Prosecuting Gypsy and Traveller communities for stopping on unauthorised sites

The main pieces of legislation under which travellers can be prosecuted for parking caravans on land without the owner's consent are the Trespass (Scotland) Act 1865, the Refuse Disposal (Amenity) Act 1978, the Roads (Scotland) Act 1984, the Road Traffic Act 1988, and the Criminal Justice and Public Order Act 1994.

A member of Gypsy and Traveller communities who faces legal charges should be offered a referral to a solicitor and be advised to keep all relevant paperwork. Advisers may wish to speak to the police, the local authority or another landlord to try to buy extra time before a member of Gypsy and Traveller communities has to move and to try to prevent action leading to criminal charges.

The Trespass (Scotland) Act 1865 makes it a criminal offence to lodge, occupy or encamp on any privately owned land without the consent of the owner or legal occupier. [1] This includes private roads and land near private roads. It also includes any enclosed or cultivated land and any plantation, which could cover Forestry Commission land. People who trespass on private land can be arrested and can face a fine of up to £200 and imprisonment for up to 14 days (21 days on any subsequent conviction). This Act does not allow for any statutory defence, however a considerable number of recent trials brought under those provisions have resulted in a 'not proven' verdict.

Some landlords may claim to own land that is not actually in their possession, for example a layby or an area at the edge of a field. Advisers may want to make relevant inquiries where this may be an issue.

The Refuse Disposal (Amenity) Act 1978 makes it an offence to abandon a vehicle, including a trailer, on any land or on any part of a road, including the verge. The police can assume that a vehicle has been abandoned if they consider it reasonable to do so. Criminal prosecution can follow if the vehicle owner takes no action after receiving a notice served by the police. The maximum penalty is three months' imprisonment and a fine of up to £2,500. The police also have limited powers to remove and impound vehicles.

The Roads (Scotland) Act 1984 makes it a criminal offence 'without lawful authority or reasonable excuse to place or deposit anything in a road so as to obstruct the passage of or to endanger road users'. [2] A road is defined as 'any way over which there is a public right of passage ... and includes the road's verge'. [3] The Act even applies to laybys and to unused roads that have been replaced by a new one. It is also an offence to place a 'shade, awning or other projection' less than 2.25m above a footway or less than 0.5m from a carriageway. [4] Cases can be defended on the basis of a 'reasonable excuse'. The maximum penalty is a fine of up to £500.

The Road Traffic Act 1988 makes it a criminal offence to leave a vehicle in a dangerous position, but only if a warning has been issued and has been ignored. [5]

The Act also makes it an offence to drive motor vehicles anywhere other than on a road. [6]

The Criminal Justice and Public Order Act 1994 creates three separate offences with which some travellers may be charged. Amongst those, the offence of collective trespass is the one with which members of Gypsy and Traveller communities are most commonly charged.

The police have wide ranging powers that apply to two or more trespassers (regardless of whether their initial presence on the land was legal) where reasonable steps have been taken by or on behalf of the occupier to ask them to leave. [7] In such a case the most senior police officer present at the scene can direct them to leave if:

• any of the trespassers has caused damage to the land or property, or used threatening, abusive or insulting words or behaviour towards either the occupier, a member of her/his family or her/his employee or agent

• the trespassers have between them six or more vehicles on the land.

'Occupier' in this context is 'the person lawfully entitled to natural possession of the land'. Caravans are included in the definition of 'vehicles'.

If a person fails to comply with such a direction or returns within three months s/he will commit a criminal offence, punishable by a fine of up to £2,500 or imprisonment for up to three months. It is a defence to any action on these grounds for the person accused to show that s/he was not trespassing or that s/he had a reasonable excuse for failing to leave or for re-entering the land.

Police have the power to seize and remove any vehicle on the land if they have directed a trespasser to leave the land and s/he has not moved voluntarily. The police can charge the owner of the vehicle for the removal and storage and can destroy the vehicle if those charges are not paid beforehand. [8]

It is a criminal offence to trespass on land and to do anything intended to intimidate the participants in a lawful activity, or to obstruct or disrupt that lawful activity. [9]

Such an offence can result in a prison sentence of up to three months and a fine of up to £2,500. The police can direct anybody believed to be committing, to have committed, to be about to commit or intending to commit aggravated trespass to leave the land. Failure to do so, or a return to the land within three months, can also result in the same sentence as aggravated trespass. The offences of aggravated trespass and of failing to obey a police order can result in two separate sentences.

The police can ban groups of more than 19 people assembling on land to which the public has no or limited right of access if permission for the particular assembly has not been granted, and there is a reasonable possibility of serious disruption of the life of the local community or of significant damage to land or monuments. [10]

An order banning such assemblies can be extended indefinitely. Breach of such an order can result in a prison sentence of up to three months or a fine of up to £2,500 for the organiser of, and in a fine of up to £1,000 for participants in, a trespassory assembly.

When dealing with unauthorised sites, councils should refer to the guidelines for managing unauthorised sites, issued by the Scottish Government. The guidelines encourage councils to work pro-actively to minimise any disruption caused by unauthorised camps and to facilitate access to services, and set out factors councils should take into account before deciding to move members of Gypsy and Traveller communities on.

The ACPOS guidance for the management of unauthorised campsites states that prosecution of members of Gypsy and Traveller communities for trespassing offences should be considered only as a last resort.

Neither set of guidelines apply to New Age Travellers or Occupational Travellers.