Forgive us our trespasses…

The Prime Minister’s confirmation that the government will be bringing forward legislation for the criminalisation of trespass and the proposed removal of legal aid from trespassers in the Legal AId, Sentencing and Punishment of Offenders Bill amount to the most significant changes to the law of trespass in England and Wales for generations.

The media response, carefully directed by spin, has been to focus on squatting and, all too predictably, on ‘protecting homeowners’ from squatters. That this response is wholly and perhaps wilfully inaccurate about the current law is something we’ve addressed before. Of course, squatting is threatened by the proposals, but the ramifications run deeper and wider.

The law of trespass to land has a long and deeply political history, too long to be examined here. But it has always been at the stress points of social history that it has come to the fore, where access to land and a place to live have been at stake. The Diggers of 1649 might stand as the beginning of organised squatting, but it is the Acts of Enclosure between 1750 and 1850, seeing some 14 million acres of common and small holding land passed into private ownership, that inevitably brought presence on land and ownership of the land into frequent conflict.

The 20th century saw both political and self-help trespass. As a direct challenge to ownership as exclusivity, there was the mass trespass of Kinder Scout in 1932, where thousands of ramblers trespassed on private moorland in the Peak District. There were violent scuffles with gamekeepers and 6 ramblers arrested, but arguably national parks and rights of way resulted many years later. Then there is the occupation of military camps, empty homes and hotels in bombed out London by some 50,000 demobbed soldiers and their families in 1946, commended by the Daily Mail as “robust common sense”, praising their ability “to take matters quietly but firmly into their own hands […] a refreshing example of what ordinary people can do when they put their minds to it”.

In the 1960s and 1970s, in the face of another housing crisis, there were organised occupations of abandoned properties, many of them local authority owned. Long term occupations were ‘legitimised’ by licence arrangements for so-called short life properties. These ‘short life’ arrangements endured for over 30 years and are still being unwound. One legacy of these arrangements was Kay v Lambeth and Kay v UK, cases which have defined the application of human rights law to people losing their homes.

But beneath all this recorded and wikipedia’d history, and largely unremarked, save for the occasional tabloid headline, is another story, that of Gypsies and travellers. I’ll come back to this.

From this history, it should not be surprising that by and large the current law classifies trespass to land as a civil matter. It is a tort, so damages follow from the actual loss or injury to the landowner. The simple presence of someone on land owned by someone else, without more, is not a cause of loss.

Before I turn to the Government’s proposals, it is sadly necessary to recap the current law in England and Wales. Much of the public rationale for changing the law as it has appeared in the Daily and Sunday Telegraph, the Mail and on television has been based upon calls to protect homeowners from squatters. As I’ve previously discussed, this is simply wrong. Whether the error arises from lazy ignorance or a deliberate obfuscation is another matter.

It is a criminal offence under section 7 of the Criminal Law Act 1977 to occupy a property where there is a ‘displaced residential occupier’ (where the property is someone’s home) or a ‘Protected Intended Occupier’ (someone about to move in to live there). In neither case is a possession order required. The displaced/protected occupier can use force to enter the property and reasonable force to remove the trespassers. The police can arrest anyone remaining in the property after the trespasser has been informed that there is a displaced/protected occupier.

Where there is no displaced or protected intended occupier, where the property is not someone’s home, the person/body with the right to the land does have the right to use ‘reasonable force’ to regain possession. This is rarely used in practice, as exceeding a ‘reasonable’ level of force lays the property owner open to potential claims. In addition, forcing entry to a dwelling without a possession order runs the risk of being a criminal offence.

More usually, the person with the right to the property will need to make a civil claim for possession. In order to speed up the process, an application for an Interim Possession Order can be made and the IPO obtained in a few days. Once served, the trespassers have 24 hours to vacate or face arrest. Stories about it taking many weeks to evict trespassers are in large part down to the failure of property owners to take the correct steps, although the pressure on the courts and court bailiffs can delay matters.

If the trespasser has caused any damage to the property, or has used the utility supplies, these are criminal offences and the trespasser can be arrested for them.

Where the trespasser is on public land (owned by a local authority or other state body), the body has to bring possession proceedings, but can also seek an injunction banning the trespassers from the land, under threat of arrest and committal for contempt of court. The body can seek a pre-emptive injunction, banning the trespassers from other areas of land owned by the body to which it appears the trespassers are likely to move.

