Help marstons charged £403

[CleverClogs]

Re: Help marstons charged £403

I have spoken to an HMCTS ENforcement Manager about the use of forced entry by contracted bailiffs in the recent past. The answer I got was that contracted bailiffs are expected to use it sparingly and for those fine defaulters who are persistently avoiding paying their fines. They are required to seek authorisation from the court of issue before attempting to force entry.

When questions were asked about this in Parliament, the unhelpful reply suggested that the rates of neither the granting of such powers of forcible entry nor the actual use of such powers are collected or collated; such data that there was available suggested it was in the order of six per year for England and Wales.

Either a lot of data are missing or bailiffs have taken to turning up with a "locksmith" (who is probably nothing of the sort) and police officers when, in reality, they do not have any power of forcible entry.

The only warrant that has any legal bearing and authority is the Distress Warrant issued by the magistrates court. I have serious doubts as to the legality of the DIY warrants Marstons knock out on their letterheads as I wouldn't put it past Marstons to add or alter things to suit themselves. The rule on this practice is the same as it is for any warrant, that is, any alterations must be authorised by a court and if it is not, the warrant is invalid. The other matter is that if Marstons are only showing defaulters their DIY warrants and not the actual warrant issued by the court and the wording on the DIY warrant is substantially and significantly different to that on the warrant issued by the court, then I would submit the DIY warrant is a forgery and could be deemed An Article for Use In Connection With Fraud, especially if it refers to powers the bailiff does not have under the court warrant and figures not authorised by the court.

Indeed, but such documents may be good enough to fool police constables - if not sergeants or inspectors. Remember, it was not very long ago that some constables thought one needed a licence to take photos in public...

It's not actually difficult to tell a genuine from a "fake" warrant - just look for the court stamp.

[CleverClogs]

Re: Help marstons charged £403

Certainly it is in the Domestic Violence crime and victims act 2004, this is widely acknowledged ?

Wrong - it isn't. The amendment to the DVCVA amended the Magistrates Courts Act 1980, by adding sections 125A (link), 125B (link), 125BA (link) and Schedule 4A (link). Paragraph 5 of Schedule 4A allows "reasonable force" to be used to gain entry.

Having read some of the reported shenanigans by certain "enforcement officers" (sic) such as shouting loudly and clearly so that neighbours might hear, you might care to look at paragraphs 3, 4 and 6 of section 125C (link) of the Magistrates Courts Act 1980.

[gravytrain]

Re: Help marstons charged £403

Wrong - it isn't. The amendment to the DVCVA amended the Magistrates Courts Act 1980, by adding sections 125A (link), 125B (link), 125BA (link) and Schedule 4A (link). Paragraph 5 of Schedule 4A allows "reasonable force" to be used to gain entry.

Having read some of the reported shenanigans by certain "enforcement officers" (sic) such as shouting loudly and clearly so that neighbours might hear, you might care to look at paragraphs 3, 4 and 6 of section 125C (link) of the Magistrates Courts Act 1980.

No not at all, you seem to have a habit of saying WRONG like this when you do not have your facts right.

Prior to the inclusion of this section in the DVCVA there was no entitlement for a bailiff or authorized officer to force entry in a case where a levy was not in place, it permitted the "criminal " sanction to be applied to a civil debt.


"The powers are in Schedule 4A of the Act. As the numbering suggests, it was a late amendment to the Bill as it went through Parliament. In fact, it was a very late amendment which, unusually, the Department for Constitutional Affairs had been allowed to insert into a Home Office Bill. This was done without any consultation and, although I later discovered a press notice, none of the advice agencies or bailiff associations knew what was happening.

But worse, it seems to me that the eleventh hour amendment to give the powers of forced entry for arrest were, at about 59 minutes past the eleventh hour, supplemented by similar powers for distress warrants. That is why the bits of the 'secret' Guidance that are visible read rather oddly, as if references to distress warrants were added into a late draft.

