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Police, Crime, Sentencing And Courts Act 2022

Contents

Part 4: Unauthorised encampments

Section 83: Offence relating to residing on land without consent in or with a vehicle

  1. Section 83 inserts new sections 60C to 60E into the 1994 Act. New section 60C introduces a criminal offence of residing or intending to reside on land without consent in or with a vehicle. An offence is committed if a person aged 18 or over ("P") is residing or is intending to reside on land without the consent of an occupier of the land and they have or intend to have at least one vehicle with them on the land, one or more of the conditions mentioned in subsection (4) is satisfied; and P, without reasonable excuse, fails to comply as soon as reasonably practicable with a request made by an occupier of the land, a representative of an occupier, or a constable, to leave the land and remove from the land property which is in P’s possession or under P’s control. P also commits an offence if, without reasonable excuse, they enter or re-enter the land within 12 months of a request to leave with an intention of residing there without the consent of the occupier and they have or intend to have at least one vehicle with them on the land.
  2. The person must be residing in or intending to reside in, or with, a vehicle. This means that the provisions do not capture ramblers or prevent those who wish to enjoy the countryside from doing so.
  3. The conditions in the new section 60C(2) are: (a) in a case where P is residing on the land, that significant damage or significant disruption has been caused or is likely to be caused as a result of P’s residence; (b) 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; or (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.
  4. An offence is therefore committed, and powers of arrest available, (provided the other conditions above are met) where a person has first been asked to leave by an occupier, their representative or a constable (so it is made clear to the person that they do not have permission to be on that land). This means there is no requirement for a constable to first issue a direction for the person to leave before an arrest can be made (senior officers have powers to direct trespassers away from land in section 61 of the 1994 Act before an arrest can be made and may only arrest if the person, without reasonable excuse, fails to leave the land as soon as reasonably practicable following a request to do so or they, having left, enter the land again as a trespasser within a specified period).
  5. The offence applies where significant damage, disruption or distress has been caused or is likely to be caused and, without reasonable excuse, the person does not leave when asked to do so, removing their property. The qualifying condition of ‘significant’ means that a higher threshold must be met than that under section 61 of the 1994 Act for tackling trespassers on land, where a power to direct can be caught by P causing a lower level of harm (to note, as below, these provisions amend section 61 to broaden the types of harm that can be caught by the power to direct). This qualification in the new offence helps to ensure that the offence and powers of arrest, seizure and forfeiture (see below) are proportionate.
  6. New section 60C(6) provides a reasonable excuse defence, allowing a person to show that they had a reasonable excuse for failing to comply as soon as reasonably practicable with a request from an occupier, their representative or a constable or, after receiving such a request, for entering or re-entering the land with the intention of residing there without the consent of the occupier of the land. The burden of proof is placed on P as the facts as to whether they have a reasonable excuse will be within their knowledge. The prosecution will still need to have proved all the elements of the offence to the criminal standard of proof, including the significant damage, disruption or distress and the intention to reside on the land without the consent of the occupier in or with a vehicle. Although not explicitly set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities.
  7. New section 60C(7) includes provision relating to the application of the offence under section 60C in relation to common land. New section 60C(7)(a) provides that, in relation to common land to which the public has access and where the occupier of the land cannot be identified, a local authority is to be treated as the "occupier". This means that, in these cases, a person must not reside or intend to reside on the land without the consent of the local authority and a local authority can request that a person leaves the land and removes their property. Where an occupier can be identified, however, this provision ensures that the consent of the local authority will be irrelevant to the offence.
  8. New section 60C(7)(b) also enables a commoner to request that a person leaves the land and removes their property where a person’s residence or intended residence without the consent of the occupier is or would be an infringement of the commoner’s rights and: a)the occupier is aware of the person’s residence or intended residence and had an opportunity to consent to it; or b) if that does not apply, any one or more of the commoners took reasonable steps to try to inform the occupier of the person’s residence or intended residence and provide an opportunity to consent to it. This provides a commoner with powers to act (by way of request to leave) where their rights are infringed but helps to ensure that an occupier is afforded the opportunity to consent before they do so. The conditions in new section 60C(1) ensure that an offence is not committed where an occupier consents to the person’s residence or intended residence.
  9. New section 60C(8) sets out non-exhaustive definitions for "damage" and "disruption" (for distress, an exhaustive definition of "offensive conduct" is provided) to capture the wide variety of impacts caused by persons residing on land in or with vehicles without consent. Damage includes physical damage, being "damage to the land" and non-physical damage, being "damage to the environment" which includes excessive noise, smells, litter or deposits of waste. Disruption includes a person’s ability to access any facilities located on the land or otherwise make lawful use of the land or a supply of water, energy or fuel.
  10. The maximum penalty for the offence is three months’ imprisonment, a level 4 fine (currently £2,500), or both (new section 60C(5).
  11. Where a constable reasonably suspects that an offence has been committed under new section 60C, new section 60D confers on a constable powers to seize and remove any relevant property (defined in new section 60D(2)) that appears to belong to the person who the constable suspects has committed the offence, is in their possession or under their control. This property includes a vehicle, if the constable suspects the person had this with them or intended to have this with them in commission of an offence under new section 60C.
  12. Property seized under new section 60D may be retained by the chief officer of the police force for the area in which the property was seized for up to three months from the date of seizure or, if criminal proceedings are commenced, until the conclusion of those proceedings. New section 60D(5) ensures that a chief officer of police ceases to be entitled to retain the property if written notice is provided to P that they are not to be prosecuted for an offence under new section 60C.
  13. New section 60D(8) ensures that property must be returned by the chief officer of police to the person believed to be the owner, subject to any order of forfeiture under new section 60E, where the chief officer of police ceases to be entitled to retain this.
  14. New section 60D(10) to (11) provide that the seized property must be returned to a person if a chief officer of police is satisfied that it belongs to them at that point and belonged to them at the time of the suspected offence but not if the chief officer reasonably believes a vehicle was, with the person’s consent, in P’s possession or control at the time of the suspected offence.
  15. Under new section 60E seized property can be forfeited and dealt with in a manner specified by order of the court which convicts P of an offence under new section 60C.
  16. Before making an order for forfeiture of the property the court must permit anyone who claims to be the owner or to have an interest in it to make representations and must consider the property’s value and the likely consequences of forfeiture.

