The Police, Crime, Sentencing and Courts Act 2022 - Unauthorised Encampments

The offence only applies where:

• a person is 18 or over
• they reside or intend to reside on land without the consent of the occupier
• they have, or intend to have, at least one vehicle
• the occupier, a representative or police officer requests that person to leave the land or remove their property from that land
• that person has caused, or it is likely that they will cause, significant damage or disruption as a result of them residing on that land or resulting from their conduct

The circumstances in which this offence may arise are therefore limited. There are important exclusions, for example where persons occupy commercial buildings (rather than open land) without consent or where it is not possible to identify whether or not a person is over the age of 18.

Further, only the lawful occupier or a police officer can make a request for the person to leave and remove their property from the land.  This may require co-operation from a tenant where a landlord is seeking removal of persons occupying without consent, which cannot always be taken for granted.

According to draft guidance, whether damage or disruption is 'significant' will be for the police or the courts to assess. However, the factors to consider include how the use of the land is affected (for example, if it is severely obstructed), how frequently the land is used and the wider impacts, including environmental damage (meaning excessive smells, noise and incidence of waste and rubbish can be taken into account).

If the conditions above are satisfied, a person will commit an offence if they fail to comply with the request to leave the land or they re-enter the land within the prohibited period (currently 12 months from the date of the request to vacate the land).

There will be a defence if those accused can show that they have a reasonable excuse for being on the land.

Alongside the new offence, the PCSC introduces a new police power (beyond their power to arrest) to seize and remove any property that they believe belongs to the offender, is in their possession or under their control. The power applies to vehicles and any other property which is on the land.

The police do have existing powers to remove trespassers under the Criminal Justice and Public Order Act 1994. However those powers are not commonly utilised by the police. Instead, lawful occupiers and landowners regularly resort to the civil courts to obtain and enforce a possession order against trespassers.

The new police powers under the PCSC (in addition to amendments introduced to widen the application of existing powers under the Criminal Justice and Public Order Act 1994) could be a powerful and cost effective remedy to resolve trespasser issues.  However, it remains to be seen how the police will apply these new powers in practice and we will monitor their approach carefully. 

The new powers will be welcome further remedies for landowners and lawful occupiers, as a potentially quicker and cost effective route to obtaining possession against trespassers (compared to civil remedies through the courts).  However, given the limited use of existing police powers and the exclusions from the PCSC, we anticipate that in many instances civil remedies to obtain possession through the courts will remain necessary.  We will continue to advise clients on both, the best approach to satisfy the police to engage with trespassers and utilise the new and amended powers, and pursuing the court process in the event that the police powers do not assist.

For more information on the Police, Crime, Sentencing and Courts Act 2022, please contact Daniel Hall in our Property Litigation team on 07468 698 924, or complete the form below.