Legally correct Nov 2010
There a number of different methods of evictions from unauthorised encampments and this can be dependent on whose land the encampment is on. The eviction may involve the police, the local council or a private landowner.
Whatever type of eviction you face it is important to act quickly as there may be a defence to the proceedings. Either ring FFT on 01273 234777 or the Travellers Advice Team on 0845 1202980.
Different forms of eviction are listed below but it is also important to refer to some of the Government guidance on evictions from unauthorised encampments.
Department of the Environment (DoE) Circular 18/94.
This Circular makes it clear that, whilst it is a matter for local discretion to decide whether it is appropriate to evict an encampment, the Secretary of State believes that local authorities should consider using their powers to do so wherever Gypsies and Travellers are causing a level of nuisance which cannot be effectively controlled.
The Circular also makes it plain that it would usually be legitimate for a local authority to exercise its powers whenever Gypsies and Travellers who are camped unlawfully refuse to move onto an authorised local authority site where there are vacancies. However, where there are no such sites and the authority reaches the view that an unauthorised encampment is not causing a level of nuisance which cannot be effectively controlled, the Circular states that the authority should consider providing basic services, such as toilets, a refuse skip and a supply of drinking water (1).
The Circular then goes on to outline how local authorities should exercise their powers, making it clear that they should be used in a humane and compassionate way, taking account of the rights and needs of the Gypsies and Travellers concerned, the owners of the land in question and the wider community whose lives may be affected by the situation.
In the Atkinson (2) case, the judge made it clear that local authorities ought to comply with the guidance in Circular 18/94 (3) before deciding whether or not to evict Gypsies and Travellers from an unauthorised site.
Guidance on Managing Unauthorised Camping
In 1998 the government produced guidance entitled ‘Managing Unauthorised Camping: A Good Practice Guide’ (produced by the Department of the Environment, Transport and the Regions (DETR) and the Home Office (HO)). (4) This has now been replaced by ‘Guidance on Managing Unauthorised Camping’ (published 2004, hereafter ‘the Guidance’) (5). - http://www.communities.gov.uk/documents/housing/rtf/157185.rtf
Following the Atkinson case, it was clear that the process of information gathering and consideration applied to local authorities when considering potential eviction action under section 77 of the 1994 Criminal Justice and Public Order Act (6). However, the question then arose as to whether other methods of eviction using civil procedures in the county court or high court (7), byelaws, highways legislation, planning enforcement powers or even common law powers of eviction were also subject to the principles of Circular 18/94? From late 1995 to late 1998 there followed a series of conflicting and confusing high court decisions, all attempting to answer this question (8).
The confusion was resolved by the Good Practice Guide (9) (and has been maintained by the Guidance) – local authorities should make welfare enquiries and take into account considerations of common humanity regardless of the eviction process being deployed.
The Guidance calls on local authorities, the police and other relevant agencies and bodies to have written policies on the issue of unauthorised encampments. Some quotes from the Guidance follow:
‘ 5.4. Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampment will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses.
5.5 . Identification of possible ‘acceptable’ sites could assist local authorities and the police in the management of unauthorised encampments in circumstances where there are no available pitches on authorised sites. If the unauthorised campers refuse to move from an unacceptable location, eviction processes (including appropriate welfare enquiries) should be commenced.
5.7. Local authorities may have obligations to unauthorised campers under other legislation (mainly regarding children, homelessness and education). Authorities should liaise with other local authorities; health and welfare services who might have responsibilities towards the families of unauthorised campers. Some form of effective welfare enquiry is necessary to identify whether needs exist which might trigger these duties or necessitate the involvement of other sectors, including the voluntary sector, to help resolve issues. The police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties but must still, as public servants, show common humanity to those they meet.
5.8. The Human Rights Act (HRA) applies to all public authorities including local authorities (including town and parish councils), police, public bodies and the courts. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The human rights of members of the settled community are also material if any authority fails to curb nuisance from an encampment.
5.9. Case law is still developing with regard to the sorts of welfare enquiries, which the courts consider necessary to properly taken decisions in relation to actions against unauthorised encampments. Cases are testing the requirements under different powers
… Very generally, court decisions to date suggest:
- All public authorities need to be able to demonstrate that they have taken into consideration any welfare needs of unauthorised campers prior to making a decision to evict.
