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GUIDELINES FOR MANAGING UNAUTHORISED CAMPING BY GYPSIES/TRAVELLERS IN SCOTLAND
CHAPTER 4 MAKING DECISIONS AND TAKING ACTION
46. This section deals with some of the considerations to be borne in mind by local authorities, police and others when making decisions about how to deal with unauthorised encampments. Its aim is to help make clear consistent decisions that will withstand challenge and that will help ensure a balance is struck between the needs of all parties.
UNACCEPTABLE ENCAMPMENT LOCATIONS
47. Even where there is sufficient authorised provision, unauthorised camping may still occur as an expression of cultural identity. However, there are locations where encampments will not be acceptable under any circumstances (because of traffic hazards, public health risks, environmental damage etc). These should be identified and communicated to everyone involved. This might include:
- A Site of Special Scientific Interest
- A site where pollution could damage water courses/water supply
- an area with toxic waste, serious ground pollution or other environmental hazard
- the verge of a road (from a road safety perspective), as defined by the Roads (Scotland) Act 1984 and which includes lay-bys
- proximity to a railway line, where there may be a danger, as above
WELFARE ENQUIRIES
48. Any particular welfare needs of the Gypsies/Travellers are material in reaching a balanced and appropriate decision about action to be taken in respect of an unauthorised encampment. The authority should be able to demonstrate that they have taken any welfare needs into consideration prior to making a decision to remove the encampment.
VISITING ENCAMPMENTS
49. Wherever possible, an initial visit should be made to a new encampment within 2 working days of the authority becoming aware of it. This will allow the authority to gather basic information on its location, size, families and vehicles involved, anticipated length of stay and the reason for the stay. Relevant guidance and advice on options can also be distributed. Initial information can also be collected on welfare, health or educational needs and this will be the starting point for liaison with other relevant departments. Officers should also note the state of the encampment in terms of any damage, rubbish accumulation etc as this will form the baseline from which subsequent needs can be monitored. The relevant police force should also be notified.
50. This visit will provide an opportunity for giving information to the Gypsies/Travellers about the standard of behaviour expected of them; what is going to happen next; what procedures the police and the authority are likely to follow and the implications for the Gypsies/Travellers; names and contact details for local services and sources of advice.
51. All information given and received should be clearly recorded as this will help form the basis of an audit trail for subsequent decisions if they are challenged. Local authorities have no power to insist that information is given and should be aware that any information gathered is subject to data protection legislation.
52. Site visits should be risk-assessed for health and safety issues and, where necessary, the officer should be accompanied by other local authority personnel or by a police officer.
REACHING A DECISION
53. Decisions about what action to take about an unauthorised encampment should be made in the light of information gathered and should be proper (in line with local policy and procedures); reasonable (in the light of the evidence available); balanced (taking into account the needs of the Gypsies/Travellers and the settled population) and proportionate (taking into account the nature of the location and the needs/behaviour of the Gypsies/Travellers).
54. Good practice suggests that welfare needs should be taken into account when considering removal from an unauthorised encampment and, if necessary, an authority should delay any removal where these welfare needs are acute or immediate.
55. Responsibility for reaching a decision should be clearly identified within the agreed policies and procedures. A decision may be made by an authorising officer or by a case conference/joint site visit in difficult cases. A decision to pro-actively manage an encampment for a period should be kept under review, as circumstances can change.
56. All decisions (whether to remove an encampment or to allow it to remain for a period) must be fully recorded and documented. Records should be kept of damage, nuisance, complaints (and the validity of these). These records can provide invaluable information on the number and nature of unauthorised encampments, in the immediate and neighbouring authorities, and can be useful in assessing the need for further site provision.
PREPARING FOR REMOVAL
57. Many encampments are dealt with through negotiation and many will move on voluntarily at an agreed date. However, where this fails and where the circumstances are appropriate, local authorities and the police may have to consider using powers available to them to effect a forced removal, as a last resort.
58. Once a decision has been made to remove an unauthorised encampment, the aims should be to act quickly and efficiently; to use the most appropriate powers and to ensure that policies and procedures are properly followed.
59. The local authority is seen as the lead agency in the management of unauthorised encampments including removals. The circumstances when removal will be deemed appropriate will be rare. However a range of civil and criminal powers granted by various statutes are available, most notably section 61 of the Criminal Justice and Public Order Act 1994, but also a range of other statutes relating to trespass and the roads. A summary of this legislative framework is set out in more detail in Annex B. Private landowners should take their own legal advice and action, where appropriate.
60. Whilst the prevention of crime and the maintenance of good order and community safety are vital, all relevant agencies must have due regard to humanitarian issues and act in a way that is culturally sensitive, promotes equality of opportunity and good race relations. Accordingly Annex B also provides some of the main features of the European Convention on Human Rights (ECHR), as well as key sections of the Race Relations and Human Rights Acts.
61. ACPOS operating guidance (see Annex C) provides information on police powers and circumstances relating to forced removals.
PROSECUTION
62. Although there is a general presumption against prosecution for unauthorised camping by Gypsies/Travellers, this presumption may be over-ridden by public interest considerations, depending on the circumstances. Circumstances that may give rise to considering a prosecution option are likely to be:
- Where a suitable alternative site has been identified and the Gypsies/Travellers have refused to re-locate within a reasonable time (taking local circumstances into account)
- Where the use or size of a particular site causes a road safety or public health hazard
- Where the same Gypsies/Travellers have been repeatedly moved from the same site only to return
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