Clamping down

Increasingly, instances are reported in which a bailiff alleges theft against a person who is rescuing distrained goods. In a recent, serious example of such an incident, a man was held by police for 14 hours and his home was searched after a bailiff reported that 'his' car had been stolen by the suspect. The man's car had been immobilised for a debt owed by his new girlfriend; the clamp and car had subsequently been removed.

Dude, where's my car?

It is certain that a crime might be committed in respect of a vehicle clamp. Taking the clamp away might be theft; its removal from a car could well involve criminal damage. This offence arises when property is destroyed or damaged without lawful excuse. A defence could be that property had to be damaged to protect the accused's goods from an immediate threat. However, it is clear from R v Mitchell [2003] EWCA Crim 2188 that there are very few cases in which damaging a vehicle clamp will be justifiable. Mitchell had no immediate need to protect the clamped car '“ nor could he argue that he had no reasonable alternative remedy: even if the clamping is wrongful, it is only a trespass, and there are adequate remedies available in the civil courts.

Is it possible for a person to steal his own car? Theft is the dishonest appropriation of property belonging to another '“ but goods 'belong' to anyone having possession or control of them. In R v Turner (No.2) [1971] 2 All ER 441, CA Turner left his car at a garage for repair. After the work was done, he took the car from the street so as to avoid paying the mechanic. Turner's appeal against his conviction was dismissed as the garage owner had sufficient custody of the car at the time for the taking from him to be theft. A bailee has possession; a bailiff who has impounded goods acquires a special property in them and will probably be able to claim that the goods have been stolen if they are taken out of his legal custody.

Of course, the bailiff only has possession if the levy is lawful. In the case described, the car was seized for a debt for which the owner was not liable: the levy was illegal. If a vehicle is wrongfully in a bailiff's possession, it does not seem that it can be stolen from him (R v Meredith [1973] Crim LR 253). Equally, in the absence of statutory endorsement, it is questionable whether bailiffs are entitled to levy distress by the use of immobilisation devices. The practice of clamping is arguably trespass.

Finally, theft is a dishonest appropriation of property. It is a defence to claim that a person believed there was a legal right to appropriate the property. This could provide a strong defence in the case described. Such a belief may also provide a defence for the manner in which goods are recovered '“ for example, if force is used (R v Robinson [1977] Crim LR 173).

To summarise, a bailiff who has conducted a lawful levy upon goods and chattels may well be able to raise an allegation of theft if the distress is subsequently rescued, but several strong defences may be available. Allegations of theft are, however, a recent development '“ why has this occurred?

Bailiffs' remedies

The laws of distress provide a criminal offence in situations where distrained goods are taken from the legal custody of the bailiff. This is the criminal offence of 'rescue' or 'poundbreach'. The problem is that this is very antiquated, obscure and, to a large degree, obsolete. Given that this offence is neglected and unwieldy, it is probably unsurprising that bailiffs have tried to find simpler and more accessible alternatives.

In March the Ministry of Justice provided a timetable for bringing into force the Tribunals, Courts & Enforcement Act 2007. Further consultation on regulations will lead up to implementation in 2012. The situation described in this article will then be altered radically.

Schedule 12 of the 2007 Act provides a new code of bailiffs' law. Paragraph 13 of schedule 12 legitimises the use of vehicle clamps, and paragraph 68 makes it an offence for a person intentionally to interfere with controlled goods without lawful excuse. On summary conviction a defendant may face up to a year in gaol or a fine up to level four on the standard scale '“ or both. Under paragraph 67, a creditor may also bring a claim for any loss arising from such an interference. These new remedies should obviate the need for creditors and enforcement agents to resort to the wider criminal law and should make the rights and responsibilities of all parties much clearer.