- The courts recognise that the police and other public bodies have different resources and welfare duties from local authorities. Generally the extent and detail of appropriate enquiries is less for police and non-local authority ‘public authorities’.
- In the case of local authorities, the onus of making welfare enquiries appears to be greater when using Criminal Justice and Public Order Act 1994 s77, where the use of the section can result in criminal sanctions, than when using landowners’ civil powers against trespass. Local authorities should, however, make thorough welfare enquiries whatever powers they intend to use [authors’ emphasis]
5.10. Because local authorities have appropriate skills and resources to enable them to make (or to co-ordinate) welfare enquiries, it is considered good practice for local authorities to respond positively to requests for assistance in making enquiries from the police or other public bodies.’
The Guidance gives some specific examples of welfare needs to be considered (10):
‘ Advanced pregnancy: a period shortly before and after birth in normal circumstances; longer on medical advice if there are complications.
Ill health: indicators might include a hospital appointment booked; in-patient treatment of a close family member; period during which a condition can be diagnosed, stabilised and a course of treatment started.
Educational needs: children in school if within 4 weeks of the end of term or if access to special education has been gained.’
Even if there are not the most pressing welfare concerns, any group of Gypsies or Travellers will have a need for some consideration due to the lack of suitable sites and due to the lack of any duty to provide sites at this time. Though the 2000 amendment of the Good Practice Guide removed any trace of the word ‘toleration’ (11), if there is no significant nuisance or disruption caused then toleration may be required.
Types of eviction:
Police evictions – Section 61 and Section 62a of the Criminal Justice and Public Order Act 1994 (CJPOA)
Section 61 evictions
Section 61 of the 1994 Act provides the police with powers to remove Gypsies and Travellers where the landowner or occupier has taken reasonable steps to ask the encampments to leave and where one of three criteria are satisfied. Failure to obey such a direction or returning to the land in question within three months is not only an offence but can result in arrest and impoundment of vehicles (i.e. Gypsies’ and Travellers’ homes), even before a magistrates’ court order has been obtained.
Section 61 states:
‘(1) If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and -
(a) that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or
(b) that those persons have between them six or more vehicles on the land,
he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.’
Section 62A evictions
Section 62A of the 1994 Act also provides the police with powers to remove Gypsies and Travellers from land. However, in this case the police must have a suitable pitch to direct you to i.e. an authorised stopping place – normally a local authority site or a piece of land where encampments are ‘tolerated’, which should have facilities such as water, sanitation and refuse collection, in order to be ‘suitable’.
Section 62A states:
‘ (1) If the senior police officer present at a scene reasonably believes that the
conditions in subsection (2) are satisfied in relation to a person and land, he may direct the person:
(a) to leave the land;
(b) to remove any vehicle and other property he has with him on the land.
(2) The conditions are -
(a) that the person and one or more others (‘the trespassers’) are trespassing on land;
(b) that the trespassers have between them at least one vehicle on the land;
(c) that the trespassers are present on the land with the common purpose of residing there for any period;
(d) if it appears to the officer that the person has one or more caravans in his possession or under his control on the land, that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans;
(e) that the occupier of the land or a person acting on his behalf has asked the police to remove the trespassers from the land.
(3) A direction under subsection (1) may be communicated to the person to whom it applies by any constable at the scene.
(4) Subsection (5) applies if -
(a) a police officer proposes to give a direction under subsection (1) in relation to a person and land, and
(b) it appears to him that the person has one or more caravans in his possession or under his control on the land.
(5) The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority’s area.’
It is possible that there is a defence against a S61 and S62A. It is a defence to show: you were not trespassing (is there an agreement with the landowner?), or you had a reasonable excuse for failing to leave the land (for example you were in hospital). A S62A defence could, in addition to the above, be that there is a reasonable excuse for entering the land in the area of the local authority as a trespasser with the intention of residing there, or if you are under 18 years of age. Any unlawful use of either sections 61 or 62A may be challenged by way of judicial review (public law challenge) and could include an application for an injunction (e.g. to prevent the three month ban being put into effect).
