Part V of the Criminal Justice and Public Order Act 1994 creates a series of new criminal offences. These could potentially have the effect of criminalising a large number ofpeople, including homeless persons squatting inempty properties; travellers living in caravans on land other than authorised official sites; those organising or attending 'raves'; and people participating in a wide range of demonstrations or public protests. Most of the new offences are imprisonable, while others are punishable with a fine.
The Penal Affairs Consortium considers that it is inappropriate to subject to criminal penalties those involved in the wide range of activities covered by these new offences. We are particularly concerned that the availability of prison sentences in some cases, and the likelihood in other cases of imprisonment for failure to pay fines, will lead to the use of prison for activities which do not deserve to be criminalised. This will increase the strains on the prison system at a time when the pressure of numbers is already severe and steadily increasing. In our view, this is a misuse of the penal system. We hope that the police, prosecutors and the courts will apply the new laws with discretion and restraint, to avoid the inappropriately harsh treatment of people who in our view should not be processed through our police stations, courts and prison cells.
We consider these provisions in more detail below.
The Act creates an offence of failure to obey an interim possession order. A squatter commits the offence if he or she is on premises as a trespasser and fails to leave the premises within 24 hours of the serving of an interim possession order or returns to the premises within one year. The offence has a maximum penalty of six months' imprisonment.
The creation of a criminal offence of failure to obey an interim possession order is a wholly inappropriate use of the criminal law. Surveys have shown that the vast majority of squats are empty properties, rarely owned by private individuals, which have been occupied by people who cannot find or afford anywhere else to live and have no practical allernative. A survey in 1991 by the Advisory Service for Squatters of 2,213 squats found that only two were owned by private individuals. 1,640 were owned by local authorities, 365 by housing associations, 145 by commercial owners, 53 by government and public bodies, four by church bodies, and in four cases ownership was disputed.
The new offence will be committed after the owner of the property has obtained an 'interim possession order'. Home Office Ministers have promised that alleged squatters will be given notice that an application for such an order has been made and that they can make written representations. However, they have no right to be present at a hearing at which they can present their case and contest the landlord's evidence before an order is granted. Once the order has been made, they will then be forced to leave their accommodation at very short notice on pain of committing an imprisonable offence.
Although in theory it would be possible to achieve reinstatement by applying subsequently for the order to be set aside, a full hearing of the matter will be possible only after the occupiers have left the property. They will be forced to leave first, and only then will they be entitled to a hearing at which they can argue that they should never have been asked to leave in the first place.
24 hours is a wholly unreasonable period in which to require people to gather their possessions, leave their home and find somewhere else to live, making them liable to prosecution and criminal penalties if they do not do so. Sudden eviction is a distressing and shocking experience: in the case of the estimated one-third of squats which house families with children, the distress will be even greater. If people squat to solve their homelessness problem, they are unlikely to have enough money for a deposit on private accommodation. If they are evicted, especially at 24 hours' notice, they will have to live on the streets, find somewhere else to squat or, if eligible, apply to the local authority for housing with a resulting insecure stay in cramped bed and breakfast accommodation.
The procedure is almost certain to be used in some cases against legitimate occupiers who are in fact entitled to be there. There is a real prospect of unscrupulous landlords misusing this procedure to evict tenants or others with a right to occupy. Even a legitimate occupier would still have to leave his or her home within 24 hours of the making of an interim possession order or be arrested. After the upheaval of sudden eviction and the distress of having to find somewhere else to stay, many will be unable or unwilling to start a complicated legal action against their former landlord in order to achieve reinstatement.
The legislation is unnecessary. In the rare case where a residential occupier has been displaced from his or her home by squatters, or has a freehold or leasehold interest in the property and requires it to live in, they can speedily evict squatters (who are subject to criminal penalties if they do not leave) using procedures provided by the Criminal Law Act 1977. Other cases cannot reasonably be said to be so urgent as to justify a procedure which will render people homeless and make them liable to criminal penalties before they have any opportunity to state their case to a court. For those other than residential occupiers, existing civil procedures can result in possession within one month (in cases of urgency under expedited proceedings the period can be substantially less than one week), while giving both parties a chance to argue their case before requiring the occupier to leave the premises.
