It is with absolutely no pleasure that we report that Britain’s poundshop Duterte, Priti Patel, is well and truly at it again. Our legal correspondent, Carl Spender, is here with the details.
On Sunday 3rd November, the government announced it would launch a consultation on proposals to give the police new powers to remove and arrest trespassers who set up “unauthorised encampments”. In a press release remarkable for its lack of clarity, the Home Office stated that, following a 2018 consultation on existing powers to remove trespassers from land, it was now seeking views on a more concrete set of proposals, specifically:
- Making it a criminal offence to enter onto any land without permission of the occupier with the intention to reside.
- Amending the Criminal Justice and Public Order Act 1994 to give the police greater powers to remove, arrest and re-direct those occupying land without the permission of the landowner.
In case it wasn’t obvious: these proposals are an out-and-out attack on the UK’s Gypsy, Roma and Traveller (GRT) communities. In a context in which ‘legal’ sites are few and far between, these proposals would result in a dramatic increase in the – already staggering – levels of discrimination and criminalisation faced by these communities. That the Tories blatantly floated this proposal for short-term electoral gain is – as organisations like Friends, Families and Travellers have pointed out – grotesque, if utterly unsurprising.
Indeed, these proposals are merely the latest salvo in the state’s on-going war against GRT communities in the UK. A proper exploration of this history is sadly beyond the scope of this article; my job here is merely to shed light on some of the legal details of the government’s proposals (1).
Trespass with intent to reside:
As the law currently stands, trespassing on land (whether you intend to live on it or not) is not, in and of itself, a criminal offence and does not give the police power of arrest. Landowners are entitled at common law to use ‘reasonable force’ to evict trespassers but are themselves at risk of prosecution if they use more force than a court would deem necessary. For this reason, many prefer to seek court possession orders and leave the dirty business of eviction to county or high court bailiffs. With legal proceedings come costs, however, and one of the government’s explicit aims in proposing to make trespassing on land with intent to reside a criminal offence is to allow for the rapid eviction of trespassers (particularly GRT encampments) at no cost to the landowner. Such an offence already exists in the Republic of Ireland and would, in a UK context, presumably resemble the law prohibiting squatting in a residential building (s144 LAPSO 2012), according to which a person commits an offence if they are knowingly in a residential building as a trespasser, having entered as a trespasser, with the intention of living there for a period of time.
Aggravated Trespass & s61 CJPOA 1994:
The obvious argument against this proposal is that the Criminal Justice and Public Order Act 1994 already affords the police a range of powers to remove and, in some circumstances, arrest trespassers on land without the need for a court order. Most famously, section 68 of the act creates the offence of “aggravated trespass”, which is committed when a person trespasses on private land where people are engaging in (or were about to engage in) lawful activity, and does something – distinct from the trespass – with the intention of either obstructing or disrupting that lawful activity, and/or intimidating people so as to deter them from engaging in it (2).
Similarly, Section 61 of the act empowers a police constable to “direct” (i.e. order) those trespassing on land to leave and to remove any vehicles or property they have with them if “the senior police officer present at the scene believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier (3) to ask them to leave and—
- that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or
- that those persons have between them six or more vehicles on the land”
Failure to comply with such an order (or trespassing on the land again within 3 months of having received it) is a criminal offence punishable by a maximum of 3 months in prison and/or a fine of up to £2,500. Any possessions and/or vehicles – including caravans – that are not removed from the land are also liable to seizure (4).
“So far, so draconian” you might think, and you’d be right. However, the Home Office doesn’t seem to agree. Thus, as an alternative to fully criminalising trespass on land with intent to reside, the new consultation will also consider several amendments to the CJPOA designed to beef up police powers to evict trespassers, namely:
- Lowering the number of vehicles needed to be involved in an unauthorised camp before s61 applies from 6 to 2
- Increasing the time – from 3 months to a year – during which offenders are not allowed to return to a site they have already been removed from.
- Giving the police powers to direct offenders to sites in neighbouring local authorities (currently they can only direct trespassers to sites in the same area).
- Allowing officers to remove trespassers from camping on or beside a road (currently something that can be achieved only by s77 order issued by a local authority).
It’s important to emphasise that, at this moment in time, these proposals are only under consultation, and they are a long way from becoming law. However, if the December election returns the Conservatives to government either with an independent majority or as the head of a coalition, these proposals could well find their way into the statute book. If this occurs, it’s not only GRT communities who will suffer. Given the police’s history of using s61 and other provisions of the CJPOA 1994 against demonstrators, any bolstering of their powers to remove or arrest trespassers will undoubtedly have negative consequences for those protesting or taking direct action. In particular, a full criminalisation of trespass on land with intent to reside would make erecting a protest camp without the permission of a landowner a criminal, rather than civil matter. The police would thus be handed a legal right to prevent, disrupt and remove protest camps, drastically reducing their potential efficacy, and exposing those involved to a greater risk of harassment, violence and arrest. It’s a worrying glimpse of a possible future; let’s ensure it never comes to pass.
1) However, Freedom will be looking to publish more on the struggle(s) for GRT liberation in the near future.
2) There is also the s69 CJPOA 1994 offence of failing to comply with a senior police officer’s direction to leave land on which one is, has or is about to commit aggravated trespass.
3 ) Here “occupier” refers to the landowner or person(s) legally renting or using the land.
4) Section 77 CJPOA 1994 also provides local authorities with the power to direct the removal of those residing in vehicles on the highway, unoccupied land or occupied land without the occupier’s consent. Once again, failure to comply with such an order is an offence.
Photo: Guy Smallman