So, the interests of homeowners are currently keenly protected and there is a range of remedies available for other property owners. What then is the purpose of the Government’s proposals?

The proposal to remove legal aid from trespassers gives some clues. Squatters of houses don’t get legal aid now, or only very rarely. Legal aid is only available where there is an arguable defence and in possession proceedings against squatters there is no such defence, apart from the occasions where the property owner fails to fulfil the technicalities. Even that only buys time. All I have heard of is the very occasional instance of assistance through a court duty scheme, at a cost to the legal aid fund of £80 a time. So there are no costs savings to be made by removing legal aid from squatters and the removal of legal aid will frankly make little or no difference in virtually all proceedings against squatters.

However, one group will be significantly affected by the removal of legal aid from trespassers: gypsies and travellers on unauthorised sites or parked up on public land, usually in situations where no authorised sites are available. Some 25% of the Gypsy and traveller population who live in caravans do not live on authorised sites. This is a population which in large part has no option but to trespass.

In many cases, defences under article 8 of the European Convention on Human Rights have been raised to possession claims. The Community Law Partnership, who run a specialist Gypsy and traveller unit, estimate that some 75% of the cases that they currently advise on would have legal aid removed under this proposal. In this context, it is notable that the Ministry of Justice equality impact assessment makes no mention of Gypsies or Irish Travellers at all.

That it is this group that is the primary target of the proposed reforms would seem clear when one recalls that before the last election, the Conservatives proposed criminalisation of intentional trespass as an adjunct to the removal of the regional development plans, which imposed requirements on Local Authorities to identify and provide new sites. At that time, it wasn’t surrounded by all the briefed brouhaha about squatters, but was clearly aimed at travellers.

Many others would be likely to be caught by criminalising trespass. We have not yet seen details, but it seems likely to follow the earlier proposal to create an offence of ‘intentional trespass’, committed when trespassers are asked but fail to leave. This would encompass virtually any presence on land without permission, save for former tenants or possibly licencees. Trespass would become a criminal offence regardless of any damage or lack of it caused to the property owner.

It is hard to imagine any form of drafting that would not criminalise any contemporary form of the Kinder Scout trespass, or direct action protest occupations.

There is also the question of the impact on the current law of adverse possession. As that requires occupation while knowing that one has no right to occupy and against the rights of the property owner, can it survive the criminalisation of the occupation?

Beneath the headlines about Guy Ritchie being inconvenienced by squatters and about distressed (but wholly illusory) homeowners are proposals which will have a damaging effect on a vulnerable and disadvantaged community and a chilling impact on protests by occupation. All this for the ostensible purpose of saving land owners a couple of weeks in time and the limited cost of court proceedings.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Adverse possession, Housing law - All, Licences and occupiers, Possession and tagged , , , , .

17 Comments

  1. Hats off to NL for a superb historical and present day analysis of trespass. As is stated, for some 25% of Gypsies and Travellers it is an inevitable way of life because of the lack of authorised stopping places. Under the smokescreen of squatting of posh houses (funnily enough all the squatters who have instructed us have been in disused buildings – which they have often improved and effectively protected – and yes,NL, provided the owner proves title, then there is no defence…and no legal aid)the government are targeting one of the most disadvantaged communities in the country.
    There is already a campaign under way under the heading No Mad Laws. At the same moment the Government are in the process of changing planning laws and guidance (to the detriment of Gypsies and Travellers – so say the majority of..sorry, that should be all Gypsy and Traveller support groups ) but, shock horror, ‘planning’ is not included in the magic Schedule 1 Part 1 of the Legal Aid Bill and so they can’t get any legal advice on that either. They had better just get into housing and stop being so awkward. The campaign group are submitting proposed amendments to the Committee stage. Please e-mail me at chrisjohnson@communitylawpartnership.co.uk if you want more details of the campaign. Two Gypsies have come forward to challenge the failure of the Government to even mention Gypsies and Travellers in the Equality Impact Assessment (!). Our clients may be part of one of the most miniscule minority communities but they are not giving up without a fight.And no, none of them bear any resemblance to My Big Fat Gypsy Wedding

  2. ironically, criminalising trespass would bring it within the ambit of legal aid! oh that law of unintended consequences still holds good.
    just for clarity, i’m not putting this forward as an argument in favour of the change. or indeed anything this government of clowns proposes.