The 1994 Act exempts residential occupiers, or people acting on their behalf, from legal provisions penalising the use of violence to secure immediate entry into premises when someone on the premises is opposed to their entry. It will become legal for any person to 'use or threaten violence for the purpose of securing entry' to premises provided they have a signed and witnessed statement from the owner that a tenancy agreement has been signed for the property or that the owner or a tenant have been displaced from their residence. There have been instances of local authorities forging such statements for the purposes of swift eviction under the 1977 Criminal Law Act. This practice could increase (particularly where private landlords are involved), with the added threat of violent eviction, under the Criminal Justice and Public Order Act.
People squat because they are homeless. Rather than criminalising squatters, the better approach would be to enact measures to deal with homelessness, which is the root of the problem. Organisations concerned with homeless people argue that this should be done through measures such as increased housebuilding and renovation of publicly owned property; the encouragement of more licensing of disused and neglected property; an expansion of self-build schemes; and the restoration of housing benefit and income support to 16 and 17 year olds and students, so that they are not forced by poverty to squat or live on the streets.
Police spokespersons have been far from enthusiastic about their role in these procedures. Mike Bennett, Chairman of the Metropolitan Police Federation, has commented:
'I can foresee police involved in the forcible eviction from premises and those premises remaining empty, boarded up and people saying: "was it necessary?" I can see the problem of making criminals of people who are desperate to get their lives back in balance, someone who has been made redundant, someone who squats in premises, who pays for gas, electricity and water - along comes a policeman and evicts them. That's not what I joined the police for and I don't think a lot of people did.'
Where a conviction for failure to obey an interim possession order is followed by a prison sentence or by imprisonment for fine default, the Prison Service too will be placed in an inappropriate role - that of detaining in penal custody homeless people or social casualties who have fallen foul of the law through seeking somewhere for themselves and their children to live.
The Act enables a police officer to direct two or more people whom he or she 'reasonably believes' to be trespassing on land with the purpose of 'residing there for any period' to leave the land and to remove any vehicles or property which they have with them. The police can exercise this power if 'reasonable steps have been taken by or on behalf of the occupier to ask them to leave' (when the land is common land the local authority is the 'occupier') and if they have between them six or more vehicles on the land.
Caravans are vehicles for this purpose, so six vehicles could be made up of three caravans and three other vehicles used for towing them. Even if there are fewer than six vehicles, the police can exercise the power if the occupier has asked the trespassers to leave and any of them has caused 'damage' to the land or to property on the land. It has been held by the court that walking across a field constitutes damage: it is clearly impossible to reside on land without causing 'damage' to it in this sense.
If a trespasser fails to leave the land 'as soon as reasonably practicable', or returns to the land within three months, he or she commits an offence with a maximum penalty of three months' imprisonment. When a direction has been given and a trespasser has failed to remove a vehicle, the police may seize and remove the vehicle. Seized vehicles may be retained, disposed of or destroyed; and charges for the removal, retention, disposal and destruction of a vehicle may be levied on the person from whom it has been seized.
The Act also enables local authorities to direct people camping in caravans or other vehicles on unoccupied land, or on occupied land without the owner's consent, to leave the land and remove their vehicles from it: those concerned need not be trespassers nor have behaved in anyparticularway. Failing to comply with such a direction as soon as practicable, or returning to the land within three months, is an offence punishable with a fine.
At the same time the Act repeals the duty imposed on local authorities by the Caravan Sites Act 1968 to provide sites for gipsies and the provisions of the Local Government, Planning and Land Act 1980 empowering central government to pay grants to local authorities for capital expenditure on providing gipsy caravan sites.
Some travellers are gipsy families for whom travelling and living in caravans is an inherited way of life. Others are New Age travellers: recent research by the Children's Society has found that, contrary to the popular myth, the majority have been forced into travelling through such reasons as homelessness, abuse or family breakdown. According to the Society's report 'Out of Site, Out of Mind' (1994):
'Two thirds of the new age travellers involved in the study reported that they had been forced into travelling because of the circumstances they had been in. They included homelessness, family or relationship breakdown, leaving care, leaving prison, insecure housing arrangements, leaving the army, the need to escape from an abusive partner, and financial difficulties.... Only two out of the 98 travellers in the study stated that they had an existing alternative to travelling There were no travellers in the study who believed they had realistic access to current authorised sites.'
