Legal Briefing on Proposals to Criminalise Trespass
By The Community Law Partnership
Thanks to Marc Willers QC and Tessa Buchanan of Garden Court Chambers and to Abbie Kirkby of Friends, Families and Travellers for their comments on this paper.
The Travellers Advice Team at Community Law Partnership are very interested in hearing from any Gypsies and Travellers who may be adversely affected by the proposed new criminal offence. We would encourage people to phone us on our Advice Line which is 0121 685 8677 Monday to Friday 9am to 1pm.
1. THE PROPOSALS
In November 2019 the Home Office launched a consultation entitled ‘Strengthening police powers to tackle unauthorised encampments’. On 8th March 2021, the Government finally produced their response to that consultation and you can find that response here: https://www.gov.uk/government/consultations/strengthening-police-powers-to-tackle-unauthorised-encampments/outcome/government-response-to-the-consultation-strengthening-police-powers-to-tackle-unauthorised-encampments-accessible-version. After publishing the response, the following day the Government included the new criminal offence of trespass in the Police, Crime, Sentencing and Courts Bill (PCSCB) which has already had its Second Reading on 15th and 16th March 2021. You can find the Bill here: https://publications.parliament.uk/pa/bills/cbill/58-01/0268/200268.pdf.
This new criminal offence, and the other proposed changes to the existing provisions of the Criminal Justice and Public Order Act (CJPOA) 1994, cover both England and Wales.
In summary, the PCSCB will make it a criminal offence for someone with a vehicle residing or intending to reside on land without the consent of the occupier of the land to fail to comply with a request to leave the land in a case where that person’s residence or intended residence has caused or is likely to cause significant disruption, damage, or distress. If the person fails to leave the land or, having left, re-enters it, he or she can be arrested and his or her vehicle (i.e. his or her home) can be impounded.
2. WOULD THE CRIMINALISATION OF TRESPASS BE LAWFUL?
It seems to us that the proposed criminalisation amounts to an unlawful breach of Articles 8 and 14 ECHR. Article 8 enshrines the right to respect for a person’s private and family life and home. This includes his or her traditional way of life. Article 14 contains the right not to be discriminated against in the enjoyment of other Convention rights. The measure is an obvious interference with the nomadic way of life of Gypsies and Travellers and is also obviously discriminatory against these minorities. It is difficult to see how the measure is proportionate in light of the concerns set out below and especially the following factors:
(i) Alternative Sites
Many Gypsies and Travellers still have to resort to unauthorised encampments because of the continuing lack of permanent and transit site provision (including emergency stopping places) in England and Wales and a collective failure by national and local government over many years to develop arrangements such as ‘negotiated stopping agreements’ which would ensure that lawful stopping sites were provided.
(ii) The Government’s positive obligation to protect Gypsies and Travellers’ traditional way of life
In Chapman v UK  33 EHRR 399, the European Court of Human Rights stated:
…the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases…To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life… (para 96)
In the case of London Borough of Bromley v Persons Unknown, London Gypsies and Travellers and Others  EWCA Civ 12, the Court of Appeal, in upholding the refusal of the High Court Judge to grant Bromley a wide injunction against Gypsies and Travellers, stated:
Finally, it must be recognised that the cases…make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act… (para 109).
(iii) The lack of public support for the measure
It is clear from the Government’s response to the consultation the majority of respondents disagreed or strongly disagreed with the proposed measures.
(iv) The lack of Police support for the measure
It is particularly significant that the majority of Police forces that responded to the Government’s consultation exercise did not want greater powers.
(v) Chilling effect
The Government suggest that the legislation is only designed to address encampments that cause ‘disruption or distress’.
First, we find their explanation somewhat disingenuous. In their Frequently Asked Questions factsheet it is stated at page 4:
The Government’s view is that criminalisation of intentional residence on land without consent and the extension of existing powers in 1994 Act will provide Police with sufficient powers to effectively and efficiently enforce against a range of harms caused by some unauthorised encampments. The offence and strengthened Police powers could also deter unauthorised encampments from being set up in the first instance (our emphasis).
Secondly, not only can the offence be committed by someone who is said to be ‘likely to cause significant damage or significant disruption’ but it can be committed once they have been given a notice to leave not just by a Police Constable but also by the occupier of the land or a representative of the occupier. Thus the occupier of the land ( who could be the landowner or a leaseholder or licensee) or their representative can effectively turn a Gypsy or Traveller into a criminal by the giving of this notice. Moreover they risk being arrested and losing their homes without any Court having to conclude that they are guilty of the offence.
Thirdly, it may be said that the Gypsy or Traveller in question could simply challenge the assumption or declaration that they are likely to cause significant disruption or significant damage at the time that the request to leave is made but the reality is that if they were to do so they would then put themselves at risk of being arrested and having their vehicles (their homes) impounded. In those circumstances the vast majority of Gypsies and Travellers will feel obliged to leave the land without delay.