    ‘all things in common. all people one’

    • Quite right. Amended.

      Slightly embarrassing, because I did all the posts on Meier, High Court, Court of Appeal and Supreme Court.

  3. You should also point out that if you get an IPO you don’t even need the court bailiff if the occupiers fail to leave as by remaining in occupation they are committing a criminal offence and can be arrested.

  4. your para 10 appears to forget section 6 of the 1977 act

    “Where there is no displaced or protected intended occupier, where the property is not someone’s home, the person/body with the right to the land does have the right to use ‘reasonable force’ to regain possession. This is rarely used in practice, as exceeding a ‘reasonable’ level of force lays the property owner open to potential claims. In addition, forcing entry to a dwelling runs the risk of being an unlawful eviction”

    6 Violence for securing entry.E+W.
    1)Subject to the following provisions of this section, any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that—.
    (a)there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and.
    (b)the person using or threatening the violence knows that that is the case..
    [F1(1A)Subsection (1) above does not apply to a person who is a displaced residential occupier or a protected intending occupier of the premises in question or who is acting on behalf of such an occupier; and if the accused adduces sufficient evidence that he was, or was acting on behalf of, such an occupier he shall be presumed to be, or to be acting on behalf of, such an occupier unless the contrary is proved by the prosecution.].
    (2)[F2Subject to subsection (1A) above,] the fact that a person has any interest in or right to possession or occupation of any premises shall not for the purposes of subsection (1) above constitute lawful authority for the use or threat of violence by him or anyone else for the purpose of securing his entry into those premises..
    F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
    (4)It is immaterial for the purposes of this section—.
    (a)whether the violence in question is directed against the person or against property; and.
    (b)whether the entry which the violence is intended to secure is for the purpose of acquiring possession of the premises in question or for any other purpose..

    • No, I hadn’t forgotten s.6 of the 1977 Act. This was an overview article, and there wasn’t space to go into every nuance and detail, or I would never have got to the actual point of the piece. But I”ll change the line to read ‘forcing entry to a dwelling without a possession order runs the risk of being a criminal offence’. Reasonable force can be and is used against trespassers on open property without s.6 applying, which was also partly my point.

  5. Very informative article. Thank you for writing it. Might I suggest forwarding it /posting it on various news agency sites.

  6. Squatting consultation paper now out:
    http://www.justice.gov.uk/consultations/dealing-with-squatters.htm

    Going for squatting in buildings. Designed to deal with all those squatters who break into places where people have just gone away for the weekend (and the people are very rich seems to be another important ingredient). Erm I haven’t come across any of them but I’m sure the red tops (who are beyond reproach – am I missing something?) must be right – there are probably thousands of them. And I’m sure that the vast array of serious criminal offences already in place are not sufficient.
    Small good news is that they have not widened it out to cover Gypsies and Travellers except that in urban areas Gypsies and Travellers often stop on land adjacent to buildings e.g. a derelict industrial building, and thus might be caught by any definition of ‘building’ that includes ‘curtilage’.
    And sorry don’t forget our petition against the legal aid cuts at http://www.petitiononline.co.uk/petition/no-mad-laws/3062

  7. Pingback: Squatters’ Rights and Trespass « American Lawyer in London

  8. Just came back to this item. There clearly must be a hidden agenda because removing squatters in most cases is a question of will and intention on the part of the owner rather than a lack of legal firepower.

    I have acted for owners and removed travellers from open land (eg carparks of factories) with bailiffs within 2-3 days, and squatters from a building awaiting an auction sale through the courts in Birmingham and the sheriff (sorry HCEO) in 7 days. It is not a problem, and certainly not a problem if you have a large house in London, as featured in the papers.

    What I have found more difficult is getting the police to assist Displaced Residential Occupiers who try to use either their right to remove squatters without action, or getting police assistance following an IPO. The police say thay are busy and understaffed, and frankly I would always recommend the Sheriff if funds run to that. So I’m not at all sure that making more trespassers criminals is going to help at all.

    The proposal is clearly directed at avoiding legal challenges by travellers, disputes involving quasi-tenants, and pleasing the Daily Mail. A poor show, really.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.