If there is no defence to a S61 or S62A then not following the direction to leave (not leaving the land or returning within 3 months) can mean imprisonment for a term not exceeding 3 months or a fine or both. The police may also seize and remove any vehicles i.e homes.
In November 2009 the Association of Chief Police Officers (ACPO) produced ‘Guidance on Unauthorised Encampments’, explaining when and how the police should be using S61 and S62A powers. This states that:
‘The decision to use police powers remains at the discretion of the senior police officer. His/her decision, however, should be made in accordance with this guidance’
‘It is essential that the police response takes account of the issues of behaviour, whether criminal, anti-social or nuisance, in combination with the impact on the landowner and settled community rather than simply because encampments are present at a specific location. (S61&S62a) will be used where behaviour or conduct is considered to be inappropriate, or where the impact of an encampment on others is deemed unacceptable.’
The guidance says that Local Authorities have the lead role in managing unauthorised encampments but the police can use their powers to evict if:
i) Local amenities are deprived to communities or significant impact on the environment.
ii) There is local disruption to the economy.
iii) There is other significant disruption to the local community or environment.
iv) There is a danger to life.
v) There is a need to take preventative action.
However, ‘The mere presence of an encampment without any aggravating factors should not normally create an expectation that police will use eviction powers.’
Therefore, this guidance explains that police should not be using these eviction powers at the drop of a hat. An encampment shouldn’t trigger a police eviction if it is in an unobtrusive location which doesn’t have a negative impact on the wider community (such as the encampment being on a football pitch when matches are expected), which is kept clean, doesn’t have reports of anti-social behaviour.
The ACPO guidance also states:
‘Decisions to evict or not must, of course, be balanced (as directed by legislation and Government guidance) and be compliant with the terms of the Human Rights Act 1998, demonstrating legality, necessity, and proportionality, as well as principles of common humanity.’
‘In managing unauthorised encampments officers must be sensitive to the fact that there is a lack of pitches on authorised sites across the country, making it difficult or even impossible for people to avoid setting up unauthorised pitches.’
The full length guidance can be viewed at -
http://www.acpo.police.uk/asp/policies/Data/ACPO%20Guidance%20on%20
Unauthorised%20Encampments.pdf
It is important to also bare in mind that several high court cases had indicated that the police must have regard to ‘considerations of common humanity’ (for example, one notable case, R v The Commissioner of the Metropolitan Police ex p. Small). Home Office Circular 45/94 effectively reiterates the position set out in the guidance that due consideration should be given to welfare needs and personal circumstances when the police decide whether or not to evict Gypsies or Travellers from a site. The Circular indicates that the senior officer at the scene may wish to take account of the personal circumstances of the trespassers, ‘for example, the presence of elderly persons, invalids, pregnant women, children and other persons whose well-being may be jeopardised by a precipitate move.’
Civil Procedure Rules Part 55 evictions
Anyone with an interest in the land can use this form of eviction, where they will apply (normally to the county court) to regain possession of the land from trespassers.
‘Trespassers’ will be served with the possession claim details either by attaching them to the home or on a stake on the land – this will notify you of the details of the case, including the time and day of the court hearing that will deal with the application for possession. The paperwork will normally refer to ‘persons unknown’, and it is not necessary to attend the hearing, unless you are launching a defence or public law challenge against it.
At a possession hearing a judge will normally grant an order for possession ‘forthwith’, then, unless the encampment leaves voluntarily, the claimant will apply to the court for a warrant which gives them the ability to enforce the possession order and evict.
It may be that if the encampment in on local authority land then a public law challenge/judicial review could be launched to delay eviction action if, for example, no welfare enquiries were conducted or on the basis of a lack of site provision in the area.
Section 77 CJPOA evictions
These are used by local authorities.
Section 77 states:
‘(1) If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority’s area -
(a) on any land forming part of a highway;
(b) on any other unoccupied land; or
(c) on any occupied land without the consent of the occupier,
the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.’
