Criminal Justice Act
Sections 61 - 69
Rave off - move on,
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The Criminal Justice and Public
Order Act 1994 has 171 Sections, almost all of which have
provoked considerable opposition from Civil Liberties groups,
professionals in the legal and penal fields and groups of people
who are directly targeted by the Act. This is a very brief
summary of those parts of the CJA which affect the ability of
people to protest or take action against environmental
desecration and to live "alternative" lifestyles which
may be less environmentally-destructive than the
"mainstream." Part V of the Act creates a series of new
criminal offences. These could potentially have the effect of
criminalising a large number of people, including homeless
persons squatting in empty properties; travellers living in
caravans on land other than authorised official sites; those
organising or attending 'raves'; and people participating in a
wide range of demonstrations or public protests. Most of the new
offences are imprisonable, while others are punishable with a
fine.
We consider that it is inappropriate to subject to criminal penalties those
involved in the wide range of activities covered by these new offences.
We are particularly concerned that the availability of prison sentences
in some cases, and the likelihood in other cases of imprisonment for failure
to pay fines, will lead to the use of prison for activities which do not
deserve to be criminalised. This will increase the strains on the prison
system at a time when the pressure of numbers is already severe and steadily
increasing. In our view, this is a misuse of the penal system.
We hope that the police, prosecutors and the courts will
apply the new laws with discretion and restraint, to avoid the inappropriately
harsh treatment of people who in our view should not be processed through
our police stations, courts and prison cells.
Please consider the implications of these provisions.
TRAVELLERS RAVERS
TRESPASS SQUATTERS
The Act enables a police officer to direct two
or more people whom he or she 'reasonably believes' to be
trespassing on land with the purpose of 'residing there for any
period' to leave the land and to remove any vehicles or property
which they have with them. The police can exercise this power if
'reasonable steps have been taken by or on behalf of the occupier
to ask them to leave' (when the land is common land the local
authority is the 'occupier') and if they have between them six or
more vehicles on the land.
Caravans are vehicles for this purpose, so six
vehicles could be made up of three caravans and three other
vehicles used for towing them. Even if there are fewer than six
vehicles, the police can exercise the power if the occupier has
asked the trespassers to leave and any of them has caused
'damage' to the land or to property on the land. It has been held
by the court that walking across a field constitutes damage: it
is clearly impossible to reside on land without causing 'damage'
to it in this sense.
If a trespasser fails to leave the land 'as
soon as reasonably practicable', or returns to the land within
three months, he or she commits an offence with a maximum penalty
of three months' imprisonment. When a direction has been given
and a trespasser has failed to remove a vehicle, the police may
seize and remove the vehicle. Seized vehicles may be retained,
disposed of or destroyed; and charges for the removal, retention,
disposal and destruction of a vehicle may be levied on the person
from whom it has been seized.
The Act also enables local authorities to
direct people camping in caravans or other vehicles on unoccupied
land, or on occupied land without the owner's consent, to leave
the land and remove their vehicles from it: those concerned need
not be trespassers nor have behaved in any particular way.
Failing to comply with such a direction as soon as practicable,
or returning to the land within three months, is an offence
punishable with a fine.
At the same time the Act repeals the duty
imposed on local authorities by the Caravan Sites Act 1968 to
provide sites for gypsies and the provisions of the Local
Government, Planning and Land Act 1980 empowering central
government to pay grants to local authorities for capital
expenditure on providing gypsy caravan sites.
Some travellers are gypsy families for whom
travelling and living in caravans is an inherited way of life.
Others are New Age travellers: recent research by the Children's
Society has found that, contrary to the popular myth, the
majority have been forced into travelling through such reasons as
homelessness, abuse or family breakdown. According to the
Society's report 'Out of Site, Out of Mind' (1994):
'Two thirds of the new age travellers involved
in the study reported that they had been forced into travelling
because of the circumstances they had been in. They included
homelessness, family or relationship breakdown, leaving care,
leaving prison, insecure housing arrangements, leaving the army,
the need to escape from an abusive partner, and financial
difficulties.... Only two out of the 98 travellers in the study
stated that they had an existing alternative to travelling There
were no travellers in the study who believed they had realistic
access to current authorised sites.'
The Caravan Sites Act 1968 placed a duty on
local authorities to provide sufficient caravan sites for gypsies
in their areas, and 100% capital grants for this purpose were
provided by central government. Once an authority was deemed to
have enough sites it became 'designated' and the authority then
received additional powers to remove unlawfully parked caravans
from other land. Although there was a substantial increase in the
number of official sites following the 1968 Act, many authorities
have not provided adequate sites and only 38% of English local
authorities have been designated.
