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||Neutral Citation Number:  EWHC 1370 (Admin)
||Case No: CO/2847/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
Mr Philip Rainey QC and Mr Marc Glover (instructed by Neumans LLP) for the Claimant
Mr Jonathan Karas QC and Ms Katrina Yates (instructed by Treasury Solicitor) for the Defendant
Mr David Forsdick (instructed by Treasury Solicitor) for the Interested Party (by written submissions)
Hearing dates: 18th and 19th February 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Ouseley:
- This claim for judicial review raises the question of whether the criminalising of trespass by "living in" a residential building, pursuant to section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, LASPOA, has prevented time running for applications for registration of title by adverse possession, so-called squatter's title, to registered land. The Chief Land Registrar decided that it does. Mr Best, the Claimant, who would probably otherwise have been registered as the proprietor of residential property in Newbury Park, challenges that; he contends that s144 of the 2012 Act was never intended to have that effect on the registration of title and should not be construed so that it did.
- 35 Church Road, Newbury Park is a dwelling house. Freehold title is registered at HM Land Registry; the registered proprietor is Doris May Curtis. On 27 November 2012, the Claimant applied to register title to the property on the basis that he had been in adverse possession "for the period of ten years ending on the date of the application", as required by Schedule 6 paragraph 1 to the Land Registration Act 2002, the LRA. Mr Best's accompanying statutory declaration stated that in 1997 he had been working on a nearby property, the owner of which had told him that the last occupier of the then empty and vandalised property at 35 Church Road, Mrs Curtis, had died, and that he had not seen her son since 1996.
- Mr Best entered the property, and did work to it, notably repairing the roof in 2000, clearing the garden for Ł2000, and taking other steps to make it wind and watertight. As time went on, he replaced ceilings and skirting boards, and electric and heating fitments; he plastered and painted walls. He did this intending to make it his permanent residence. He moved in at the end of January 2012. He said that he had treated the house as his own since 2001. There had been no disputes about his possession of the property. But he occupied it without anyone's consent. Mr Best asserts that he is a trespasser in the property; and although Mr Rainey QC for Mr Best was reluctant to admit it, in reality as a trespasser, Mr Best has been living in the building in breach of the criminal law as from 1 September 2012, when s144 LASPOA came into force.
- By letter dated 10 December 2012, the Chief Land Registrar, through an officer, told Mr Best that he was going to cancel the application, in effect he was going to refuse it, because he judged that the effect of s144 LASPOA prevented the Claimant relying on any period of adverse possession, which involved a criminal offence, to establish the basis for an application for registration as the proprietor. Accordingly he could not satisfy Schedule 6 of the LRA 2002, which impliedly required that the applicant's possession should not have constituted a criminal offence for any part of the ten year period of adverse possession relied on. The application was therefore substantially defective. The Chief Land Registrar put very considerable weight on the decision of HHJ Pelling QC, sitting as a High Court Judge, in R (Smith) v Land Registry  EWHC 328 (Admin), a case on asserted adverse possession of a highway by obstruction contrary to the Highways Act 1980. Further submissions were considered, but by a final decision dated 11 February 2013, the decision challenged in these proceedings, the application was cancelled.
The grounds of challenge
- The Claimant's first and principal contention is that s144 LASPOA has no effect on the operation of the carefully structured and balanced provisions of the 2002 Act, and that the Defendant erred in law in so treating it. This is either because it has no such effect in any circumstances, or because an offence only has that effect where the same act committed by the legal owner would also be a crime, which could not be the position with criminal trespass under s144, or where the owner had no power to consent to the act which would have made it lawful. That, again, could not be the position under s144.
- Mr Rainey's second contention is that as s144 only criminalises "living in" residential premises, it does not affect other physical acts of adverse possession being sufficient, such as securing doors and windows, being a sufficient basis for an application for registration. Further, Mr Best had not lost his intention to possess, and could rely on his pre – LASPOA acts to succeed.
- Mr Rainey's third contention is that s144 LASPOA should be read down to avoid a breach of Article 8 ECHR or Article 1 of Protocol I to the ECHR. This could involve reading the 2012 Act as not affecting applications to register title, or as not preventing "living in" a house amounting to adverse possession; the 2012 Act could be interpreted so as not to apply to abandoned buildings. Schedule 6 to the 2002 Act, alternatively, could be read as permitting 10 years' adverse possession, accrued before LASPOA came in to force on 1 September 2012, to suffice.
- Finally, Mr Rainey contended that, if all else failed, I should declare that s144 was incompatible with ECHR on the grounds that it criminalised residence in what was the Claimant's home, one in respect of which, as at 1 September 2012, he was already entitled to apply for registration as proprietor. The Secretary of State for Justice provided written submissions in response, through Mr Forsdick.
The statutory provisions
- By s58 of the 2002 Act, which came into operation on 13 October 2003, the register of title, which it is the Chief Land Registrar's duty to keep, is conclusive as to title subject to the power to rectify mistakes. Subsection (1) provides:
"(1) If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration".
Thus the register and not possession is the root of title to registered land.
- Adverse possession is dealt with in s96 by the disapplication of limitation periods:
"(1) No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rent charge the title to which is registered.
(3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him".
The Limitation Act time limits only operate now in relation to unregistered land.
- By s97, it is Schedule 6, and not s17 of the Limitation Act which makes provision for title by adverse possession, and it does so by registering an adverse possessor. Schedule 6, paragraph 1 enables a person to apply for registration as proprietor of a registered estate "if he has been in adverse possession of the estate for the period of ten years ending on the date of the application". This provision is central to the arguments here. "Adverse possession" is defined in paragraph 11, so far as material, as possession in the circumstances in which time would be running under s15 of the Limitation Act 1980 had it not been disapplied by s96 of the 2002 Act.
- A person may also apply if, in the six months before the application, he had been entitled to make the application but had ceased to be in adverse possession because he had been evicted by the registered proprietor rather than evicted pursuant to a court order, but not if proceedings for possession were under way against him, or if judgment had been given against him in an action for possession of the land in the last two years. Those latter provisions do not apply, but are relevant to the Claimant's contention about the care and comprehensiveness with which the LRA 2002 dealt with title by adverse possession of registered land.
- S98 is also material to the general operation of the Act, though not to the specific circumstances here. It provides, among other circumstances, a defence to an action for possession where, immediately preceding the bringing of the possession action, the defendant was entitled to make an application under paragraph 1 of Schedule 6, and for judgments for possession to cease to be enforceable after two years, if the applicant is by then entitled to make an application under Schedule 6 to be registered as the proprietor.
- Once an application is received, the Registrar has to give notice of it under paragraph 2 of Schedule 6 to named categories of person, including the registered proprietor of the estate, or of any charge, or to someone registered under the rules as entitled to be notified. The provision enabling others to be specified by rules has not been utilised. There is no obligation directly to give notice to personal representatives as such. A person given notice may require that the application be dealt with under paragraph 5. If there is no such response to the notice, and that issue did not arise here, by paragraph 4: "the applicant is entitled to be entered in the register as the new proprietor of the estate." It is as simple as that. By paragraph 9, registration pursuant to a Schedule 6 application extinguishes the unregistered possessory title which the applicant had at the time of application. Paragraph 10 provides for the circumstances in which a squatter may be registered as the proprietor free of a charge.
- If, however, there is an objection from a person entitled to be notified, the paragraph 5 procedure has to be followed, and one of the three conditions it specifies has to be met for the applicant to succeed: (1) that equitable estoppel makes it unconscionable for the registered proprietor to seek to dispossess the applicant and he ought to be registered as the proprietor instead in the circumstances; (2) that the applicant is entitled for some other reason, such as a void unregistered disposition, to be registered as the proprietor; (3) that the land in question is adjacent to other land of the applicant, no exact boundary has been determined, and the applicant has reasonably believed it to be his for ten years. Where there is objection and no condition is satisfied, the adverse possessor cannot be registered, and title remains unchanged on the register. Again these conditions do not apply here, but are relevant to the Claimant's contentions about the nature of the statutory provision for the registration of title to registered land in adverse possession cases. But there is no entitlement to be registered as proprietor simply because of ten years' adverse possession.
- By s73 of the 2002 Act, where an objection is made, not rejected as groundless by the Chief Land Registrar, and not resolved by negotiation, it must be referred to the Adjudicator; disputes over issues within their remit, as I understand it, now go to the First Tier Tribunal. But decisions of the Chief Land Registrar cancelling, i.e. rejecting, an application as substantially deficient are only judicially reviewable, as here.
