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GUIDELINES FOR MANAGING UNAUTHORISED CAMPING BY GYPSIES/TRAVELLERS

ANNEX B: SUMMARY OF LEGISLATIVE FRAMEWORK RELATING TO UNAUTHORISED ENCAMPMENTS

The Law in Scotland

The structure and application of the law in relation to unauthorised encampment in Scotland is not entirely clear. There are various civil and criminal law provisions which have the potential to impact on unauthorised camping. The police can, of course, deal with any criminal activity where they have powers to do so. For example, the police have powers to arrest and detain persons who commit a crime which can range from statutory offences to common law offences.

As regards prosecution, for unauthorised encampment, the Trespass (Scotland) Act 1865 and the Roads (Scotland) Act 1984 are relevant. The purpose of the prosecution would be to deal with one of the three sets of circumstances:

1) Where a suitable alternative stopping place has been identified and the individuals have refused to re-locate within a reasonable time. (The Local Authority is normally responsible for identifying a ‘suitable alternative’ and to agree a ‘reasonable time’ with the individuals).

2) Where the use of a particular site or the excessive size of the encampment causes a road safety or public health hazard.

3) Where the same individuals have been repeatedly moved from the same site only to return, although it may be relevant for the Fiscal to consider what action might have been taken by the landowner to prevent such further access.

Time limits for prosecution under both Acts are short and a degree of urgency may be required. After arrest the most common way of dealing with offenders is to release them on an undertaking to appear at court on a specified day rather than to keep them in custody.

Sections 61 and 62 of the Criminal Justice and Public Order Act 1994 deal with trespass and the removal of vehicles. Section 61 deals with police powers to remove trespassers on land and section 62 provides supplementary powers of seizure and imposes criminal sanctions [Note that the Westminster Anti-social behaviour Act 2003 makes some changes to police powers in respect of section 62. However, those provisions do not extend to Scotland].

It is important to note that sections 61 and 62 apply to situations in which two or more "trespassers" are involved. Section 61 allows the police to direct trespassers to leave the land and to remove vehicles or property on the land where the senior police officer present at the scene has a reasonable belief that (a) two or more persons are present with the intention of staying there for a period of time, and (b) reasonable steps have been taken by, or on behalf of, the occupier to ask them to leave. In addition, the senior police officer must have a reasonable belief that either (a) the group have caused damage to the land or property, or threatened, abused or insulted the occupier or representatives of the occupier or, (b) the group have six or more vehicles between them on the land. The practical application and meaning of section 61(1) has been tested in the Scottish courts.

The court in Neizer v Rhodes 1995 S.C.C.R 799 said that;

"The whole structure of s.61(1) depends upon what the senior police officer present at the scene reasonably believes to be the case. The purpose of the section is to enable action to be taken on his direction rather than by resorting to the process of ejection under the civil procedure at the instance of the owner or occupier."

It is clearly a matter of judgement for the senior police officer present at the relevant time.

These provisions could arguably be implemented to deal with the issue of unauthorised encampments by Gypsies/Travellers, where there has been disruption and where the criteria set out above have been satisfied. However, it is clear that this legislation will not be suitable to deal with every situation where, for example, indigenous Gypsies/Travellers are merely camping on a site without any authority to do so.

In addition, it should be noted that the statutes deal with "trespassers" and does not specifically mention "Gypsies/Travellers". Furthermore, it is not confined to the issue of unauthorised encampment specifically. It is important to be aware that this legislation could potentially be applied in a wide variety of circumstances.

In any event, in Scotland it is the Procurator Fiscal who makes the final decision on whether or not to prosecute. Decisions to prosecute or to deal with cases in other ways are taken on an individual basis. A decision not to prosecute will take into account such matters as public interest considerations, dependent upon the circumstances. Enforcement, however, is a matter for the police responsible for the area in question. Discussions with the Procurator Fiscal and Local authority will normally take place at an early stage before enforcement decisions are made. The Procurator Fiscal may advise on the course of action to be taken, dependent on the particular circumstances in each case but the decision would generally be an operational matter for the Police having regard to the Lord Advocate’s guidelines on liberation. Options are likely to be a) report for citation (if considered appropriate) or b) arrest and appearance from custody or on an undertaking.

Procurators Fiscal are in possession of Crown Office guidance that directs them not to prosecute unauthorised campers unless there is a public interest in doing so.

Section 19 of the Crime and Disorder Act 1998

This provision deals with Anti-social behaviour orders and, in essence, allows a local authority to make an application for a section 19 order from the appropriate sheriff where it considers that a person or persons have either acted in an anti-social manner or have taken part in anti-social conduct within the meaning of that section.

