Unauthorised Encampments section 61 - practical considerations
The appointment of an officer to act as 'Travellers Liaison Officer' at OCU level in areas where incursions regularly take place is good practice.
The Act confers powers on the police, not a duty. It is a matter of discretion for the Police whether to exercise their powers or not. Each case must be looked at on its merits with the safety of the community and the potential for disorder or disruption to the life as major guiding factors.
The discovery of an unauthorised encampment site should lead to discussions between the Police, the Local Authority, and the occupier of the land, to determine the action to be taken. The law provides for a range of responses according to the seriousness of the nuisance. It may be appropriate for the landowner to apply for an order for re-possession. In other cases the Local Authority can use its powers under the Criminal Justice and Public Order Act (Section 77) but in circumstances where there are aggravating factors of crime, obstruction of the highway, or disorder, the Police may exercise powers given under Section 61.
Exercise of the power under Section 61 does not require the landowner to have applied for an order for re-possession nor should it be used as a last resort. There are occasions where immediate or prompt exercise of the power will be the most appropriate response. This requires the occupier, or his agent, to have taken reasonable steps to ask the trespassers to leave. The law does not define reasonable steps but Police Officers must be satisfied that action has been taken by the landowner, or his agent, to ensure that trespassers have been made aware of the request to leave. A verbal request accompanied by the serving of a notice to quit is good practice
The senior Police Officer considering the use of Section 61 to deal with trespassers, in an area where such incursions may have become a local issue or a regular problem, will need to be aware of plans that may have been made by the local Community Safety Partnership to tackle the problem under the provisions of the Crime and Disorder Act (1998).
Landowners may find it difficult to understand why the Police will not exercise powers contained within Section 61 immediately and at their request. Care needs to be taken by the officer in charge of the incident to ensure that, if the power is not to be exercised, adequate reasons are communicated to the owner of the land or other interested parties.
When considering the issue of a direction to leave an established site (a site that may have been occupied for some time) the officer in charge should consider whether there has been a sudden escalation of trouble or other aggravating factors. Exercise of the power may result in further trespass nearby and it may be felt that a trespass on one site is less damaging to the community than a trespass on a more sensitive site nearby. A decision to allow a site to remain will need to be discussed with the owner of the land and other interested parties, including the trespassers. The local community should not, however, be expected to tolerate crime and disorder arising from encampments on any such site.
A reason for non-exercise of the power may be a lack of police resources to deal with a large incursion or concerns over the safety of officers. These are real concerns and may properly justify not exercising the power at once. The decision not to exercise the power under Section 61 should be referred to the officer in charge of the OCU for his/her endorsement. This is not a requirement of the legislation but reflects Government concerns that the police should, wherever appropriate, make use of the available enforcement legislation.
Power under Section 61 is not unfettered; it must be exercised reasonably and the standard of reasonableness will vary according to the situation. The use of Section 61 is not restricted by the compulsory need for Local Authorities to consider welfare issues. Where the local authority use their powers under Section 77 they do have a duty to consider welfare implications (he Wealden Case. It was the intention of Parliament to separate the powers granted under Section 61 from those granted under Section 77. Local Authorities have other responsibilities under housing and education legislation as well as child care and social service considerations. These are not Police responsibilities. The duty of the Police is to enforce the criminal law; prevent crime, and maintain order. Case law however, (ex parte - Small 1998) confirms that the police MUST pay due regard to humanitarian issues prior to using Section 61. There should not be a lengthy delay in carrying out enquiries; travellers who have moved onto land only a short time before will not need the same consideration as travellers who have been settled on land for a considerable period of time and who may have children attending local schools.
'Gyypsies' and 'Irish Travellers' are recognised as racial groups for the purposes of public order and anti-discrimination legislation. This means that offences under the Public Order Act 1986 or the Race Relations Act may be committed against them. The standard of behaviour expected from those trespassing should be the same as that expected from the settled community and officers will need to be aware of the responsibilities placed upon them to provide the same standard of service as would be expected to those living in settled communities. This applies to all groups of travellers who should not, for example, be subjected to their vehicles being stopped and searched without good reason or required to produce their documents just because they are recognisably from traveller communities.
It is suggested that a 'direction to leave the land', where practical, should be given both verbally and in writing. Providing uncooperative trespassers or a large gathering with both verbal and individual notices may however, be impossible. Although the issue of a documentary notice is not a statutory requirement it is good practice. When issuing a direction, the use of video evidence gathering facilities should be used to record both the verbal direction and the service of notices.