- By paragraph 6, a person whose application is rejected may make a further application if he remains in adverse possession for the two years following the rejection. The application procedure, the evidence required, and the questions which can be asked of the applicant, are regulated by the Land Registry Rules SI 2003 No. 1417.
- The provisions of the Limitation Act which deal with unregistered land provide a useful contrast. Section 15 of the Limitation Act provides that no action to recover land can be brought after the expiry of 12 years from the date when the right of action accrued. The right of action accrues when the person in possession of the land is dispossessed, and the land is in the possession of someone in whose favour the period could run. By s 17, once the time for the person dispossessed to bring an action to recover the land has expired, his title is extinguished. Title to registered land does not go with possession as such; superior possessory title does not extinguish the registered proprietor's title. The register entry confers title. By contrast with unregistered land, the registered proprietor's title is not extinguished by the requisite period of adverse possession. The passage of that period gave no automatic right thereafter to be registered, nor did it define the relevant period for an application to be registered; that was the ten years preceding the application.
- The background to the 2002 Act is important. Schedule 6 has its origins in a joint Law Commission and HM Land Registry Consultative Paper "Land Registration for the Twenty-First Century" (Law Com 254) and then in Law Commission recommendations, (Law Com 271). The former identified four reasons for permitting the acquisition of title by adverse possession, legitimising "possession of wrong", which, "at least, in some cases, is tantamount to sanctioning a theft of land". It was an aspect of the law of limitation; there had to be a sensible relationship between the law of title and the law of possession, to avoid land becoming unmarketable, for example where the true owner had disappeared; the acquisition of title by adverse possession could alleviate hardship where there had been innocent possession; and title to unregistered land did depend ultimately on the fact of possession as showing who had the best right to it. Those factors did not apply, it acknowledged, with the same force to registered land.
- But there were four situations in which it recommended that adverse possession should apply: disappearance of the registered proprietor, off register dealings, where the register was inconclusive, and entry under a reasonable mistake as to rights.
- The joint Paper became the basis for the 2002 Act. Adverse possession, as the Law Commission put it in paragraph 14.3 of its paper, runs counter to the "fundamental concept of indefeasibility of title that is a feature of registered title". Registration itself therefore protected the registered proprietor of land against adverse possession. The aim, paragraph 14.4, was to "reflect the logic of title registration and to strike a more appropriate balance between landowner and squatter." The need for a change in that balance in relation to registered land reflected judicial concern that it favoured the adverse possessor too much. In paragraph 14.6, the Commission commented on its summary of its proposals, saying: "It will be apparent from this summary that one of the essential features of the scheme is that it must produce a decisive result. Either the squatter is evicted or otherwise ceases to be in adverse possession, or he or she is registered as proprietor of the land". S97 and Schedule 6 were adopted wholly as proposed by the Law Commission.
- These Papers are silent about the effect if any which any acts of criminal trespass, such as there might have been in 2002 and for years before that, could by themselves have on the acquisition of title by adverse possession.
- S144 LASPOA provides:
"(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser 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 or intends to live there for any period.
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).
(3) For the purposes of this section—
(a) "building" includes any structure or part of a structure (including a temporary or moveable structure), and
(b) a building is "residential" if it is designed or adapted, before the time of entry, for use as a place to live.
(4) For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.
(5) A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both).
(6) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.
(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section".
- The actions now criminalised were previously merely tortious. Criminal acts in relation to trespass had been hitherto of a more limited nature: threatening or using violence to obtain entry, s6 Criminal Law Act 1977 for example, and obviously the burglary provisions of the Theft Act. Tortious acts could be relied on to establish, indeed were of the essence of, adverse possession and were therefore effective over time to lead to the transfer of title to registered land and to the extinguishment of claims to title to unregistered land. Trespassory possession can still found an application for title under Schedule 6 and the extinguishment of title under the Limitation Acts in relation to acts or buildings to which s144 does not apply. Indeed it is not unlawful to squat in the curtilage to the building, since "building" includes a structure but s144(3)(b) LASPOA does not suggest that the definition extends to land occupied or owned with the building, even where it is a crime to squat in the building itself. Nor would it be unlawful under LASPOA to enter a building as a trespasser and to occupy and possess it for a purpose other than "living in" it, such as for office or workshop use. Those acts of possession would amount to adverse possession, without being criminal. Nor does the Act apply to adverse possession through residence in a building which is not a "residential building" as defined in s144 (3)(a).
- LASPOA contained no transitional provisions for those who might be entitled to make an application for registration of title under the 2002 Act, nor for the running of the limitation period for unregistered land. It contained no saving provision for those who had been in possession for years without any attempt to dispossess them, let alone by any court or police action.
- The Land Registry did raise the issue of the effect of the proposed change in its response to consultation on LASPOA, saying that one of its effects would be to prevent squatters acquiring ownership through their possession because Smith, above, had held that criminal possession could not be an effective basis for a claim to title based on adverse possession: "This might be thought a good thing in most cases, but we wonder whether it would always be desirable". The Land Registry queried whether the offence should be confined to buildings or parts of buildings which appeared to be occupied. The MoJ response to consultation "Options for dealing with squatting" noted this response as "The Land Registry recognised that a new offence of squatting covering all buildings may have an effect on the law of adverse possession. They thought that one effect of a new offence of squatting in empty buildings would be to prevent squatters acquiring ownership through their long-term possession".
- The "Proposals for further action" in the Response Paper simply do not address adverse possession. The Explanatory Notes are striking for the absence of any consideration of any possible effect which the Act might have on the acquisition of title by adverse possession or on the adverse possessor's entitlement to registration of title to registered land. There is no Ministerial statement in Parliament to which reference can be made. But it is clear that the mischief behind s144 was not the difficulty of removing those who had squatted unchallenged in domestic property for sufficient years to raise a claim based on adverse possession. The mischief struck at was the difficulty faced by the householder, and particularly by the occupying householder, dispossessed by squatters, removing them without police assistance and with only unduly slow and cumbersome civil processes.
Ground 1: Does s144 LASPOA affect adverse possession under the LRA 2002?
- Mr Rainey's starting point is that the very concept that adverse possession leads, over sufficient time, to the extinguishment of title or to the right to be registered as the proprietor of land, means that the law recognises circumstances in which the public interest permits someone to rely on his wrongful, tortious, acts. Those acts are recognised and given legal effect. It is not so large a step, nor one necessarily beyond the scope of Parliamentary contemplation that it should cover acts which are criminal as well. The same public interests, which I have set out above, and which underlie the former are equally applicable to the latter. The latter does not eliminate those public interests but introduces what would normally be a strong contrary principle in the public interest, that a man should not obtain rights through committing crimes. But it is not the mere fact of residence in the house which is an offence, since the landowner can live there lawfully, and the owner could permit the trespasser to live there.
- This issue is not one of statutory construction of the 2002 Act because the concept of adverse possession is common law in origin, not statutory, although referred to in statutes notably in s15 of the Limitation Act, which applies to both registered and unregistered land as does s144.
- The Defendant's decision and the ground for it creates common problems for both registered and unregistered land, since the statutory definition of "adverse possession" in the 2002 Act refers to the Limitation Act, which applies to unregistered land. The effect on title to unregistered land would be a particularly problematic consequence of the Defendant's approach to the effect of LASPOA, since the essence of title to unregistered land is possession and not registration.
- The purpose of s144 was not to affect the acquisition of title by adverse possession, which takes years of possession, but to enable the landowner, excluded or dispossessed by trespassers probably in short term occupation after a period of absence by the landowner, to call upon the support of the police and the coercive effect of criminal law to recover possession, rather than having to wait for the slower and less immediately effective workings of civil justice through possession actions. Mr Rainey submitted that that purpose would be unaffected by success for his contention.
- By contrast, he submitted, the English legal system for good reason had developed a means whereby long established peaceable possession of land conferred title. The effect of LASPOA as contended for by the Defendant would preclude acquisition of title to residential property, lived in as such, even after decades or even centuries of such possession.
