Is new law the answer to trespass?

Travellers hit the headlines again with the Government’s announcement on 8 March of a new criminal offence to tackle unauthorised encampments. Real estate disputes partner, Danny Revitt, and I consider the new legislation.

Reception has been mixed – some delighted at “tough new legislation” to act as a strong deterrent to end “cat and mouse” games between travellers and the authorities. Others condemn “draconian new measures” believing they will further marginalise traveller communities.

How much difference in practice will the new legislation make to private landowners with unauthorised encampments on their land?

Existing police powers

Sections 61 to 62 of the Criminal Justice and Public Order Act 1994 (which apply to public and private land, excluding highways) give the police discretionary powers to direct that travellers move off unauthorised encampments when:

• police reasonably believe two or more people are trespassing with the intention of residing on the land, where reasonable steps have been taken by the occupier to ask them to leave; and
• any of those persons has caused damage to the land or property or used threatening, abusive or insulting words or behaviour; or
• those persons have between them six or more vehicles on the land.

If travellers do not comply with a section 61 direction to leave the land, the police have powers of arrest and impoundment of vehicles.

It is a criminal offence to fail to comply with a police direction or to return to the same land within three months. 

Section 62A, which applies to all land, also gives the police wider powers to move travellers on (e.g. fewer than six, but more than one and where there is no damage or threatening behaviour) where there is a suitable alternative pitch available on a local authority caravan site. 

Local authorities also have eviction powers in relation to local authority land (including highways and tenanted land) exercisable in favour of private landowners. If travellers do not leave as soon as practicable after receiving a direction, they commit a criminal offence. The magistrates court has power to remove vehicles and property present on land in contravention of a local authority direction notice. Local authorities also have common law powers of eviction.

New police powers 

Under the new legislation, a person commits an offence if they:

• are aged 18 or over and reside or intend to reside on land without the consent of the occupier of the land;
• have or intend to have at least one vehicle with them on the land;
• have caused or are likely to cause significant damage, disruption or distress; and either
• fail, without a reasonable excuse, to leave the land with their vehicle and/or property once asked to do so by the occupier, representatives of the occupier or a constable; or
• without reasonable excuse, enter or re-enter the land with an intention of residing without the consent of the occupier, and have or intend to have a vehicle with them, within 12 months of a request to leave.

The police will be empowered to seize any property, including vehicles, owned or in the possession of the individual on the land if they reasonably suspect that the person has committed the above offence.

The maximum penalty will be three months’ imprisonment or a fine not exceeding £2,500, or both. This is the same penalty as the existing criminal offence of failing to comply with a section 61 direction.

Strengthening of existing police powers 

Section 61 of the 1994 Act will be amended to enable the police to direct trespassers away in a broader range of circumstances, including if there is damage to the environment, such as excessive noise, litter or waste deposits, and disruption to supplies of water, energy or fuel.

Police will also have increased powers to direct trespassers to leave land that forms part of a highway.

The differences

The new powers create a new criminal offence – currently trespass is only a criminal offence in respect of a residential property. It is already a criminal offence to fail to comply with a police direction, so the difference is that travellers will no longer receive a “warning” of criminal charges – the trespass itself is the offence. The new powers will be applicable to smaller gatherings (a single adult with a single vehicle) and in a wider range of circumstances (i.e. not just where damage is caused to property or there is threatening behaviour, but also where there is “disruption or distress”). Re-entry within 12, rather than three, months will now be forbidden.

Other remedies for private landowners

The shift of emphasis from discretionary police powers to criminalisation could lead to more widespread police enforcement, although the police may still cite lack of resources as a reason for not doing so. If police action is not taken, existing alternative courses of action will remain open.

Landowners have common law powers to use no more force than is reasonably necessary to evict trespassers without a court order. 

Landowners can also issue a claim for possession under part 55 of the Civil Procedure Rules. Travellers will have no defence to a possession claim by a private landowner unless they can prove they benefit from consent to occupy or the person claiming possession is not entitled to do so due to insufficient interest in the land or lack of title.

There are no obligations on private landowners to factor in humanitarian considerations when taking eviction action against an unauthorised encampment. However, if using common law powers of eviction, police are usually notified and called in to stand by to prevent a breach of the peace. If a landowner (or their agents) exceeds the use of “reasonable force” they may face an action for criminal damage, trespass to person or property, or assault.

Those who think the new powers will have little real impact may cite the response to the government’s own 2019 consultation, which revealed that 75% of police respondents believed their existing powers were sufficient. If lack of resource was the reason police often did not use existing powers, will this mean they will be unlikely to exercise their new powers going forward?

Danny Revitt is a real estate disputes partner and Elizabeth Thomson is a practice development lawyer at Irwin Mitchell. This article first appeared in Estates Gazette