Managing unauthorised camping by Gypsy/Travellers in Scotland: guidance for local authorities

Annex C: Summary of Legal Provisions Relevant to Unauthorised Sites

1. There are various civil and criminal law provisions which have the potential to be relevant to unauthorised sites, and issues that may occur around such sites. This Annex sets out some of the parts of the law that can be relevant to managing unauthorised sites and issues that may occur on or around such sites, arising from the law in Scotland, British and UK‑wide legislation, and European obligations. This Annex is not intended to be comprehensive, and local authorities should seek their own legal advice. It also does not cover international obligations that may also be relevant to the management of unauthorised sites and Gypsy/Travellers living on them.

2. Preventing and detecting criminal offences is a matter for the police. The police can deal with any criminal activity where they have powers to do so.

3. In Scotland COPFS are the independent prosecution authority. Decisions to prosecute or not prosecute a case reported by the police will be based upon the evidence available and an assessment of the sufficiency of that evidence in law and whether the public interest merits a prosecution.

The Law in Scotland

Trespass (Scotland) Act 1865 and Roads (Scotland) Act 1984

4. Section 3 of the Trespass (Scotland) Act 1865 states:

"Every person who lodges in any premises, or occupies or camps 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 herein-after provided."

5. Section 100 of the Roads (Scotland) Act 1984 states that:

"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."

6. Section 129 of the same Act states that a "person who, in a road, pitches a tent or camps commits an offence". Under section 151 a 'road' means "subject to subsection (3), any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof".

Anti-Social Behaviour Act 2004

7. The 2004 Act includes a range of measures to deal with anti-social behaviour such as antisocial behaviour orders. These powers, contained in Section 21, can be used to disperse groups for a range of antisocial and environmental offences. They may be relevant in relation to unauthorised sites as they could be used to protect both Gypsy/Travellers on a site and local settled people.

8. Anti-social behaviour orders ( ASBOs) are preventative orders to protect persons affected by anti-social behaviour from further acts or conduct which causes or is likely to cause alarm or distress. Breach of an ASBO is a criminal offence. The offence for breach of an ASBO is contained in section 9 of the 2004 Act.

9. Tools to deal with anti-social behaviour should be considered in the context of local antisocial behaviour strategies. Local authorities and the police, in consultation with others, are required under Part 1 of the 2004 Act to prepare strategies to deal with anti‑social behaviour in the local authority's area. These strategies will set out an assessment of the nature and extent of anti-social behaviour in the area and services to prevent and deal with the problems. Section 140 of the 2004 Act provides that persons discharging a function by virtue of the 2004 Act must do so in a way that encourages equal opportunities.

UK and British Wide Legislation

Sections 61 and 62 of the Criminal Justice and Public Order Act 1994

10. This Act deals 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. ^[3]

11. 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.

12. 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.

13. 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."

As set out above it is a matter of judgement for the senior police officer present at the relevant time.

14. These provisions could be relevant to the issue of unauthorised sites by Gypsy/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 unauthorised site situation.

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

Equality Act 2010

16. The Equality Act 2010 (the 2010 Act) makes it unlawful to discriminate against people because of a range of protected characteristics (see paragraphs 16 to 20 in the guidance, above). The Act covers direct discrimination, indirect discrimination, harassment and victimisation. More information about what these terms mean and how the legislation works can be found in the Equality and Human Rights Commission's statutory Codes of Practice ^[4] .

17. Section 149 of the 2010 Act sets out the public sector equality duty. This puts a duty on listed public authorities (including local authorities) to have due regard to three specified matters when exercising their functions. The three matters are:

• eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act;
• advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
• fostering good relations between persons who share a relevant protected characteristic and persons who do not share it.

18. Scottish Ministers have made regulations to enable the better performance of the public sector equality duty by Scottish public authorities. These include, amongst others, a requirement to publish a set of equality outcomes; to report on how the duty is being integrated into the authority's functions; to gather, use and publish employee diversity information; and a duty to undertake equality impact assessment of new or revised policies or practices.

Crime and Disorder Legislation

19. 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 which introduced the offences under section 50A of the Criminal Law (Consolidation)(Scotland) Act 1995. Section 96 of the 1998 Act also creates an aggravation for any offence which is racially motivated. The Public Order Act 1986, Part 4, also 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, and possession of inflammatory material.

Environment Protection Act 1990

20. Flytipping is the illegal dumping of waste - from a bin bag of household waste to large quantities of domestic, commercial or construction waste - onto land which is not covered by a licence to accept waste.

21. Such unauthorised depositing of waste is an offence under Section 33 of the Environmental Protection Act 1990 ( EPA). 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.

Litter is waste in the wrong place and Section 87 of the EPA makes it an offence to throw down, drop or otherwise deposit litter and leave it. This largely applies to publicly‑owned land which is open to the air and accessible to the public.

British Transport Commission Act 1949

22. Section 55(1) of the British Transport Commission Act 1949 makes it an offence to trespass upon any railway line, sidings, tunnel, embankment or cutting, or on lands in dangerous proximity to lines or electrical apparatus associated with the operation of the railway. It states:

"55(1) any person, who shall trespass upon any of the lines of railway or sidings or in any tunnel or upon any railway embankment cutting or similar work now or hereafter belonging or leased to or worked by any of the Boards or who shall trespass upon any other lands of any of the Boards in dangerous proximity to any such lines of railway or other works or to any electrical apparatus used for or in connection with the working of the railway shall be guilty of an offence."

European Obligations

European Convention on Human Rights

23. The rights and protections afforded by the articles of the European Convention on Human Rights ( ECHR) (and latterly 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." ECHR issues in relation to the existing legislation have been considered in a number of cases. ^[5]

24. 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."

Council Directive 2004/434/ EC (the Race Directive)

25. Council Directive 2000/43/ EC (the Race Directive) is due to be implemented in member states by 19th July 2003 ^[6] . 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."