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A loophole for squatters?

By Eamonn Hogan on 25/08/2014 with comments

The provisions in the Sentencing and Punishment of Offenders Act 2012 (LASPO) that made squatting a criminal offence do seem to have made a difference to how speedily squatters can be removed from vacant premises. The only evidence I have for this is that my law firm has had only one case concerning squatters since it was introduced.

However, the question of what exactly constitutes a 'criminal offence' under LASPO when it comes to squatting

has also now been raised in various posts by barristers. Consequently you can bet that if barristers have considered it, then serious 'professional squatters' are also aware of it. The only mystery may be why squatters have not latched onto it yet.

I am convinced that the position outlined by a barrister called Mark Tempest is an accurate statement of the law as it stands. Tempest suggests that while there may be no debate about whether the act of squatting itself is now an arrestable offence, the real question is "when could and should the police make that arrest?" He sees the issue of precisely when the police can make an arrest as a key flaw, or even a loophole, in the law.

Section 17(1) (c) of the Police and Criminal Evidence Act 1984 (PACE) gives police the right to enter and search premises to make an arrest for specified offences, including now the offence of squatting in a residential building. Police power to make that arrest comes from section 24 of PACE, but there are strictly defined circumstances or reasons under PACE that permit the police to make an arrest.

Tempest argues that if the squatters confirm that they are indeed squatting, if the squatters confirm their identities when asked, if they are peaceable, do not damage the property and generally co-operate with police in every other way aside from leaving when asked to do so, they cannot be arrested. In fact, clear evidence that the offence is being committed by 'known squatters' diminishes, rather than increases, the likelihood of an arrest being made. No justification = no grounds for arrest.

This may seem bizarre but Tempest points out that if the police immediately pursue an arrest rather than other 'less intrusive' means that could lead to civil claims against the police by the squatters. This argument appears to be supported by the statutory code of practice applicable to section 24 of PACE. Tempest argues that the Police should be reluctant to make an immediate arrest just to get possession of a property when their own regulations make the consequences of a 'disproportionate arrest' clear.

All this may seem like a typically convoluted technical legal argument amongst lawyers with little practical application in the real world. However the upshot may be that the new law proves not to be as robust as thought, especially should a savvy squatter choose to test it.