- The application of the ex turpi causa maxim depends on context. It does not offend the English legal system for someone to plead and give evidence of his tortious trespass in an assertion of title or in the satisfaction of statutory conditions for making an application for registration under Schedule 6: that is of their very essence. Limitation of actions served a variety of public interests rather than condoning a breach of the law. The essence of limitation is not to enable reliance on the defendant's own wrong alone but also on the lack of action by an owner to assert his rights in the face of the defendant's wrong over a long time. Bennion on Statutory Interpretation, 6th Ed., pp983/4 makes no clear distinction between unlawful and illegal acts. Mr Rainey pointed out that s98 of the 2002 Act envisaged that even a court order, if unenforced for two years, could in certain circumstances not prevent an applicant's disobedience founding part of the period relied on in his application.
- Mr Karas QC for the Chief Land Registrar submitted that the issue was indeed one of statutory construction. The 2002 Act should be construed by reference to the general principle that no system of jurisprudence should create, and no judicial system should enforce, rights which derive from the criminal acts of the person who seeks to rely on them. As from 1 September 2012, the Claimant's living in the property had become a crime; he could not rely on his crime to assert the right to apply for his registration as owner. The Act applied whenever entry had been obtained as a trespasser. There were no saving or transitional provisions. There were no reasons to disapply the conventional approach to the creation or obtaining of rights by illegal acts. There was no reason for the general law to be disapplied, and nothing in the 2002 Act, or predecessor Acts which had suggested that criminal trespass could found adverse possession; byelaws often made criminals of trespassers. There was no suggestion that it had been intended to change what must have been the understanding of Parliament that criminal trespass was not an accepted foundation for adverse possession. No provision of the 2012 Act suggested that s144 was not to affect the operation of Schedule 6 to the 2002 Act, or that the ability to make an application for registration was a defence to an offence under s144. Everything had to be in order as at the date of application, which was the date as from which a change in registration would be effective. As a matter of construction, the principle of public policy prevented continued reliance on "living in" the building to found the application for registration. There was no reason for particular sympathy to squatters; they had always been at risk subject to the effect of the Limitation Act and of the rebalancing of private rights in the 2002 Act, which was not designed to advance the squatter's position over the registered owner.
Discussion and conclusions on ground 1
- In effect, Mr Karas contends that "adverse possession" in paragraph 1 of Schedule 6 to the 2002 Act, and s15 of the Limitation Act 1980, means possession which is tortious and so unlawful, but not unlawful possession which is also of itself a criminal offence. The words "adverse possession", however, do not represent a concept which is statutory in origin, but the common law concept as adopted by the statute. In my judgment, if the true scope of the concept of "adverse possession" is that it excludes all possession which constitutes an offence, the effect of the 2012 Act is simply to add to the criminal offences of possession which have always prevented possession being adverse at common law and so prevented it being adverse within the scope of those two Acts. It would merely involve the application of the correct common law concept of adverse possession, as used in the 2002 and 1980 Acts to the state of affairs which arose on 1 September 2012. I do not consider it is realistic to interpret the concept of adverse possession as adopted or assumed in those two earlier Acts as having excluded criminal possession, and yet for the 2012 Act to have created an exception to that exclusion for the s144 offence. If Mr Karas' submission as to the scope of adverse possession is correct, there is no indication that such an exception was intended by the 2012 Act; on that basis Mr Karas would succeed. That would be because criminal possession was not and is not within the scope of the common law concept of adverse possession as adopted by statute.
- Mr Rainey by contrast contends that neither the common law concept of adverse possession, nor in consequence its adoption in the Acts of 1980 and 2002, limit the meaning of "adverse possession" in the way for which Mr Karas contends. The mere fact that certain forms of adverse possession, as well as being tortious, are also criminal never did and does not remove the civil effect of the unlawful adverse possession. If that premise is correct, there is also no reason for the 2012 Act to be given any different effect. There is no indication that any change in that direction was intended either. Mr Rainey would succeed because criminal possession was adverse possession in the common law concept as adopted by statute.
- No case has been cited to me which addresses that issue as to the scope of adverse possession over the many years in which the concept of adverse possession has been developed by the common law and applied by the courts. There have been for years areas of land on which trespass is a criminal offence, principally land owned by statutory bodies for the purpose of their statutory functions. The resolution of that issue is at the root of ground one.
- I accept Mr Karas' submissions on the principle that rights should not be derived from criminal acts, as the starting point. He illustrated it with a number of decisions: first, Fry LJ in Cleaver v Mutual Reserve Fund Life Association  1QB 147. The husband took out a policy of life assurance for the benefit of his wife, who then murdered him. The trust in favour of the wife was not enforced because of her crime; but the husband's executors were able to require the defendant trustees to pay the money to form part of his estate. It was a principle of public policy "that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person". This principle was to be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion. Lord Esher expressed the principle that if a contract or its performance were contrary to public policy, its performance could not be enforced at law or in equity, but the application of such a rule should be narrowly watched when the rule was relied on by others to excuse performance of a contract for which they have received full consideration, and which merely required them to pay out money.
- More recently, in Lewisham BC v Malcolm  EWCA Civ 763, Arden LJ at paragraphs 62–3 described the principles relevant to statutory construction, in holding that unlawful discrimination in bringing possession proceedings which were of themselves unanswerable under the Housing Act 1985 made the action unlawful and provided a defence which the 1985 Act did not: contravention of a statute, in the absence of a contrary intention precluded the wrong doer relying on the contravention to found an action or to establish a defence, nor could he be allowed to profit from his own wrong. But a person can rely on his illegal acts if not to do so would deprive an innocent third party of his rights. The decision of the Court of Appeal was not reversed on this point in the House of Lords  UKHL 43.
- Tinsley v Milligan  1 AC 340 also exemplified Mr Karas' contentions in a real property context, and provided a contrast with the position here. Two people purchased a house in P's name, but which they agreed was in joint beneficial ownership. The purpose of that arrangement was to enable them to engage in a benefit fraud. This joint fraud helped to pay bills and to a small extent contributed to their acquisition of equity in the house. D disclosed their fraud to the Department of Social Security; P and D quarrelled; P left. She brought possession proceedings claiming sole ownership of the property. D counterclaimed for a declaration that the house was held by P on trust for them both equally. The House of Lords held that D's claim to an interest was not barred by the fact that the property was purchased for the purpose of carrying out benefit fraud. D was not obliged to plead or rely on that illegality in order to establish her common contribution to the purchase and the common understanding of the parties was that the property would be owned jointly; thus she established that the property was held by P on a resulting trust. The reason for the conveyance into P's name was irrelevant. Their Lordships rejected the existence of an "affront to public conscience" test in determining the extent to which rights created by or for the purpose of illegal transactions should be recognised. No one suggested that the property belonged to the original vendor; the issue was paper title versus existing beneficial interest. So, in the upshot, despite the illegality of the purpose of the transaction, it was given effect in the form which reflected the parties' joint intention as between themselves, rather than in the form adopted for the purpose of committing fraud.
- Lord Jauncey distinguished between the enforcement of executory rights under an illegal contract and the enforcement of rights already acquired under the completed provisions of such a contract; p366C. The issue was whether D was seeking to enforce unperformed provisions of an unlawful transaction or simply relying on an equitable proprietary interest already acquired under such a transaction; p366H. Lord Lowry was of the view that the crucial point was whether D was obliged to rely on her own fraud or whether she was merely to be defeated by a rule of public policy from asserting an equitable interest she already had. Illegality could not be relied on to advance D's claim nor could proof of it be a defence to D's claim; p368H. Lord Browne-Wilkinson summarised his conclusions at p370C-D:
"From these authorities the following propositions emerge:
(1) Property in chattels and land can pass under a contract which is illegal and therefore would have been unenforceable as a contract;
(2) A plaintiff can at law enforce property rights so acquired provided that he does not need to rely on the illegal contract for any purpose other than providing the basis of his claim to a property right;
(3) It is irrelevant that the illegality of the underlying agreement was either pleaded or emerged in evidence: if the plaintiff has acquired legal title under the illegal contract that is enough."
- This case was considered in Stone & Rolls Ltd (in liquidation) v Moore Stephens (a firm)  UKHL 39, [2009 1 AC 1391. Lord Phillips concluded that the test of reliance was not an automatically applicable rule; the policy underlying the ex turpi causa maxim had to be considered; it was more a policy than a principle, and it was based on justifications which varied from situation to situation. It was not merely a rule of evidence or pleading. He cited Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341:
"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The policy can be subdivided into two principles in relation to contractual obligations:
(i) The court will not enforce a contract which is expressly or impliedly forbidden by statute or that is entered into with the intention of committing an illegal act.