Department of the Environment figures show that
in July 1993 an estimated 4,402 gypsy caravans were on
unauthorised encampments compared with 5,432 on authorised
council sites and 2,976 on authorised private sites. (These
figures do not include travellers other than gypsies.) Research
by the Save the Children Fund has shown that the increased number
of sites has resulted in a generally higher standard of care for
the children of travelling families on those sites. It has
facilitated regular attendance at school, registration with a GP
and regular arrangements for income support without the need for
constant re-registration because of changing residence. Stable
sites also enable travellers to look for work, either seasonal or
long-term. However, following the Criminal Justice and Public
Order Act local authorities are no longer under a duty to provide
sites and, if they do, they will no longer receive grants for the
capital costs - yet the new powers to order travellers to leave
land will apply to all areas of the country, not just those areas
which are judged to have an adequate provision of authorised
sites.
The Government has drawn up guidance advising
that the powers contained in the Act should be used with
discretion, and it has issued planning guidance urging local
authorities to assist gypsies making planning applications to
establish private sites. Nevertheless, the inadequate number of
sites means that many travellers will be unable to camp anywhere
legally: it will effectively criminalise their way of life.
They will constantly be at risk of being moved
on, harassed, evicted and prosecuted - or alternatively of
abandoning their way of life and becoming homeless with, at best,
a dismal future in temporary bed and breakfast accommodation. The
consequences of either course would be devastating for families.
The only situation in which travellers would be legally safe from
eviction is where the landowner has given explicit consent for
them to stay - and in that case, he or she would have committed
an offence under the Caravan Sites Act 1960 by permitting an
unlicensed encampment.
As David Wilmot, Chief Constable of Greater
Manchester, has stated (speaking on behalf of the Association of
Chief Police Officers):
'Legislation is not the total answer to
this problem, as I feel all it may achieve is to pass the
problem on more frequently. All it achieves is to virtually
criminalise anyone who has a travelling way of life and lives
in a caravan.'
Not only does it criminalise them - it also
makes them liable to harsh penalties, including imprisonment. The
seizure of caravans is a particularly harsh penalty: for other
people in society it is extremely rare that criminal proceedings
result in seizure of their homes and all their belongings. The
actual removal of vehicles is likely to lead to violent
confrontations between the police, local government officers and
travellers, who would obviously object and try to prevent their
homes from being taken away, which would render them completely
homeless.
Enforced homelessness will place an increased
burden on local authority housing departments; the costs to the
courts, the police and the prison system are likely to be
substantial; and there will also be costs to local authorities
because of increased child welfare responsibilities for
travellers' children under the Children Act 1989. Yet the cost of
providing a pitch on a legal site with water, sewage and
electricity is £27,000 - a much lower amount than the cost of
providing regular housing.
Previously under section 39 of the Public Order
Act 1986 people who trespassed on land with 12 or more vehicles
or damaged property or used threats or violence could be required
to leave the land by police and arrested if they failed to
comply. Otherwise, however, the civil rather than the criminal
law governed trespass by travellers, who could be ordered to
leave under county court eviction procedures. We consider that it
should continue to do so, and that the solution to the problem of
unauthorised parking of caravans lies in providing an adequate
number of authorised sites - not in criminalising travellers.
Organisations working with and on behalf of
travellers argue that the provisions of the Caravan Sites Act
1968 should be restored, with their duty to provide caravan
sites, coupled with central government grants to facilitate- the
provision of sites and an extension of the Act's remit to cover
all those who genuinely depend on mobile accommodation as their
only home throughout the year. They argue also that there should
be a clear commitment via planning directives to local
authorities, grants, mortgage relief and information to
landowners and housing associations, so that both private and
public sites are encouraged; that sites should vary in type, from
long term to short stay (a few months) to emergency stop-over
provisions; and that suitable unused and disused central
government and local authority land should be made available for
sites.
The Act empowers the police to direct persons
assembling on land to leave the land and remove any vehicles
which they have on the land, if they believe that a gathering
will take place without an entertainment licence at which the
playing of amplified music during the night 'is likely to cause
serious distress to the inhabitants of the locality.' Music is
defined in the Act as 'sounds wholly or predominantly
characterised by the emission of a succession of repetitive
beats'.
A person who, knowing that such a direction has
been given, fails to leave the land as soon as reasonably
practicable or renters the land within seven days commits an
offence with a maximum penalty of three months' imprisonment. The
police are also given powers to seize vehicles and sound
equipment which have not been removed from the land. When someone
is convicted of this offence, the court may order forfeiture of
sound equipment which was used at the gathering. New powers
govern the retention, disposal and destruction of seized vehicles
similar to those described earlier which apply in relation to the
seizure of travellers' vehicles.
