Form 4 Complaints and the dangers of taking "legal" advice

[Milo]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Exactly, Milo. The Criminal Law exists to deal with criminal acts. However, it would not be improper if, following conviction, a certificated bailiff was hauled in front of the Circuit or District Judge at the court that issued the bailiff's certificate and revoked it, especially if a conviction was for criminal dishonesty, a sexual offence or violence.

Don't forget that there is Form 5 which can be completed where an investigation has taken place into a bailiff's conduct and the investigating body submits it to the court with its findings.

However, Form 4 or 5 is not always necessary. Sometimes, a letter to the Circuit or District Judge with accompanying evidence, statements, etc., can result in a bailiff's certificate being revoked without a Form 4 or 5 complaint being submitted or a hearing. This happened to a Ross & Roberts bailiff, during 2012. The court used its powers under Civil Procedures Rules to make a decision on its own initiative and to dispose of a case without a hearing.

Bluebottle.

You are spot on. If there were a conviction then without doubt (assuming of course that the bailiff was still working as a bailiff) there is nothing whatsoever wrong in bringing a complaint to the Court that certificated the bailiff.

As you will know, when Happy Contrails was posting either on here or on Consumer Action Group he constantly stated that bailiff companies were committing Fraud by when charging a fee for enforcing a Distress Warrant. He made hundreds and hundreds of posts claiming that the bailiff or the company had committed "Fraud". Last year, he left this forum and joined another small forum that had previously been started by another poster on here called Amy. That particular "bailiff forum" that had been run by Amy was perfectly fine and used to have some very good solid advice on it.

Happy Contrails then joined the forum and in his own words "rewrote the site" for Amy and effectively carried on in the same manner by encouraging viewers that a bailiff has committed Fraud. If this claim is correct, then the correct course of action MUST be for the debtor to involve the police. There should be no other course of action. That is it.....call the police. Fraud cannot be for a County Court or a Form 4 Complaint and it is really worrying that debtors are being given the wrong advice.

Instead, viewers to the site are encouraged to write endless lengtly letters that are littered with irrelevant "case law" and which have been "personally" drafted by Happy Contrails himself. The unsuspecting debtor is then instructed to send these "personally" drafted letters to the Ministry of Justice, the Parliamentary Ombudsman and many times, to an individual person at HMCTS.

The unsuspecting viewer will not realise that they are being used by HappyContrails as a "personal carrier pigeon" to deliver "his personal message" to either HMCTS, the Magistrate Court, bailiff company or Ombudsman.

Some viewers will display on the site a copy of the response from the Court or from HMCTS and so far, every letter exhibited confirms once again that fees can be charged by the relevant bailiff company. Worryingly, many times when a letter is displayed that is critical of the advice given on that forum the viewer will find a note on the forum to state that the thread has been moved to a "members only viewing area". In other words...witheld from public view!!

As you have quite correctly stated Bluebottle...Fraud is a criminal offence and MUST be brought to the attention of the police. A Form 4 Complaint is the WRONG course of action.

The public need to be aware that they are receiving the wrong advice and if it means that I will have my name rubbished on that site then so be it.

[Guest]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Yes report any suspected crime to the police, I think that it is the best bet.:tinysmile_grin_t:

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Ooh I don't think 'illustrating how a bailiff could be arrested' is a good idea......there probably are some bailiffs reading this very thread.........be a shame to let them know what BlueBottle knows....let them find out for themselves

It involves inflicting pain, being trussed up and thrown in the back of a van. Then you get called rude names like "scrote", "scumbag" and some that are not fit to be posted. And that's before you arrive at the police station.

[charitynjw]

Re: Form 4 Complaints and the dangers of taking "legal" advice

It involves inflicting pain, being trussed up and thrown in the back of a van. Then you get called rude names like "scrote", "scumbag" and some that are not fit to be posted. And that's before you arrive at the police station.

When I was young (about 5 years ago :lie a bailiff came calling on someone I knew (I happened to be there - but didn't know then what I know now).

He took one look, saw that there was obviously nothing of value, sat down with us & had a cuppa, & advised going to the court & getting an n245, EX160, etc.

Why can't they all be that reasonable - 'target-driven' has a lot to answer for!

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Bluebottle.

You are spot on. If there were a conviction then without doubt (assuming of course that the bailiff was still working as a bailiff) there is nothing whatsoever wrong in bringing a complaint to the Court that certificated the bailiff. A criminal court has the power to ban a defendant from holding public office or working in a public office where a judge considers it prudent, taking account of the offence or offences committed. A bailiff would be such an office, as would a High Court Enforcement Officer (HCEO).

