It is six months or so since the passing of a law criminalising trespassing in Britain and already there is – apparently – a tragic victim and – certainly – a nasty political row. The victim is Daniel Gauntlett, a 35-year-old unemployed man who died in the bitter cold on the step of an empty boarded up bungalow in Aylesford, Kent. Reports suggested police had been involved in preventing him breaking in to the house some time previously – “and so Mr Gauntlett, had taken the fatal decision to abide by the law,” according to news service KentOnline.
Campaigners against Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised squatting in residential property, believe the new law may be responsible for Mr Gauntlett’s death.
Some go further and are pinning the blame directly on MP Mike Weatherley, who introduced the anti-squatting legislation into the House of Commons, a suggestion pursued with unpleasant vigour – hence the controversy.
The claim against him is that he insists squatters are generally young, politically motivated leftists whose aim is to undermine notions of property, whereas here was a bona fide homeless man who died as a result of the new law.
In answer Mr Weatherley told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters.
“A typical squatter is middle-class, web-savvy, legally minded, university-educated and, most importantly, society-hating. They are political extremists whose vision for society is a dysfunctional medieval wasteland without property rights, where an Englishman’s castle is no longer his home …
“If squatters really cared about the homeless then they would help them access council services, not scare them into believing that they would be arrested.”
Mr Weatherley makes an interesting point. Let’s put aside his view that a squatter isn’t really a squatter just because he or she has squatted. The interesting bit is his assertion that “squatters” (the web-savvy anarchist ones) if they cared about squatters (the tiny number of “real” ones) would be out there pointing them in the direction of “council services”.
Such services are indeed available, (see below) though they are pretty limited for people like Mr Gauntlett. But whose job is it to point homeless and roofless people in the right direction? Mr Weatherley seems to think it is a role for the middle class web-savvy anarchists who apparently occupy all the plum squatting sites. It seems more likely, though, to be a duty for the state and emanations of the state – among them the police.
‘It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities … to mitigate any impacts the new offence might have on the levels of rough sleeping’ – Crispin Blunt
Mr Weatherley seems to accept that some squatters need these services but unfortunately the legislation he backed is silent on responsibility for ensuring they get them. We have only the passing comment from the then justice minister Crispin Blunt during the brief Commons debate on the squatting clause:
“Consultation responses indicated that squats can be unhygienic and dangerous places to live and are no place for genuinely vulnerable people. That is why we will ensure that reforms in this area are handled sensitively, in conjunction with wider government initiatives to tackle the root causes of homelessness. We are also working to provide affordable homes and to bring more empty homes back into use.”
Further on he adds: “It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities to continue to address the root causes of homelessness and to mitigate any impacts the new offence might have on the levels of rough sleeping.”
Beyond that it is not clear what policies are now in place to “mitigate any impacts the new offence might have” on rough sleeping. And this is the crucial issue in the light of Mr Gauntlett’s death. The Government and, as mentioned above, “emanations of the state”, including Members of Parliament, have very clear duties to people like Mr Gauntlett. Under the European Convention on Human Rights they should ensure they enjoy “the right to life”. Here is Article Two:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
The second paragraph is unusually restrictive in setting out exceptions about when life can be sacrificed by the state. Such exceptions do not include situations where deaths may result from the passing of laws intended to protect the rights of “law-abiding property owners”.
The new law could result in death in at least two ways: firstly as a result of people being driven from squatting in houses to die in sub-zero temperatures outside; and secondly because they are driven from squats to seek other forms of protection from the elements such as derelict and possibly dangerous industrial and commercial properties.
Mr Weatherley is someone who wants to extend the law against residential squatting to commercial premises. He would doubtless accept that such places aren’t suitable for people to live in and possibly agree with Mr Blunt that squats in general “can be unhygienic and dangerous places”. Banning squatters, to that extent, may be seen as being in their own interests.
European Court of Human Rights jurisprudence has insisted that national states put in place: “a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life” (see below). Unfortunately Mr Weatherley seems to have failed to include in the anti-squatting legislation a means of helping homeless people who squat out of their unsuitable and possibly dangerous circumstances into reasonably acceptable and safe accommodation. He has opted instead for the solutions of the punitive state – deal with social problems by imposing sanctions and criminal penalties.
It may be unfair to blame Mr Weatherley directly for Mr Gauntlett’s death, but we can say at least this: in promoting legislation that fails to recognise the existence of the marginal homeless and that therefore fails to do anything to help such people, he has made himself part of the problem, not part of the solution.
The Ministry of Justice guidance says:
“There might be instances where the police are asked to clear a residential building that is known to house rough sleepers. In these circumstances, the police might wish to liaise with local authorities and homelessness service providers prior to enforcement action to ensure they are ready to assist if required and give appropriate advice on housing options. This process is likely to work most effectively if protocols on joint working have been developed in advance.
In other circumstances, the fact that somebody is squatting to avoid rough sleeping might only become known once enforcement action has been taken. In these circumstances, liaison with local authorities and homelessness providers would ensure the appropriate advice and assistance is offered to the accused after the point of arrest.”
Note: This post is intended to offer a legal critique of the Section 144 anti-squatting legislation from a human rights perspective. The case of Mr Gauntlett, into whose death an inquest is pending, should not be pre-judged. In particular there is some suggestion that social services did have some involvement with Mr Gauntlett and that the police may have sought to prevent him from breaking and entering the bungalow – an offence that, of course, long predated the new law. Potentially Article 2 of the ECHR could well come into play during a coroner’s inquest into the death of a homeless person since courts are bound by the the Human Rights Act 1998 to take the Convention into account during their deliberations. See R (Middleton) v West Somerset Coroner which notes:
“The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.
The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.”
There have been three custodial sentences of squatters in the months following the passing of the new law. Alex Haigh, aged 21, was the first to be jailed after he was arrested for living without permission in a housing association flat in Pimlico, London. Cameron Makepeace, 18, was given an 18-week suspended jail sentence for a separate burglary after he was arrested in an empty house he had entered intending to squat after an estate agent had left the key in the door. Michael Minorczyk, 27, was sentenced to 15 weeks in jail after reportedly refusing to leave an empty property he had been sleeping in. There is no evidence any of them were web-savvy student anarchists.
While councils can provide housing for those in priority need as defined in Section 189 of the Housing Act, (mothers, families with children and those statutorily deemed vulnerable), homeless and jobless men don’t usually come within this category even when the temperature is minus 2C and they have nowhere to go. Part III of the National Assistance Act 1948 (Section 21) says local authorities may provide “residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them”. People like Mr Gauntlett may come within “any other circumstances” and may be able to get basic hostel accommodation from the council. Otherwise local authority “advice and assistance” may be made available under Section 192 of the Housing Act, perhaps pointing them to agencies that can provide emergency accommodation if the council cannot.