The Caravan Sites Act 1968 placed a duty on local authorities to provide sufficient caravan sites for gipsies in their areas, and 100% capital grants for this purpose were provided by central government. Once an authority was deemed to have enough sites it became 'designated' and the authority then received additional powers to remove unlawfully parked caravans from other land. Although there was a substantial increase in the number of official sites following the 1968 Act, many authorities have not provided adequate sites and only 38% of English local authorities have been designated.
Department of the Environment figures show that in July 1993 an estimated 4,402 gipsy caravans were on unauthorised encampments compared with 5,432 on authorised council sites and 2,976 on authorised private sites. (These figures do not include travellers other than gipsies.) Research by the Save the Children Fund has shown that the increased number of sites has resulted in a generally higher standard of care for the children of travelling families on those sites. It has facilitated regular attendance at school, registration with a GP and regular arrangements for income support without the need for constant re-registration because of changing residence. Stable sites also enable travellers to look for work, either seasonal or long-term. However, following the Criminal Justice and Public Order Act local authorities are no longer under a duty to provide sites and, if they do, they will no longer receive grants for the capital costs - yet the new powers to order travellers to leave land will apply to all areas of the country, not just those areas which are judged to have an adequate provision of authorised sites.
The Government has drawn up guidance advising that the powers contained in the Act should be used with discretion, and it has issued planning guidance urging local authorities to assist gipsies making planning applications to establish private sites. Nevertheless, the inadequate number of sites means that many travellers will be unable to camp anywhere legally: it will effectively criminalise their way of life. They will constantly be at risk of being moved on, harassed, evicted and prosecuted - or alternatively of abandoning their way of life and becoming homeless with, at best, a dismal future in temporary bed and breakfast accommodation. The consequences of either course would be devastating for families. The only situation in which travellers would be legally safe from eviction is where the landowner has given explicit consent for them to stay - and in that case, he or she would have committed an offence under the Caravan Sites Act 1960 by permitting an unlicensed encampment.
As David Wilmot, Chief Constable of Greater Manchester, has stated (speaking on behalf of the Association of Chief Police Officers):
'Legislation is not the total answer to this problem, as I feel all it may achieve is to pass the problem on more frequently. All it achieves is to virtually criminalise anyone who has a travelling way of life and lives in a caravan.'
Not only does it criminalise them - it also makes them liable to harsh penalties, including imprisonment. The seizure of caravans is a particularly harsh penalty: for other people in society it is extremely rare that criminal proceedings result in seizure of their homes and all their belongings. The actual removal of vehicles is likely to lead to violent confrontations between the police, local government officers and travellers, who would obviously object and try to prevent their homes from being taken away, which would render them completely homeless.
Enforced homelessness will place an increased burden on local authority housing departments; the costs to the courts, the police and the prison system are likely to be substantial; and there will also be costs to local authorities because of increased child welfare responsibilities for travellers' children under the Children Act 1989. Yet the cost of providing a pitch on a legal site with water, sewage and electricity is £27,000 - a much lower amount than the cost of providing regular housing.
Previously under section 39 of the Public Order Act 1986 people who trespassed on land with 12 or more vehicles or damaged property or used threats or violence could be required to leave the land by police and arrested if they failed to comply. Otherwise, however, the civil rather than the criminal law governed trespass by travellers, who could be ordered to leave under county court eviction procedures. We consider that it should continue to do so, and that the solution to the problem of unauthorised parking of caravans lies in providing an adequate number of authorised sites - not in criminalising travellers.
Organisations working with and on behalf of travellers argue that the provisions of the Caravan Sites Act 1968 should be restored, with their duty to provide caravan sites, coupled with central government grants to facili- tate the provision of sites and an extension of the Act's remit to cover all those who genuinely depend on mobile accommodation as their only home throughout the year. They argue also that there should be a clear commitment via planning directives to local authorities, grants, mortgage tax relief and information to landowners and housing associations, so that both private and public sites are encouraged; that sites should vary in type, from long term to short stay (a few months) to emergency stop-over provisions; and that suitable unused and disused central government and local authority land should be made available for sites.
