The Police

We have seen above that the police have their own separate powers of eviction (first introduced by the Public Order Act 1986) - powers which are triggered by a notice or request from the landowner or occupier. Do the police have to take account of welfare or humanitarian considerations when exercising their powers?

Home Office Circular 45/94 (in relation to CJPOA 1994 s61) states:
‘The decision whether or not to issue a direction to leave is an operational one for the police alone to take in the light of all the circumstances of the particular case. But in making this decision, the senior officer at the scene may wish to take account of the personal circumstances of the trespassers; for example, the presence of elderly persons, invalids, pregnant women, children and other persons whose well-being may be jeopardised by a precipitate move.’

The 2004 Guidance states that, where a local authority is involved, the police can probably rely on the enquiries conducted by the local authority itself (paragraph 5.10). Equally it seems clear that, if it is local authority land, the local authority should go through their correct processes before any consideration of police involvement. The 2004 Guidance provides some examples of factors which might prompt police action:

• unacceptable behaviour by unauthorised campers at the encampment, including individual criminal activity, which cannot be controlled by means other than eviction;
  
• significant disruption to the life of the surrounding community;
  
• serious breaches of the peace or disorder caused by the encampments
  

(paragraph 6.8).



The 2006 Guidance contains a similar type of list:
‘A senior police officer then considers whether it is appropriate to use the power, based on various factors:-

• Whether there are other activities on the encampment, such as serious breaches of the peace, disorder, criminal activity or anti-social behaviour which would necessitate police involvement under their wider powers;
  
• Given the impact of the unauthorised encampment on the environment and the local settled community, is it reasonable and proportionate to use police powers;
  
• Is action by the police legally sustainable;
  
• Are sufficient resources available

The very clear implication from both the 2004 and 2006 Guidance is that the police powers of eviction should only be utilised in more extreme or pressing circumstances.

Furthermore, the 2004 Guidance states:
‘Police forces/commands should not adopt blanket policies or presumptions either for or against the use of [CJPOA 1994] Section 61’ (paragraph 6.8).

With regard to our question about welfare considerations, the 2006 Guidance states:-

‘Although case law (R v The Commissioner for the Metropolitan Police ex p Small) has established that police officers are not under an obligation to undertake welfare enquiries with unauthorised campers, they must be aware of humanitarian considerations when considering action to move an encampment. The [2004 Guidance] recommends that local authorities should be involved in the process’ .

It must be said that, if for some reason the local authority are not involved in the process, it is difficult to see how the police can take account of humanitarian considerations without carrying out some welfare enquiries themselves. Indeed some police forces have specific policies that recommend that, where necessary, the police should carry out enquiries themselves.

The 2006 Guidance also states:-
‘Once a decision to use police powers is made, a uniformed police officer visits the encampment and advises the occupiers that they are required to leave by a certain date and time, and provides them with a copy of the legislation. The police may determine the period of notice to the unauthorised campers to leave, and this may be hours or days. The police may also videotape their visit to the encampment in case of later challenge or dispute’ (paragraph 48).

Given that there is no requirement within CJPOA 1994 that a police removal direction should be in writing, the recommendation that a copy of the legislation should be provided is welcomed. One wonders whether best practice might not now be pointing towards providing a proper written notice as well as a copy of the legislation. Another important recommendation is that the police can give ‘days’ in terms of a notice to leave.

There is some emphasis in the 2006 Guidance on the possible use of police powers where there is anti-social behaviour. However, it is also emphasised that:
‘If the anti-social behaviour is focused amongst particular individuals in the group, or if a member of the group is ill, it may be appropriate to take action to evict some people but not others. In this case it may be most effective to use the powers under s77 to s78 CJPOA, which focus on named individuals or vehicles, or to use the police powers’ (paragraph 63).

A challenge to the compatibility of the police powers of eviction with the HRA was dismissed in the case of R (Fuller & ors) v The Chief Constable of the Dorset Constabulary & ors (2002). However, Stanley Burnton J did make it clear that the owner or occupier of the land in question must given notice to leave before there can be any question of the police serving a removal direction. He also stressed that:-

‘In my judgment, a local authority must consider the Convention Rights of trespassers and their human needs generally when deciding whether or not to enforce its right to possession of [the] land.’

A recent challenge to the compatibility of the police powers with the Convention focused on the police power to impound vehicles but was unsuccessful – R (McCarthy) v Chief Constable of the Sussex Constabulary & ors (2007).