In the Surrey Heath Neighbourhood Police Communique Issue 66 Inspector Bob Darkens comments on the, successfully resolved, traveller incursion on the Field of Remembrance [FoR] in Windlesham. The Communique provides extensive details on police powers in relation to traveller incursions.
Sadly to prevent further incursions heavy concrete barriers have been placed in front of the entrance to the FoR car park. Yet another inconvenience to local residents, where the car park, and entrance to Lightwater Recreation Ground and the Briars Community Centre in Lightwater are similarly barriered.
Traveller incursion at Windlesham’s Field of Remembrance
Inspector Bob Darkens has added some detail regarding the use of police powers in relation to the recent unauthorised encampment at the Windlesham Field of Remembrance. As an ex-military man, he was very aware of the iconic status of a site such as the Windlesham Field of Remembrance and the place it holds in the community. In addition, the level of feeling in the community was clear to see.
The presence of the travellers in these circumstances denied the public the use of this community asset as well as the emotional impact it caused. He had to balance the rights of the travellers against the rights of the community. The people involved had been removed from other sites in the locality in accordance with relevant legislation and they had made it clear that they would remain until forced to go – a process which can take some time. This was not a situation he was prepared to accept and it was his opinion that the criteria for utilising s61 powers (Criminal Justice and Public Order Act 1994) was reached in these circumstances.
He would like to add that each and every encampment is assessed on its own circumstances and a number of factors do have to be considered.
TRAVELLER INCURSIONS AND THE POLICE
Following the recent incursion by travellers at the Windlesham Field of remembrance, it is opportune for a repeat of the information proved in the summer of 2017 to help the public understand the powers that the police have in such circumstances.
The Equality Act 2010 makes it unlawful to treat someone less favourably because of a range of protected characteristics, including race, nationality or ethnic or national origins. The following of a nomadic lifestyle is lawful, indeed it is a culture that is recognised and protected through legislation. Romany Gypsies and Irish Travellers have been granted protection under the previous Race Relations Acts. The Public Sector Equality Duty applies to the police and places a duty on constabularies to have due regard to the need to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between persons of different racial groups.
There is no legal right to trespass, however trespass is a civil rather than a criminal offence. The co-ordinated use of powers available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.
Trespasses, unauthorised incursions and encampments on both publicly and privately owned land are a problem. Community tensions can result and there is frequently a resultant cost to the public or private purse. Sites of such incidents rarely provide adequate facilities and as such provide poor living conditions and are frequently a substantial concern and inconvenience to the owners and usual users of such land.
It is important to understand that the law confers legal rights on Gypsies and the Travelling Community with Romany Gypsies and Irish Travellers being recognised ethnic groups for the purposes of the Equality Act 2010. Legislation and nationally mandated practise also places responsibilities on Councils with Article 8 of the European Convention on Human Rights underpinning the right to respect for a private and family life. It is necessary to balance the Human Rights of the travellers against the needs of the wider community. As a result, when managing such incidents on Council land, officials are obliged to establish the welfare situation of the encampment and to take appropriate steps before proceeding with any enforcement action. Every encampment and incursion is therefore dealt with on a case by case basis and careful consideration is given to whether enforcement action is justified, necessary and proportionate.
It needs to be emphasised that the act of trespass itself is not a criminal offence – it is a civil one. This means that the police are unable to take immediate enforcement action if trespass occurs or make the Travellers move on if no criminal offence has been committed. Except in the circumstances indicated below, it is the responsibility of the landowner to obtain a ‘direction to leave’ order from a magistrates’ court which can then be served on the trespassers. They will then have a specified period of time to move off before they are committing an offence. In the case of the incursion at the Arena Leisure Centre, the Council applied for a court order and served it successfully but the travellers merely moved to the neighbouring London Road Recreation Ground.
Police powers to deal with trespass
Under Sections 61-62 of the Criminal Justice and Public Order Act 1994, the police have discretionary powers to direct trespassers to leave and remove any property or vehicles they have with them. These can be enacted once the police are satisfied that two or more people are trespassing on the land with the purpose of residing there and that the landowner has taken reasonable steps to ask them to leave. However, under Section 61, the police can then only order trespassers to leave if:
- they have caused damage to land or property
- they have used threatening, abusive or insulting words or behaviour to the landowner, the landowner’s family or an employee or agent of the landowner
- between them they have six or more vehicles on the land
If none of these circumstances apply, the police have no powers to evict and the landowner must pursue possession of the land through the civil courts as indicated above. However, failure to comply with a direction to leave as soon as reasonably practicable is an offence and a trespasser who leaves the land in compliance of a direction commits an offence if they return to the land as a trespasser within three months of the direction being given. In exercising these powers the Police will be mindful of the imperative to act within the framework and spirit of the law. In addition, Section 62 provides a power for the police to seize the vehicles of persons failing to comply with a direction under Section 61.