As you will know, when Happy Contrails was posting either on here or on Consumer Action Group he constantly stated that bailiff companies were committing Fraud by when charging a fee for enforcing a Distress Warrant. He made hundreds and hundreds of posts claiming that the bailiff or the company had committed "Fraud". Last year, he left this forum and joined another small forum that had previously been started by another poster on here called Amy. That particular "bailiff forum" that had been run by Amy was perfectly fine and used to have some very good solid advice on it.

These are examples of when a bailiff commits fraud -

a. charges or attempts to charge for work they have not done;
b. imposes or attempts to impose charges not provided for by statute or other statutory enactment;
c. charges or attempts to charge fees in advance (Upfront Fee Fraud);
d. dishonestly fails to disclose information they have a legal duty to disclose;
e. aids or abets in the commission of an offence of fraud;
f. is an accessory to an offence of fraud;
g. falsely misrepresents their powers, e.g. that they can seize and remove exempt goods when the law says they cannot or is specified by a condition attached to a Distress Warrant.

Happy Contrails then joined the forum and in his own words "rewrote the site" for Amy and effectively carried on in the same manner by encouraging viewers that a bailiff has committed Fraud. If this claim is correct, then the correct course of action MUST be for the debtor to involve the police. There should be no other course of action. That is it.....call the police. Fraud cannot be for a County Court or a Form 4 Complaint and it is really worrying that debtors are being given the wrong advice. It is not that simple. You have to apply the Ghosh Test for dishonesty before you can even start to say someone has committed fraud. You also have to prove the points that form the offence's construction, i.e. what someone has to do in order to be guilty of the offence.

Instead, viewers to the site are encouraged to write endless lengtly letters that are littered with irrelevant "case law" and which have been "personally" drafted by Happy Contrails himself. The unsuspecting debtor is then instructed to send these "personally" drafted letters to the Ministry of Justice, the Parliamentary Ombudsman and many times, to an individual person at HMCTS.

It's often quicker, easier and better to contact the HMCTS Senior Enforcement Manager for the area in which the debtor or issuing court is located. That is my experience.

The unsuspecting viewer will not realise that they are being used by HappyContrails as a "personal carrier pigeon" to deliver "his personal message" to either HMCTS, the Magistrate Court, bailiff company or Ombudsman.

Some viewers will display on the site a copy of the response from the Court or from HMCTS and so far, every letter exhibited confirms once again that fees can be charged by the relevant bailiff company. Worryingly, many times when a letter is displayed that is critical of the advice given on that forum the viewer will find a note on the forum to state that the thread has been moved to a "members only viewing area". In other words...witheld from public view!!, Because the person who gave out the advice has, to put a finer point on it, made the debtor look a complete tit.
As you have quite correctly stated Bluebottle...Fraud is a criminal offence and MUST be brought to the attention of the police. A Form 4 Complaint is the WRONG course of action. Absolutely correct, Milo.

The public need to be aware that they are receiving the wrong advice and if it means that I will have my name rubbished on that site then so be it. You've got broad shoulders, Milo. You can take it. It's better to get rubbished for being correct than being wrong because your critics then look complete and utter idiots when you are proved right.

@@@@

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

I would not know how to go about arresting a bailiff, perhaps you could illustrate the procedure for the debtor.

Members of the public have a power of arrest under Section 24A, Police & Criminal Evidence Act 1984. These replaced the "any person" powers of arrest under Section 2, Criminal Law Act 1967. How you go about arresting someone is dictated by whether the offence is an indictable offence or not.

Fraud is an indictable offence. However, you have to be able to prove dishonesty and this is achieved by applying the Ghosh Test. In the case of a bailiff, you would need to know that the bailiff was acting dishonestly and why they were acting dishonestly before you can even lay hands on them. With the Ghosh Test, the key question to be asked is "Would any reasonable person by normal standards of propriety consider what the bailiff was doing to be dishonest?" If the answer to this is "Yes", the next question is "Does the defendant by these standards know what they have done to be dishonest?" If the answer to this question is "Yes", then dishonesty is proven. If the answer to either question is "No", then any case will fail. Both parts of the Ghosh Test have to be satisfied.

In cases of assault, the objective is to prevent the bailiff from continuing with the assault. Restraint is justified in such cases, but it must not be restraint that is excessive or likely to cause injury. Never restrain a person in a face-down position as this is dangerous and could cause them to asphyxiate. In cases of bailiffs engaging in violence, it is better to use the Common Law offence of Breach of the Peace as this can be used to cover any offence involving violence.

My advice, as a retired police officer, is for people not to attempt to detain anyone for a suspected offence single-handed as it is likely you could be overpowered and end up seriously-injured or be accused of being the offender. Make sure you have a second person present to witness and assist. And only attempt to detain someone where you are reasonably certain they have committed an indictable offence. For information, an indictable offence is an offence that carries a maximum penalty of five years imprisonment or more on conviction.

