§ Lords amendment: No. 70, in page 56, line 19, at end insert—
- (a) makes a statement which he knows to be false or misleading in a material particular; or
- (b) recklessly makes a statement which is false or misleading in a material particular.")
§ Madam Deputy Speaker
With this, it will be convenient to take Lords amendments No. 71, Lords amendment No. 72, amendments (a) and (b) thereto and Lords amendment No. 73.
§ Mr. Michael
As I understand it, the effect of this group of amendments will be that a person will commit an offence if he or she makes a false statement to resist the making of an interim possession order. In a sense, it is the mirror image of the offence of obtaining an interim possession order using a false statement.
Our concern is that we are confronted by two sets of legislation—civil law and criminal law—relating to the same situation. In tabling this amendment, the Opposition seek clarification of the position and difficulties in which a person could find himself.
When the issue was debated in the other place, the Lord Chancellor was still in the process of finalising the details for making interim possession orders through civil law. There was to be an opportunity for legitimate occupiers, in limited circumstances, to make representations against the making of an order. The Lord Chancellor's decisions appear in a document issued by his Department in late July. In fact, it is a consultation paper on the proposed rules and forms of new procedures to combat squatting in housing, shops and other buildings.
That document states that the Government concluded that the determination of rights of occupation should continue in the civil courts but with an accelerated procedure and criminal sanctions available for non-compliance with an interim possession order. We have in view the situation in which an order is sought by an occupier to recover property. Obviously the most acute situation arises where the property is a house or a flat, but it relates also to other types of property. The former case concerns us most.
The new procedure will enable a person, referred to as "the applicant", who is entitled to immediate possession of a building, or part of a building, to apply to a county court for an interim possession order, provided that notice of an intention to commence proceedings has been given to the alleged squatter, known as "the occupier". The applicant will be required to attend before the judge, who will decide whether to make an order.
The important point is that the occupier will not be given notice of the hearing; nor will he or she have a right to attend. Therefore, a decision may be made in the civil proceedings without the occupier necessarily being aware of those proceedings and without the occupier having a right to be present. The court is expected, in the guidance given by the Lord Chancellor, to receive undertakings to protect the occupier in the event that the order is set aside.
My experience with housing—particularly inner-city housing that is in multiple occupation and where there is a great movement of people in and out of bedsits—is that, frequently, there are circumstances in which landlords go to the edge of the law and beyond in seeking to influence what takes place. I have seen people moved out of properties in which they should have been able to protect 345 themselves and remain. Protecting the rights of people is an area of considerable difficulty. Although there is a requirement on the court in terms of the evidence that must be produced and the satisfaction that the court must seek, we are dealing with an area in which, often, vulnerable people are in considerable difficulty, sometimes having to accept a flat or bedsit in unacceptable circumstances which are outside the requirements of the law. That makes them even more vulnerable. That is a grey area that concerns me, and is one which may cause people considerable difficulty.
If the order is made, it will require all occupiers to leave the premises within 24 hours of service of the order. Failure to obey the order will constitute a criminal offence. That is the point where we move from what is a civil process. Failure to obey an order made under that process becomes a criminal act. In circumstances in which somebody is occupying a property to which they have no right, or in circumstances in which they really should get out, I can understand why the Government seek to give that criminal sanction.
But where a house in multiple occupation is being dealt with by the landlord at the edges of the law, or perhaps in contravention of the law, we must ensure that there is some way of protecting the vulnerable individuals, as they are often young people. Sometimes they are young people who have come out of care. Sometimes they are young couples with a baby who have had to find accommodation at short notice. On some occasions, perhaps—as a lawyer friend suggested to me yesterday when we were examining these circumstances—members of a family may have fallen out. In such circumstances, the situation is far from clear-cut. It is certainly not as clear-cut as the circumstances that I understand the Minister seeks to target.
In the situations set down by the Lord Chancellor, an occupier who believes that he or she has a right of occupation may apply to have the order set aside. What is that person's situation? My understanding is that he or she will have committed a criminal offence if, in the meantime, he or she enters or seeks to continue to occupy the property. In other words, even though an order may be set out at a later stage, because of the existence of that order, that person will have committed a criminal act by continuing to assert his or her rights of occupation. That is a reasonably clear situation, which arises out of the overlap of civil and criminal law.