The police are also empowered, within five
miles of the site of a rave, to stop people who they reasonably
believe are on their way to the rave and to direct them not to
proceed towards the rave: anyone failing to comply with the
direction commits an offence punishable with a fine. Playing loud
music at night can, of course, cause distress to nearby
residents, especially if it is persistent - but a range of powers
already exists which can be used to deal with such nuisance.
Local authorities can serve noise abatement notices under
existing legislation and can take action if these are not obeyed.
Eviction orders can be obtained to stop gatherings and remove
people. Police can also use their powers of arrest and seize
equipment to prevent a breach of the peace. The sensible use of
such powers differs greatly from the wholesale criminalisation of
groups of young people by banning their raves, parties and
gatherings.
If raves are effectively banned and no
alternative, legal outlets are provided for those activities,
then the result is likely to be a mushrooming of illegal events
in which those taking part will by definition be criminalised.
(Obtaining an entertainment licence is rarely a feasible option
for organisations running free or community raves, who have
neither the financial resources nor the political clout to obtain
licences. It is becoming common for local authorities to charge a
non-returnable fee of several thousand pounds before they will
consider a licence application for an outdoor event. It is also
very difficult for free or community rave organisers to obtain
suitable legal sites.)
The case for working with rather than against
the organisers of community raves is well illustrated by the
experience of Luton where, when a collective called Exodus began
to put on regular raves, the crime rate dropped by 6%. Chief
Inspector Mike Brown of Bedfordshire Police commented: 'Licensed
premises were experiencing a fair amount of loss of trade, loss
of customers. People might pop into the pub for a quick drink
around ten, but then they'd be off for the rest of the night....
As a result there was a lessening of alcohol-related offences,
gratuitous assaults, bottle throwing, the random public disorder
that generally goes with town centres and drink.'
Exodus has put its proceeds from the rave
parties into community projects. They have renovated a derelict
former old people's home in Luton, in which they have rehoused 29
people, and a derelict farm which they have turned into a
'community farm' and where they have rehoused another seven
people. Local statutory agencies have directed some homeless
young offenders towards Exodus which has housed them, supported
them and turned them away from crime. In the words of one 17 year
old resident:
'If I hadn't met Exodus, and hadn't moved into
the Manor or gone to the raves, I would be in prison now because
I would have carried on crime. It would have caught up with me in
the end.... This is a solution to a problem for me, and for many
other people. So why is the government trying to stop this? The
Criminal Justice Bill doesn't stop any problems. It just causes
more problems by criminalising people. what's happening here is a
solution to crime, because I used to do crime whereas now I
don't.'
The Advisory Council on the Misuse of Drugs has
proposed that the organisation of legal raves should be
encouraged through the use by local authorities of maximum
discretion in the granting of licences and involving responsible
organisers of raves in the process. This could also be assisted
if licence charges were waived or kept at cost for free or
community raves and if central government, local authorities and
other landowners were encouraged to identify and make available
suitable sites. Working with responsible organisers in this way
can help to ensure that safety requirements are adhered to and
increase the scope at events for education on drug use and
misuse.
The Act empowers a chief constable to apply
for an order prohibiting 'trespassory assemblies' for a period of
not more than four days if the police reasonably believe that an
assembly is likely to be held on land without the occupier's
permission which will result - in 'serious disruption to the life
of the community' or in significant damage' to land, or to a
building or monument on it, of historical, architectural,
archaeological or scientific importance.
To organise a prohibited assembly or to incite others to
take part in such an assembly, is an offence with a maximum penalty of three
months' imprisonment. To take part in such an assembly is an offence punishable
with a fine. The police are given powers to stop persons whom they reasonably
believe to be on their way to such an assembly and to direct them not to
proceed towards it. Failure to comply with such a direction is an offence
punishable with a fine. Although these provisions are clearly aimed at Solstice
gatherings at Stonehenge, the legislation is extremely wide. Many different
types of demonstration or picket ranging from large political rallies to
a modest protest of parents calling for a pedestrian crossing - could be
caught by them if the police decided at their discretion (against which
there is no right of appeal) that they would involve 'serious disruption
to the life of the community'. Anyone taking part in them would then commit
the criminal offence of participating in a trespassory assembly.
Here again, the use of criminal
prosecution, fines and imprisonment for behaviour which does not
involve violence or vandalism (if it does, the ordinary criminal
law can be used) is both inappropriate and unnecessary.
