Police Crime Sentencing and Courts Bill – part 2

Move along – An analysis of new criminal offences relating to unauthorised encampments

On Saturday 26th June the streets of London once again thronged with protesters under a multitude of banners. Prominent among them was a contingent of Extinction Rebellion calling on Parliament to ‘Kill the Bill’. ‘The Bill’ being the Police, Crime, Sentencing and Courts Bill which has now finished in Committee Stage and will come before Parliament for Report Stage on Monday (5th July 2021). Spread across twelve Parts, the Bill tackles a diversity of topics from the management and rehabilitation of offenders to secure children’s homes. In this series of articles Gerard Pitt considers the most important and controversial changes.

This article considers the new criminal offence of trespass to land with a vehicle which, whilst a summary only offence, will likely establish a firm presence in Magistrates Courts as the tool of choice for police forces and local authorities seeking to manage unauthorised Romany Gypsy and Traveller sites and protest camps.

The existing powers and offences

Trespass to land is a civil wrong and the landowner’s remedies are generally to be found in the planning tribunal or the County Court. Criminal practitioners would be forgiven for being unfamiliar with the existing police powers and criminal offences associated with trespass which are found in Part 5 of the Criminal Justice and Public Order Act of 1994 (the 1994 Act).

The offence of aggravated trespass, under section 68 of the 1994 Act, prohibits trespass with intent to intimidate, obstruct or disrupt any lawful activity on that land. It does not lend itself to unauthorised camp sites.

Section 61 of the 1994 Act is more apt – it provides that a senior police officer has the power to direct people to leave land if she reasonably believes that two or more persons are trespassing with a common purpose of residing and that reasonable steps have been taken by or on behalf of the occupier to ask them to leave, and that either they have caused damage to the land, or have used threatening, abusive or insulting words or behaviour towards the occupier, or have six or more vehicles between them. If that power is exercised, then any person who fails to comply with such a direction or returns to the site within three months of the direction, commits an offence punishable by up to three months in prison.

Section 61 was patched in 2003 with section 62A, which applies where there are less than six vehicles (vehicles includes caravans), and no damage or threats, but only where it appears that the person has one or more caravans on the land and there is a “suitable pitch on a relevant caravan site” for that caravan. Only caravan sites in the same local authority area, or managed by a registered provider of social housing, count for this purpose. Failure to comply with such a direction is likewise an offence.

The new offence

Section 61 of the Bill amends part 5 of the 1994 Act to add a new section before s.61 of the 1994 Act – section 60C “Residing on land without consent in or with a vehicle”.

Reading the provisions as a whole, the elements of this new offence are:

• That the Defendant (if over 18) has entered onto a piece of land or placed property on that land without the consent of the occupier;
• The Defendant has done so with the intent to reside on that land (whether he is residing there at the time of the complaint or not);
• And the Defendant has done so either with a vehicle, or with the intent to place at least one vehicle on the land (vehicle includes caravan);
• The occupier, or a constable, has requested that the Defendant leave the land or remove that property;
• The Defendant has failed to comply with that request or, having complied, returns to the site within 12 months of vacating;

And

• One or more of the following conditions are satisfied [it is here convenient to simply quote directly from the Bill]:

(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.

The offence may also be committed on common land, with references to the occupier replaced with the local authority.

“Offensive conduct” is defined in the same terms as an offence under section 5 of the Public Order Act 1986.

“Damage” includes damage to land, property and ‘damage to the environment’ including excessive noise, smells, litter or deposits of waste;

“Disruption” includes interference with a person’s ability to access any services, facilities or otherwise make lawful use of the land.

There is as yet no definition of what is meant by “serious”.

There is a familiar defence of ‘reasonable excuse’, and in clause 63 of the Bill we are promised Statutory Guidance which will outline examples of what might constitute a reasonable excuse for not complying with the request to leave.

Interestingly that Guidance is to cover all the functions of police officers under provisions 60C-60E and it is envisaged it will include guidance on what might constitute significant damage, disruption and distress.

Under new sections 60D and 60E the police have powers to seize any vehicle, or any property actually on the land, if they “reasonably suspect that an offence has been committed.” That property may then be retained and forfeit on conviction by order of the Magistrates’ Court.

Interestingly it may only be forfeit if the court has permitted anyone who claims to be its owner or to have an interest in it, to make representations. The practicality of challenging forfeiture after conviction should not be overlooked in cases where courts are minded to move immediately to sentence and the owner is not present at the trial to make representations.

Analysis

There is not enough space here to explore the labyrinth of incomprehensible possible permutations of this offence. The requirement that the occupier of the land has requested the person leave the property or remove their property from the land does at least restrict them to situations where the defendant has already begun to trespass in some way and references to ‘likely’ outcomes must be read in that context.