[Guest]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Members of the public have a power of arrest under Section 24A, Police & Criminal Evidence Act 1984. These replaced the "any person" powers of arrest under Section 2, Criminal Law Act 1967. How you go about arresting someone is dictated by whether the offence is an indictable offence or not.

Fraud is an indictable offence. However, you have to be able to prove dishonesty and this is achieved by applying the Ghosh Test. In the case of a bailiff, you would need to know that the bailiff was acting dishonestly and why they were acting dishonestly before you can even lay hands on them. With the Ghosh Test, the key question to be asked is "Would any reasonable person by normal standards of propriety consider what the bailiff was doing to be dishonest?" If the answer to this is "Yes", the next question is "Does the defendant by these standards know what they have done to be dishonest?" If the answer to this question is "Yes", then dishonesty is proven. If the answer to either question is "No", then any case will fail. Both parts of the Ghosh Test have to be satisfied.

In cases of assault, the objective is to prevent the bailiff from continuing with the assault. Restraint is justified in such cases, but it must not be restraint that is excessive or likely to cause injury. Never restrain a person in a face-down position as this is dangerous and could cause them to asphyxiate. In cases of bailiffs engaging in violence, it is better to use the Common Law offence of Breach of the Peace as this can be used to cover any offence involving violence.

My advice, as a retired police officer, is for people not to attempt to detain anyone for a suspected offence single-handed as it is likely you could be overpowered and end up seriously-injured or be accused of being the offender. Make sure you have a second person present to witness and assist. And only attempt to detain someone where you are reasonably certain they have committed an indictable offence. For information, an indictable offence is an offence that carries a maximum penalty of five years imprisonment or more on conviction.

Thanks for that BB very interesting.

Five years is a long time though, it would have to be something pretty horrendous I would have thought, although you did mention a bailiff getting four years earlier, what was the offense there ?

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Thanks for that BB very interesting.

Five years is a long time though, it would have to be something pretty horrendous I would have thought, although you did mention a bailiff getting four years earlier, what was the offense there ?

Unfortunately, that cannot be divulged for legal reasons. The list below will give you an idea of the maximum penalties available to courts for difference offences. Unless otherwise stated, penalties shown are for summary conviction and conviction on indictment -

Fraud by False Misrepresentation - £20k fine or 12 months prison or both/10 years prison
Theft - £20k fine or 6 months prison/7 years prison
Unlawful Wounding - Life imprisonment (Can only be heard at the Crown Court)
Malicious Wounding - Life imprisonment (As for Unlawful Wounding)

Maximum sentences quoted are those available to a trial judge, whether at the Magistrates or Crown Court. However, they are subject to sentencing guidelines which are set by the Sentencing Advisory Committee.

[Milo]

Re: Form 4 Complaints and the dangers of taking "legal" advice

When I was young (about 5 years ago :lie a bailiff came calling on someone I knew (I happened to be there - but didn't know then what I know now).

He took one look, saw that there was obviously nothing of value, sat down with us & had a cuppa, & advised going to the court & getting an n245, EX160, etc.

Why can't they all be that reasonable - 'target-driven' has a lot to answer for!

It would almost certainly be the case that this was a County Court bailiff enforcing an unpaid judgment. As such, the bailiff is a civil servant employed by HMCTS and he will not be paid a commission.

[Rob0000]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Sorry, i asked a question, then realised i probably shouldn't have asked it at this juncture.

[Guest]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Unfortunately, that cannot be divulged for legal reasons. The list below will give you an idea of the maximum penalties available to courts for difference offences. Unless otherwise stated, penalties shown are for summary conviction and conviction on indictment -

Fraud by False Misrepresentation - £20k fine or 12 months prison or both/10 years prison
Theft - £20k fine or 6 months prison/7 years prison
Unlawful Wounding - Life imprisonment (Can only be heard at the Crown Court)
Malicious Wounding - Life imprisonment (As for Unlawful Wounding)

Maximum sentences quoted are those available to a trial judge, whether at the Magistrates or Crown Court. However, they are subject to sentencing guidelines which are set by the Sentencing Advisory Committee.

Perhaps a mistake mentioning the case then ?

Thanks for the list, I am sure that you are not suggesting that debtors start trying to arrest officers of the court on the strength of this though, or are you ?

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Perhaps a mistake mentioning the case then ?

Thanks for the list, I am sure that you are not suggesting that debtors start trying to arrest officers of the court on the strength of this though, or are you ?

