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Law of Trespass
1.26 pm
Mr. Andrew MacKay (Bracknell): Any reasonable person watching news unfold during the Christmas recess will have been truly shocked at two cases in which farmers had their barns invaded by so-called "revellers" and very little action was taken. It might be recalled that, in the Lincolnshire case, the farmer said that he felt more like a farmer in Zimbabwe than in part of the United Kingdom. In the Essex case, outrageously, when the farmer cut off the electricity to the barn, he was arrested by the police and held in his local police station until 5 o'clock in the morning. My right hon. Friend the Member for Saffron Walden (Sir Alan Haselhurst) is taking that matter up with both the police and Ministers at present.
It might be hoped that those incidents were unusual and isolated, but I regret to report that that is not the case. I want to illustrate what has happened twice in my constituency during the last six months. With your indulgence, Mr. Winterton, I shall read some correspondence that illuminates a serious problem.
The first invasion took place on town council playing fields in Bracknell. I shall read from the experienced and well-regarded town clerk Barbara Rumbold's letter to our chief constable, Sir Charles Pollard, dated 27 July. She says:
- "On the evening of 10th July gypsies with six caravans moved onto the Wildridings Playing Field, one of our many sites for football pitches in the town. Notice to remove themselves from the site was issued at 9.30 am on the 11th. This group was joined by a further eleven caravans on Saturday the 14th. During this time several requests were made to Bracknell Police to remove them from the site either under Section 61 of the Criminal Justice and Public Order Act 1994 or under the Byelaws for the site granted by the Secretary of State in 1983...Whilst occupying this land they chased my own staff off the playing field and made it difficult for any local people to enjoy...their own open space.
As the local police were not prepared to move them, quoting their reluctance in view of the Human Rights Act, we instructed Common Law Bailiffs and the gypsies moved off the site at 7 pm on Tuesday 17th. They moved only across the dual-carriageway to our Ringmead Playing Fields—also football fields. I rang the Bracknell Station when I learnt of their apparent destination and was informed that Officers had been despatched as the caravans were blocking an adjacent bus lane. Your Officers then allowed them to occupy the playing field that is of sufficient size only for one football pitch that has suffered considerable damage.
Again more phone calls to Bracknell station failed to result in any action to remove what soon became a much larger camp site, eventually growing to thirty-three caravans when they were evicted by Bailiffs at 8pm on Sunday the 22nd. The Ringmead encampment became particularly offensive as it was so close to local residents."
- "The whole site was badly contaminated when vacated, the gypsies having defecated indiscriminately anywhere on the site and having left a particularly foul mess all along the shrubs adjacent to the fence of one particular house.
My staff have cleared this disgusting mess consisting of both human and canine excrement, dirty nappies, toilet paper, clothing used as toilet paper, female sanitary goods, bags of vomit, general household waste, heaps of concrete, soil and other building
- materials from the site. It would appear from what we collected that washing had been stolen and goods taken from shops as some of the clothing was still on hangers.
My Council and the residents of both Wildridings and Great Hollands feel that they should have expected better service and co-operation from the local police. Nothing was done to ensure that the local community could peacefully enjoy their own playing fields for which residents pay their Council Tax.
We have Byelaws in Bracknell...that are routinely enforced against the local residents to prevent the fouling of land by dogs yet the gypsies were able to foul the land without penalty.
If local residents had indecently exposed themselves on open ground as the gypsies did they could very well have been arrested.
Local motorists and pedestrians were put at risk by the manner in which the gypsies drove on and off the site and on local roads with little regard for the safety of others.
Harassment took place in local shops and neighbourhood centres.
Whilst we appreciate that some form of dialogue has to be kept open with the gypsies, it was particularly galling for my staff to see the friendly way in which the gypsies were approached by your Officers.
As a minor local authority, this Council has no responsibility whatsoever for gypsies but will incur considerable costs for the two actions so far undertaken for us by the Bailiffs, to say nothing of the clean up costs. The gypsies are still in this area and have been observed checking out more of our football grounds. To the best of my knowledge since January the Bracknell Forest Borough Council have moved gypsies on some twenty-two times. The cost to the local Council Tax Payers is unwarranted and unnecessary.
As you very well know, there is little point in erecting fences, gates, height restriction barriers etc., as these are no deterrent to gypsies who are determined to enter land. They simply remove them or cut the padlocks on gates required for our own access and such criminal damage is ignored. Bracknell is obviously now known as a soft touch where the Police will take no action. You have the powers to remove them but will not use them. It is much easier to keep telling residents that it is down to the local authority to remove them.
