Respect for the home as a defence in eviction proceedings

Sir Alan Ward's comments in Malik v Fassenfelt and Ors [2013] EWCA 798, the "Grow Heathrow" squatters case, have caused a stir.

The land being squatted had been used for various business ventures, latterly the respondent let it to a tenant who used it for fly tipping and dumping cars. From March 2010, the appellants gained entry onto the land, cleared the mess and set up a market garden, winning popularity with the local residents. They lived on the site.

In possession proceedings brought by the respondent the first instance Judge, HHJ Walden-Smith, found that article 8, which protects an individual's right to respect for their home, was engaged in cases involving private landowners. This was because under section 6 of the Human Rights Act 1998, the court is explicitly a public authority and therefore cannot make an order which would breach an individual's rights under the European Convention on Human Rights. However, she found it proportionate to make a forthwith possession order, and stated it is "difficult to envisage circumstances" where the engagement of article 8 would have any consequence. Before the 1998 Act, it was well established that a forthwith order should be made in cases involving trespassers (McPhail v Persons Unknown [1973] Ch 447).

On appeal, it was common ground between the parties that article 8 was engaged; the point in dispute was the proportionality of making a forthwith order. Lord Justice Lloyd and Lord Toulson regretted they did not hear submissions on whether article 8 was engaged in a case involving a private landowner, reserving opinion on that point. However, assuming article 8 was engaged, they held a forthwith order was proportionate.

Lord Justice Ward, in his final judgment before retiring, went further finding article 8 was engaged in cases involving private landowners and did constitute a potential defence. There was a caveat: the landowner's right to possession weighed heavily in favour of proportionality. It would be difficult to imagine a situation where the squatter was given unlimited right to remain.

Inconclusive

The case has not changed the law. The majority did not overrule McPhail. Therefore, a court should still make a forthwith order against trespassers. Neither did the majority rule on whether article 8 is engaged in possession proceedings against a trespasser on privately-owned land. Therefore the law remains inconclusive on that point.

Even if an article 8 defence is raised, it is established in respect of public bodies that "exceptional circumstances" are required to show a possession order is disproportionate (Birmingham City Council v Lloyd [2012] EWCA Civ 969 per Lord Neuberger). This standard was adopted both by HHJ Walden-Smith and Sir Alan Ward in respect of private landowners.

However, one should not underestimate the effect Sir Alan's dicta may have in the County Court. A private landowner bringing a possession claim will be afforded a five-minute initial hearing where he will usually obtain an order if he can prove title and show correct service. Sir Alan's dicta may fuel fruitless article 8 defences which may not be successful, but will persuade a judge they cannot deal with the matter at the initial hearing and adjourn for a full hearing. It may be weeks before the case is heard. Such adjournments threaten the ability of private landowners to recover possession quickly.

Impact

Squatting on residential premises was made criminal in section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Court of Appeal in Malik did not address how their decision relates to this legislation.

However the issues in the case focus the question on whether that legislation is compliant with the ECHR. After Malik, the question of whether article 8 is engaged in respect of squatting on private land is still live. It is therefore possible that a trespasser being prosecuted may seek to rely on article 8 and argue that section 144 itself breaches his article 8 right. Such would mean the court is asked to grant a declaration of incompatibility under section 4 of the '¨1998 Act.

Proportionate interference

The appellant in Malik has stated an intention to appeal. However, such an appeal will not touch the question that really needs determining - is article 8 engaged in a possession claim by a private landowner against a trespasser? The European jurisprudence would suggest it is - in Buckley v United Kingdom (1997) 23 EHRR 101, the article 8 right of a gypsy living on land without permission was engaged. It is probably unsurprising the majority found that refusing him permission to live on the land was a proportionate interference to that right. Such is the steer from Sir Alan. This question must be determined by the domestic courts.