Hausarbeit, 2010, 14 Seiten
2 Definition and Function of a Bailiff
2.1 Types of Bailiffs
2.2 Walking Possession Agreement
3 The Presentation of Bailiffs in the Media
3.1 Case I: The Accusations of ‘Equita’- Bailiffs
3.2 Case II: Petri Hawkins-Byrd from the American Court Show ‘Judge Judy’
People and especially the media often confuse the occupation of a bailiff with the job of a debt collector. But the work of these two is very separate because bailiffs usually enforce court orders and warrants issued by the government departments and are allowed to take people’s goods to sell it to pay what is owed (csa). In contrast to a bailiff a debt collector has no right to do that and is only a representative of a Debt Collection Agency (payplan).
However, there are different types of bailiffs that must be distinguished and will be dealt with in one of the following paragraphs of this paper.
If you are a creditor and have problems with a debtor or if you are a debtor and afraid of an arriving bailiff, you will find a lot of websites on the internet offering help and giving advice. This shows that there is an increasing awareness of bailiffs and since courtroom shows have experienced a remarkable revival in the mid-1990s and became a regular feature of daytime television, bailiffs are present on the TV screen, too (Versteegen 71).
While examining the presentation of this occupation, I will demonstrate that bailiffs are shown in a contrary way in the media. To prove my thesis, I will firstly give a definition and an overview of the job and function of a bailiff, present the different types of bailiffs and will also deal with the walking possession agreement. In the second part of my paper I will have a look at two different presentations of Bailiffs in the media: First I will examine a debtor’s proceed against a bailiff, which caught the attention of the media. In contrast to that I will have a look at the character of Petri Hawkins-Byrd, the popular bailiff of the American courtroom show ‘Judge Judy’ and his depiction on the TV show. In the last part of my paper I will evaluate my findings and prove my thesis that the presentation of this occupation in the media differs. Finally I will assume the function of these distinct ways of presenting this occupation and will also refer to the two different genres of media in which the bailiffs are shown, namely on the one hand a real court case in newspapers and on the radio and on the other hand a TV courtroom series.
In the United Kingdom there are 5000 bailiff cases per year and in 80% of those cases the local and central government debts are in fact collected by the bailiffs (Meakin, lmag).
Bailiffs have been around for over a thousand years and ‘distress’, which is the process of removing or threatening to remove goods in order to enforce a debt, was already common in the 13th century. Even the Magna Carta of 1215 gave the English Barons the right to distress against the king (bailiffadvice).
In general bailiffs are authorized to collect a debt on behalf of a creditor and additionally are concerned with court procedures and proper conduct of court business. The court orders and warrants enforced by bailiffs, are most of the time issued by government departments and have commonly to do with the recovery of debt. But in certain cases bailiffs also have the power to evict or arrest debtors (csa). The procedures in which a bailiff is involved are always covered by law and therefore the occupation demands detailed knowledge and understanding of the legalities of a bailiff (cvtips).
When collecting debts a bailiff can be instructed to seize goods for payment from the debtor’s home, if he or she failed to pay the creditors. Furthermore he can also be used to repossess your home or to enforce certain arrest warrants if for instance a County Court Judgement is involved (payplan).
From October 1998 debtors who missed to pay council tax or community charge will get a letter from the council first, before a bailiff is sent to them. This letter tells the debtor how much he owes and warns him that a bailiff will call, if he does not pay the amount within 14 days. In this case the debtor should try to make an arrangement with the council to prevent a visit of the bailiff and additional fees (multikulti).
Though most bailiffs call at a reasonable time, namely during normal office hours, they can call at any time of day and night and only bailiffs collecting rent are obliged to call between sunrise and sunset. Once a bailiff visits a debtor he cannot force his way into his or her house and has the right of peaceful entry only. The sole exception is the bailiffs from the Collector of Taxes, who can very rarely get a warrant to force entry. A bailiff cannot gain way into the debtor’s house by breaking a window or a door, but can enter ‘peacefully’ through an open door or window and can climb over fences and gates without breaking them down.
If the debtor answers the door, the bailiff may attempt to walk in as soon as the door is opened and some bailiffs even use tricks to gain the peaceful entry, for instance by asking to use the telephone inside. But the debtor does not have to let the bailiff in and if doors and windows are securely closed, a bailiff will neither be able to force his way past the debtor, nor can he lawfully seize goods. No debtor can be arrested for not letting a bailiff into the house or flat, but non-payment of council tax, child maintenance or magistrates court fines can finally lead to imprisonment if the debtor ‘wilfully’ refuses to pay though having enough money (cvtips).