Finally, whereas the Police currently have a discretion as to whether to use their existing powers under CJPOA 1994 s61 or s62 A to E (in the latter case where there is a suitable alternative pitch available), they may feel obliged to make arrests and impound vehicles if they are informed that a criminal offence has taken place.
3. EXISTING POLICE POWERS
It is important to note that (1) the Police already have extensive powers to move on unauthorised encampments and (2) the Police do not support the strengthening of their powers of eviction which are currently contained in the CJPOA 1994.
CJPOA s61(1) states:
If the senior police officer present at the scene reasonably 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 to ask them to leave and –
(a) 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
(b) that those persons have between them six or more vehicles on the land,
he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.
This existing provision is already draconian since it enables the Police to evict an encampment at very short notice. Even where the Police are arguably exercising their powers unlawfully, it can be difficult to bring a challenge due to how swiftly the eviction can take place.
However, this power is somewhat ameliorated both by Government guidance on the question of managing unauthorised encampments (which stresses the need for the assessment of welfare considerations and alternative locations) and by very important guidance from the Police themselves, namely Operational Advice on Unauthorised Encampments (National Police Chiefs Council, 2018). This guidance stresses that the Police have a discretion as to whether or not to use their powers. Therefore, they may use their powers if an encampment is causing significant anti-social behaviour or if there are crimes occurring but, in other circumstances, may decide not to use their powers.
CJPOA 1994 s62 A – E relate to circumstances where there is a suitable alternative pitch available. Given the continuing lack of transit site provision (albeit that there has been a small increase in such provision over recent times), these provisions are of limited practical relevance and we will not discuss them further here.
It can certainly be concluded, at the very least, that the existing Police powers of eviction are sufficient. There is absolutely no need for them to be increased as the Police themselves accept.
4. THE PROPOSAL TO CRIMINALISE TRESPASS
Clause 61 of the PCSCB introduces a new offence into the CJPOA 1994 as follows:
60C Offence relating to residing on land without consent in or with a vehicle.
(1) Subsection(2) applies where –
(a) A person aged 18 or over (“P”) is residing, or intending to reside, on land without the consent of the occupier of the land,
(b) P has, or intends to have, at least one vehicle with them on the land,
(c) One or more of the conditions mentioned in subsection (4) is satisfied, and
(d) The occupier, a representative of the occupier or a constable request P to –
(i) Leave the land;
(ii) Remove from the land property that is in P’s possession or under P’s control.
(2) P commits an offence if –
(a) P fails to comply with the request as soon as reasonably practicable, or
(b) P –
(i) Enters (or having left, re-enters) the land within the prohibited period with the intention of residing there without the consent of the occupier of the land, and
(ii) Has, or intends to have, at least one vehicle with them on the land.
(3) The prohibited period is the period of 12 months beginning with the day on which the request was made.
(4) The conditions are –
(a) In a case where P is residing on the land, significant damage or significant disruption has been caused or is likely to be caused as a result of P’s residence;
(b) In a case where P is not yet residing on the land, it is likely that significant damage or significant disruption would be caused as a result of P’s residence if P were to reside on the land;
(c) That significant damage or significant disruption has been caused or is likely to be caused as a result of conduct carried on, or likely to be carried on, by P while P is on the land;
(d) That significant distress has been caused or is likely to be caused as a result of offensive conduct carried on, or likely to be carried on, by P while P is on the land (our emphasis).
Someone who commits the offence can be arrested and their vehicles (i.e. their homes) can be impounded.
5. CONCERNS ABOUT THE NEW OFFENCE
The new offence is deeply troubling, for several reasons:
(A) Even a single Gypsy or Traveller travelling in a single vehicle will be caught by this offence. When the powers in CJPOA 1994 were first being debated in Parliament, it was stated that the powers were intended to deal with ‘mass trespass’. We have now come to a stage where even a single Gypsy or Traveller will be caught by these draconian provisions.
(B) As mentioned above the ‘request’ to leave the land can be made by the occupier of the land or a representative of the occupier. This is a very important difference as compared to the current powers under CJPOA 1994 s61. The existing powers can only be exercised by the Police, which means that a person only faces criminalisation once they have disobeyed the instruction of a law enforcement official. Under the new offence, a person can be criminalised for disobeying the instruction of a private citizen. Moreover, whilst the Police are – or should be – motivated by concerns such as protection of the public and preservation of public order, the private citizen will be motivated by the protection of his or her personal interests as an ‘occupier’ of land. To criminalise what has previously always been a civil dispute between private citizens is alarming in the extreme.
(C) As currently drafted (and unless any guidance changes this) this request does not appear to have to be in writing. This is extraordinarily casual given the draconian results that may follow.
