My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank
the noble Baroness, Lady Bakewell of Hardington Mandeville, for her apologies, which in fact I got the other night. It was very courteous of her to give them.
Before I turn to whether Clause 63 should stand part of the Bill, let me deal with Amendment 150 in the name of my noble and learned friend Lord Garnier, which relates to the offence of aggravated trespass, as he outlined. The effect of this amendment would be to introduce a statutory defence to the offence at Section 68 of the Criminal Justice and Public Order Act 1994, as he explained. It would require the defendant to show that they were not trespassing, or that the activity which they intended by their trespass to obstruct or disrupt or cause intimidation in respect of was unlawful.
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To introduce a defence which seeks to reverse the burden of proof—that is, the onus of proving an element of the case—to the defence is a serious step. Such a provision would be an exception to the general rule that the prosecution bears the burden of proving all the elements of the case. Some examples of reverse burdens include, for example, where a defendant wishes to plead that they are not guilty of murder by reason of diminished responsibility or where, in relation to a charge of carrying certain offensive weapons, the defendant has a defence if they can show that they had lawful authority or a good reason to carry that weapon. However, the prosecution still has to prove fundamental elements of the offence and that would be the case here too, even if this amendment passed—that is, the prosecution would still have to prove that the activity was lawful, that there was a trespass by the accused and that the accused sought to intimidate, obstruct or disrupt such lawful activity. They would have to do this to the criminal standard of beyond reasonable doubt. Under this amendment, in order to make out their defence, the accused would have to prove on a balance of probabilities that the activity was unlawful or that they were not trespassing. Therefore, this amendment does not necessarily make it easier to prove an offence of aggravated trespass and risks complicating the law by adding additional burdens to disprove the prosecution’s case.
The Government recognise the concern that trespass can cause and the importance of the law being effective. That is why we are introducing a number of measures to curb the effects of trespass on landowners. We are already broadening the scope of Section 61 of the 1994 Act as part of key measures used to tackle unauthorised encampments. Furthermore, the Government are introducing measures that will help to balance our fundamental rights to freedom of expression with the need to ensure that the law on public order is fit to bring those who block or seek to disrupt our critical infrastructure to justice. We will come to these measures in due course. We therefore do not think it necessary to amend the law in this way. We are introducing a number of measures in the Bill that will protect people from trespass which seeks to disturb, intimidate or obstruct lawful activity.
Clause 63 amends Section 61 of the 1994 Act to broaden the types of harm that can trigger the police power to direct trespassers residing on, or intending to reside on land, to leave the land and remove their
property. Currently, the power in Section 61 is exercisable where any of the trespassers has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of their family or an employee or agent of the occupier. Under Section 61, as amended by this clause, the relevant harms now consist of damage, disruption or distress, including environmental damage such as excessive noise and litter. Unlike the new offence provided for in Clause 62, these harms do not need to be significant for police to be able to direct trespassers away in the first instance. The broadening of harms will make it easier for police to direct trespassers away where encampments are causing problems for landowners, communities or businesses.
We have also increased the period in which trespassers directed away from the land must not return from three months to 12 months. This is designed to strengthen enforcement powers, acting as a greater deterrent in the first place, and more proportionately to protect the rights of landowners and local communities. We are also enabling police to direct trespassers away from land that forms part of a highway. This ensures that directions can be given to trespassers on roads.
These amendments to the 1994 Act are vital to tackle unauthorised encampments and ensure a balance between settled communities, who do not want their local community to be damaged, and Travellers, where the majority want to live their traditional and nomadic way of life and do not want the Traveller image damaged by criminals.
The measures in Clause 63 have clear support from local authorities and police organisations; 94% of people who responded on behalf of local authorities to the 2019 consultation, and 86% of those who responded on behalf of police organisations, supported one or more of the Government’s proposed amendments to the 1994 Act to extend the powers of the police to direct trespassers to leave land.
I gave an example of how I did not think the legislation was discriminatory towards the GRT community. I have had an opportunity to do a bit more work on this issue over the weekend and I have examples from the last 18 months or so from Cornwall, the National Trust, Carmarthenshire, East Lothian, Snowdonia and the Brecon Beacons. This is not limited to the GRT community; it is about where the type of disruption and destruction that I have outlined takes place.
On the gold-plating that the noble Baroness, Lady Whitaker, talked about, I said the other day that I would write about that aspect because what was said then was new to me.
I hope that, in the light of my explanation, my noble and learned friend will be content to withdraw his amendment and that the Committee will support Clause 63 standing part of the Bill.