Lawyers launch High Court challenge to anti-trespass law
THE CRIMINALISATION OF TRESPASS
High Court challenge to discriminatory new law
By Marc Willers QC and Ollie Persey of Garden Court Chambers and Chris Johnson of Community Law Partnership (CLP)
In November 2019, the Home Office launched a consultation entitled, ‘Strengthening police powers to tackle unauthorised encampments’. This sought views on ‘broadening the existing categories of criminal trespass’. Following the consultation, on 8 March 2021 the Government stated that it intended to introduce a new criminal offence relating to trespass. The new offence is contained in Part 4 of the Police, Crime, Sentencing and Courts Act (‘the Police Act’), which received Royal Assent on 28 April 2022.
In summary, the Police Act inserts section 60C into the Criminal Justice and Public Order Act 1994. This makes it an offence, punishable with up to three months imprisonment, for someone residing on land with a vehicle to fail to comply with a request to leave the land. The offence applies if a person is residing, or intending to reside, on land without the consent of the occupier of the land, and has, or intends to have, a vehicle (including a caravan) on the land. The residence or intended residence must also have caused or be likely to cause significant disruption, damage, or distress. The request can be made by the occupier, a representative of the occupier or a police constable. If the person fails to leave the land or, having left, re-enters it, he or she can be arrested and his or her vehicle (which could include a caravan used as a home) can be impounded. It is a defence to show ‘reasonable excuse’ for failing to comply with a direction to leave the land.
The new offence, and the other changes to the existing provisions of the 1994 Act, apply to both England and Wales.
The new offence has greatly increased the already existing powers of eviction. Parliament’s Joint Committee on Human Rights (‘JCHR’) raised serious concerns that the proposals are discriminatory and in breach of the UK’s human rights obligations. The JCHR report found that:
“The proposals self-evidently discriminate against Gypsy, Roma and Traveller people, putting at risk their right to practise their culture without being unfairly criminalised in the absence of adequate sites.”
CLP has lodged an application for judicial review in the High Court on behalf of a Romani Gypsy woman and an Irish Traveller woman. Both claimants have no alternative but to resort to unauthorised encampments due to the lack of authorised stopping places. They are challenging the new offence on the grounds that it is unjustifiably discriminatory and vague, in breach of the Human Rights Act 1998. The claim is currently stayed pending resolution of the legal aid position for the two claimants. CLP continues to gather evidence about the discriminatory impact of the new offence on Gypsies and Travellers. If you have been impacted, please phone the CLP Travellers Advice Line on 0121 685 8677 Monday to Friday 9am to 1pm.
See at https://www.gov.uk/government/consultations/strengthening-police-powers-to-tackle-unauthorised-encampments/outcome/government-response-to-the-consultation-strengthening-police-powers-to-tackle-unauthorised-encampments-accessible-version
You can find the Police Act here (see Part 4): https://www.legislation.gov.uk/ukpga/2022/32/contents/enacted
The authors are the lawyers instructed in this case.