18 October 2021
Not reviewed after the date of publication
A homeless male has taken to bedding down for the night in the entrance to a GP surgery, leaving behind rubbish, drug paraphernalia as well as urinating and defecating in the grounds as the staff arrive for work in the morning. The staff have to clean up whatever he leaves behind, which is clearly causing them a nuisance.
Is an offence under S.119 of the Criminal Justice and Immigration Act 2008 made out? Would the GP surgery class as an NHS Premises?
Unfortunately the wording of section 119 of the Criminal Justice and Immigration Act 2008 is very specific about what constitutes NHS premises and GP surgeries do not appear to be included.
Subsection 119(4) states:
'In this section –
English NHS premises means –
(a) any hospital vested in, or managed by, a relevant English NHS body,
(b) any building or other structure, or vehicle, associated with the hospital and situated on hospital grounds (whether or not vested in, or managed by, a relevant English NHS body), and
(c) the hospital grounds,
hospital grounds means land in the vicinity of a hospital and associated with it,
NHS premises means English NHS premises or Welsh NHS premises,'
There also does not appear to be any case law on this particular offence that we are able to find.
For the behaviour to be dealt with we would recommend instead that the following offences may be considered:
'lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon' and
'in the course of, lodging as aforesaid he caused damage to property, infection with vermin, or other offensive consequence, or that he lodged as aforesaid in such circumstances as to appear to be likely so to do'
'shall be deemed a rogue and vagabond within the meaning of that Act'
Despite the incredibly antiquated terms, the offence is still available under H1673 on PNLD and carries a penalty of a fine not exceeding level 1 on the standard scale. This is admittedly a lower penalty than the specific NHS offence which carries a penalty of a fine not exceeding level 3.
2. There may be the offences of Urinate in a street / public place in contravention of a byelaw (H9085 on PNLD) which carries the slightly higher penalty of a level 2 fine, if there is such a local byelaw in place for the locality.
3. 'Outraging public decency' is one of very few common law offences remaining in the criminal justice system: "It is an offence to commit an act of a lewd, obscene and disgusting nature, which is capable of outraging public decency, in a public place where at least two members of the public who were actually present at the time could have witnessed it, even if they had not actually seen it". Please see D1417 on PNLD for more information as to what may constitute this offence. The offence itself can be found at H6007 on PNLD and carries a higher penalty than all of the above. As an either way offence it carries a term of imprisonment but even at the lower end of severity, the fine is unlimited.
4. Finally - Section 68 of the Criminal Justice and Public Order Act 1994 makes it an offence for a trespasser to disrupt or obstruct any lawful activity taking place on that land or adjoining land. The offence (see H6320 on PNLD) is summary imprisonable and carries a penalty of 3 months imprisonment and / or a fine not exceeding level four on the standard scale. However, please be aware that it is necessary to prove that the person intended for his actions to have the effect of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, and this may be difficult in the circumstances you provide.
CPS should be contacted at the earliest opportunity who will be able to provide case specific advice on what offences are applicable.
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