Race Relations legislation

The Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000) Section 2 of the 2000 Act substitutes section 71 of the 1976 Act and places a general statutory duty on public authorities, when carrying out their functions, to have due regard to the need to:

• Eliminate unlawful racial discrimination;
• Promote equality of opportunity; and
• Promote good relations between persons of different racial groups.

"Public authorities" are defined in schedule 1 (paragraph 1) of the 2000 Act.

Section 3(1) of the Act defines a racial group as "a group of persons defined by colour, race, nationality or ethnic or national origins and references to any racial group refer to any racial group into which he falls." It is also important to note section 3(2) which states that "The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act."

Public authorities in Scotland are also bound by duties imposed under the Race Relations Act (Statutory Duties) (Scotland) Order 2002. The police service is bound by the general duty imposed by the Race Relations Acts and also by the specific duties to publish a Race Equality Scheme and to monitor employment procedures and practices.

There is also legislation which offers protection from racially motivated crimes. In Scotland, protection against racially aggravated harassment is afforded under Section 33 of the Crime and Disorder Act 1998. Section 96 of the 1998 Act also creates an aggravation of any offence which is racially motivated.

The Public Order Act 1986, Part III, applies to Scotland. It creates a number of offences which involve racial hatred such as use of words or behaviour or display of written materials intended to stir up racial hatred; possession of inflammatory material; etc.

The European Convention on Human Rights

The rights and protections afforded by the articles of the European Convention on Human Rights (and laterally the Human Rights Act 1998) should be enjoyed by all, without discrimination on the grounds of "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." In particular, Article 8 states that "everyone has the right to respect for his private and family life, his home and his correspondence."

The question of whether the above provisions (in particular, section 61 of the Criminal Justice and Public Order Act 1994) will be deemed to be compatible with Article 8 remains unanswered although the case law is developing¹.

The Human Rights Act 1998 created a statutory requirement to read all legislation (past and present) in accordance with the provisions of the European Convention. In relation to public bodies, Section 6(1) states that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right."

European Community legislation

Council Directive 2000/43/EC (the Race Directive) is due to be implemented in member states by 19th July 2003². The Directive has regard to the Treaty establishing the European Community, in particular Article 13 (as amended by the Treaty of Nice), which states that,

"Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

Fly-tipping legislation

Fly-tipping is an offence under section 33 of the Environmental Protection Act 1990 (EPA) and can be defined as the unauthorised deposit of waste on land that is not licensed for this purpose. Section 59 of the EPA provides powers to SEPA and local authorities to require the removal of the waste or to remove it themselves and recover the costs.

Explanation of Offences

TRESPASS (SCOTLAND) ACT 1865

OFFENCE
Section 3

Every person who lodges in any premises, or occupies or encamps on any land, being private property, without the consent and permission of the owner or legal occupier of such premises or land, and every person who encamps or lights a fire on or near any road or enclosed or cultivated land, or in or near any plantation, without the consent and permission of the owner or legal occupier of such road, land, or plantation, shall be guilty of an offence punishable as hereinafter provided. (Section 3, as amended by Schedule 1 Pt. VI, Statute Law (Repeals) Act, 1973 and Schedule 9, Roads (Scotland) Act, 1984).

APPREHENSION & PUNISHMENT
Section 4

Every person who commits any offence against the provisions of this Act may, if found in the act of committing the same by any officer of Police or Constable, be apprehended by such officer or constable, and detained in any prison, Police station, lock-up, or other place of safe custody, and not later than in the course of the next lawful day after he shall have been so taken into custody shall be brought before a magistrate; and every person charged with the commission of any such offence may, if not so taken into custody, or if he shall have been liberated on bail or pledge, be summoned to appear before a magistrate; and every person committing an offence against the provisions of this Act shall be liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.

PROSECUTIONS
Section 5

Every prosecution for an offence against the provisions of this Act shall be raised and proceeded in at the instance of the Procurator Fiscal, and shall be heard and determined by one or more magistrate or magistrates in a summary form; and every such prosecution shall be commenced within one month after the offence has been committed.

ROADS (SCOTLAND) ACT 1984

OFFENCES
Section 100(c)

A person who, without lawful authority or reasonable excuse, by lighting afire within, or by permitting a fire for which he is responsible to spread to within, 30 metres of a road, damages the road or endangers traffic on it, commits an offence.

Section 129(4)

A person who pitches a tent or encamps in a road commits an offence.

Footnotes
1. R (Fuller) v Chief Constable of Dorset Police, The Secretary of State for the Home Department [2003] Q.B. 480; Chapman v The United Kingdom 2001 (Application no. 27238/95); Varey v The United Kingdom 1998 (Application no. 26662/95); Buckley v The United Kingdom 1994 (Application no. 20348/92).
2. Implemented in the UK by the Race Relations Act 1976 (Amendment) Regulations 2003
3. www.scotland.gov.uk

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