Trespassers and Protestors; what landowners need to know

The Police, Crime, Sentencing and Courts Act received Royal Assent on 28 April 2022 (in force from 28th June 2022) (“the Act”). The Act (alongside the Judicial Review Courts Act 2022) made alterations to a number of pre-existing Acts and created a number of new offences.

Of particular relevance to those working in the Property industry, are the provisions of Part 4 of the Act which add new provisions to the Criminal Justice and Public Order Act 1994 (“CJPO”) which:

1. Create a new offence relating to residing on land without consent in, or with, a vehicle
2. Amends and expands the powers of police offers to remove trespassers on land

Trespassers

Specifically, the new offence (now found at section 60C of CJPO [YV1] applies to those who cause significant damage, disruption or distress while residing on land without permission or with a vehicle.

Damage and disruption are defined in the Act and it will ultimately be for the police or courts to decide whether the damage or disruption is ‘significant’.  In theory, this should be welcome news for landowners and lawful occupiers who face issues with unauthorised encampments involving vehicles, particularly the recent upsurge in “fly tipping” encampments that have been grown in major metropolitan areas in recent years.   

The Act also offers new police powers beyond their power to arrest; they can now seize and remove any property that they believe belongs to the offender or is in their possession or control.[YV2]  The power applies to vehicles and any other property on the land.

In reality, the Police have always had the power under section 61 of CJPO to remove trespassers to land – but those powers have seldom been used – more often than not, Police have treated trespass to non-residential land as a civil matter, only stepping in where they perceive a risk of public order offences taking place.

Protesters

The Act also grants the Police powers to impose conditions on a protest march which might cause[YV3]  (section 12 and s.14 of CJPO as amended by ss.73-75 of the Act):

• Significant delay to the delivery of a time-sensitive product to that product’s consumers
• Prolonged disruption of access to any essential goods or services (e.g., the supply of money, food, water, energy, or fuel)
• Serious disruption to the activities of an organisation which are carried on in the vicinity of the protest march, due to noise
• Intimidation, harassment, alarm or distress to people in the area of the protest march

Reaction

The Act has been met with resistance in some quarters – including from charities, parliamentarians, academics and even some senior police officers.

There has been particular resistance from the traveller community with some arguing that the new powers amount to a threat to their way of life.

Concern has also been expressed in some quarters that the Police already have significant powers to curb protest which are not always used appropriately.  For example, the case of R (Leigh) v Commissioner of the Police of the Metropolis [2022] 1 WLR 3141, concluded that the Metropolitan Police acted unlawfully when decisions made by the Police led to the cancellation of a women’s rights protest in March 2021.

What next?

Landowners will be watching with interest to discover whether the new powers granted in respect of trespass to land will lead to greater police involvement.

A serious incursion to commercial premises can cost a landowner tens of thousands of pounds in legal and enforcement fees – and often further significant clear up costs, if the land has been subject to fly tipping.  It may be argued that with these new powers, the Police have even less excuse not to get involved in such matters.  Landowners and their lawyers will want to be well aware of these powers and be prepared to ask the Police to use them.

As to protest and public order, the Government has published the new Public Order Bill which (if passed) will create further offences designed to target protest tactics such as highway obstruction, tunnelling and locking or gluing a person to land.

None of this is without controversy, and without doubt there will be a string of court decisions in the coming years which will give greater clarity as to the limits of these powers and how effective the new offences will be at curbing these behaviours.

One thing is certain, it is not straight forward for a government to seek to regulate the right to protest, and it remains to be seen how these new measures will fare when set against the body of case law that has grown around the Human Rights Act.