The Act empowers the police to direct persons assembling on land to leave the land and remove any vehicles which they have on the land, if they believe that a gathering will take place without an entertainment licence at which the playing of amplified music during the night 'is likely to cause serious distress to the inhabitants of the locality.' Music is defined in the Act as 'sounds wholly or predominantly characterised by the emission of a succession of repetitive beats'.
A person who, knowing that such a direction has been given, fails to leave the land as soon as reasonably practicable or reenters the land within seven days commits an offence with a maximum penalty of three months' imprisonment. The police are also given powers to seize vehicles and sound equipment which have not been removed from the land. When someone is convicted of this offence, the court may order forfeiture of sound equipment which was used at the gathering. New powers govern the retention, disposal and destruction of seized vehicles similar to those described earlier which apply in relation to the seizure of travellers' vehicles.
The police are also empowered, within five miles of the site of a rave, to stop people who they reasonably believe are on their way to the rave and to direct them not to proceed towards the rave: anyone failing to comply with the direction commits an offence punishable with a fine.
Playing loud music at night can, of course, cause distress to nearby residents, especially if it is persistent - but a range of powers already exists which can be used to deal with such nuisance. Local authorities can serve noise abatement notices under existing legislation and can take action if these are not obeyed. Eviction orders can be obtained to stop gatherings and remove people. Police can also use their powers of arrest and seize equipment to prevent a breach of the peace. The sensible use of such powers differs greatly from the wholesale criminalisation of groups of young people by banning their raves, parties and gatherings.
If raves are effectively banned and no alternative, legal outlets are provided for those activities, then the result is likely to be a mushrooming of illegal events in which those taking part will by definition be criminalised. (Obtaining an entertainment licence is rarely a feasible option for organisations running free or community raves, who have neither the financial resources nor the political clout to obtain licences. It is becoming common for local authorities to charge a non-returnable fee of several thousand pounds before they will consider a licence application for an outdoor event. It is also very difficult for free or community rave organisers to obtain suitable legal sites.)
The case for working with rather than against the organisers of community raves is well illustrated by the experience of Luton where, when a collective called Exodus began to put on regular raves, the crime rate dropped by 6%. Chief Inspector Mike Brown of Bedfordshire Police commented:
'Licensed premises were experiencing a fair amount of loss of trade, loss of customers. People might pop into the pub for a quick drink around ten, but then they'd be off for the rest of the night.... As a result there was a lessening of alcohol-related offences, gratuitous assaults, bottle throwing, the random public disorder that generally goes with town centres and drink.'
Exodus has put its proceeds from the rave parties into community projects. They have renovated a derelict former old people's home in Luton, in which they have rehoused 29 people, and a derelict farm which they have turned into a 'community farm' and where they have rehoused another seven people. Local statutory agencies have directed some homeless young offenders towards Exodus which has housed them, supported them and turned them away from crime. In the words of one 17 year old resident:
'If I hadn't met Exodus, and hadn't moved into the Manor or gone to the raves, I would be in prison now because I would have carried on crime. It would have caught up with me in the end.... This is a solution to a problem for me, andfor many other people. So why is the government trying to stop this? The Criminal Justice Bill doesn't stop any problems. It just causes more problems by criminalising people. what's happening here is a solution to crime, because I used to do crime whereas now I don't.'
The Advisory Council on the Misuse of Drugs has proposed that the organisation of legal raves should be encouraged through the use by local authorities of maximum discretion in the granting of licences and involving responsible organisers of raves in the process. This could also be assisted if licence charges were waived or kept at cost for free or community raves and if central government, local authorities and other landowners were encouraged to identify and make available suitable sites. Working with responsible organisers in this way can help to ensure that safety requirements are adhered to and increase the scope at events for education on drug use and misuse.