(ii) The court will not assist a claimant to recover a benefit from his own wrongdoing."
- Lord Walker described the principle "No man can found a cause of action on his own criminal conduct" as not a technical rule but a fundamental principle of public policy, also citing Lord Mansfield. Lord Walker, paragraph 130, described Tinsley v Milligan as in some ways a difficult and controversial decision raising issues as to equitable interests and the equitable "clean hands" doctrine which did not arise in Stone & Rolls.
- There is to my mind a general and fundamental principle of public policy that a person should not be entitled to take advantage of his own criminal acts to create rights to which a Court should then give effect. Most enunciations of the policy are found in the context of the enforcement of contractual rights, as by Lord Mansfield in Holman v Johnson, adopted by the House of Lords in Stone & Rolls Ltd. The principle of public policy also however readily finds expression in a principle of statutory construction: Parliament would not have intended, in the absence of express provision, that a person should benefit, or obtain rights, from his crime.
- There are a number of ways such a principle can be put, but I do not regard the general proposition as in doubt, though it is not an absolute rule or principle, unyielding to any circumstance. It is the starting point and not necessarily the end point. That principle of public policy may yield to competing public policy interests, the greater advancement of which are imputed to Parliament's intention in any specific statute.
- In Addey v Stanhope School  EWCA Civ 1065, in the context of unfair dismissal, unlawful discrimination and illegal working by an immigrant not entitled to work in the UK, Mummery LJ expressed the view, paragraphs 3 and 4, that the "application of the illegality doctrine in an all-or-nothing way, operating as a complete bar is obviously open to criticism….". There were "real difficulties in formulating, either in case law or in legislation, a comprehensive legal test which works satisfactorily for all torts, ranging as they do, across a wide spectrum of human conduct, involving different legally protectable interests and multifarious factual situations. Different public policy considerations may be relevant to different types of claim". One issue was whether the claim was so closely bound up with the illegal conduct that it could not succeed without the court appearing to condone that conduct. But relevant too were the circumstances, the degree of involvement in the illegal act and the nature of the claim.
- An instance of where a criminal act of residence gave rise not to property rights but to a statutory right, a right to registration for voting, is Hipperson v Newbury District Electoral Registration Officer  1 WLR 1060, Court of Appeal. On the assumption that protesters resident on Greenham Common were resident in breach of offence-creating provisions of Common byelaws or of the Highways Act 1980, that did not prevent them being registered to vote on the basis of their residence. Not all offences engaged the moral justification for a court to apply the maxim ex turpi causa, and the Registration Officer was not to be burdened with the task of deciding on which side of the line various possible offences relating directly to the fact of residence in a particular location fell.
- The "moral justification" is not, to my mind, a reference to the affront to conscience but to the degree to which the fundamental principle of public policy set out by Lord Mansfield was to prevail against the principle that actual residence should be the basis of registration to vote: on the assumption that the very residence of the women protesters was a crime, none the less that did not mean that actual residence, which was the basis of the right to be entered on the electoral roll, was to be discounted. The Court recognised that exceptions to the fundamental principle of public policy could be made in a greater interest, albeit that a pragmatic view of the Registration Officer's function played its part.
- There may be a crucial distinction here, however, which many enunciations of Lord Mansfield's principle do not and do not need to observe, between adverse possession in reliance on tortious acts, which is permissible at common law and is assumed by the 2002 Act to be capable of founding rights, and adverse possession in reliance on criminal acts. It may be crucial here, since unlawful conduct, in the sense of tortious conduct, is the basis of a claim of adverse possession. The question here is therefore a more limited one than whether the court should enforce rights created by an unlawful act, or interpret an Act in such a way as to give effect to such an act. It is, as Mr Karas puts it, whether Parliament intended a person, whose statutory rights could only derive from an tortiously unlawful act, not to have those rights if the acts also constituted a criminal offence. Mr Rainey asks whether the common law concept of adverse possession by trespass excluded criminal trespass from its effects. I think that that it is the more apt question, for the reasons I have given.
- The public interests which lie behind enabling a trespasser to acquire title by adverse possession, and, after a shorter period to apply for registration as the proprietor of registered land are clear. Of course, the enactment of s144 of the 2012 Act was not the first time when an act of trespass was criminalised. But the public policy purposes behind the operation of the Limitation Act are not diminished by the fact that an act of trespass may be a crime; it is merely that there is a stronger countervailing public interest in preventing a criminal taking advantage of his crime than there is preventing a tortfeasor taking advantage of his tort.
- I accept Mr Rainey's analysis of the purpose of adverse possession at common law and its Parliamentary recognition in the Limitation Acts, and the more complex approach to it in relation to registered land. The "Law of Real Property" Megarry and Wade 2012 edition, Chapter 35, pointed to the purpose of limitation of actions in extinguishing stale claims and obsolete titles, not just as an act of peace for long dormant claims, but also because it was "in the public interest that a person who had long been in undisputed possession should be able to deal with the land as owner." It also facilitates the investigation of title to unregistered land. It balances the interests of the dispossessed private owner with those of the state in preventing untraceable ownership sterilising lawful possession and dealing in property, and in preventing uncertainty over title being a hindrance to its maintenance and beneficial use. This is at one with the Law Commission's approach in 2002.
- Although there was far less justification on that ground for allowing acquisition of rights by adverse possession of land the title to which was registered, Parliament had however provided for the circumstances in which that should occur. Mr Rainey submitted, and I accept, that 2002 LRA provided a comprehensive and carefully balanced statutory answer to the problem of adverse possession in relation to registered land, using the common law concept of adverse possession. The Law Commission's proposals had dealt with concerns about the undue favouring of the trespasser which existed before. Its proposals had been accepted without alteration by Parliament.
- There is no evidence that Parliament ever actually considered the issue of adverse possession, or that it ever thought that there was a mischief which had to be dealt with either way in relation to the effect of LASPOA on adverse possession. Parliament made the assumption, which in my view is correct, that adverse possession could be founded effectively on acts of criminal trespass.
- I see nothing in the cases which suggests that criminal trespass could not lead to an adverse possession claim until Smith, probably because the owner of the land removed the trespasser in good time. Such authority as there suggests the contrary.
- The Defendant's decision that the Claimant could no longer rely on his residence to found an adverse possession claim from 1 September 2012, when it became not just trespassory but criminal, placed very considerable weight on Smith. The Land Registry cancelled an application by Smith to register title by adverse possession to land which was part of a public highway because no one could acquire title to a public highway by adverse possession, and because the facts did not establish adequate acts of possession. Part of the reasoning was that it was an offence under s137 of the Highways Act 1980 to obstruct the highway, and those acts which were required to prove adverse possession, were it otherwise legally possible, would inevitably amount to an offence of obstruction. Adverse possession could not be founded on illegal acts, which no landowner or highway authority could licence. HHJ Pelling also relied on the more general proposition that title by adverse possession could not be obtained over a public highway. Mr Karas attached particular importance to what HHJ Pelling said at paragraph 14. The highway authority could not lawfully use the land as the Claimant used it, nor lawfully authorise another to use it, because that would be to authorise illegal obstruction: "it is a legal impossibility for the claimant to claim adverse possession to part of the highway by reference to the illegal obstruction of it for a period of 12 years prior to the making of the claim contrary to the terms of primary legislation which makes such obstruction criminally and not merely tortiously unlawful". Bakewell Land Management Ltd v Brandwood  UKHL 14,  2 AC 519 was analogous, HHJ Pelling concluded, once one appreciated the significance of the difference between the highway authority's lack of power in Smith to licence an obstruction in this way, and the landowner's right in Bakewell to permit the otherwise forbidden driving across the tracks of the common land.
- On appeal,  EWCA Civ 200, the Court of Appeal held that the public rights over a highway could not be extinguished by adverse possession; they would survive the acts necessary to found what would otherwise be acts of adverse possession. The Court did not find it necessary to deal with the question of whether the illegality of the acts of adverse possession also prevented reliance upon them.
- The Defendant had therefore relied on what HHJ Pelling had said at first instance as being the ruling authority on the effects of illegality on acts of adverse possession. Mr Karas submitted that I was bound by HHJ Pelling's decision unless I was convinced that it was wrong.
- Mr Rainey submitted that it was right that adverse possession could not extinguish the right to use the highway, but that HHJ Pelling was wrong to hold that title to the land could not be acquired by adverse possession, subject to those rights. Smith's acts of obstruction would not have been lawful even if done by the paper owner.
