave – but they are not criminals up to that point unless they undertook criminal acts to get in in the first place or while they were there (which, in reality, they probably have).

‘We do not have the opportunity to scrutinise the legislation properly … the process of formulating the policy has been absurdly rushed’ – Andy Slaughter MP

Nor do squatters have any protection from the legitimate owner/resident entering the home while the squatters are there. You can even smash your door down to do so (don’t worry, it’s your door – you can do whatever you want with it). You must be a “displaced residential occupier” or “protected intending occupier” and you mustn’t threaten or perpetrate violence against the squatters themselves. This is thanks to the Criminal Justice and Public Order Act 1996 which exempts you from Section 6 of the 1977 Act which does criminalise violent entry while someone is inside (designed to protect people from dodgy landlords).

It is also still possible to go through the civil courts under Parts 55(1) and 55(3) of the Civil Procedure Rules (if you have a right of immediate occupation) and get an interim possession order. This has to be obeyed within 24 hours and it is a criminal offence to fail to do so under section 76 of the Criminal Justice and Public Order Act 1994, (though it may be challenged so may not be the best option).

So basically the state of the law is more or less what most householders/residents would like it to be but don’t realise that it already is. The police should help you get the squatters out, they can do it quickly without going to court first, and they should prosecute them if they broke in, if they damaged any of your property or stole it, or used electricity or gas or ate your food or soiled your bed linen or towels. Those are all criminal offences.

But generally residents simply want to get rid of the squatters – and that is what the law allows them to do, quickly and cheaply.

The beauty of the current system is that the intention of the squatters is irrelevant. You can remove them whether or not they think they have a tenancy, licence or a right to stay. They simply have to go to avoid committing an offence. Under the new law, to prosecute a squatter the burden of proof shifts to the prosecutor or complainant to prove the law has been broken. Before, the squatters were pretty well obliged to leave once the resident returned or had the JP-signed statement; now it may even benefit them to deny the offence and sit tight (since one assumes they remain innocent until found guilty). Legislation passed in haste will always allow lawyers to pick it apart at leisure.

The new law is of little use to the people who usually feature in the press, returning from holiday or setting up home. It will (theoretically) protect properties sitting empty – and empty for long and indefinite periods (a Lords amendment that the new law should only kick in if the home has been unoccupied for six months or more was rejected).

At the same time as criminalising squatting the government is curbing (to the point of negating) empty dwelling management orders which allowed local authorities to take over management of empty homes and bring them back into use. (A property will now have to stand empty for at least two years, rather than six months, before an order can be obtained.)

We must assume that the government is not the friend of residents and homeowners – they would prefer something put in place that ensures the current law works (perhaps something to make police treat illegal squatting as any other offence that is in the course of commission; or to ensure lawyers recommend the cheaper, quicker option before turning to the courts).

Nor is it the friend of the homeless since neither of these initiatives does anything to improve the supply of housing or deal with the crisis of single-person homelessness. Instead we must assume the government is the friend of pointlessly empty properties that could be people’s homes but aren’t.

Note: Further consideration of the issues that could clog the courts and trip up the police is here: Criminalisation of squatting: how protection of property could crumble

A ministry of Justice explanation of the new law is here: Offence of Squatting in a Residential Building (pdf). At paragraphs 17-20 it outlines the previous criminal offences relating to squatting that continue to exist
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
The Nearly Legal housing blog comments here:

Note: A further point is made here suggesting physical force by private individuals to remove squatters may now be lawful: After Trayvon, Britain’s ‘stand your ground’ law

Key points of clause 145 (now section 144 of the new 2012 Act):
Offence of squatting in a residential building
(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser having entered it as a trespasser
(b) the person knows or ought to know that he or she is a trespasser,
(c) the person is living in the building or intends to live there for any period
…
(3) (a) “building” includes any structure or part of a structure (including a temporary or moveable structure), and
(b) a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.
4 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.
…
(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.

Note: Clause 7 gives retrospective force to the new law hence criminalising the 20,000 estimated squatters instantly. Clause 4 deals with the scam whereby fraudulent tenancies are sold by crooks to unsuspecting victims who then become squatters without realising. These squatters will now also be deemed criminals.

Timeline
MoJ launches consultation paper on squatting 13 July 2011
21 July 2010: Legal Aid, Sentencing and Punishment of Offenders Bill’s first reading (without any mention of squatting)
Consultation on squatting ends 5 October 2011
MoJ final report on squatting 26 October 2011
Squatting clause introduced as clause 26 as an Amendment in the House of Commons 1 November 2011
Lords progress as clause 130 and 136 then finally 145: 23 November 2011 (Committees) – 26 March 2012 (Third reading)
Final consideration in the Commons 17 March 2012 (This is for amendments to the bill of which there were no successful ones from the Lords on the squatting clause)

The procedure by which the provision was included in the Bill prompted Labour MP Andy Slaughter to say: “We do not have the opportunity to scrutinise the legislation properly … the process of formulating the policy has been absurdly rushed.”

The Deputy Speaker, Nigel Evans, that evening had asked “for brevity from the Front Benchers and Back Benchers in these debates so that all the important matters before the House for decision today [on the Legal Aid etc Bill] can be properly considered”.