A step in the right direction

The Association of Chief Police Officers (ACPO) have now produced new Guidance on how the police should deal with unauthorised encampments. The detailed analysis by the Travellers Advice Team of that Guidance is attached for those that are interested. We have quoted many paragraphs in that analysis since it is important to have regard to the precise wording of the Guidance.

The Travellers Advice Team feel that improvements are required to the Guidance but are pleased to see that the Guidance does state that “[eviction] will usually only be the case where criminality, anti-social behaviour, or environmental damage is present” (para 4.1).

TAT notes that in Wales and Scotland, the police powers of eviction are not used and we would urge police forces in England to desist from using these powers at a time when there is totally inadequate site provision. Any issues of criminality or anti-social behaviour (which we would point out are not, obviously, part and parcel of unauthorised encampments) can be dealt with separately and, indeed, the Guidance appears to accept this, stating:-

“The allegation of a crime or identification of an individual suspect at an encampment should not be grounds alone for consideration of a full group eviction”.

The Travellers Advice Team at Community Law Partnership operates a Community Legal Advice funded telephone helpline (0845 120 2980) which operates from 10am-1pm and 2pm – 5pm.

----------

The Association of Chief Police Officers Guidance

On 19th August 2008 ACPO produced Guidance on Unauthorised Encampments.

It will be very important for those advising and assisting Gypsies and Travellers in such situations and when threatened with eviction action by the Police, to have reference to this Guidance.

In the Introduction the Guidance states:-

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….[The police powers] will be used where behaviour or conduct is considered to be inappropriate, or where the impact of an encampment on others is deemed unacceptable. (Para 2.5)

Very importantly the Introduction states:-

Decisions to evict or not must, of course, be balanced….and be compliant with the terms of the Human Rights Act 1998, demonstrating legality, necessity, and proportionality, as well as principles of common humanity. The grounds for each decision must be fully recorded by the decision maker…..(para 2.6).

The Guidance continues:-

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 (para 2.8).

Under ‘supervision of encampments’ it is stated:-

Where appropriate, it is recommended that the Police visit newly established encampments, and that a local supervisory officer be informed. Visits should, wherever possible be done together with the landowner, Local Authority and other relevant agencies (para 33.3).

On the question of supervision, the Guidance continues:-

Initial contact should be made with the people on the site, and an assessment made of the impact of its location, as well as the behaviour displayed by the occupants. The occupants should be spoken to to establish their identities and location of last site, and to ascertain their views on the desired duration of stay as well as any pressing welfare needs (para 3.4 – our emphasis).

The need for welfare enquiries is also mentioned in the ‘Eviction Rationale Record’ (at Appendix D of the Guidance).

At para 3.6 it is stated:-

Officers should discuss with those present what constitutes unacceptable conduct. They may consider it appropriate to give them a copy of the recommended Code of Conduct.

It is not clear who this Code is recommended by. The Code is attached at Appendix B. It refers to, amongst other things : public amenity areas; causing damage; driving vehicles along footpaths; fly-tipping; anti-social behaviour.

There is a failure at this part of the Guidance (albeit that it is later mentioned at para 6.3 and in a flow chart at Appendix E) to stress that, in terms of evictions under Criminal Justice and Public Order Act (CJPOA) 1994 Section 61, there must first be “reasonable steps” taken by the landowner. The case of R – v – The Chief Constable of the Dorset Constabulary ex parte Fuller and Others (reference needed ???) made it clear that the landowner must first give notice before the Police take any action. A Police eviction must not be something initiated by the Police – it is something that must flow from the request of the landowner (or potentially the person with sufficient interest in the land e.g. a tenant or lessee).

The Guidance recognises that it is best if the local authority in question takes the lead role especially when the encampment is on their land (para 3.8). Those Police officers attending the site are recommended to complete a site assessment form (para 3.9 and Appendix C). At paragraph 3.9 it is stated:-

[Eviction] will usually only be the case where criminality, anti-social behaviour, or environmental damage is present.

At para 3.10 it is stated:-

Assessment visits should only log details of vehicles and people where there are grounds to suspect those individuals of anti-social behaviour or criminal activity.

At para 3.13 it is stated:-

Forces should ensure that there is a clear audit trail of decision making which sets out the rationale for all decisions made.

An Eviction Rationale Record is attached at Appendix D.

At para 4.1 it is stated:-

The allegation of a crime or identification of an individual suspect at an encampment should not be grounds alone for consideration of a full group eviction.

This very much lines up with what is stated in the Guidance from the Office of the Deputy Prime Minister (ODPM).

At para 5.1 it is stated:-

Forces should consider working with local authorities to agree Joint Agency Protocols for the management of unauthorised encampments.

At para 5.2 it is stated:-

Lead role for decision making should rest with the local authority and the use of Police powers should not normally be considered as the first response.

A list of situations where the Police should consider using their powers is given (at para 6.1):-

i) Local amenities are deprived to communities or significant impact on the environment;
ii) Local disruption to the economy;
iii) Other significant disruption to the local community or environment;
v) Danger to life;
vi) A need to take preventative action.

The Travellers Advice Team has made submissions to ACPO and ACPO have indicated that in the next draft of the Guidance they will take account of those submissions. One of those submissions made by TAT is that the above list is too extensive.

For a more useful list, TAT would refer to para 6.8 of the 2004 ODPM Guidance.

At para 6.2 of the ACPO Guidance it is stated:-

The mere presence of an encampment without any aggravating factors should not normally create an expectation that Police will use eviction powers.

Interestingly the Eviction Rationale Record says that Section 61 notices must be served (i.e. written notices). This is not a statutory requirement but it is recommended that there should be a written notice.

TAT point out in their submissions to ACPO that the Police powers of eviction under CJPOA 1994 Section 61 are not used in either Scotland or Wales.

TAT are very unclear why an encampment always requires a visit (see paras 3.3 and 3.4 of the ACPO Guidance). In a situation where there is a complete lack of adequate sites (hence the provisions of the Government Circular 01/2006 with regard to new Gypsy and Traveller sites), the Travellers Advice Team believes that the Police powers of eviction under the CJPOA should not be used at all. Unfortunately previous attempts to challenge these powers on the basis that they were in themselves in breach of the Human Rights Act 1998 were unsuccessful. Nevertheless we would stress that individual instances of use of these powers can be potentially challenged (and can be potentially challenged successfully as well).

The Travellers Advice Team at Community Law Partnership operates a Community Legal Advice funded telephone helpline (0845 120 2980) which operates from 10am-1pm and 2pm – 5pm.