- Bakewell Management Ltd v Brandwood  UKHL 14,  2 AC 519 was an important part of the thinking in Smith, above. The owner of common land allowed public access for air and exercise. For many years, the owners of houses adjoining the common had driven their vehicles, from their houses, across the common on tracks leading to the public highway. They did not have the owner's consent to do so, without which their driving across the common was an offence under s193(4) of the Law of Property Act 1925. But then in 1986, the common land was sold; the new owner sought an injunction to prevent the adjoining owners driving across the common. They claimed an easement to do so acquired by prescription or by lost modern grant after twenty years or more uninterrupted user in that manner. The House of Lords held that, although no lost modern grant could be presumed where an actual grant by the landowner would have been unlawful, it would have been lawful here for the owner to have permitted such user, and that permission would have removed the criminality, and so there was no public policy bar to the acquisition of an easement by long and uninterrupted user.
- Lord Scott, in paragraph 27, expressed the public policy point thus: "The acquisition of easements by long uninterrupted user that has been open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy". He agreed with what Lord Hoffmann had said in R v Oxfordshire County Council ex p Sunningwell Parish Council  1 AC 335 at p349: "Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment". An easement could not be acquired to do something which was prohibited by public statute. But driving across the common was not in that category, since the landowner could have permitted it; a presumption or conclusion that he must have done so, fictional though it might have been, did not contradict the statute; paragraph 39.
- Paragraphs 46 and 47 in Lord Scott's speech are central:
"I accept that, at the end of the day, the issue is one of public policy. It is accepted, however, that a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of bring tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights. The Hanning decision can only be justified on the footing that conduct illegal in a criminal sense is, for public policy purposes, different in kind from conduct illegal in a tortious sense. Why should that necessarily be so? Why, in particular, should it be so where the conduct in question is use of land that is not a criminal use of land against which the public law sets its face in all cases? It is criminal only because it is a user of land for which the landowner has given no "lawful authority". In that respect, the use of land made criminal by section 193(4) of the 1925 Act, or by section 34(1) of the 1988 Act, has much more in common with use of land that is illegal because it is tortious than with use of land that is illegal because it is criminal.
47. In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. We have been referred to no case, pre Hanning, that decided the contrary. The decision in Hanning took the law, in my opinion, in a wrong direction".
- What Lord Walker said in paragraph 58–9 is equally valuable:
"58. Dillon LJ (at p 20) also cited a general 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."
I do not consider that 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.
59. My Lords, in my view this House should not readily conclude that the decision of the Court of Appeal in Hanning was mistaken, especially as it has been followed, not only by the Court of Appeal in this case, but also on other occasions. Nevertheless I am satisfied that the wide formulations of the principle by Templeman LJ in Cargill v Gotts and by the Court of Appeal in Hanning, although producing the right result in the generality of cases, are too wide in a case like the present. That is not to say that the residents of houses near Newtown Common did not commit a criminal offence (of a fairly venial nature) when they drove across the common to and from their houses. The principle of legal certainty requires the criminality or lawfulness of an act to be determined at the time when it takes place, and not with the advantage (or disadvantage) of hindsight. Nevertheless the prior authority of the owner of the common would have provided a complete defence to any criminal charge. In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user, even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner's actual prior authority should produce a completely different result in cases where section 193(4) is in play".
- Mr Karas emphasised Lord Walker's view that this was an unusual case, with a competent grantor of the prescriptive right of way and of the right to drive on the common land. Adverse possession, unlike prescription by what would have been a lawful albeit lost modern grant, did not rely on a presumed grant, but rather on the trespassory dispossession of the owner. In Bakewell, the land owner could be presumed, albeit that the presumption was a fiction, to have made a grant of the right to drive across the tracks. Such a presumption was contrary to the very concept of adverse possession, which extinguished title. Someone who had driven across the common for twenty years could plead lawful authority, dating back to the start of that period. The Claimant here could have no title until he made an application for registration which was accepted. He would not have title before the date of application, and his prior possession would still be an offence.
- Mr Rainey pointed out that in year 19 of the 20 year period, the drivers could have been prosecuted successfully. There was no suggestion that that meant that the court should refuse to give effect to the later acquired prescriptive right. Why should Parliament have intended to prevent the squatter regularising title, even if he had been committing an offence? Mr Rainey also submitted that Bakewell had been wrongly distinguished in Smith; no one could authorise the obstruction of the highway, not even the highway authority, subject to specific statutory provisions. But Bakewell, albeit a prescription case, showed that the fictional grant of permission removed the effect of the illegality, because it was within the power of the landowner to permit driving across the common. Here it was within the power of the owner to permit the residence, although she had not done so.
- I accept that Parliament must be taken to have been aware by 2011 of the decision in Smith. But a Court of Appeal decision solely based on the effect of the existence of public rights of way over the land, and not endorsing or rejecting what HHJ Pelling said about the effect of the trespass by highway obstruction being an offence, should not be taken as showing that Parliament must have realised that the past and future effect of criminalising trespass was that title by adverse possession could not then be obtained.
- Smith however does hold that criminal trespass cannot found an adverse possession claim. Mr Karas is right that I have to disagree with that limb of HHJ Pelling's decision, at least as a proposition applicable to adverse possession, if Mr Rainey is to succeed. But I do disagree with it. I have had the benefit of fuller argument. I am dealing with s144 and not the Highways Act 1980, which throws the issue of what the position was before the 2012 Act into sharper focus. The position of public highways is protected by the first limb of HHJ Pelling's decision and by the basis upon which the Court of Appeal upheld it. What is perhaps more instructive, but not over weighty, is that the Court of Appeal did not regard the criminal limb of his judgment as the obvious answer or as obviously right.
- The issue is I think more complex than the simple application of one fundamental principle of public policy. I do not think that the simple principle that where the act of possession is an offence, no adverse possession can arise, is correct. It ignores the countervailing public interest, and misses the point of what is, to my mind, by far the strongest authority: Bakewell.
- Mr Karas is right that it is a prescription case, and that the fact that the land owner could consent to the driving and so remove the criminality was crucial to the court's conclusion that the lost modern grant could be inferred. If there had been no such provision, the effect would have been that there could be no grant, and there would be no acquisition of rights by prescription. Mr Karas is also right that acquisition by prescription is not the same as the effect of adverse possession. But Mr Rainey is right that there is a larger and more important picture. Those driving over the common without the owner's consent were committing offences for just under twenty years, and could have been prosecuted throughout the whole of that period. The acquisition of title by prescription may have prevented later prosecution, but for that twenty year period, the acts relied on were criminal offences. The drivers relied on their criminal offences; the court recognised that those crimes had led to the acquisition of rights to drive over the land. The application of a large and general principle that rights could not be acquired through the commission of offences would have prevented any rights being acquired by prescription. The fundamental principle of public policy, if generally applicable, was set at naught by the fiction of a grant in favour of criminals provided only that they had openly committed the same crime without force -or permission- for twenty years. I do not see in the fiction of a lost grant a sensible basis for distinguishing what was blessed with prescriptive rights in Bakewell from what Mr Karas submits is not to be blessed with the right to make and pursue an application for registration after what might be anything between a day's offence and ten years of committing an offence. The application of a fundamental principle should not depend on the quirk of a convenient fiction, and still less where the fiction serves a similar public purpose as adverse possession.
- The rationale for the Bakewell decision is that one fundamental public policy may have to yield to a countervailing public interest. In Bakewell, that public interest lay in providing a lawful basis for acts long continued without objection, even if without consent. That, however, is precisely the same countervailing interest which justifies adverse possession, even if it involved the commission of an offence, enabling the trespasser and criminal to rely on his wrong doing. A similar countervailing public interest applies: title should not be left uncertain in the face of long possession to which there had been no adverse reaction even if no consent.
- It is my view that Bakewell reflects the way in which Parliament would have understood adverse possession to be unaffected by trespass being criminalised in s144. Indeed, if the crucial factor in the application or not of this fundamental principle is the capability of the owner to consent, and the absence of force, secrecy and permission, the same would apply here; the owner has capability to consent, and the maintenance of the adverse possession lacked force, and often will apart from any initial act of entry, and lacked secrecy and permission.