Section 84: Amendments to existing powers

  1. Subsection (3) amends section 61(1)(a) (power to remove trespassers on land) of the 1994 Act, insofar as it applies to England and Wales, to broaden the types of harm caught by the power of a senior officer to direct trespassers with a common purpose of residing on land to leave the land and remove their property. These now comprise damage, disruption or distress and, unlike for the new offence, these do not need to be "significant" to be caught by the power.
  2. Under new section 61(10) (as inserted by subsection (7)), "damage" and "disruption" are afforded the same definitions as in new section 60C; damage, for instance, includes damage to the environment.
  3. In line with the existing provision under section 61, a senior officer may direct all trespassers with a common purpose of residing on the land, where he reasonably believes any of them has caused the damage, disruption or distress and reasonable steps have been taken by or on behalf of the occupier to ask them to leave (there is no requirement to reasonably believe the damage, disruption or distress was caused by one particular trespasser).
  4. Subsections (4) and (5) amend section 61(4) of the 1994 Act to provide that a person issued with a direction to leave by a senior officer in England and Wales under section 61(1) commits an offence if they, without reasonable excuse, enter the land again as a trespasser within twelve months of the direction. This extends the period of time (from three months) during which the trespasser must not return, strengthening the enforcement action available where a direction is issued.
  5. Subsection (6) amends section 61(9) to enable the police to direct trespassers on land that forms part of a highway in England and Wales.
  6. Subsection (8) amends section 62(1)(b) of the 1994 Act (powers to seize property related to an offence under section 61) to enable the vehicle of a person to be seized if they, without reasonable excuse, enter land again as a trespasser within twelve months of being issued with a direction under section 61(1).
  7. This brings the seizure power in line with the amended period of prohibited return (above) under section 61.
  8. Subsection (9) amends section 62B(2) of the 1994 Act (failure to comply with direction under section 62A: offences) to provide that a person commits an offence where they enter any land in the area of the relevant local authority as a trespasser with an intention of residing there within 12 months of being issued with a direction to leave under section 62. Subsection (10) makes equivalent amendment in relation to the power of seizure for an offence committed under section 62B.
  9. Subsection (11) amends section 68(5) of the 1994 Act to ensure that the definition of land in that provision remains unamended by these changes, as this section falls outside the scope of this area (but previously referred to the definition of land in section 61).
  10. Subsection (12) provides that these changes do not apply to a person issued with a direction before the coming into force of these amendments.

Section 85: Guidance on exercise of police powers in respect of trespassers on land etc

  1. This section inserts new section 62F into the 1994 Act which confers a duty on the Secretary of State to issue guidance relating to the exercise by police officers and constables in England and Wales of their functions under sections 60C to 62E of the 1994 Act and under the Regulations made under section 67 relating to vehicles seized under section 62(1) or section 62C(3) (see the Police (Retention and Disposal of Vehicles) Regulations 1995, SI 1995/723).
  2. This will support police in discharging their functions to take enforcement action against unauthorised encampments.
  3. The Secretary of State may from time to time revise the guidance issued under new section 62F(1). Police officers and constables in England and Wales must have regard to the guidance issued under this Section when exercising any of their functions under sections 60 to 62E of the 1994 Act and under the Regulations made under section 67. The Secretary of State must arrange for the guidance and any revised guidance issued under this section to be published in such manner as the Secretary of State considers appropriate (new section 62F(5)). The Secretary of State must lay before Parliament a copy of any guidance or revised guidance published under new section 62F(5) (new section 62F(6)).

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