It is certainly the case that the individual would be uncertain of his or her situation. If the person believes that he or she has a right of occupation and at a later stage goes to have the order set aside and is unsuccessful, that person will have committed a criminal act, albeit with the belief that he or she was not committing a criminal act during the life of the order, because it is sustained. It is arguable that that person may have been committing a criminal act, even if the order is set aside, but obviously it is less likely that that will be pursued or stand on the record. It is possible that it could stand on a record somewhere, because I have yet to find the process set out anywhere by which the individual is found guilty or where that person can clear himself or herself of the offence. The problem is that the offence seems to be automatic.
My understanding is that, with a criminal offence, there must be a process of deciding, hearing and making a finding of guilt, but that does not appear to be the case in the overlap of criminal and civil law. It seems to be that 346 the making of the order and the contravention of the civil order is automatically a criminal offence, even when dealing with an individual who has a right to continue in occupation. The problem is that, if a person has that right, it is not necessarily sustained by the court, because the court will not come to a decision on every occasion. There might be marginal decisions, especially in the circumstances to which I referred, where a tenancy or family arrangement is not in the definitions that are sanctioned and clear in law.
I come back to the point that there is a danger in such a state of affairs. The Opposition amendments offer protection and, unless they there accepted, there will be a danger that somebody could find himself or herself guilty of a criminal offence as a result of a civil procedure of which he or she is not aware and despite being in the honest belief that he or she is not committing any offence and has the right to occupy the property. If the person enters the premises, which he or she is entitled to occupy, that person is, presumably, committing an offence. How does a person become guilty of the offence in the circumstances envisaged under the Bill? What proof is required? What is the capacity for proving the innocence Of somebody who asserts that he or she is not committing an offence in those circumstances? Might not we risk making an innocent person guilty of a technical offence and therefore giving them a criminal record, when, in fact, we are simply dealing with a vulnerable person whom the law should protect?
I hope that the Minister will accept that, in the circumstances that I have envisaged, there are dangers that vulnerable people—the very people who would be least likely to know their rights—could be in difficulty. It is for that reason that I have tabled my amendments. Amendment (a) seeks to insert words that would make it clear that the onus of proof shall lie on the person who obtained the interim possession order. That, with the protection that is in the legislation against people making a false declaration, seems to me to help to some extent.
Amendment (b) would insert another exemption. Somebody would not be committing an offence in the circumstances described if that person were able to produce evidence to a court that satisfied that court of the entitlement of the person to occupy the premises other than as a trespasser. That is something which the individual could seek to do immediately, without delay, even if he or she was unaware. That person would not have to wait until the date of making the return to the order to produce evidence and would therefore not put him or herself at risk of committing a criminal offence during the period to the return date.
I hope that the Minister will see that I am not trying to interfere with the general intention of the clause or, indeed, to interfere with the general intention of their lordships in their amendment. I am simply trying to bring in further protection, which could apply only in the sort of circumstances that I have outlined and could not therefore obstruct the use of the Act in the way intended by the Government. I hope very much that the Minister will feel able to accept both amendments, but particularly amendment (b).
§ Mr. Maclean
I listened carefully to what was said by the hon. Member for Cardiff, South and Penarth (Mr. Michael), and I think I understand his worry. I accept that he is not trying to wreck the proposals—these are 347 certainly not wrecking amendments—but I think that he has misdirected himself slightly; or, to be really fair as I always am, perhaps the hon. Member for Norwood (Mr. Fraser) misdirected him slightly. I hope that I can show that the amendments are unnecessary.
Amendment (a) would place the onus on the property owner to prove that someone found on premises subject to an interim possession order was a trespasser. It is not right, however, for a fundamental element of the establishment of a criminal offence—proving that the defendant was a trespasser—to be removed from the burden on the prosecutor and placed in the hands of the person who obtained the interim possession order. That person must satisfy a civil court that he is entitled to obtain the order; once he has obtained it, if someone is found on the property or subsequently enters it, that may be a criminal offence. It is the duty of the prosecutor to satisfy a criminal court later, and satisfy the requirement of the normal criminal burden of proof, that that person was trespassing. We cannot lay the burden on a person who is not the Crown prosecutor.
§ Mr. Bennett
The majority of my constituents do not want to risk committing an offence. They want certainty; they do not want the worry involved in letting someone else prove the case.