My Council, on behalf of the residents of Bracknell is seeking your assurances that you will issue instructions to local Officers to ensure that gypsies will be promptly removed in future using your powers under the Criminal Justice and Public Order Act 1994. Also that whenever possible they will be deterred from entering local parks and playing fields.
Local residents would...prefer that the Police went back to being a 'Force' and enforced the law as there is little evidence of 'Service' being offered to the local community."
- "Our policy is based on relevant legislation and the Code of Practice issued by the Home Office in conjunction with the Department of Transport and the Regions. I am sure that you will be aware that the Code of Practice quite clearly sets out considerations that should be taken by all relevant Authorities when dealing with traveller encampments. Our approach to traveller encampments is aimed at being lawful, proportionate and within the guidelines set out in the Codes of Practice. Your letter suggests that we were slow to act"—
in this particular case. He continued:
- "This is not the case. Our officers attended these encampments as soon as they were established and made an assessment as to the appropriate course of action. At two of the three encampments,
- our judgement was that it was not appropriate to invoke our powers under Section 61 of the Crime and Disorder Act. This is of course a subjective decision, but it is made in accordance with our policy guidelines and it takes into account all relevant factors, including the codes of practice. Having made such a decision we do not walk away from the problem. Our policy is to continue to monitor traveller encampments, to provide high visibility reassurance patrols, to deal with incidents".
That is hardly reassuring to my constituents.
Stephen Evans then makes the following outrageous statement:
- "Travellers are an extremely emotive issue and a decision by us not to invoke our powers under Section 61 is rarely greeted favourably by local people. However I am sure you would agree that it would be cavalier to misuse this power in inappropriate circumstances or to act outside of recognised good practice. If circumstances are such that in our judgement Section 61 should be used then we will not hesitate to use it. However we will be equally robust in not exercising this power if the circumstances are not appropriate. You mention in your letter the issue of Human Rights, which is one of the factors that we will consider. My interpretation of the Human Rights Act is that it applies equally to all groups and sections of society and it is within those parameters that we must operate."
The Minister will not be surprised to learn that my constituents, the town clerk and others were deeply angered by that totally inadequate response.
Just one month ago, a further incident occurred on public property that also cost council tax payers a lot of money. In his letter to me of 14 December, Mr. Bob Lewin, the highly respected principal and chief executive of Bracknell and Wokingham college of further education, said:
- "I am reluctant to bring you a problem but I hope you will understand my concerns in this case.
At about 6.00pm on Thursday 6 March a large group of travellers was required to leave the town centre car park on Bull Lane, Bracknell. They drove out of the car park, straight into our student car park off Bull Lane which serves our Wick Hill Centre. The attached report prepared by our site manager gives some details."
He proceeded to outline the following concerns:
- "This is the second time this year we have had travellers on this site. They are no respecters of property or people's sensitivities (e.g. students aged 11-90 use the footpath from Bull Lane to the Garth Hill School and to the College. The travellers' vehicles were parked across the path on both occasions. You can imagine the threat to their security this causes would-be users of the footpath).
Why on earth should we have to put up with this? Being a public sector organisation we cannot of course resort to the methods private land owners use to rid themselves of unwelcome visitors.
The police took no action to stop the travellers entering our site. They were there; their comment was 'they have to have hard standing'. I happened to be at the Wick Hill site that evening and witnessed the chaotic situation as we helped our students move their cars from the student car park to the much smaller staff car park off Sandy Lane. No student would have considered it safe to leave their car in the car park—which in the event was completely filled by the travellers' cars, vans, caravans and lorries. See also my site manager's comments. The impression he gained was that the police wanted the public car park cleared for the Saturday market and Christmas shopping and the College was somehow expected to cope with the travellers.
As the enclosed report shows, the travellers caused damage and left an appalling mess. The College has to meet the cost of clearing this up and replacing damaged property.
We lose students of course on these occasions as they are scared away by the travellers.
You should know that we cannot use permanent barriers on the site (which in any case I suspect the travellers would destroy): we allow parents of the Sandy Lane Primary School to use the area
- as a drop off point when driving their children to school and we have thousands of students who are eligible each year to use the car park; the issuing of tickets (or any other control system) would be impractical therefore. The entrance to the car park does have a gate. We could not close and lock this on Thursday as this would have trapped our students and their cars. We will be installing a height barrier. After our last invasion we had to erect bollards around the site as the travellers broke through a hedge to gain access. This all costs us money, of which we do not have enough."
- "I asked if he"—
- "could stop the rest of the travellers who were still on Albert Road car park, but I didn't get any support and he seemed to be wanting them all on our site rather than splitting them up, which seems to the College quite bewildering.
I explained we had parents bringing in children during the day to our nursery and Sandy Lane Infant and Junior school, and naturally our own students who would feel threatened by the situation, to which he offered police officers to monitor the situation the next morning.