USE OF POLICE POWERS
The lead role in the management of Unauthorised Encampments will be with Local Authorities. Forces should consider becoming involved in bringing about the prompt and lawful removal of unauthorised encampments, including the use of police powers under Section 61 or 62 of the Criminal Justice & Public Order Act 1994 where:
Local amenities are deprived to communities or significant impact on the environment.
This could include, for example, forming an encampment on any part of a recreation ground, public park, school field, village green, or depriving the public use of car parks. The fact that other sections of the community are being deprived of the amenities must be evident before action is taken.
There is local disruption to the economy.
Local disruption to the economy would include forming an encampment on a shopping centre car park, or in an industrial estate, if it disrupts workers or customers, or agricultural land, if this results in the loss of use of the land for its normal purpose.
There is other significant disruption to the local community or environment.
This might include where other behaviour, which is directly related to those present at an encampment, is so significant that a prompt eviction by police becomes necessary, rather than by other means.
There is a danger to life.
An example of this might be an encampment adjacent to a motorway, where there could be a danger of children or animals straying onto the carriageway.
There is a need to take preventative action.
This might include where a group of trespassers have persistently displayed anti-social behaviour at previous sites and it is reasonably believed that such behaviour will be displayed at this newly established site. This reasoning will take on greater emphasis if the land occupied is privately owned, as the landowner will be responsible for the cleansing and repair of their property.
The mere presence of an encampment without any aggravating factors should not normally create an expectation that police will use eviction powers. This should be communicated to the public, landowners, local authorities, and other agencies. If a decision is made to use police powers to evict then the rationale for the decision should be clearly set out and recorded. As stated above, a suggested eviction rationale record is set out at Appendix C.
In all cases, as stated above, relevant Human Rights processes must be applied to all decisions made i.e. that the elements of S61 are satisfied, and that it is necessary and proportionate to use the powers.
Removal of waste following a traveller incursion
Local authorities are under an obligation to remove fly tipped waste from public land but on private land it is the responsibility of the landowner to remove the waste and dispose of it legally. This can involve engaging private contractors and be expensive. The council can advise what options are available locally but are also obliged in certain circumstances to use powers to require landowners to remove waste.
Measures to avoid unauthorised access
Land owners are responsible for the removal of unauthorised encampments on their land. Being the victim of unauthorised access onto private land can be both a major nuisance as well as a costly experience, particularly in having to clear up any waste that is usually left behind. The site protection measures below will not guarantee unauthorised access, but will make privately owned land less inviting:
Mounding: Mounds and/or ditches make it difficult for a vehicle and trailer/caravan to gain access without risking damage to the vehicles. They can also help in limiting joy-riders vehicles’ being abandoned on land. Mounds are generally formed using rubble/subsoil as a base, with a suitable topsoil finish for either grass seeding/planting.
Gates: A strong, robust gate will help deter access. The gate will need to be able to be secured with a toughened padlock. Metal gates/barriers are more desirable than wooden gates.
Height Barrier: Toughened steel padlocks and ‘boxing’ in the connection will make it more difficult for access to be gained. If this is coupled with a metal field gate it will also help to restrict access for joy-riders etc.
Fencing/Barriers: There are many different types of fencing available. The most robust is steel palisade. Euroguard fencing is also a strong barrier. Wooden close-board fencing generally looks better but is more vulnerable to damage and vandalism. The local Planning Authority should be consulted on this type of fencing before going ahead with construction. A secured height barrier will restrict access to vehicles over 1.8m high and care should always be taken to ensure barriers are secured as intended. Using wooden / metal / concrete posts will deter informal access but will not be sufficient to deter those more intent on gaining access.
How the public can help in reporting traveller incursions
When reporting a traveller incursion, it would help the police to deal with it if, without compromising their own safety, they could identify how the incursion was committed (i.e. did they witness any damage being caused to enable the incursion), record vehicle registration numbers and provide a description of any vehicle/persons who caused the damage.