02 June 2021
New legislation on the horizon for unauthorised encampments
The Government is proposing to implement new legislation shortly to deal with Unauthorised Encampments (UE). In essence these will create new offences and powers of arrest for the police. Jonothan Moss, principle lawyer in our dispute resolution department believes that whilst the soundbite put out by Government seems very positive for landowners, his initial view is that very little will change, in reality in terms of how the police will deal with these situations moving forward.
When dealing with these new powers, the police must always utilise their powers in a fair and proportionate way. There will remain a threshold to overcome before offences occur such as significant nuisance and a refusal to move on. There is also the need to bear in mind the fact that police have limited resources. This is all before the new legislation is likely to be tested in the courts as to how it stands with aspects of the Human Rights Act.
There is also the reality of a situation. When the police attend there are often families including young children. Are they really going to arrest 20 plus parents who have responsibility for children? This creates significant challenges for the police.
The police will also need to review existing protocols as to how they should deal with UE. These protocols were introduced to assist with a consistent approach across counties under the “old” law. These protocols set out at what point the police should intervene by trying to establish an objective threshold criteria.
Our view is that despite the new powers, the police are likely to be in a position where they need to interpret the powers and make operational decisions against new criteria which in reality are likely to be very similar to the old position. Whilst there may be more pressure on the police to act given new powers, that is very different from the police actually utilising and embracing the powers. It is worth noting that the police in terms of their consultation response did not feel the proposed new powers were necessary.
We are also firmly of the view that what will be needed moving forward in dealing with an UE that turns up on your land is a sensible and balanced strategy, with a full and detailed understanding of the factors the police will consider in deciding if the threshold has been crossed whereby they need to act. Without understanding police mindset, it is likely that members of the public will soon realise that the new powers alone will, in reality change very little. Strategy and knowledge are the key and we still expect the police when initial contact is made to advise the public that this is a civil issue. That advice must be challenged.
The police will have new powers soon and we are happy to hold them to account under the old and new law and scrutinise their actions (or lack of) against the appropriate criteria.