Legalities

The legal requirement

The Legal requirement


To undertake evictions, the High Court Enforcement Officer (HCEO) requires a valid writ of possession, which must be directed to the named HCEO.

Writ of possession

Those whom we evict are usually trespassers and, although the order for possession may have been made in the County Court, the claimant is entitled to transfer a County Court order for possession to the High Court for enforcement purposes. On occasion, the order for possession is made in the High Court but, regardless of whether the order for possession was made in the High Court or County Court, enforcement is undertaken pursuant to the writ of possession.

When exercising our powers, we can produce to the police, and those in possession, the original or photocopy of a sealed writ. This will identify the parties and the land that we are authorised to repossess. The land will be identified either by an address or a plan (the 'writ land').

Persons unknown

Once in possession of the writ, we are entitled to go onto the writ land and remove those who in occupation who have been ordered to leave. Whilst in some cases the identity of those in possession is known, in many cases those in occupation have refused to give their names and the party against whom the order is made can and should include 'persons unknown'. In such circumstances, we are required by the writ to remove any person who is in occupation.

In practice, the authorised HCEO will appoint an organisation to enforce the writ on his behalf, e.g. UK Evict/National Eviciton Team, part of High Court Enforcement Group. As such their employees and subcontractors can act in the authorised officer's name and have his authority and legal powers to carry out enforcement as if he were present.

Obstruction and resistance

Pursuant to Section 10 (1) of the Criminal Law Act 1977, ('the Act') a person is 'guilty of an offence if he resists or intentionally obstructs any person who is, in fact, an officer of a court engaged in executing process issued by the High Court or by any County Court for the purpose of enforcing any judgment or order for the recovery of any premises or for the delivery of possession of any premises'. We enforce High Court writs of possession, but this section also applies to the County Court bailiffs who enforce a County Court warrant for possession.

This section of the Act applies to those who entered or remained in occupation of the premises without the licence or consent of the person claiming possession or any predecessor in title of his (Section 10 (2) of the Act).  An offence is therefore not committed if the person being removed was a tenant of the property. An offence can, therefore, only be committed by those who were trespassers.

It is also a defence (Section 10 (3) of the Act) for the accused to prove that he believed that the person he was resisting or obstruction was not an officer of the Court. We must, therefore, be able to satisfy those in occupation (and the police) that we are HCEOs or those acting under the authority of an HCEO.

Penalties

Subject to the above, a person guilty of an offence is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (Section 10 (4) of the Act) and a constable in uniform may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be guilty of an offence under this section (Section 10 (5) of the Act). Section !0 (6) (a) of the Act defines 'officer of a court' as 'any sheriff, deputy sheriff, bailiff or officer of a sheriff'.

In practice, therefore, we would identify those who were 'resisting or obstructing'. We would remove those persons from the writ land and pass them to the police who, if suspecting that person to be guilty of an offence, have the authority to make an arrest.

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