The Minister at the time described the new powers as closing a loophole in the law. He didn’t mentioned that the powers were breaching two historic legal principles that were virtually part of the ‘British Constitution’: the right that an Englishman’s home is his castle and that a criminal fine should be treated as a debt to the State and no differently to any other civil debt."

[CleverClogs]

Re: Help marstons charged £403

I agree totally Plodder -I think he's being very foolish, and as I've said, I very much doubt the CEO of Marstons would condone his actions (especially at the moment). However, technically it is legal - that's the problem.

I am not wholly convinced of its compliance with either the spirit or the letter of the law.

Taking paragraphs 3, 4 and 6 of section 125C (link) of the Magistrates Courts Act 1980, we should consider if the "locksmith" who attended could fit any of the categories of people described in paragraph 3. If not, an offence may have been committed unless the "locksmith" had been specifically mentioned as provided by paragraph 5(a).

[gravytrain]

Re: Help marstons charged £403

I am not wholly convinced of its compliance with either the spirit or the letter of the law.

Taking paragraphs 3, 4 and 6 of section 125C (link) of the Magistrates Courts Act 1980, we should consider if the "locksmith" who attended could fit any of the categories of people described in paragraph 3. If not, an offence may have been committed unless the "locksmith" had been specifically mentioned as provided by paragraph 5(a).

I see now there is the suggestion of challenging the legitimacy of the entry on the grounds that the locksmith was not qualified.

[CleverClogs]

Re: Help marstons charged £403

No not at all, you seem to have a habit of saying WRONG like this when you do not have your facts right.

So where, in the facts I reported, did I get my facts wrong?

Were those amendments somehow not shoved into the earlier Act, by the disingenuous expedient of claiming it just cleared up a few procedural points?

Prior to the inclusion of this section in the DVCVA there was no entitlement for a bailiff or authorized officer to force entry in a case where a levy was not in place, it permitted the "criminal " sanction to be applied to a civil debt.


"The powers are in Schedule 4A of the Act. As the numbering suggests, it was a late amendment to the Bill as it went through Parliament. In fact, it was a very late amendment which, unusually, the Department for Constitutional Affairs had been allowed to insert into a Home Office Bill. This was done without any consultation and, although I later discovered a press notice, none of the advice agencies or bailiff associations knew what was happening.

But worse, it seems to me that the eleventh hour amendment to give the powers of forced entry for arrest were, at about 59 minutes past the eleventh hour, supplemented by similar powers for distress warrants. That is why the bits of the 'secret' Guidance that are visible read rather oddly, as if references to distress warrants were added into a late draft.

The Minister at the time described the new powers as closing a loophole in the law. He didn’t mentioned that the powers were breaching two historic legal principles that were virtually part of the ‘British Constitution’: the right that an Englishman’s home is his castle and that a criminal fine should be treated as a debt to the State and no differently to any other civil debt."

I entirely agree with your analysis of how this was smuggled into law.

[CleverClogs]

Re: Help marstons charged £403

I am not wholly convinced of its compliance with either the spirit or the letter of the law.

Taking paragraphs 3, 4 and 6 of section 125C (link) of the Magistrates Courts Act 1980, we should consider if the "locksmith" who attended could fit any of the categories of people described in paragraph 3. If not, an offence may have been committed unless the "locksmith" had been specifically mentioned as provided by paragraph 5(a).

I see now there is the suggestion of challenging the legitimacy of the entry on the grounds that the locksmith was not qualified.

No - he may be "qualified". He may have all manner of certificates and bits of paper, from cycling proficiency, through City and Guilds Basic Safebreaking to a Master's Degree from the University of Stoke Poges in Padlock Construction.

One might doubt, however, that he would be lawfully authorised to know the information described in that section unless he (or she) had been mentioned as provided by paragraph 5(a).

[gravytrain]

Re: Help marstons charged £403

So where, in the facts I reported, did I get my facts wrong?

Were those amendments somehow not shoved into the earlier Act, by the disingenuous expedient of claiming it just cleared up a few procedural points?


