Trespassers, Non-Residential Land, and the Police

Trespassers beware

Property Disputes Partner Tom Edwards and Christopher Buckingham, Barrister, St Philips Chambers, relate their experience in respect of trespassers on private, non-residential land and delve into the recently beefed up powers the police have been given to tackle trespassing.

It's a civil matter

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 in 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.

What other options are available to landowners?

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 what else is available to landowners?

There are provisions under criminal law, which show that trespass may very well be more than a civil matter and may provide the landowner with a resolution without having to issue and invest in civil proceedings.

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 they 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.

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 within a set period of time.

The above may sound straightforward, but it is crucial to note that law only confers on the police a discretion to request that trespassers leave.

Widening discretion

Following two recent consultations on unauthorised encampments Section 61 was beefed upped and came into force on 28 June 2022.

In summary this added the following provisions:

• The prohibited period during which the trespassers commit an offence if they re-enter the land having previously left is increased from 3 to 12 months.
• The introduction of the offence for “damage, disruption or distress”

In addition to the above, it adds the following:

• 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.

Therefore, if the Police reasonably suspects that an offence has been committed, they may seize and remove any relevant property that appears to them to belong to the person who is suspected of committing the offence.

If convicted of the above offence, then it may be ordered by the court that any property which was seized and retained is to be forfeited.

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. The guidance gives some indication of what might be considered “significant”. 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

There is no doubt that police powers have been widened. The extent to which these provisions, both amended and new, will be used remains to be seen. Time and resources will tell.

What can we do to help?

If you are a landlord thinking about serving a Section 21 Notice or require any advice on any other property disputes issues please contact Tom Edwards on 01274 386567 or email ku.oc1701695278.fcl@1701695278sdraw1701695278det1701695278 for more details.

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

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