Injunctions can already be obtained through the courts when there
are legitimate grounds for banning an assembly - and this is a
process in which both sides have the opportunity to argue their
case.
The Act also creates a new offence of
aggravated trespass, under which it is an offence to trespass on
land and do anything intended to: a. intimidate persons so as to
deter them from engaging in a lawful activity, or b. 'obstruct' a
lawful activity, or c. 'disrupt' a lawful activity.
The lawful activity which the trespasser
tries to obstruct or disrupt can be either on the same land as
the trespasser or on adjoining land. The offence has a maximum
penalty of three months' imprisonment. The police may order
people who they believe are committing, have committed or intend
to commit aggravated trespass to leave the land. Anyone
disobeying such a direction or returning to the land within seven
days commits an offence with a maximum penalty of three months'
imprisonment These provisions are aimed in particular at groups
such as hunt saboteurs. However, it is already against the law to
disrupt or obstruct other people's lawful activities in ways
which involve violence, vandalism, a likely breach of the peace,
or threatening, abusive or disorderly behaviour. As the Act is
drafted, this new imprisonable offence could also apply to
peaceful protesters whose protests involve neither violence nor
vandalism. It has the effect of rendering illegal many
demonstrations which take place within the sight and hearing of
any person whose activities the demonstrators are attempting to
challenge.
This could include people involved in
peacefully picketing shops because they disagree with their
trading policies, or trade unionists picketing factories and
other premises where they are standing on land owned by the shop
or factory or on adjoining private land. A peaceful but noisy
protest on the steps of a town held against school closures or
the reduction of nursery facilities could fall foul of the law.
The protesters would have become trespassers as their implied
permission to use the steps to enter or leave the town hall would
have been revoked; and the offence would be complete because they
would have intended to disrupt the decision-makers inside the
town hall who were engaged in 'lawful activity'.
As an editorial in the Independent of 25
July 1994 commented:
'The danger with criminalising
trespass is that it closes off an avenue of peaceful protest
that ought to remain open in a civilised and free society.
Many people disagree with protesters who have obstructed the
building of new roads by chaining themselves to trees. But
the same people would also accept... that the nuisance caused
by such protesters is not nearly grave enough to merit a
prison sentence.'
The Act creates an offence of failure to obey
an interim possession order. A squatter commits the offence if he
or she is on premises as a trespasser and fails to leave the
premises within 24 hours of the serving of an interim possession
order or returns to the premises within one year. The offence has
a maximum penalty of six months' imprisonment.
The creation of a criminal offence of failure
to obey an interim possession order is a wholly inappropriate use
of the criminal law. Surveys have shown that the vast majority of
squats are empty properties, rarely owned by private individuals,
which have been occupied by people who cannot find or afford
anywhere else to live and have no practical alternative. A survey
in 1991 by the Advisory Service for Squatters of 2,213 squats
found that only two were owned by private individuals. 1,640 were
owned by local authorities, 365 by housing associations, 145 by
commercial owners, 53 by government and public bodies, four by
church bodies, and in four cases ownership was disputed.
The new offence will be committed after the
owner of the property has obtained an 'interim possession order'.
Home Office Ministers have promised that alleged squatters will
be given notice that an application for such an order has been
made and that they can make written representations. However,
they have no right to be present at a hearing at which they can
present their case and contest the landlord's evidence before an
order is granted. Once the order has been made, they will then be
forced to leave their accommodation at very short notice on pain
of committing an imprisonable offence.
Although in theory it would be possible to
achieve reinstatement by applying subsequently for the order to
be set aside, a full hearing of the matter will be possible only
after the occupiers have left the property. They will be forced
to leave first, and only then will they be entitled to a hearing
at which they can argue that they should never have been asked to
leave in the first place.
24 hours is a wholly unreasonable period in
which to require people to gather their possessions, leave their
home and find somewhere else to live, making them liable to
prosecution and criminal penalties if they do not do so. Sudden
eviction is a distressing and shocking experience: in the case of
the estimated one-third of squats which house families with
children, the distress will be even greater. If people squat to
solve their homelessness problem, they are unlikely to have
enough money for a deposit on private accommodation. If they are
evicted, especially at 24 hours' notice, they will have to live
on the streets, find somewhere else to squat or, if eligible,
apply to the local authority for housing with a resulting
insecure stay in cramped bed and breakfast accommodation.
The procedure is almost certain to be used in
some cases against legitimate occupiers who are in fact entitled
to be there. There is a real prospect of unscrupulous landlords
misusing this procedure to evict tenants or others with a right
to occupy. Even a legitimate occupier would still have to leave
his or her home within 24 hours of the making of an interim
possession order or be arrested. After the upheaval of sudden
eviction and the distress of having to find somewhere else to
stay, many will be unable or unwilling to start a complicated
legal action against their former landlord in order to achieve
reinstatement.