While we were talking all of our students came down...and removed their cars... The Bracknell Forest Borough Council officers seemed to be more supportive than the Police and as Sites Manager I was quite perplexed by the Police and their lack of support in the situation.
Our staff felt threatened on the Friday and naturally I had to keep going to the site on a regular basis especially during Saturday and Sunday... I arrived at Wick Hill on Sunday...to find the site empty but in a disgusting state, rubbish strewn all over the site, rubbish bags, boxes, gas bottles, rubble and children's toys some usable, some broken. I checked the nursery area and found the hut/storage unit had been broken into over the weekend, which explained the toys all over the site. The grass area had also been used as motorbike run and was cut up and damaged.
The College will have to bear the costs for extra staffing hours regarding security, cleaning and two skips (£250) to remove rubbish. I had to spend late Sunday pm cleaning the car park to make it usable for Monday am. Assistant site managers have also had to be used to help clear up the mess.
We also had Priestwood Families"—
Priestwood is the neighbouring council estate to the car park—
- "asking us why the travellers were there and that they felt intimated by their presence."
- "Our local police commanders often feel caught between a rock and a hard place on this issue. Although the police have a power under section 61...to order travellers to quit land, they have no power to direct them where to go when they do quit—they can simply drive down the road onto somewhere else. Nor do they have the power to stop somebody entering onto land in the first place—I myself have stood, without police powers, watching vehicles drive past me onto a recreation ground.
The law and the guidance then require them to balance the human rights of the travellers with the occupier of the land. Because, temporarily at least, the land represents the home of the travellers as soon as they have arrived on it, any eviction of them represents potentially quite a serious infringement of their human rights."
Not surprisingly, the excellent Mr. Bob Lewin, principal of the college, was not impressed with the deputy chief constable's inadequate response. In a letter that I received today, he says:
- "Whilst I suppose the human rights of College staff were not infringed when the travellers moved onto our car park, our ability to go about our lawful business most certainly was curtailed! I believe that in Scotland, the Police or the local authority can impound sound systems if they are used in such a way as to annoy neighbours. Is there a basis here for a way of dealing with trespassers—'if you don't move on, we'll impound your lorry'?... As you may be aware, a group of travellers moved onto the borough's car park off Bull Lane last week. My caretakers maintained a twelve hour guard on the entrance to our Bull Lane car park for three weekdays and carried out additional surveillance at the weekend until the travellers had moved on —to ensure they did not move into our car park at times when we could not have the gates locked."
I return to Assistant Chief Constable Steve Love's letter of 3 January, in which he states:
- "There are a number of things which could be done at your own level without which we are unlikely to make much more progress. These include"—
I should be interested in the Minister's comments on these suggestions—
- "a legal power, when the police or a local authority directs travellers to leave land, to also direct that they will not return, that nobody else will enter that land, for a period of, say, 12 months, and a minimum distance that they must go having left that land."
His second point is that he needs
- "a positive statement that would stand up in law to the effect that there will be a presumption that the human rights of the occupier or owner of land will outweigh the human rights of someone who parks a caravan on it and claims occupation."
Thirdly—I appreciate that this goes beyond the Minister's remit, but I sympathise with the point—he says that he needs
- "direction to the Inland Revenue to really take a grip on the 'cash in hand—no overheads' economy, which underpins a lot of traveller activity."
I shall be fascinated to hear what the Minister has to say. I appreciate that most of this will be new to her, but as she does not have long to wind up I would also appreciate a more detailed written response from her or the Home Secretary, because it is vital that this matter is tackled once and for all.
1.48 pm
The Parliamentary Under-Secretary of State for the Home Department (Angela Eagle) : I am grateful to the right hon. Member for Bracknell (Mr. MacKay) for raising the issue of trespass with particular reference to the difficulties caused by unauthorised camping. Unauthorised camping is a serious matter, and in many areas it is a challenge to balance the problems that the right hon. Gentleman has graphically described.
It would be a good idea if I began by confirming that travellers are part of our society, and they should be accorded the same rights and dignities as others: they have equal human rights to the settled community. However, human rights also extend to the settled community, and travellers' behaviour and the expectations of that behaviour should therefore be the same for those in the travelling community and the settled community. Anyone who thinks that that is not the case is profoundly wrong. The minority status of travellers and gypsies should not allow them to indulge in crime or antisocial behaviour; nor should it excuse that behaviour. The law should be enforced equally on them.