- One needs to be cautious in the context of fundamental principles in drawing a large distinction between the effects of prescription and the effects of adverse possession founded on similar acts. What Nourse LJ explained in Buckinghamshire County Council v Moran  Ch 632 at 644 is helpful:
"Under most systems of law a squatter who has been in long possession of land can acquire title to it in the place of the true owner. The Scots and continental systems, more faithful to the Roman law, have opted for prescription, a doctrine founded on the fiction that the land has been granted to the squatter. In England, prescription, although a shoot well favoured by the common law, was stunted in its lateral growth by the statutes of limitation, being confined in its maturity to the acquisition of easements and profits a prendre over another's land. Limitation, so far from being founded on some fictional grant, extinguishes the right of the true owner to recover the land, so that the squatter's possession becomes impregnable, giving him a title superior to all others.
The essential difference between prescription and limitation is that in the former case title can be acquired only by possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong. It can readily be understood that with prescription the intention of the true owner may be of decisive importance, it being impossible to presume a grant by someone whose intention is shown to have been against it. But with limitation it is the intention of the squatter which is decisive. He must intend to possess the land to the exclusion of all the world, including the true owner, while the intention of the latter is, with one exception, entirely beside the point.
In order that title to land may be acquired by limitation, (1) the true owner must either (a) have been dispossessed, or (b) have discontinued his possession, of the land; and (2) the squatter must have been in adverse possession of it for the statutory period before action brought. Adopting the distinction between dispossession and discontinuance which was suggested by Fry J. in Rains v. Buxton  14 Ch D 537, at p.539, I take the first case to be one where the squatter comes in and drives out the true owner from possession and the second to be one where the true owner goes out of possession and is followed in by the squatter".
- For those reasons, I do not regard HHJ Pelling as correct in Smith in holding that the commission of offences of obstruction meant, simply because they were criminal offences, that no adverse possession could arise. The reality, however, is that the other limb of the decision remains: Smith could not extinguish public rights to pass and repass over the surface of the highway whatever he did; he could never obtain adverse possession of the surface.
- In Lambeth LBC v Blackburn  EWCA Civ 912, (2001) 82 P&CR 494, the Council failed in its possession action against someone who had been a squatter for over 12 years. The case turned on what was required for adverse possession, the intention to keep the true owner out until the squatter was evicted, the manifestation of that intent, and the unequivocal nature of the acts required, such that the true owner, if present at the property would be clear that the squatter intended to exclude him as best he could. The trespasser had originally broken the lock to enter, an act of criminal damage. But the possible question of the effect of that criminal act on entry was not discussed nor whether it meant that his subsequent occupation was illegal and if so with what effect on adverse possession. All that can be said is that it occurred to no one to suppose that the criminal entry, whence possession began, disqualified the defendant from reliance on his subsequent years of adverse possession. I do not regard that as happenstance, but it is not authority on the point. It does however have this force: the entry was a crime, and without it the adverse possession would not have begun. In a very real sense the Court was prepared to enable Blackburn to benefit from his offence. No doubt distinctions can be drawn between the criminal act of entry which the Court does not regard as preventing subsequent possession, but for which purpose the criminal entry was effected, and subsequent criminal acts of possession. But the fundamental principle of Lord Mansfield would have to be subject to a pragmatic qualification in order to sustain the distinction, and, to my mind on some rather uncertain basis. It is then not so easy to hold up that principle as the answer to Mr Best's claim. The case is of modest support to Mr Rainey.
- None of the other decisions cited are of any real assistance. The 1986 decision of the Chief Commons Commissioner in Re Plumstone Mountain, Dyfed dealt with the enclosure of common land by fencing which, without Ministerial consent, was forbidden under s194 of the Law of Property Act 1925. (This does not appear to be illegal; the remedy appears to be a County Court order requiring its removal.) The reference concerned the ownership of the land, to which no one was registered as owner under the Commons Registration Act 1965. He accepted that the effect of the unlawful enclosures was not to preclude the acquisition of title by adverse possession, but simply to make the fencing vulnerable to action by anyone whose rights they obstructed, or at the suit of the County Council and others. This is of no real assistance. It shows that an unlawful act, in breach of statute, and liable to remedy at the suit of a number of people, may not be without effect on the acquisition of title.
- Lord Advocate v Lord Lovat (1880) 5 App Cas 273 HL(Sc) is a case on the Scots law of prescription, which may or may not be the same as the law of England. Among many issues was whether adverse possession of the river could be claimed if on part of it Lord Lovat had used a possibly illegal method of fishing. The issue may have gone to the adequacy of the evidence of possession or to the principle of reliance on an illegal method of fishing to establish possession. The case is not entirely clear on this rather subsidiary issue. Lord O'Hagan, at p292 said that, if the method of fishing were illegal, it enhanced the claim to adverse possession since it made it easier for the acts to be called into question, was a greater challenge to the rightful owner to assert its rights, and demonstrated the degree of possession. But he added that title was not "rested on illegality", though illegality, if such there was, did not detract from it. So that could be seen as a comment on proof of possession and not the role of legality, if title had rested on it. Lord Blackburn at p315, adopting Lord Gifford's opinion, said that the possibly illegal method of fishing did not make the possession any the less; whether legal or not, it was possession.
- Mr Karas submitted that the case only went to evidence of possession, which was not at issue here, and did not support the contention that possession based on a crime was effective. Mr Rainey submitted that it showed that illegality did not prevent adverse possession arising. In my judgment, this case is not authority for the proposition that possession based entirely on illegal acts is effective in a claim for prescription or adverse possession; it does not deal with that issue. But illegal acts can amount to acts of possession. For what it is worth, I think that it offers more support for Mr Rainey's pragmatic approach than for a pure approach, but the uncertainty over what it decides is more liable to distract than assist analysis of the issue here.
- Mr Karas hoped that Collis v Amphlett (1917) 67 Sol Jo 37(Ch) would be persuasive. The point on which he relied from the judgment of Younger J was not pursued on appeal in the Court of Appeal  1 Ch 232, nor in the House of Lords  2 AC 271. The report of the decision of Younger J is short and the relevant part is no more than a sentence. There had been an issue as to whether the Limitation Act applied to prevent the conservators of a common claiming that land which the defendant had enclosed by unlawful fencing remained part of the common, as shown on the map annexed to a scheme under the Commons Act 1876. Younger J is reported as saying "Having regard to the Commons Act 1876, the Statute of Limitations is not applicable." S36 of the 1876 Act provided that where, as had happened, an order had been made for the regulation of the common, no part of it should be in closed "without the sanction of Parliament subsequently obtained." It is probable that the Statute of Limitations was inapplicable because of the breach of the Parliamentary prohibition. I am quite unable to attribute weight to the single unreasoned sentence in a different context.
- In Glamorgan County Council v Carter  1 WLR 1, the Divisional Court held that the statutory provision that no planning permission was required for the resumption of the use of land which immediately preceded a use of land did not permit the resumption of a use which itself involved the commission of a criminal offence. The statute forbad the resumption of a use begun in breach of planning control. Salmon J, with the agreement of Lord Parker CJ and Gorman J, held that in principle no right could be obtained by illegal user; the use which could be resumed must mean a lawful use which did not involve the commission of a criminal offence.
- Glamorgan County Council v Carter is a decision on a different Act. It deals with the effect of reverter to an illegal use, although using the language of "quasi-criminal offence" at times; its rationale did not depend on drawing a distinction between criminal acts, in breach of an effective enforcement notice, and unlawful acts in breach of development control. Such a distinction would have been counter to the purpose of the Act since it would have meant that a use, begun in breach of development control and not permitted or immune, could become lawful on reversion to it, by the simple expedient of interposing another breach of development control. Its statements of principle do not deal with the issues to which this case gives rise.
- I also very much doubt that Parliament would have enacted s144 as it did unless it made the assumption, contrary to Mr Karas' contention, that adverse possession was not affected by whether the trespassory acts of possession were criminal or merely unlawful torts. It must have thought that criminalising trespass therefore would have no effect on the operation of adverse possession for registered, and indeed unregistered land. Had it thought otherwise, it would surely have given some thought to the consequences and made some provision for them, particularly given the form of s144.