I entirely agree with your analysis of how this was smuggled into law.

Indeed they were but they were enacted as part of the DVCVA which was the whole point.

The facts are that this legislation does allow for forced entry, maybe it isn't right or fair but it does as the law stands.

[gravytrain]

Re: Help marstons charged £403

No - he may be "qualified". He may have all manner of certificates and bits of paper, from cycling proficiency, through City and Guilds Basic Safebreaking to a Master's Degree from the University of Stoke Poges in Padlock Construction.

One might doubt, however, that he would be lawfully authorised to know the information described in that section unless he (or she) had been mentioned as provided by paragraph 5(a).

The bailiff guide recommends the use of locksmiths as the preferred option to kicking the door in, perhaps they shouldn't ?

[labman]

Re: Help marstons charged £403

Going back to the original post, I'm aware this thread might be able to be used with Marstons, so we need to try to move it on. The OP was charged £403 - the normal £300 which we could argue over just as much as the right to force entry at the end of the day, and the £103 for the locksmith.

I am still of the opinion that the best way forward for this is through the distress warrant. I just cannot see that Marstons would condone forced entry purely for their fees. Would people agree that far?

The way I look at it - the right to force entry is questionable, not in theory, but in reality; the right to charge the £300 is questionable, not in theory, but in reality; the use a locksmith on top of the questionable bits seems to be a bit over the top by the bailiff in this case. This was clearly not a won't pay case, as the fine was already discharged. It was the issue of the fees which have caused the problem. Is this not exactly the same problem as Melanie Boswell and Fourjacks had - a fine which had been discharged, but the fees outstanding. It was even less clear cut with Fourjacks as there was a good argument for the charging of just £85 of fees.

Do we think there is any hope of the OP getting charges back?

If so, what is the best way to do this?

If we can answer these questions, we move the OP's question forward for them and we move the Marstons issue forward for the site. This needs doing sooner, rather than later.

If we are to help both the OP, and the issue we have as a site with Marstons at the moment, I think we should concentrate on this.

[CleverClogs]

Re: Help marstons charged £403

The bailiff guide recommends the use of locksmiths as the preferred option to kicking the door in, perhaps they shouldn't ?

Would such jackboot methods be condoned as "reasonable force"?

[labman]

Re: Help marstons charged £403

CC - do you think there is a genuine issue with the warrant here? We know there is a theoretical issue, but when push comes to shove, do you think the bailiff would be able to hide behind that theoretical right?

[bizzybob]

Re: Help marstons charged £403

Perhaps the moral right went out of the window, when a lawfully tendered payment was refused, or in this case refunded, then passed to bailiff.

[bluebottle]

Re: Help marstons charged £403

Yes I see what you mean here BB but the simple fact is that you cannot bring action for the contravention of a regulation, if the regulation does not exist.

Don't wish to speak for anyone else here but I think what is happening is exactly what the law permits, that is the trouble, ever since this law was sneaked into this particular piece of legislation on that late sitting in the house of commons it has been a problem, but pretending it does not exist and saying that it somehow has no teeth is to my mind misguided and denies the obvious truth of the situation.

Like I have already said, it will be official MoJ/HMCTS policy and how government law officers have advised ministers how to interpret the legislation and apply it that matters. If official MoJ/HMCTS policy is that contracted bailiff companies need to seek authorisation from the courts before forcing entry, then so be it. Don't forget, MoJ/HMCTS are subject to Section 3, Health & Safety at Work Act 1974 and if one of Marstons' muppet bailiffs decides to ignore what the MoJ/HMCTS have told them not to do and someone is injured as a result, it is MoJ/HMCTS that cop the flak. And also don't forget it is us, the taxpayer, that ends up footing the bill for compensation for the thuggery of out-of-control bailiffs, not the bailiff company.

[labman]

Re: Help marstons charged £403

The court accepted it though didn't it - see MARS 4 pdf in Post 24. It was never refunded, the bailiff claimed it had been rejected.