The right hon. Gentleman might be interested in a recent case in the High Court in which section 61 of the Criminal Justice and Public Order Act 1994—the part that encompasses police powers—was challenged and found not incompatible with the Human Rights Act 1998. I hope that that is another reassurance that he will take away with him. Each operation by the police is subject to challenge on the same grounds, so the police must bear the Human Rights Act in mind. However, within the context of what I have just said—that all people's rights are equal in our society—if people behave in an antisocial or criminal way, or in some of the ways that the right hon. Gentleman outlined, the full force of the law can and should be brought to bear.
A variety of legislation is in place to tackle the issue of unauthorised camping. Section 61 of the 1994 Act allows a
- "police officer present at the scene"
of an unauthorised camp to direct people to leave if he or she
- "reasonably believes that two or more persons are trespassing on land...with the common purpose of residing there"
and reasonable attempts by the landowner to get them to move have been unsuccessful. There must also have been some
- "damage to the land or to property",
and the right hon. Gentleman clearly outlined some of that. The travellers must have been "abusive" or "threatening" towards the landowner or agent trying to get them to move, or have brought "six or more vehicles" on to the land.
Once those conditions are fulfilled, a direction can be given to the travellers to leave the land and remove their property from it. When evicted from a place under
section 61 of the 1994 Act, travellers cannot return to that place within three months. If given a direction to leave, the refusal to do so carries the power of arrest.That is a discretionary power, and I suspect that that is the nub of the matter. How that power is used operationally is a matter for the chief constable and the local police commander. The legislation does not refer to land forming part of a highway—–another loophole, which the right hon. Gentleman did not mention, but which has become obvious to people trying to use the powers.
If the police have any knowledge of any large-scale incursion into an area, they can apply to a district council for an order prohibiting trespassory assemblies for a specified period, under section 14A of the Public Order Act 1986. Once such an application is received, the council may with the Home Secretary's consent make an order banning such assemblies. It is then an offence to assemble in breach of that order. The offence also carries a power of arrest. The police may direct people away from travelling towards such a gathering if an order is in place. That is a more preventive power that exists under current legislation.
Local authorities also have powers, under section 77 of the Criminal Justice and Public Order Act 1994, that enable them to direct any unauthorised campers to leave land where they are camped without consent. It is an offence not to leave as soon as is reasonably practical thereafter.
We have noticed in the operation of the 1994 Act that there is not always sufficient co-ordination between local police and local authorities over whether section 61 or section 77 is appropriate. The legislation works best where there is a proactive association and on-going co-operation between the local authority and police to try to deal with those issues and decide which of the two sections should be used. In the worst examples, the local authority expects the police to use section 61 and the police want the local authority to use section 77, so not a lot of progress is made.
The right hon. Gentleman referred to the good practice guidance, "Managing Unauthorised Camping", which featured in the letter from the chief constable that he read. It suggests more proactive co-operation between local agencies, not just the enforcing agencies, to ensure an appropriate response when incursions occur and cause nuisance, criminal damage and other serious disruption. Magistrates courts have powers under section 77 of the 1994 Act to order eviction, so there must also be a good and co-operative relationship with the courts to enable fast action to be taken. Part of the key to dealing with the matter appropriately and quickly when an encampment is causing problems is to persuade those organisations to work together instead of one expecting the other to take action. The good practice guide suggests that.
A landowner may take certain measures for the recovery of land under the civil procedures rule. Sections 1 to 5 of the Public Order Act 1986 and common law give the police powers to deal with a variety of other antisocial behaviour, such as public nuisance and breach of the peace. Again, creative and proactive action has often been proved to work when an unauthorised encampment exhibits such behaviour.
The legislation is discretionary and it is not for me as the Minister to interfere in operational decisions by the police and local authorities. However, the Government have made it clear—not least in asking the Association of Chief Police Officers to revise its guidelines on how to work with the legislation—that police powers can be used at an early stage if necessary. If the right hon. Gentleman looks at the way in which the legislation is framed, he will see that it allows early intervention to prevent large-scale incursion, especially if there is evidence that it is being organised.
I suggest gently that the legislation could be used more proactively and imaginatively than in the past to have a preventive effect. I am happy to write to the right hon. Gentleman about the detailed points, particularly on strengthening the law, but I am not giving a commitment that it will be the Home Office's top priority and he would not expect me to do so.
New work is being done between the Home Office and the Department for Transport, Local Government and the Regions to update the guide in the light of experience. Human Rights Act concerns exist, but I assure the right hon. Gentleman that if people are treated equally and have their human rights accorded to them, the police are not powerless to take action when criminal damage is done, there is breach of the peace and other laws are broken. I expect that to be taken into account appropriately by local forces. Laws exist that allow a proactive and sometimes preventive approach to the issue, but experience shows that they are more likely to be successful if there is open co-operation between local agencies that allows the law to be used to its maximum effect.
- Adjourned accordingly at one minute to Two o'clock.
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