The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect? That, in colloquial terms, is the issue in this appeal which is brought by squatters against the order made by Her Honour Judge Walden-Smith sitting at the Central London County Court on 19th July 2012 when she ordered that they give the claimant possession of his land to the north side of Vineries Close, West Draycott forthwith. The castle metaphor is quaint but outmoded: the correct legal question to be asked since the Human Rights Act 1998 came into force in October 2000 is how, if at all, if squatters have established homes on the land without the leave of the landowner, does the court, faced with a claim for possession by a private landowner against the trespassers, give effect to the squatters’ right to respect for their homes guaranteed to them by Article 8 of the European Convention on Human Rights?
This is the opening paragraph of the decision of the Court of Appeal in Malik v Fassenfelt & Ors  EWCA Civ 798 but actually it maybe a little overstated for this case as it turns out.
Mr Malik owned a piece of land within the village of Sipson in Middlesex which is one of the villages that lies adjacent to the northern perimeter of Heathrow Airport. A number of persons including Joseph McGahan gained entry to the land without the land owners permission and remained trespassers. The occupiers are part of a group collectively known as “Grow Heathrow”, otherwise known as “Transition Heathrow”.
Mr Malik sought possession against the trespassers and the occupiers defended on a number of grounds including that they enjoy the protection of Article 8 of the European Convention and alleged that eviction would interfere with their rights and that any such interference would not be proportionate.
It is well established that a persons right to respect for his private and family life, his home and his correspondence under Article 8 can be raised as a defence against public bodies seeking possession (such as local authorities – for which see for example McCann v UK (2008) 47 EHRR 40) although in respect of squatters, it would require highly exceptional circumstances before Article 8 would avail the occupiers [Kay v Lambeth London Borough Council  UKHL 10,  2 AC 465]
First hearing, County Court
In this Malik case, Judge Karen Walden-Smith in the County Court held that “as the court is a public authority and the land is being occupied as a home, Article 8 is capable of application even though the landowner is a private individual and the occupiers are trespassers.” Despite this, it was nonetheless held that possession would be a proportional means of achieving a legitimate aim and so possession was ordered to be given forthwith.
Appeal to Court of Appeal
The occupiers appealed to the Court of Appeal but regrettably they did not pursue the challenge to the judge’s conclusion that article 8 was engaged as between a private landowner and squatters because of the position of the court as a public authority. On this significantly important point for private landlords therefore, the question remains unanswered.
Proportionate means of achieving a legitimate aim
The appeal therefore proceeded on the assumption that Article 8 is engaged in respect of a private individual (because the point was uncontested) and so the question which remained was whether the forthwith possession order was proportional or whether further time ought to have been granted.
In this regard, the Court of Appeal held that the decision of the County Court was correct and that on the facts of this case (primarily that the occupiers entered the land without permission) and even if Article 8 was engaged, an immediate possession order was a proportional means of achieving a legitimate aim –
I am bound to say I can see no error in the judge’s approach. Having found that Article 8 was engaged she correctly identified the issue to be whether Article 8 afforded “any additional protection to the defendants”, the question being whether eviction was a proportionate means of achieving a legitimate aim. It seems to me to be beyond question that she was considering whether to extend the time at which possession to be given. She started with the difficulty of envisaging a circumstance where eviction would not be found to be a proportionate means of achieving a legitimate aim. I can see nothing wrong with that approach. An owner is entitled to the return of his property unless some exceptional circumstances militate against it …
Postponement up to six weeks
The judge in the County Court had also held that section 89 Housing Act 1980 (the power of the court to postpone possession up to six weeks due to exceptional hardship) did not apply to trespassers and that was an additional reason for the judge ordering a forthwith possession order.
Before the Human Rights Act, it has been held that trespassers were not afforded any rights to extra time, the leading authority being McPhail v Persons, Names Unknown  Ch. 447 where Lord Denning said –
“The owner is entitled to go to the court and obtain an order that the owner ”do recover" the land, and to issue a writ of possession immediately. … So far as I can discover, the courts of common law never suspended the order for possession. …
The question as to whether the current position established by McPhail is compatible with Article 8 was much harder for the Court of Appeal to agree on.
Sir Alan Ward who gave the leading judgment said:
… I am now satisfied that McPhail can no longer be regarded as good law. I come to that conclusion for these reasons:
i) …. The squatters are, entitled to respect for their homes by virtue of Article 8(1).
ii) Even if Article 8 has no direct application between a private landowner and the trespassers on his land, the Court as a public authority is obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with that Convention right.
iv) Proportionality is, therefore, in issue. The rule in McPhail that the court has no jurisdiction to extend time to a trespasser can no longer stand against a requirement that proportionality may demand, albeit most exceptionally, that a trespasser can be given some time before being required to vacate. …
vi) Another crucial factor distinguishing the present position from McPhail is the fact that in McPhail there was no defence to the claim of possession whereas, if Article 8 is engaged, then there is at least a potential defence.
However, this was not a majority decision. Lord Toulson had some strong views on whether McPhail still applies:
It would be a considerable expansion of the law to hold that article 8 imposes a positive obligation on the state, through the courts, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another. There would also be a weighty argument that for the state to interfere in that way with a private owner’s right to possession of his property would be contrary to a long standing principle of the common law, which finds echo in article 1 to protocol 1. The principle was stated in Entick v Carrington (1765) 19 State Tr 1029, 1060:
“The great end for which men entered into society was to preserve their property. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole.”
The potential consequences of such a development and implications for other situations would need careful thought, particularly since the concepts of private life and home are so wide.
For those reasons I do not agree that we should hold that McPhail has ceased to represent the law in cases of trespass to privately owned land, and I would wish to reserve my opinion until such a case comes before the court in circumstances where the applicability of article 8 is in issue.
And, Lord Justice Lloyd wasn’t prepared to declare McPhail as bad law either and said:
However, the fact is that the point was not taken before us, we had no submissions on it, and it does not seem to me that we ought to enter upon it so as to venture a view as to whether the judge was right or wrong. Like Lord Toulson, therefore, I reserve for a future case the question whether McPhail is good law in a case where a landowner who is not a public authority seeks possession of land occupied by a trespasser.
In all reality therefore, this case doesn’t really answer any important questions with definitive certainty. The question as to whether a trespasser (or a tenant for that matter) has a defence in respect of a possession order against a private landlord on the basis that the court is a public body and so the court must consider Article 8 remains unanswered.
What is clear from this case though is that even if Article 8 is engaged with a private landlord (as was assumed to do here) then in a trespasser situation like this case, possession would nonetheless be ordered and also in a trespasser situation like this, any possession would likely be ordered forthwith and not postponed by the court (whether section 89 is engaged or not).
Therefore, it seems, even if later down the line an Article 8 defence is deemed available to a tenant against a private landlord, such a defence is unlikely to affect everyday possession actions and will likely only be available in the most extreme of cases.