I wouldn't refer to certificated bailiffs as "officers of the court" as they just lends credence to their bullying, intimidating and violent behaviour. If truth be told, a lot of HMCTS staff are becoming rapidly and mightily fed-up with their behaviour. I would only advocate those who have had no law enforcement experience arresting certificated bailiffs in instances of the bailiff assaulting someone and, then, only to prevent them continuing with the assault and causing injury. Common Assault can escalate to Assault Occasioning Actual Bodily Harm, or worse, very quickly. Sometimes, one punch can be enough, depending on how strong the assailant is or if the victim falls and suffers serious injury through striking their head, etc., on a paving stone, etc..

[Guest]

Re: Form 4 Complaints and the dangers of taking "legal" advice

I wouldn't refer to certificated bailiffs as "officers of the court" as they just lends credence to their bullying, intimidating and violent behaviour. If truth be told, a lot of HMCTS staff are becoming rapidly and mightily fed-up with their behaviour. I would only advocate those who have had no law enforcement experience arresting certificated bailiffs in instances of the bailiff assaulting someone and, then, only to prevent them continuing with the assault and causing injury. Common Assault can escalate to Assault Occasioning Actual Bodily Harm, or worse, very quickly. Sometimes, one punch can be enough, depending on how strong the assailant is or if the victim falls and suffers serious injury through striking their head, etc., on a paving stone, etc..

Even certificated bailiffs are operating directly under the authority of the court, as I understand it, some bailiffs enforcing fines have the powers of arrest. Please correct me if I have this wrong.

You refereed earlier to the reprehensible behavior of bailiffs, and now you are implying that assault is a common occurrence, you also mention cases where bailiffs have been prosecuted for this, I am not being argumentative , but it would help if you could support these statements with some cases.

Surely when threatened with assault the best course of action is to just walk away and contact the police ?

[bluebottle]

Re: Form 4 Complaints and the dangers of taking "legal" advice

Even certificated bailiffs are operating directly under the authority of the court, as I understand it, some bailiffs enforcing fines have the powers of arrest. Please correct me if I have this wrong.

You refereed earlier to the reprehensible behavior of bailiffs, and now you are implying that assault is a common occurrence, you also mention cases where bailiffs have been prosecuted for this, I am not being argumentative , but it would help if you could support these statements with some cases.

Surely when threatened with assault the best course of action is to just walk away and contact the police ?

I think you may be reading more into what I have posted than you should. There have been cases on a number of information forums where bailiffs have assaulted debtors and, quite rightly, have paid the price by having their certificates revoked. The police, not surprisingly, thanks to their general lack of knowledge and training in bailiff law and matters, have been flummoxed as to what to do and it has been the civil courts who have dispensed justice in such instances.

With regard to certificated bailiffs enforcing court fines, no, they do not have powers of arrest without warrant, as the police do. They can only arrest someone on an arrest warrant issued by a court. I don't think even the Ministry of Justice trusts them with such powers.

In my post #72, I am not implying that assault by bailiffs is a common occurrence. It is stated in very generalised terms and intended to illustrate what would be acceptable if a bailiff did assault a debtor.

In the case of what a debtor can do if threatened with violence by a bailiff, yes, dial 999 and get the police to attend, but if a bailiff did commit an assault, then the debtor would be entitled to use as much reasonable force as it necessary to defend themselves. It is called self-defence.

The sad reality why there is so little anecdotal evidence to refer to, Andy, is because debtors are often so terrified and traumatised, they do not report incidents involving intimidation and violence. Shoving or pushing someone out of the way in order to effect entry unlawfully or illegally is, in itself, assault or battery, depending on how much force is used. My gut-feeling is that what gets reported on information forums is the tip of a very large iceberg.

The government is making a start, albeit, long-overdue, on clamping down on the more unacceptable practices within the civil enforcement industry, but the only way in which it can be stopped is to start closing down individual bailiff companies until the industry, itself, is closed down altogether. As the late Lord Denning said, bailiffs have no place in a modern society as there are better and more cost-effective methods of enforcing debts, i.e. Attachment of Benefits and Attachment of Earnings orders.

[Guest]

Re: Form 4 Complaints and the dangers of taking "legal" advice

I don't think I mentioned "arrest without warrant" BB, I just said they could have the powers of arrest. I believe under the MCA 1980 .

You say you just referred to bailiff action in general terms, what you said was;

"I do know of one prosecution of a certificated bailiff for Perverting the Course of Justice and other serious criminal offences which happened to an LB member who was very brave in the face of what the bailiff did. The weasel got four years plus a lifetime ban from working in the public sector or holding public office plus other sanctions "

Sorry, but I am sure you understand my confusion, I do however understand totally if this particular case cannot be discussed , however if this is as endemic as you imply surely there must be others ?

I hear what you say about intimidation and reluctance to report to the police, I would think that the best way to remedy this reluctance would be to publicise the cases where the police have taken action.