The legislation is unnecessary. In the rare
case where a residential occupier has been displaced from his or
her home by squatters, or has a freehold or leasehold interest in
the property and requires it to live in, they can speedily evict
squatters (who are subject to criminal penalties if they do not
leave) using procedures provided by the Criminal Law Act 1977.
Other cases cannot reasonably be said to be so urgent as to
justify a procedure which will render people homeless and make
them liable to criminal penalties before they have any
opportunity to state their case to a court. For those other than
residential occupiers, existing civil procedures can result in
possession within one month (in cases of urgency under expedited
proceedings the period can be substantially less than one week),
while giving both parties a chance to argue their case before
requiring the occupier to leave the premises.
The 1994 Act exempts residential occupiers, or
people acting on their behalf, from legal provisions penalising
the use of violence to secure immediate entry into premises when
someone on the premises is opposed to their entry. It will become
legal for any person to 'use or threaten violence for the purpose
of securing entry' to premises provided they have a signed and
witnessed statement from the owner that a tenancy agreement has
been signed for the property or that the owner or a tenant have
been displaced from their residence. There have been instances of
local authorities forging such statements for the purposes of
swift eviction under the 1977 Criminal Law Act. This practice
could increase (particularly where private landlords are
involved), with the added threat of violent eviction, under the
Criminal Justice and Public Order Act.
People squat because they are homeless. Rather
than criminalising squatters, the better approach would be to
enact measures to deal with homelessness, which is the root of
the problem. Organisations concerned with homeless people argue
that this should be done through measures such as increased house
building and renovation of publicly owned property; the
encouragement of more licensing of disused and neglected
property; an expansion of self-build schemes; and the restoration
of housing benefit and income support to 16 and 17 year olds and
students, so that they are not forced by poverty to squat or live
on the streets.
Police spokespersons have been far from
enthusiastic about their role in these procedures. Mike Bennett,
Chairman of the Metropolitan Police Federation, has commented: 'I
can foresee police involved in the forcible eviction from
premises and those premises remaining empty, boarded up and
people saying: "was it necessary?" I can see the
problem of making criminals of people who are desperate to get
their lives back in balance, someone who has been made redundant,
someone who squats in premises, who pays for gas, electricity and
water - along comes a policeman and evicts them. That's not what
I joined the police for and I don't think a lot of people did.'
Where a conviction for failure to obey an
interim possession order is followed by a prison sentence or by
imprisonment for fine default, the Prison Service too will be
placed in an inappropriate role - that of detaining in penal
custody homeless people or social casualties who have fallen foul
of the law through seeking somewhere for themselves and their
children to live.
In our view, the provisions of Part V of the
Criminal Justice and Public Order Act 1994 involve an
inappropriate use of the criminal law and the penal system. The
criminal law should not be used to harass the homeless, social
casualties or those with unconventional lifestyles. It has been
argued that these provisions are likely to contravene a series of
Articles of the European Convention on Human Rights governing
rights relating to discrimination, privacy, family life, the
peaceful enjoyment of possessions, the cultural rights of
minorities, freedom of expression and freedom of assembly.
We therefore favour the repeal of Part V of
the Criminal Justice and Public Order Act. In the meantime the
Act gives local authorities, the police and other agencies wide
discretion in its application. Some local authorities and police
forces have drawn up guidelines and procedures designed to apply
the law in as fair and humane a fashion as possible, and we
commend this approach. In applying the new laws, the police,
local authorities, the Crown Prosecution Service and the courts
should use their discretion to ensure that squatters and
travellers are not evicted from empty properties or unoccupied
land unless there is some other suitable place for them to go;
that peaceful protesters and ravers are not subjected to
unnecessary and inappropriate criminal prosecution; and that
those prosecuted for the new offences are not added to the
growing number of minor offenders held in overstretched and
overcrowded prisons.
Most of the offences outlined above carry
maximum penalties of a 2,500 fine or 3 months imprisonment.
Breach of an IPO carries a maximum 6 months imprisonment. It is
worth noting that many of these new powers especially in relation
to festivals and raves have been in use (mostly illegally) by
police for some years (the first exclusion zone around Stonehenge
was in 1985). The CJA in this context merely formalises and makes
legal standard police practice in the face of growing awareness
of the extent to which the old laws were being abused, bent and
broken.
Other parts of the Act, many of which have
also been the focus of anti-CJA activities, include:
Alan Lodge / Tash: ... tash@gn.apc.org