11 November 2020
Not reviewed after the date of publication
Please can you confirm the powers available to remove trespassers on land who set up unauthorised encampments?
If the land is privately owned the trespassers can be removed under a court order, under statutory law or under common law.
It is advisable for a court order to be obtained under part 55 of the Civil Procedure Rules 1998 but this could take 14 days before the eviction commences, unless an emergency High Court order is made where it could then take about 4 days before eviction commences.
Breach of the court order would be a criminal matter and police action should be taken.
Please see our 'Common law trespass to land - removal of unlawful occupiers of such premises' document on PNLD.
If the trespasser has entered the land peacefully and quietly, the owner/lawful occupier may request the trespasser to leave. This is done by the serving of a common law notice on the trespassers requesting that they leave within a specified time frame (minimum of 24 hours). Once the notice period expires and if the trespassers refuse to leave, the owner/occupier can remove the trespasser from his land using no more force than is reasonably necessary.
If the trespasser enters with force and violence then the owner/occupier can remove them and a prior request for them to leave is not necessary.
Bailiffs can conduct the eviction on the instruction of the land owner/occupier under common law and use force that would be deemed to be reasonable and necessary in the individual circumstances. The person carrying out the eviction should be aware that in doing so they must not commit a criminal offence themselves, for example, there must be no use or threat of violence to secure entry into any premises and the force must not exceed what is necessary to remove the trespassers (Hemmings v Stoke Poges Golf Club  1 KB 720). Use of excessive force could give rise to a claim against the landowner by the trespassers. It is advisable for the police to be notified if an eviction is to take place and could be called in to stand by in order to prevent a breach of the peace. In such situations, the police would have no powers to carry out the duties of the bailiffs (i.e. carry out the eviction), or use force on their behalf. Should a criminal offence be committed by either party during the eviction process then, of course, the police must take action.
A local authority may take action under sections 77 to 78 of the Criminal Justice and Public Order Act 1994 to remove unauthorised encampments from land within their area. The exercise of the power under this section is likely to involve the police when there is potential for serious disorder, in which case it remains a matter for local police judgement (after consultation) as to whether police intervention is desirable (R v Chief Constable of Devon and Cornwall ex parte CEGB  3AllER 826). This procedure is a local authority responsibility and the offence of obstruction in subsection (4) is likely to be prosecuted by the authority. However, nothing in the Act specifically excludes the police from reporting or charging an individual with this offence if they have become involved in the eviction. Criminal sanctions can be imposed if the trespassers return within 3 months of their removal.
'61(1) If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and -
(a) that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, OR
(b) that those persons have between them six or more vehicles on the land,
he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.'
This can be used by the police to remove trespassers from any land as long as the requirements of the legislation are satisfied.
The police can remove both identified people and/or their vehicles from the land. The decision to use section 61 is an operational one. In considering whether or not to use powers provided by section 61, you should carry out an appropriate assessment.
It is likely that your force will have a policy on this issue and provide further guidance in making the decision referred to above.
Failure to obey a direction to leave or if they return to the land as a trespasser within 3 months is an offence.
Please follow the links below to the Home Office and CPS guidance on this issue:
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