In the area that I used to represent, people who had bought biggish houses on mortgages would put in four or five bedsits, often illegally. At some point, the mortgagee would foreclose and repossess the dwelling, leaving the occupants of the bedsits in a difficult position: having, in some cases, paid a month's rent in advance, they would suddenly be told that they were out on the street. In such circumstances, it would surely be unfair to tell the occupants that they were not entitled to return to their bedsits and take possession of their own property, but it seems that the Government's proposals would land them with the worry that by going back in they would commit a criminal offence.
§ Mr. Maclean
That is a civil matter for the civil court to determine in the first instance, when an application is made for an interim possession order. The civil court must be satisfied at that point. I understand the purpose of the Opposition amendments, and I do not condemn them as wrecking amendments, because they clearly are not.
§ Mr. Bennett
The people whom I described—the occupants of the bedsits—knew nothing about the proceedings of the giver of the mortgage and the owner of the property. They simply returned to find that the ownership of the property had changed, and they were locked out on the street. In such circumstances, people's natural reaction is to try to break down the door to get back into a bedsit that they believe they have a legal right to occupy.
§ Mr. Maclean
It is proposed that the occupant will be informed of the intention to apply for an interim possession order by whoever is involved. The Lord Chancellor clearly wishes to cover that in his rules, so that the occupant is informed that someone—whether it is the person he believes to be the landlord, or the Timbuctoo property company—is trying to gain possession of the 348 property, so that he can make written representations to the court. That is a civil matter. The burden of proof, if and when an interim possession order has been granted, is another matter entirely. We cannot have "civilians"—that is, those who obtain interim possession orders—taking on the burden of proof in a criminal case; that is the Crown prosecutor's duty, and if he does not carry it out he will fail.
§ Mr. Michael
The Minister's comments are quite helpful. They are beginning to clarify the procedure that will apply.
In the civil procedure, the court would presumably require evidence that an order had been served; but it would presumably be up to the applicant to produce that evidence. I can envisage circumstances—as, clearly, can my hon. Friend the Member for Denton and Reddish (Mr. Bennett)—in which a court might be misled. The real problem arises, however, with the shift into the criminal part of the proceedings. How is the criminal case determined? How is it triggered by the sort of breach that would cause worry to constituents of my hon. Friend the Member for Denton and Reddish, or to the people whom I cited in my earlier illustrations?
§ Mr. Maclean
The Bill is clear in this respect. A criminal offence could be committed if a person granted an interim possession order found people on the premises in breach of that order—or, if the original people had left, a new bunch came in five minutes later. Those are the basic makings of the offence. The Crown Prosecution Service would have to decide whether, in its judgment, an offence had been committed, and advance its findings to the court; the court would then have to make the ultimate decision that the offence had been proved to its satisfaction, according to the full criminal law.
As the provision stands, a prosecutor would have to prove in any criminal proceedings that the defendant was a trespasser; in the same way, he would have to prove all the other elements of the offence. Moreover, the prosecutor would have to prove that to the satisfaction of the court—that is, beyond all reasonable doubt. There is therefore no risk that a legitimate occupant would be wrongly convicted of the offence, which is the eventuality against which the Opposition wish to safeguard.
§ Mr. Stephen
Is not the crux of the matter the fact that the criminal court would not be bound to assume from the mere fact of an order's existence that the occupier was a trespasser? It would be an absolute defence for the occupier—that is, the defendant in the criminal proceedings—to show that he was not in fact the trespasser.
§ Mr. Michael
I understand the example given by the hon. Member for Shoreham (Mr. Stephen). The law may be clear, but the situation is not clear to a person who goes into a property believing that he has a right to do so. In the circumstances cited by my hon. Friend the Member for Denton and Reddish, when there are locks on the door, is that person entitled to enter a property to which he has an legitimate right, or is he putting himself at risk because it may be decided later that the civil court does not accept 349 that he has a legitimate right to enter the property, even to recover his possessions? In such circumstances, people will put themselves at risk of gaining a criminal record.
§ Mr. Maclean
It is clear that, once an interim possession order has been granted, the possibility exists that a criminal offence will be committed by people who breach it if, later, a criminal court is convinced that an offence has been committed. If the criminal court subsequently discovers that the person concerned is not a trespasser but a legitimate tenant—or has a right to be on the premises for another reason—the prosecutor will have failed to prove his case, and the person will not be convicted.
§ Mr. Michael
Let us suppose that a large company, with a bureaucratic organisation that may therefore be inaccurate, locks up a property that it believes itself to have legitimately repossessed. Those in occupation are unable to enter the premises without transgressing the order; they are therefore unable to do anything until the return date of the order, which they can then challenge.