However, experts advise to let the bailiff in, ask to see his bailiff credentials and his authorization and make sure that it is a bailiff rather than for instance a debt collector, who does not enforce a court order and has no lawful right to collect debts (Meakin, lmag).
Once the bailiff gained peaceful entrance to the debtor’s home, he has the right to go into all rooms and he can break open any locked door or cupboard inside the house to find and seize goods of value belonging to the person who owes the debt or who is named on the warrant. Nevertheless there are some exceptions to what a bailiff is not allowed to take, namely: items which belong to someone else, rented goods, goods subject to hire purchase or conditional sale agreements and fixtures and fittings. Therefore the debtor is usually advised to show receipts or notes which demonstrate that an item belongs to another person or to let the bailiff see a credit agreement which explains that the item cannot be taken away (multikulti).
After entering peacefully, any attempt of the debtor to remove a bailiff from his property is assault and the debtor could be taken to court for it. Furthermore once gaining entrance, the bailiff can call again and enter even without the debtor’s permission and he has the right to break in the house and remove goods. A bailiff will make clear an intention to seize various goods, either verbally, or by attaching a mark to them or touching them. This process is called ‘levying distress’ or ‘distraining upon goods’. There is a number of options what a bailiff can do with seized items. Either the goods can be removed immediately from the property to be stored and then sold at a public auction or the bailiff leaves a person to guard the seized items. Alternatively, a bailiff can also secure goods that have been seized in the debtor’s home.
To sum it up, the last two options are very rare and the most likely outcome of a visit by a bailiff is that he will ask the debtor to sign a ‘walking possession agreement’ (cvtips).
This special arrangement will be thematised in the following sections of this paper.
Besides collecting money, the bailiff is present at all court hearings, for instance at adversarial court hearings, arraignments and bail applications, and plays part in them as a court officer (cvtips). In this context the responsibility of a bailiff must be mentioned, because he is one of the court personnel and therefore personally accountable for ensuring that proper conduct of proceedings is carried out. This personal aspect is also important when deciding who can become a bailiff. For instance, a ‘certificated’ bailiff is acknowledged by the court, thought to be a ‘fit and proper’ person and undergoes a specific bailiff training (ibid.).
The next paragraph will list several types of bailiffs and will deal with their differing powers to collect debts.
There are three main types of bailiffs who can be used to collect different kinds of debt, namely the certificated bailiff or the private bailiff, the county court bailiff and the high court enforcement officer, formerly known as the sheriff’s officer (csa).
The certificated bailiffs – sometimes called enforcement officers – are granted a certificate by a County Court under ‘The Distress for Rent Rules 1988’ (opsi), which allows them to levy distress and seize goods (bailiffadvice). This certificate normally lasts for two years and authorizes the bailiff to work in the country. To obtain this certificate the applicant has to satisfy the judge that he is a ‘fit and proper’ person that he has a sufficient knowledge of the law of distress and that he is not in the business of buying debts. Moreover an applicant must provide two references, undergo a criminal records check, a County Court Judgement test and has to deposit £ 10,000 in a bailiff bond to be covered by an insurance in case of unlawful seizure (csa).
Although private bailiffs fall into the same category as certificated bailiffs, they are not officers of the court and are not employed by the court. However, they are regarded as representatives of the court because they act under the authority of a certificate issued by it. Therefore the court exercises under the certification procedure a certain amount of control of the standards concerning competence and conduct of the private bailiffs. But only certificated bailiffs can carry out distress for such as council tax, child support, non-domestic rates and parking fines (ibid.).
The second kind of bailiff explained in this paper is the county court bailiff. These bailiffs are directly employed by the county courts for the enforcement and recovery of debt judgements in the county court (ibid.). They enforce county court orders and the orders made at tribunals that have been transferred to the county court enforcement and cannot hold bailiff certificates. So, if a debtor is taken to court and a judgement is made against him, the county court bailiff will execute the warrant for the creditor. Generally, they are concerned with debt under £5000 and are also the bailiffs that evict tenants of residential property who do not pay their rent, evict people in mortgage arrears and evict troublesome tenants (bailiffadvice). County Court bailiffs are managed by senior staff at the county court but are also responsible to the District Judge for their actions (csa).
The High Court Enforcement Officers, in short HCEOs, are private sector bailiffs appointed to enforce High Court orders and County Court orders that the creditor transfers to the High Court for enforcement. They are formerly known as sheriff’s officers as they are employed by High Sheriffs and perform a political post. The rules governing the bailiff’s appointment are set out in the County Courts Act of 2003 and the rules made under it (ibid.). A HCEO or a sheriff usually appoints a bailiff company, which enforces and recovers all the judgement from the High Court and certain large County Court debts (bailiffadvice).
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