(D) The period during which the Gypsy or Traveller is effectively banned from the land in question is extended from 3 months (as it is currently under the 1994 Act) to 12 months. For those Gypsies and Travellers who have no alternative but to resort to unauthorised encampments, there are, in effect, very few potential stopping places in any one area. The extension of the time limit to 12 months effectively creates a kind of wide injunction covering the relevant areas where a Gypsy and Traveller might be able to stop in other circumstances.
(E) The interpretation section defines ‘damage’ to include
(a) Damage to the land;
(b) Damage to any property on the land not belonging to P;
(c) Damage to the environment (including excessive noise, smells, litter or deposits of waste)
‘Disruption’ is defined to include interference with:
(a) A person’s ability to access any services or facilities located on the land or otherwise make lawful use of the land, or
(b) A supply of water, energy or fuel.
These definitions are vague and could potentially include a very wide range of issues. Moreover, it is unlikely that judicial clarification will be forthcoming soon, because Gypsies and Travellers will not want to risk potentially being arrested and getting their vehicles impounded in order for them to go to Court and find out what the Court decides is meant by ‘damage’ or ‘disruption’. Moreover, the offence can be committed, as discussed above, if damage or disruption is only ‘likely to be caused’.
(F) There is no specific attempt to define what ‘significant’ means. This is a word which, in another context, has caused confusion and necessitated a definition by the Court of Appeal (Panayiotou v Waltham Forest London Borough Council  EWCA Civ 1624). The lack of clarity here is concerning.
(G) Additionally there will be amendments to other powers in the CJPOA 1994 including adding on to ‘damage’ under s61(1) (see above) the words ‘disruption or distress’. The period of time during which you must not return to the land following a notice under CJPOA 1994 s61 is also extended to 12 months. Section 61 will also be extended to cover the highway.
6. LOBBYING AND CAMPAIGNING
It will be very important, of course, for Gypsies and Travellers, Gypsy and Traveller national and local groups and those others supporting Gypsies and Travellers in this vital matter to take forward the strongest possible campaign and now to lobby Parliamentarians as the PCSCB passes through Parliament. It is noted that the Government seem intent on rushing this Bill through.
Friends, Families and Travellers (FFT) have already put together an impressive array of materials on this matter which you can find on their website at: https://www.gypsy-traveller.org/news/government-announces-plans-to-introduce-harsh-laws-for-roadside-camps/
FFT have produced an excellent briefing paper and, in summary, they state:
• The measures outlined in the PCSCB will further compound the inequalities experienced by Gypsies and Travellers, needlessly pushing people into the criminal justice system.
• The powers will disproportionately affect specific minority and ethnic communities and are likely to be in conflict with equality and human rights legislation.
• The case for action is flawed. An enforcement approach to addressing the number of unauthorised encampments overlooks the issue of the lack of site provision – there is an absence of places where Gypsies and Travellers are permitted to stop or reside.
• There are other solutions to managing unauthorised encampments, such as negotiated stopping, whereby arrangements are made on agreed permitted times on stopping and to ensure the provision of basic amenities such as water, sanitation and refuse collection.
• The definition of a Gypsy or Traveller in planning terms requires proof of travelling – without which you are not assessed as needing a pitch or get planning permission, but will essentially be prohibited from travelling by law.
• Police bodies do not support the criminalisation of trespass.
• The majority of respondents to the HO consultation opposed more police powers.
• There are very little in the way of measures to mitigate harm from the proposals.
We note that these provisions will apply in Wales too. The Welsh Government has taken a much more positive approach to Gypsies and Travellers than the Westminster Government in recent years, and especially since the duty to meet the assessed need for Gypsy and Traveller sites was enacted in the Housing (Wales) Act 2014 s103. That being so we hope that the Welsh Government will support the call for this proposed new offence and the amendments to the CJPOA 1994 to be withdrawn.
In conclusion, this new offence (leaving aside the other amendments to the existing powers in CJPOA 1994) would be sufficient to make life on the road for Gypsies and Travellers impossible and, thus, drive them from the roadside in England and Wales for the first time since Gypsies appeared in Britain in the early 16th century.
We hope that the campaigning and lobbying from Gypsies and Travellers and their supporters will lead to the relevant clauses being removed completely from the Bill. If these clauses and especially if the new criminal offence is brought into force, then we think it is clear that a legal challenge will come forward immediately to these draconian and inhumane provisions. Once again we would urge Gypsies and Travellers potentially affected by these provisions to contact us. We would urge all those who object to these provisions to join with the Gypsy and Traveller national and local organisations in their campaign against this awful piece of legislation.
Community Law Partnership
23rd March 2021
For full details about the current state of the law please see Willers and Johnson eds. Gypsy and Traveller Law (Legal Action 2019).