- S144 would otherwise have excluded one of the more common types of building for squatters' occupation from the operation of the accepted effects of adverse possession, and in respect of registered land, effects governed by recent and carefully crafted proposals from the Law Commission. It would have done so on a legislative basis ill-fashioned for the purpose. I say that because of the random and arbitrary consequences which would flow from attributing such an intention to Parliament: it is only trespass to the building which is affected by criminalisation, and not the curtilage. If the curtilage of a residential building alone is squatted, or possessed by the tents or caravans of another squatter, there is no breach of s144. The extinguishment and transfer of title to the curtilage may follow. It is only "living in" the building which is criminalised. So possession for some use other than "living in" the property, would not be criminal trespass and could found a claim to title by adverse possession. Possession by acts without any "living in" the property or intention of living in the property would suffice though I accept Mr Karas' submission that if they were incidental to "living in" the property, they would be part of "living in" the property. Trespassory "living in" a non-residential property as defined in s144 would also not be criminal. Pragmatically, it is unlikely that Parliament would have intended the Chief Land Registrar to decide what acts were or were not crimes, to a civil standard, and perhaps in the face of an acquittal.
- Moreover, s144 draws no distinction between the effect on those who have just squatted, those who neared ten or twelve years squatting at the commencement date, and those who could have applied for registration at that date.
- Those restrictions, which as I have said could have random and arbitrary effects on adverse possession claims, do not appear to have received any Parliamentary consideration or provisions, notwithstanding their effect, if Mr Karas is right, on the operation of the 2002 Act, and on title to unregistered land. However, they make good sense if the Act criminalises trespass without affecting the operation of adverse possession to registered and unregistered land. They mean that the criminal law has a restricted scope, tackling a need for house owners to receive a swifter remedy and more forceful help than hitherto in dealing with what were distressing and pressing circumstances, in which the law appeared to give considerable protection to those who did not merit it.
- I also see no inhibition to the envisaged operation of s144 if Mr Karas is wrong. If no action has been taken over the period of ten or twelve years to remove squatters, criminalisation for any part of it notwithstanding, it is difficult to see what purpose is served by preventing applications for registration going through the statutory procedure in Schedule 6 of the 2002 Act. Those notified of the application could still object and the appropriate procedures would have to be followed through. Their statutory protection is not one whit diminished; indeed, it is enhanced because the effect of the acts of trespass being criminal may make it the more likely that steps would be taken to remove the trespassers, giving more power to the owner to invoke the assistance of the police.
- Moreover, the past criminal offences would still remain for prosecution, for what that would be worth. Indeed the offences would continue, and prosecutions could be brought after a change in the registered title in respect of periods before the date of application. The same applies where, as here, the period of criminalisation comes after the date on which an application could have been made. Mr Best could be prosecuted. The criminal law would be enforced, and he could be made to pay his dues to society for his crime. But the purpose of s144 was to help those who needed rather more immediate and committed police action on the side of the property owner than an action for civil trespass alone afforded, to deal with perhaps numbers of squatters, who refused to depart, and exploited the civil law's delays to fortify the house against the owner, to use his possessions as their own, at a cost to him which was unlikely to be recovered. It was not to throw a spanner into the delicate workings of the 2002 Act, with random effects on the operation of adverse possession, all without a backward glance.
- Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession. Before any claim could arise in reliance on adverse possession, ten or twelve years of adverse possession would have had to pass without effective action by owner or by an enforcement authority, whether in civil or criminal proceedings. If that were the position, title could be extinguished or a change in owner registered (if the statutory processes were completed satisfactorily), without any public interest being engaged, unless particular circumstances meant that adverse possession should not of itself be a sufficient basis for an extinguishment of or transfer of title. Those circumstances are not where the trespass was a crime, but where the land in respect of which adverse possession was claimed was itself subject to rights which could not be extinguished, as with a highway, or was land of which a landowner/statutory undertaker could not be dispossessed because of the statutory provisions under which it held the land, in effect making the land inalienable or title inextinguishable, or creating preconditions for title transfer which were unmet by adverse possession alone. That would cover at least a number of situations in which trespass would be a criminal offence but it would not involve focussing on the fact of crime, rather it would involve focussing on whether extinguishment or transfer of title as a result of adverse possession was appropriate in the public interest in respect of that land.
- Accordingly, for the reasons given, the Chief Land Registrar's decision was founded on an error of law as to the effect of s144 LASPOA on adverse possession.
Ground 2: The effect of other acts of adverse possession
- The concept of adverse possession was authoritatively considered in J A Pye (Oxford) Ltd v Graham  UKHL 30,  1 AC 419. There are two ingredients to possession: possession in fact and an intention to possess. "Possession" is possession in the ordinary sense of the word; an owner is dispossessed and possession is assumed by another when a squatter assumes single and exclusive possession, dealing with the land as an occupying owner might have been expected to deal with it, and no one else has done so, with an appropriated degree of physical control. The intention to possess means an "intention in one's own name and on ones own behalf, to exclude the world at large including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow"; Pye paragraph 43 and 41. The intention can be deduced from the physical acts themselves but the mere fact of sufficient acts of physical possession does not necessarily of itself prove the intention; 40. Ouster, conflict with the intention of the paper owner, is not required; what is required is merely that the paper owner be dispossessed by the squatter going into ordinary possession without the owner's consent.
- Mr Rainey submitted on that basis that Mr Best had undertaken acts of adverse possession other than "living in" the property. He complained that the Defendant had refused to clarify what acts of adverse possession, if any, other than occupation, he regarded as criminalised by LASPOA, and as incapable of being relied on in the application for registration which he cancelled. Did it apply to securing the building against the occupation of another, securing doors and windows or to fencing the curtilage around it or to carrying out extensive works of maintenance and repair to prepare it for living in? Would residential use of the curtilage in a caravan or tent amount to living in the building?
- Mr Karas contended that activities which were part and parcel of living in a building or were incidental to it were part of "living in" the building, and could not give rise to non-criminal adverse possession of the building. If squatting in the garden were not criminalised by the 2012 Act, but in any given case was incidental to "living in" the house, it could not be relied on separately from the criminal "living in" the house. The issue did not arise in this case of someone who only "lived in" the curtilage and not in the house, and whether that could lead to a split in the title. If an application were made in respect of the curtilage alone, it would have to be considered, but no such application has been made. No offence would be committed by someone who did not live in the house but possessed it through acts of repair, maintenance and exclusion but intending to use it for tenants. So that form of adverse possession could suffice for an application under Schedule 6.
- I accept that approach. No further issue arises for resolution under this head. I have dealt with the possible complexities in my analysis of the general principle. There, they offer some support for the approach urged by Mr Rainey. I accept that acts done in the curtilage should be treated as incidental to any "living in" the building. I do not regard it as right or necessary to decide what acts, if done other than incidentally to "living in", would constitute lawful acts of possession. If Mr Best had failed in this claim, the issue would not arise because whatever he did in the curtilage or by way of securing the property in the last few months before he made his application was part of his actual "living in" the building, and before he actually took up residence was referable to his intention to do so.
- It is in my judgment for the applicant to provide sufficient evidence of qualifying possession. The power in the Land Registry Rules 16 and 17 to make requisitions and to require the production of further documents did not go so far as to require the Defendant to make enquiries to see if an application which did not qualify in the way presented could in fact succeed if further information were provided. The Claimant tried to introduce evidence to this Court which went to the merits of the application, which had not been provided to the Defendant, and which could be the subject of a further application to him. This asserted failure to make a requisition was not the subject of any permitted ground in the application for judicial review. It would be wrong for the Court to reach a decision that the Defendant was under a duty not to cancel an application if such evidence were presented to it, simply to avoid a further application to Court. The requisitions which were raised in relation to s144 did not alter the position in fact. And the further evidence if admitted would only show acts which were part and parcel of living in the building.
Ground 3: Article 8 and Article 1 of Protocol 1 ECHR
- Mr Rainey submitted that s144 breached Mr Best's Article 8 rights by making their exercise in the house in which he had lived for so many years a criminal offence. S144 therefore had to be read as not applying to a building which was already the squatter's "home". Alternatively, if s144 had the effect of defeating the application to ripen the Claimant's defeasible possessory fee simple into a registered title, an application which Mr Rainey said could have been made since 2007, s144 had to be read down as not affecting adverse possession through "living in" residential buildings. It should not apply to abandoned buildings. Schedule 6, alternatively, should be read down as permitting 10 years adverse possession before 1 September 2012 to suffice.