It is an offence under Section 77:
‘If a person knowing that a direction under subsection (1) above has been given which applies to him –
(a) fails, as soon as practicable, to leave the land or remove from the land any vehicle or other property which is the subject of the direction, or
(b) having removed any such vehicle or property again enters the land with a vehicle within the period of three months beginning with the day on which the direction was given.’
When the Section 77 has been served on a vehicle then a time frame will be given for you to leave, if you haven’t left within that time then the local authority will apply to the court for a removal order – a Section 78, from which time you will need to leave the land in question. These evictions can happen, from beginning to end, within a handful of days. However, if you are unwell, have mechanical problems or another emergency you can use this as a defence against offences under S77.
Common Law evictions
These can be used by private landowners. There are no obligations on private landowners to take account of humanitarian considerations when deciding whether to take eviction action against an unauthorised encampment.
However, if using common law powers of eviction (by ‘reasonable force’), the Guidance does suggest the following:
‘ Police should always be notified of an eviction and called in to stand by to prevent a breach of the peace;
If police advise that it is inappropriate to carry out an eviction, it should always be delayed until an agreed time.’
If a landowner (or his or her agents or employees) exceeds the use of ‘reasonable force’, then s/he may face an action for criminal damage, trespass to person or property or assault. If such an action were being taken, failure of the landowner to have regard to the Guidance may be relevant.
If the relevant local authority or police force are called in by a landowner to carry out eviction action using the 1994 Act, they will, of course, have to have regard to the Guidance and carry out the necessary welfare enquiries.
Section 6 notices (often used by house squatters) can be used by ‘trespassers’ where a building or curtilage of a building is being used as part of the unauthorised encampment. When displaying a section 6 notice on the outside of a building, trespassers are making it clear (usually to the owner) that they are occupying the building and are opposed to any forceful entry by them. It is an offence under section 6 to use or threaten violence to gain entry, however if entry can be gained by, for example, climbing over a wall, then to entry is not forced or violent.
For more information on section 6 and an example notice, check the Advisory Service for Squatters website:
http://www.squatter.org.uk/index.php?option=com_content&task=view&id=13&Itemid=30
or ring them on 020-32160099
Planning evictions – go to planning evictions page
Evictions from authorised sites – go to this page
Information in this section has been extracted from the Gypsy and Traveller Law book edited by Chris Johnson and Marc Willers. Chris Johnson is a practising solicitor and member of the Travellers Advice Team based at Community Law Partnership solicitors in Birmingham. Marc Willers is a barrister practising in Chambers at 2 Garden Court, Temple, London. Buy copy here.
Further reading
“Gypsies and Travellers On Unauthorised Encampments: The Law Relating To Welfare Enquiries and Humanitarian Considerations”. By Chris Johnson, The Community Law Partnership, 2010. Download the paper here as a PDF.
Footnotes
1.DoE Circular 18/94, para. 6.
2. R v Lincolnshire CC ex p Atkinson, Wealden DC ex p Wales & Stratford
1996) 8 Admin LR 529, The Times September 22nd 1995.
3. In fact the DoE no longer exists and responsibility for Traveller and Gypsy matters lays with the Office of the Deputy Prime Minister. The equivalent in Wales is the identical Welsh Office Circular 76/94.
4. The Good Practice Guide was amended in October 2000, when the whole of Chapter 5 was re-written.
5. The Guidance came into effect on 27th February 2004.
6. DoE Circular 18/94 specifically referred to the 1994 Act powers.
7. Now contained in Civil Procedure Rules (CPR) Part 55. Note that action should only be taken in the high court in exceptional circumstances.
8. R v Kerrier DC ex p. Uzell Blythe (1996) JPL 837; R v Brighton & Hove Council ex p. Marmont (1998) 30 HLR 1046; R v Hillingdon LBC ex p. McDonagh (1998) 30 HLR 531; R v Leeds City Council ex p. Maloney (1999) 31 HLR 552.
9. Confirmed in the case of R (Martin Ward) v London Borough of Hillingdon, CO/4139/2000, 15th February 2001, Stanley Burnton J.
10. In Box 18 at p.31 of the Guidance.
11. Previously in the title of Chapter 5 of the GPG.
