The unrestrained arm of the law: Demanding money with menaces is illegal - unless it is done by poll tax bailiffs, says Duncan Forbes

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The Independent Online
IT'S 6.30am on a dark November morning in 1991. In a city street four burly men knock on the door of a house. A man opens the door still half asleep, wearing pyjamas. His pregnant wife and two-year-old child remain asleep upstairs. Without waiting to be invited, the four men push their way into the house, knocking the owner over in the process. Within half an hour they have removed all the large items from the house to their van outside. They drive off, telling the owner he has until 11am that day to pay pounds 660 if he is to prevent his belongings being sold that afternoon.

This is not a description of eastern Europe. The street was in London and the four burly men were bailiffs collecting the poll tax. Several million people will have had contact with bailiffs for the first time over the last few years. By the end of 1991 more than 11 million liability orders had been made by magistrates' courts in respect of the poll tax.

'Levying distress' is the main remedy used by local authorities to collect unpaid poll tax. It is a process deliberately designed to intimidate debtors into paying their dues.

It is remarkably like the criminal offence of blackmail, which is defined as making an 'unwarranted demand with menaces'. Levying distress involves making a legal demand with menaces.

The lack of controls over bailiffs is astonishing. Police investigating a multiple murder are obliged to show a warrant card and to identify themselves when entering premises to make a search. By contrast, bailiffs are under no obligation to identify themselves nor to have identification of any kind with them. All they are obliged to do is to show a form from the local authority stating that they are entitled to collect a particular debt. For all the householder knows, the letter of authority could have been picked up on the street.

While the police advise people to check the identification of strangers calling at their homes, bailiffs can gain access to a home and remove items without the owner even knowing their names.

There are no character checks on bailiffs. A person could be released from prison at 10am after serving a sentence for causing grievous bodily harm, blackmail, theft, or even murder, and by 12pm could be acting as a bailiff for a local authority.

Having gained entry, bailiffs are entitled to remove anything they choose. They could, if they wished, remove all the food in the house, all a baby's clothing and all the beds. There is no requirement for them to leave an inventory.

Again, the contrast with a criminal investigation is stark. The police must give householders a copy of their authority to enter and must, if asked, give a record of items seized within a reasonable time. They must make a record of their actions which, among other things, must include the date, time and authority for the search, the names of those who carried it out and a list of items seized. That record is open to inspection by the person whose property has been taken. No such requirement applies to bailiffs. Police officers must carry out searches at a reasonable time of day. No requirement applies to bailiffs collecting the poll tax.

There are numerous other complaints about the activities of bailiffs. All advice agencies get complaints from people whose goods have been seized even though they are not the people who owe the debt. Some bailiffs seize the entire contents of a house regardless of whom they belong to even if their only authority is to levy distress against the property of the person named in the liability order. Yet a person whose goods have been wrongly taken may find it difficult to challenge the bailiffs' conduct.

Very few complaints become public because so few people know what their rights are. When the bailiffs call, the only source of advice is the bailiffs themselves. Moreover, most people in debt are reluctant to admit it, and it is almost impossible to take action.

In theory, legal aid is available for an injunction against a bailiff who oversteps the mark or for an order to return goods wrongly distrained. In practice, since the Legal Aid Board took over work from the Law Society some years ago, legal aid has gradually become harder to get. It is especially difficult to get legal aid if the amount in dispute is small. In practice, legal aid is not available to challenge bailiffs except in the most exceptional circumstances.

The Legal Aid Board's guidance notes now state that legal aid is likely to be refused if 'the proceedings are not likely to be cost- effective, ie the benefits to be achieved does not justify the costs'. The amount in dispute in poll tax cases is often less than pounds 100 and rarely more than pounds 500.

The second avenue of complaint against bailiffs is an application to the magistrates' court claiming that the bailiff has acted improperly. Legal aid is not available for such an application. A person either has to deal with the matter unrepresented or find a voluntary agency prepared to represent him or her. Those few cases that have been to court have lost on technicalities and resulted in orders for costs of more than pounds 1,000 against the complainants.

Bailiffs, it appears, are completely immune from criticism. There is no effective complaints mechanism. There is no effective monitoring. There are no effective safeguards. Indeed, there is nothing to stop them doing whatever they like. Paid by results, bailiffs are highly motivated to abuse their position.

But there are two potential bright spots on the horizon. Consumer and advice organisations have just published a draft code of practice for local authorities on the use of bailiffs in the enforcement of the community charge and the council tax. This sets out the measures that these agencies feel are necessary to ensure that bailiffs act fairly and reasonably. Meanwhile, the Lord Chancellor's department is seeking comments on its own consultation document published in August on the organisation and management of bailiffs. Earlier in the year, the Lord Chancellor had assured advice and consumer agencies that the use of bailiffs for the collection of debts would be reviewed. In fact, the consultation document makes it clear that the use of bailiffs will continue. Only the controls that should be placed on their activities are up for discussion.

None the less, armed with the suggestions in the consumer and advice services' code of practice, you should be able to respond to the Lord Chancellor's consultation paper as required by the deadline of 30 October.

The writer is a solicitor in private practice in South Wales and the author of a Code of Practice for local authorities on the use of bailiffs in the enforcement of the community charge and the council tax. Copies are available free of charge from the Public Law Project, Charles Clore House, 17 Russell Square, London WC1B 5DR.

(Photograph omitted)