The recent implementation of the Legal Aid, Sentencing and Punishment of Offenders Act, section 144, creating a new offence of squatting, prompted many to ask whether a change in the law was really necessary. Civil remedies already exist which protect the rights of property owners and a criminal offence is committed where a squatter fails to leave premises when requested by a police officer when the homeowner or tenant either lived there or was intending to live there.
Nonetheless, Grant Shapps – last week the Housing Minister, now reshuffled as Tory Party co-chairman – commended the new law as marking ‘the end of squatter’s rights’ and ‘tipping the balance of justice back in the favour of home owners’. Estimates of squatters vary but approximately 20,000 people in England and Wales could now be at risk of being punished by up to six months’ in jail or fines of up to £5,000.
A lack of insight
Focussing on criminalising squatting at a time when repossessions and evictions are increasing would appear to show a remarkable lack of insight into the problems experienced by many at present. Most squatting occurs in properties that are disused, often derelict, and commonly owned by companies as opposed to individuals. It is difficult, therefore, to see why this change in the law is a high priority.
It would have, perhaps, been more helpful for the government to have focused on homelessness, rather than squatting. Some research into the demographics of squatters would be a start. Crisis estimates that 37% of squatters have mental health problems, 52% have been in prison and 20% have alcohol problems. Duncan Shrubsole, director of policy for Crisis, estimates that 40% of homeless people have squatted at some time. Others are individuals who just cannot afford their rent or a mortgage and who are not in priority need for social housing.
As many commentators have remarked, people squat out of necessity and not desire. Any decrease in squatting will result in a corresponding increase in homelessness figures. This new law will merely push people from being homeless to being roofless.
The imposition of a fine to people in such poverty would almost certainly be pointless, leaving the only option of a jail sentence. Is the threat of imprisonment really a deterrent in such circumstances?
Squash, a campaign that opposed the bill, argue that squatters cost the public very little. Squatters cannot claim housing benefit and many pay council tax and utility bills. The image of squatters seems to be outdated. Many are living professional and family lives but simply cannot afford their own properties. Last week the Nationwide index made depressing reading, recording 50,500 new mortgage approvals a month in 2010, as opposed to an average of 107,700 new mortgage approvals per month in the middle of the last decade. This not only prevents first time buyers from getting on the property ladder but drives private rental prices up due to increased competition. As a result, competition for social and council properties also increases.
Squatters’ rights organisations argue that most squats develop in vacant properties. This assertion is supported by Crisis and other homeless charities which fear that many people will be evicted from empty properties. Surely the issue now is why landlords are able to leave some estimated 720,000 properties empty while affordable housing remains an impossible goal for so many. Charities estimate that homelessness rose by 14% last year; a statistic in stark contrast to the view of Crispin Blunt, another outgoing Justice Minister, who told the BBC that ‘homelessness is at a 28 year low’.
No discernible effect
Responsibility will fall on the shoulders of the police to investigate squatters and on the CPS to fund prosecutions. Both the CPS and the police are publicly funded and both have faced major cuts in the past two years. The cost of securing convictions and imprisoning those falling foul of the law will be enormous at a time when public resources are scarce. To secure a conviction, the prosecution will need to prove that a squatter entered a residential building, knowing that they were trespassing and intending to live there. A circular distributed to judges, courts and the police making clear that the law does not apply to people who remain when a tenancy ends or a lease or license expires. Neither does it apply to people who fall behind with rent payments. Interestingly, the circular also makes it clear that no offence will be committed if a person occupied a property in good faith, believing themselves to be tenants. Tenancies can be granted orally and so a reasonable belief in a tenancy presumably creates a low evidential burden for the defendant. There is a risk that rogue landlords will seek to use this as a tool for unlawful eviction (for example, granting tenancies orally, insisting in rent in cash and then asserting the residents are squatters).
The chairman of the National Landlords Association last week said that he was not convinced that the law would have any discernible effect. Perhaps he is right; the police repeatedly fail to involve themselves in unlawful evictions, despite existing criminal provisions. The police claim these evictions are a civil matter although these evictions frequently affect the tenant concerned adversely and there is strong evidence that an offence under Section 1 Protection from Eviction Act 1977 has been committed. If the police really had any desire to evict squatters then, as numerous legal commentators have noted, the new law is superfluous as s.7 of the Criminal Law Act 1977 already provides adequate legislation for prosecuting ‘criminal trespassers’.
There is already a challenge to the legislation: Irene Gardiner has lived and raised her family in an abandoned Welsh hillside cottage since 2001, it having been occupied by squatters for decades. Both she and her children, two of whom attend the local school, could now face prosecution. Ms Gardiner has been quoted as saying that she pays council tax and doesn’t claim benefits. The law firm Leigh Day & Co is assisting Ms Gardiner who claims that a prosecution would breach her right to personal and family life under Article 8 of the European Convention of Human Rights. In essence, ECHR compliance requires that any interference with Ms Gardiner’s rights must be a proportionate means of achieving a legitimate aim. Her lawyers will argue that the introduction of this legislation is disproportionate to the aim the Secretary of State for Justice is trying to achieve.
That, arguably, sets the tone for how this change in the law will operate. An added burden placed upon the police and the prosecuting authorities; cases which simply give rise to legal challenges; all to prevent the otherwise law abiding from living in an otherwise empty property. Those who question the need for this new law have a point.
Author: Marian Cleghorn
Marian is currently a pupil at Garden Court North Chambers specialising in housing law. She is also currently working on a PhD at the University of York on comparative legal systems. Previously she has experience of NGO work at the International Criminal Court in the Hague and death penalty work for Amicus.