The Act empowers a chief constable to apply for an order prohibiting 'trespassory assemblies' for a period of not more than four days if the police reasonably believe that an assembly is likely to be held on land without the occupier's permission which will result -
To organise a prohibited assembly or to incite others to take part in such an assembly, is an offence with a maximum penalty of three months' imprisonment. To take part in such an assembly is an offence punishable with a fine. The police are given powers to stop persons whom they reasonably believe to be on their way to such an assembly and to direct them not to proceed towards it. Failure to comply with such a direction is an offence punishable with a fine.
Although these provisions are clearly aimed at Solstice gatherings at Stonehenge, the legislation is extremely wide. Many different types of demonstration or picket ranging from large political rallies to a modest protest of parents calling for a pedestrian crossing - could be caught by them if the police decided at their discretion (against which there is no right of appeal) that they would involve 'serious disruption to the life of the community'. Anyone taking part in them would then commit the criminal offence of participating in a trespassory assembly.
Here again, the use of criminal prosecution, fines and imprisonment for behaviour which does not involve violence or vandalism (if it does, the ordinary criminal law can be used) is both inappropriate and unnecessary.
Injunctions can already be obtained through the courts when there are legitimate grounds for banning an assembly - and this is a process in which both sides have the opportunity to argue their case.
The Act also creates a new offence of aggravated trespass, under which it is an offence to trespass on land and do anything intended to:
a. intimidate persons so as to deter them from engaging in a lawful
b. 'obstruct' a lawful activity, or
c. 'disrupt' a lawful activity.
The lawful activity which the trespasser tries to obstruct or disrupt can be either on the same land as the trespasser or on adjoining land. The offence has a maximum penalty of three months' imprisonment. The police may order people who they believe are committing, have committed or intend to commit aggravated trespass to leave the land. Anyone disobeying such a direction or returning to the land within seven days commits an offence with a maximum penalty of three months' imprisonment These provisions are aimed in particular at groups such as hunt saboteurs. However, it is already against the law to disrupt or obstruct other people's lawful activities in ways which involve violence, vandalism, a likely breach of the peace, or threatening, abusive or disorderly behaviour. As the Act is drafted, this new imprisonable offence could also apply to peaceful protesters whose protests involve neither violence nor vandalism. It has the effect of rendering illegal many demonstrations which take place within the sight and hearing of any person whose activities the demonstrators are attempting to challenge.
This could include people involved in peacefully picketing shops because they disagree with their trading policies, or trade unionists picketing factories and other premises where they are standing on land owned by the shop or factory or on adjoining private land. A peaceful but noisy protest on the steps of a town held against school closures or the reduction of nursery facilities could fall foul of the law. The protesters would have become trespassers as their implied permission to use the steps to enter or leave the town hall would have been revoked; and the offence would be complete because they would have intended to disrupt the decision-makers inside the town hall who were engaged in 'lawful activity'.
As an editorial in the Independent of 25 July 1994 commented:
'The danger with criminalising trespass is that it closes off an avenue of peacqul protest that ought to remain open in a civilised and free society. Many people disagree with protestors who have obstructed the building of new roads by chaining themselves to trees. But the same people would also accept... that the nuisance caused by such protesters is not nearly grave enough to merit a prison sentence.'
In the view of the Penal Affairs Consortium, the provisions of Part V of the Criminal Justice and Public Order Act 1994 involve an inappropriate use of the criminal law and the penal system. The criminal law should not be used to harass the homeless, social casualties or those with unconventional lifestyles. It has been argued that these provisions are likely to contravene a series of Articles of the European Convention on Human Rights governing rights relating to discrimination, privacy, family life, the peaceful enjoyment of possessions, the cultural rights of minorities, freedom of expression and freedom of assembly.
We therefore favour the repeal of Part V of the Criminal Justice and Public Order Act. In the meantime the Act gives local authorities, the police and other agencies wide discretion in its application. Some local authorities and police forces have drawn up guidelines and procedures designed to apply the law in as fair and humane a fashion as possible, and we commend this approach. In applying the new laws, the police, local authorities, the Crown Prosecution Service and the courts should use their discretion to ensure that squatters and travellers are not evicted from empty properties or unoccupied land unless there is some other suitable place for them to go; that peaceful protesters and ravers are not subjected to unnecessary and inappropriate criminal prosecution; and that those prosecuted for the new offences are not added to the growing number of minor offenders held in overstretched and overcrowded prisons.
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