The new law on criminal trespass has produced a significant body of interest regarding its interplay with squatter’s rights including applications by squatters for registration under Schedule 6 of the Land Registration Act 2002; the focus of this article.
Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that a person commits an offence if (a) the person is in a residential building having entered it as a trespasser, (b) the person knows or ought to know that he or she is a trespasser and (c) the person is living in the building. The provision came into force on 1 September 2012. The ingredients of the offence are clear, but note should be taken of those parts underlined.
The impact of the Land Registration Act 2002 on applications to the Land Registry for registration by a person in adverse possession is familiar to all lawyers, as is the doctrine of adverse possession. For applicants that fall under the new regime (which is the increasing majority) a successful application by a squatter for registration as proprietor of registered land requires the person to have been in adverse possession for the period of ten years ending on the date of the application (Paragraph 1(1) of Schedule 6).
The application requires details of those acts which demonstrate adverse possession, such as fencing in land, securing buildings, etc. A problem arises where an act of adverse possession which an applicant wishes to rely upon in his application constitutes an offence under s.144. The evidential rule, ex turpi causa non oritur action, ‘no right of action arises from a shameful cause’ then comes into play. In practice the Land Registry is applying this maxim by rejecting applications for registration on the basis that periods where a prohibited act under s.144 (“living in”) is relied upon must be ignored.. The applicant might then be unable to show the requisite period of ten years adverse possession up to the date of his application. As each month passes since 1 September 2012, so more applications will be caught by this policy The Land Registry’s approach is susceptible to judicial review.
Is the evidential maxim being properly applied? The House of Lords considered the application of the maxim in Bakewell Management Limited v Brandwood  UKHL 13. In Bakewell, the relevant criminal prohibition was against driving on common land without authority from the owner. The Appellant wished to rely on its repeated commission of that offence in support of a claim to a right of way. Lord Walker considered that the evidential rule “must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest”. Lord Walker considered the statement by Lord Maugham in George Legge & Son Ltd v Wenlock Corporation  AC 204,222: “There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable”. With great insight Lord Walker continued: “I do not consider that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest”. The offence in Bakewell, could be avoided were the land owner to give permission for the doing of the prohibited act.
By contrast, in the case of R (Smith) v Land Registry  EWHC 328(Admin) the court considered a claim by a person for adverse possession of a public highway. The public had an obvious interest in the public highway remaining as such, and the act relied upon in obstructing the highway was not only unlawful, but no permission could have been granted by the landowner for the act and moreover it would have been unlawful for the landowner to have obstructed the highway. In Smith the Court did not hesitate to apply the ex turpi maxim. Put simply, not all criminal acts fall foul of the maxim and it is readily arguable that s.144 falls into the Bakewell exception.
The evidential rule might be further refined by the application of the Human Rights Act 1998. Article 8 requires the right of respect for private and family life including the home. Article 1 of the First Protocol states that every person is entitled to peaceful enjoyment of his possessions and shall not be deprived of his possessions except in the public interest, etc. A public body (including a Court), must have regard to these principles and fashion existing doctrine accordingly. Where the blunt application of the ex turpi maxim fails to properly account for the ultimate effect it has upon a person’s rights and interests, a challenge lies.
The resolution of the interplay between a person’s human rights, statutes criminalising acts, and evidential maxims cannot be pithily determined.
Practitioners are encountering an increasing number of cases where squatter’s applications have been rejected by the Land Registry on the basis of s.144. The Administrative Court has recently given permission to judicially review the current practice in the case of R (Best) v Land Registry CO/2847/2013, the outcome of which will be eagerly awaited. No doubt, other dissatisfied applicants will now be emboldened to launch their own claims to abide the outcome in Best.