Trespassers, Non-Residential Land and the Police

November 4, 2022

Christopher Buckingham and Thomas Edwards consider police powers in respect of trespassers under s 61 of the Criminal Justice and Public Order Act 1994 (as recently amended) and s 60C (as recently inserted by s 83 of the Police, Crime, Sentencing and Courts Act 2022.

Over the last 10 years or more we have dealt with more cases involving trespassers and squatters than we care to remember. The facts are often striking, involving, for example, squatters barricading themselves in a property whilst arming themselves with axes, trespassers tapping into the national grid or running over live railway lines, and one case where urgent action was required due to blocking of parking designated for a well-known London based flower show.

What is clear in our experience is that when land is (wrongly) occupied by trespassers including vehicles, machinery, and caravans– perhaps a field, industrial facility, or railway station car park – the response from the police to the landowner (as relayed to the authors and much to the chagrin of our clients) is invariably the same, “There is nothing we can do; this is a civil matter.” The civil courts assist in these sorts of situations daily – granting injunctions and possession orders against both named defendants and “persons unknown”. But civil proceedings are not always as economical or as speedy as perhaps they ought to be. There are of course certain steps that can be taken without going to court, but these are not always available for a variety of reasons, so are there any other options available to landowners? The purpose of this article is to draw attention to certain provisions of the criminal law, which show that trespass may very well be more than a merely civil matter and should provide the landowner with a resolution without having to issue and invest in civil proceedings.

Power to remove trespassers on land

There is a relatively unknown statutory provision in the form of section 61 of the Criminal Justice and Public Order Act 1994, which gives the police the discretionary power to remove trespassers on land who have the common purpose of residing there for any period.

The senior police officer present at the scene may direct the trespassers to leave the land and to remove any vehicles or other property they have with them if he reasonably believes that:

Two or more people are trespassing on land with the purpose of residing there;
Reasonable steps have been taken by or on behalf of the occupier to ask them to leave;
Any of the trespassers has caused damage, disruption, or distress OR that the trespassers have between them six or more vehicles on the land.

In R (Fuller) v Chief Constable of the Dorset Police [2003] QB 480 it was said that section 61(1) is to be read as impliedly requiring that the trespassers have not complied with the occupier’s request that they leave as a condition of the making of a direction by the police under the section.

A failure to comply with the direction to leave the land as soon as reasonably practicable and without reasonable excuse is an offence. Similarly, it is an offence for a trespasser who has left the land in compliance with a direction to re-enter it as a trespasser within a period of the direction being given. If breached, without reasonable excuse, police will be able to exercise powers of arrest and seizure (as to the latter see section 62(1) and The Police (Retention and Disposal of Vehicles Regulations 1995) SI 1995/723).

That may sound straightforward, but it is crucial to note that section 61 grants a discretion, which may or may not be exercised dependent on policy (and resources). We have experienced first-hand the confusion, delay, and frustration which police inaction on this front causes to clients.

Section 61 has recently been beefed up by section 84 of the Police, Crime, Sentencing and Courts Act 2022 (which came into force on 28 June 2022 and followed two recent consultations on unauthorised encampments).[1] Following amendment:

The prohibited period during which the trespassers commit an offence if they re-enter the land having left is increased from 3 to 12 months;
The introduction of the requirement in s 61(1)(a)(i) for “damage, disruption or distress” (defined in broad terms in s 61(10)), which replaced a rather narrower condition referring to “damage…or threatening, abusive or insulting words or behaviour…”

Residing on land without consent in or with a vehicle

Perhaps more importantly, the Police, Crime, Sentencing and Courts Act 2022 doesn’t stop there. Section 83 of that Act inserts a new section 60C of the Criminal Justice and Public Order Act 1994. It works as follows:

If a person aged 18 or over is residing, or intending to reside, on land without the consent of the occupier;
That person has, or intends to have at least one vehicle with them on the land;
Significant damage or disruption or distress has been caused or is likely to be caused (because of the person’s residence, conduct etc);
The occupier, his representative or a constable has requested the person to leave the land or remove from it property that is in his possession or control;
Then the person commits an office if he fails to comply with the request to leave as soon as reasonably practicable.

Pursuant to section 60D if a constable reasonably suspects that an offence has been committed under section 60C he may seize and remove any relevant property that appears to him to belong to the person who is suspected of committing the offence, to be in his possession or to be under his control. By section 60E, if a court convicts a person of an offence under section 60C, it may order any property which was seized and retained under section 60D to be forfeited.

Section 60F provides that the Secretary of State must issue guidance relating to the exercise of the functions of the police under these provisions, a copy of which can be found online.[2] That guidance gives some indication of what might be considered “significant” under section 60C, two of the seven examples given are below:

Local communities being prevented from accessing or using facilities such as school sports fields, parks, and car parks;
Forcing entry to the land has caused damage to fixtures or fittings.

Conclusions

The extent to which these provisions, both amended and new, will be used remains to be seen. There is no doubt that police powers have been widened. But if that leads to the police having to continually play a cat and mouse game with trespassers within their patch as they move from property to property, will the powers be used on each occasion or cause only the most serious of cases to be acted upon? Time and resources will tell. We suspect that many landowners will continue to need to take action in the civil courts, but it is our view that these provisions deserve to be brought to the attention of lawyers, clients, and the police.

Christopher Buckingham is a Barrister at St Philips Chambers and Thomas Edwards is a Partner at LCF Law.

Disclaimer: This article has been prepared for informational purposes only, is general in its nature and should not be construed and/or relied upon as giving legal advice.