Amendment (b) would allow such people to appear before a court immediately and to say that they have evidence—a rent book, an agreement or a letter from the previous owner, for instance—enabling them to go back into occupation without committing a criminal act. They could not do that gratuitously or at will. Without such evidence, surely there is no opportunity for them to resume occupation.
§ Mr. Maclean
The hon. Gentleman's scenario ignores one point. Under the Lord Chancellor's rules, the occupiers would have to receive notification that a property company, for example, was applying for an interim possession order, and have a chance to make representations to the court. Before the court could grant the interim possession order preventing the occupiers from entering the property that they considered to be theirs, it would have to be satisfied that the person applying for the order had a legitimate right to do so. That is the first safeguard.
The hon. Gentleman's amendment is not tacked on to the part of the Bill that the hon. Gentleman thinks it is. The effect of the amendment is that someone found on premises subject to an interim possession order would not be guilty of an offence if he could prove to the satisfaction of the court that he was lawfully entitled to occupy the premises. With respect, that is unnecessary since in its own definition the offence applies only to trespassers and cannot catch someone who legitimately enters the property. If a person proves to the court that he has a right to enter the property, he is not a trespasser and, therefore, 350 no offence is committed. I understand why the hon. Gentleman has tried to put in place a safeguard, but the safeguard is already in the wording of the law.
§ Mr. Michael
It is important to get this clear. Can the Minister tell me how, in advance of the return date of the order, that person would persuade anybody of his legitimate right of occupancy?
§ Mr. Michael
Prior to the date of the return of the order, how would that individual persuade a court—it could be a magistrates court; it would not have to be a civil court that had made the order—that he has the right to occupy the premises and therefore avoid any accusation that he is committing a criminal act?
§ Mr. Maclean
A trespasser would not be able to avoid that allegation. Many people cannot avoid allegations that they have committed crimes, but that does not make them criminals by any means, thank goodness. If the police decided that someone was on property in breach of an interim possession order, they would presumably want to apply the criminal offence. The prosecution would have to prove to the court that the person was there illegally as a trespasser. If, in the mean time, the civil court has decided that the person is not a trespasser—that is a telling point in a criminal prosecution—the prosecutor would not be able to succeed. The prosecutor would have to prove beyond reasonable doubt—the normal standard in a criminal court—that the person was a trespasser. If, in the hon. Gentleman's hypothetical scenario, the person is not a trespasser, he cannot be found guilty.
I fail to see where the problem materialises. I appreciate that the hon. Gentleman raised these amendments because he was worried about the effects of the law in this area. However, the law is quite clear. The hon. Gentleman's amendments are unnecessary. I give the hon. Gentleman credit for trying to ensure that people are not wrongly convicted by trying to impose the new criminal burden of proof in a civil matter, but, as I have said, that is not appropriate. The hon. Gentleman's second amendment is not appropriate on the basis that a person cannot he convicted of a criminal offence unless he or she is a trespasser. One does not need to add that anyone who is not a trespasser cannot be convicted.
§ Mr. Michael
I accept that the law may be clear, but the risk at which somebody can find himself put as a result of the decision of a civil proceeding at which he need not be present and at which he has no right of hearing is a risk which we should not take. We need only provide the ability for him to avoid that doubt by going before a court and saying, "There is no doubt and here is the evidence of my right to possess." Nobody without that evidence would be able to persuade a court, so there is no risk that it would weaken in any way the provisions of the Bill in regard to either the civil proceedings or the criminal element.
§ Mr. David Ashby (Leicestershire, North-West)
I have been listening carefully to the arguments. Does not this 351 apply to every criminal act? The issue is whether the prosecution can prove the case or whether there is doubt. It happens in every criminal act.
§ Mr. Michael
No, it does not. That is wrong. The possibility of having committed a criminal act arises only as a result of a civil order being made in which the person most directly affected is not concerned. The doubt is real and it should be capable of being cleared if evidence can be produced. We should not have to wait until the end of the civil proceedings in order to clarify a person's criminal standing.
I appreciate that the Minister has tried to respond positively to the points I have raised and we have had a genuine debate. I shall not seek to press amendment (a) because the Minister's point about the responsibility for producing evidence is reasonable. However, with your permission, Mr. Deputy Speaker, I should like to press amendment (b) to a Division.
§ Lords amendment agreed to.
§ Lords amendment No 71 agreed to.