- Mr Rainey also relied on Article 1 Protocol 1 ECHR. The Claimant's possession was protected by Article 1 since, as at 1 September 2012, he had a present property interest, a right of occupation under domestic law, and, as contemplated in J A Pye(Oxford) Ltd v UK (2008) 46 EHRR 45, paragraph 61, a legitimate expectation of obtaining through registration an effective property right. Although in that case, the ECtHR accepted that the acquisition of title by adverse possession was necessary and in the public interest, there was no converse public interest in depriving someone such as the Claimant of the right to pursue the application or claim to title by adverse possession. Merely changing one private interest for another was not an act in the public interest; James v UK (1986) 8 EHRR 123, a case on leasehold enfranchisement. There was no public interest in the effect, indeed blanket and arbitrary effect, which s144 LASPOA had in relation to the acquisition of title by adverse possession. The Law Commission Paper had referred to situations in which a squatter acquired an indefeasible statutory right to be registered as the proprietor in place of the registered proprietor; paragraph 14.63; an example was where no counter notice had been served in response to an application by a squatter for registration. This was necessarily a proprietary right, because it was a right to have a legal estate vested in him or her.
- Moreover, s144 was not "in accordance with law" for the purposes of Article 8 nor a condition "provided for by law" for the purposes of A1P1, since it was arbitrary, and so lacked the requisites of "law" for the purposes of those Articles. Barnes v Eastenders Cash & Carry PLC  EWCA Crim 2436,  1WLR 1494 illustrated the principle but on very different facts.
- S144, at least on the Defendant's interpretation, had not struck a fair or proportionate balance between public and private interest, in criminalising someone in the position of the Claimant who had entered premises years before LASPOA came into force, and had remained in undisturbed, unchallenged presence ever since, and whose right, all else being equal, to apply for registration had already accrued. S144 was incompatible with the Convention provisions relied on, in the absence of reading down but reading down was possible.
- Mr Forsdick, for the Secretary of State for Justice, submitted that the purpose of s144 was clear. It had been to remove the problems and delays associated with s7 of the Criminal Law Act 1977, which had criminalised squatting by a person who entered as a trespasser and failed to leave on being required to do so by or on behalf of the displaced residential occupier or a protected intending occupier. It increased the protection covering a non-resident owner, all residential property, and regardless of the length of time someone had squatted. No formal requirement to leave was required. It was no longer a defence for the squatter to show reasonable cause for believing that the request was not made by someone entitled to make it. The police could intervene without the need for some other offence such as criminal damage or burglary. Squatting had a serious impact on the owner and lawful occupier of property, and could prevent houses becoming available for those in need.
- The relevant limb of A1P1, in relation to claims to title by adverse possession, was not that which protected the peaceful enjoyment of possessions and limited the scope for depriving someone of them. It was instead the restriction on that protection where necessary to "control the use of property in accordance with the general interest…."; J A Pye (Oxford) Ltd v UK (2008) 46 EHRR 45, paragraph 66 and applied in Ofulue v Bossert  EWCA Civ 7, and not pursued as a point in the further appeal  UKHL 16  1 AC 990. Pye is a far stronger case for deprivation of property than this case could be, but it still fell into the category of control of use.
- Mr Forsdick and Mr Karas pointed to the wide margin of appreciation enjoyed by states in legislating for the control of property. This form of protection for the effects of squatting was reasonable and proportionate. There plainly was a fair balance between the protection of the registered proprietor's title from expropriation by unlawful trespass, and protection of long-established possession, both of which engage differing forms of public and private interests.
- This issue does not arise on the view which I have formed on the main issue. However I express my views briefly, but on the necessary assumption that I am wrong on the main issue.
- I accept most of the contrary submissions of Mr Karas and Mr Forsdick that Article 8 was not engaged by cancelling the application. In R (Smith) v The Land Registry, above, at paragraph 41, Arden LJ said that Article 8 was not engaged by a refusal, in effect, to register title by adverse possession to land, although it could become engaged if steps to evict the applicant were taken. Mummery LJ left the issue open, and Elias LJ was silent on the point, though agreeing with the reasons of both.
- I do not agree with Mr Fosdick and Mr Karas that this comment is binding and conclusive on the point; it is the obiter dicta of one judge on a related point, however persuasive it may be. However, I think that what Arden LJ said is correct. There is no sound basis for saying that the mere right to make an application to have a change in title registered engaged Article 8. There was no right to have a change registered. This was not a case where the paragraph 5 procedure had progressed through the counter-notice stage without such a notice being served. The Claimant did not make an application either when he could have done. He had time after the Act was passed and before it came into force to make an application, which represents the date to which a successful application for a change is backdated.
- In any event, the Claimant never had possession in the sense protected by the ECHR: he had to have possession sufficiently established to amount to a legitimate expectation of obtaining effective enjoyment of a property right. But the system of registration of title precluded any such legitimate expectation arising simply through the passage of time; he had no right to title even after its expiry. The relevant period was the ten years before the application. Until that had passed without possession being a criminal offence, he could have no more than a hope that he would complete ten years tortious but not illegal possession. After that, he had the right to make an application, but no right to succeed. Nor did he have any right to prevent Parliament changing the conditions required for registration of title to land he did not own, but which someone else did.
- No advantage was taken by the Claimant of the period after he had completed ten years of trespassory possession before the Act was even passed. The Bill had been debated in Parliament before enactment. And the Act was passed on 1 May 2012, 4 months or so before it came into force. He did not take advantage of that period either and, although it is not strictly a transitional period, it provided those in the position of the Claimant with time in which to make an application so that no part of the preceding ten years would have been affected by s144 coming into force. The 2012 Act was not an act of expropriation.
- In any event, any interference with Article 8 rights is reasonable and proportionate in an area to which a large measure of discretionary judgment is left to Parliament to deal with a generally recognised problem faced by the lawful owners and occupiers of residential property in particular, from which they were excluded by trespassers. Parliament would have known that some at least of those trespassers would have regarded the property they were living in as their home.
- I have concluded therefore that, even if engaged, there is no incompatibility between s144 and Article 8 or A1P1. Reading down does not arise.
- If it did, Mr Rainey submitted that it was not necessary for the Court to devise the precise form of reading down of the Act to avoid this breach of ECHR, as was exemplified by Ghaidon v Godin-Mendoza  UKHL 30,  2 AC 357 paragraph 35, and Thomas v Bridgend CBC  EWCA Civ 862,  QB 512, paragraph 68. However, to illustrate the read-down, a new s144 (7) (A) could provide: "If at the date of commencement, a person is entitled to apply under paragraph 1 of Schedule 6 to the 2002 Act to be registered as proprietor of an estate in land, in respect of a building to which this section applies, nothing in this section shall prevent that person relying on the fact of his living in that building as adverse possession within Schedule 6 of the 2002 Act." More widely, the Act could say that the fact that a person's adverse possession was an offence under s144, did not prevent reliance on it for the purposes of an application under Schedule 6 or for the purposes of the Limitation Act 1980.
- Mr Karas submitted that no reading down was possible without judicial vandalism: a reading which would depart substantially from that which Parliament intended. The various possibilities, whether by deciding that a building had become a "home", or by reference to the degree of abandonment at the time of initial trespass or by reference to work done, all amounted to substantial changes, contrary to Parliament's intention. Nor could Schedule 6 be read as meaning that any period of ten years, and not just the period immediately preceding the application should count for the making of an application.
- I have to accept that reading down does not require the Court to set out the text of its read-down version of the Act. However, the advantage of doing so is that the Court has to be specific about its interpretation, and the extent to which that involves a judicial decision usurping the right of Parliament to select one of a number of routes to compatibility with the ECHR is thereby made clear. It would also eliminate the problem of a lower court interpreting, not what the Act says, but what a variety of superior court judgments on the one case may say, perhaps in harmony but not necessarily in unison, as a surrogate for statutory interpretation.
- As I have said, the provisions of s144 require no reading down to avoid incompatibility, but to the extent that they might do so, the minimum that it would need to say, in my view, is that the coming into force of s144 would not affect the right of someone, who at its coming into force was entitled to apply for a change in registration of owner, to apply for such a change, even though between the coming into force of the Act and his application, the trespassory possession involved the commission of an offence. But there are a number of options and issues which it should be for Parliament to resolve. I would go no further than that minimum read down, which might escape the charge of vandalism. I would not adopt any possible wider view that adverse possession was unaffected by criminalisation of possession, or bring in a concept of "abandoned" buildings, trespassory possession of which was not criminalised. Such adjustments would be for Parliament.
- This application however succeeds, and the decision of the Chief Land Registrar is quashed. Mr Best's application now has to proceed through the next stage in Schedule 6 of the 2002 Act.
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