The Bill draws a purposeful distinction between significant damage or disruption caused by the Defendant’s residence, significant damage or disruption caused by the Defendant’s conduct, and significant distress caused by offensive conduct.

The distinction between residence and conduct suggests that this offence may be committed without any untoward behaviour by the Defendant at all. However, Defending the Bill in Committee, Victoria Atkins, Conservative MP speaking for the Government, said:

“The types of harms caught by the offence are defined in clause 61 and cover many of the problems we have been told that residents and landowners face through some unauthorised encampments. These include significant damage to land, property and the environment, as well as threatening behaviour to residents and landowners. Regarding distress, an offence is committed only if significant distress has been caused or is likely to be caused as a result of offensive conduct, which is then defined within the Bill. It is therefore not possible for an offence to be caught if a person is distressed by the mere presence of an unauthorised encampment on the land. That is where the civil measures I referred to earlier will come into play.”

In the language of the Bill, significant damage and disruption may be caused either by mere presence or by inoffensive conduct whilst significant distress may be caused by offensive conduct only.

The conditions are so amorphous that prosecutors must be called on to specify under which limb, or limbs, they bring their case so that defendants know what case they are expected to meet.

If a case is put on the basis of conditions 4c and 4d simultaneously, Magistrates will face the unenviable task of first deciding whether there has been offensive conduct and if so, whether it has caused significant distress – which must be above and beyond the ordinary levels of distress caused by threatening, abusive or insulting words or behaviour. If they find either of these unproved then they must nonetheless go onto consider whether the same conduct could nonetheless be said to have caused significant disruption.

Many of these terms employed in this offence are new to the criminal law, but similar to the language used in Part 3 of the Bill (amending section 12 of the Public Order Act 1986) to define protests which may be lawfully curtailed by the police as those where the noise generated may result in “serious disruption”.

In respect of those complaints that do reach trial there will be numerous lines of attack. The fact that the offence is complete with only an intention to reside on the land will help prosecutors side-step the potentially thorny issue of proving to the criminal standard that a person is in fact residing on land – relying instead on the inference from the nature of the trespass and the use of residential vehicles or caravans. In most cases therefore it is likely that the trespass, lack of consent, intention to reside and refusal to vacate will all be agreed and the battle ground will be the wholly subjective question of whether any damage, disruption or distress are sufficiently serious.

Optimistic defence advocates will no doubt argue that any unauthorised encampment on land will inevitably cause some damage to the environment and disruption by, at the very least, preventing the occupier from using the land for whatever lawful purpose they had intended it. The addition of the word “serious” indicates a higher threshold that must be met before any criminal offence is committed. Whether this will find favour with lay magistrates remains to be seen.

The differences between the offence under s.61 of the 1994 Act and under s.60C, as introduced by the Bill, are modest. In both cases there must be damage, threatening behaviour or serious disruption – whether calculated in terms of the number of vehicles or not (six arguably being a sensible threshold for “serious disruption” by any measure).

The most significant difference, and the challenge for defence practitioners, is that the new offence under s.60C of the Bill can be committed prior to any involvement by the police, unlike the offence under s.61 and 62A, which could only follow a direction given by a police officer. The framing of the offence in s.61 of the 1994 Act insulates Romany Gypsies, Travellers and other itinerant people because it requires a police force to deploy sufficient resources to review cases and ultimately exercise some discretion about where they deploy their powers. Only in the most serious cases could trespass give rise to a lawful direction and therefore a criminal allegation.

The new offence may be reported to the police like any other and may leave police officers with what Mark Willers QC, giving evidence to the committee, described as a fait accompli, with “no option but to arrest an individual who refuses to leave land in circumstances where the occupier says, ‘I am being caused significant distress by the very fact that this individual is parking on land that I occupy.’” Whether these arrests lead to prosecutions may be less significant to the suspect who has already been moved off the land and had their vehicles seized.

Conclusion

There has been a great deal of debate about the political motives behind this part of the Bill – hailed by Conservatives as strong action to tackle an instant threat and derided by opposition groups as a totally pointless boondoggle which needlessly overcomplicates an already fraught area of criminal and civil law. This is not the place to add to that discussion.

The new offence has passed committee stage unscathed and we, as criminal defence practitioners, must now grapple with it. The stoic pride with which Travellers and Romany Gypsies maintain their traditional itinerant way of life will ensure many accusations will be contested in trials and appeals. The backlog in cases in the Courts will mean disgruntled landowners attending court months or even years after the event to justify their complaints. Sadly, for many Defendants, it will then be too late for anything more than a pyrrhic victory.

Gerard Pitt practises in all areas of criminal defence with a particular interest in police powers. As an itinerant houseboat dweller himself, Gerard has a particular affinity with those who live life outside conventional bricks and mortar.