In Focus: Trespassing laws

Trespassing on land is a tort. This means that it is a civil wrong for which the landowner may seek a remedy through the civil courts. Trespass is the entry onto the land of another without consent or lawful authority.

It is usually better to try and deter people from trespassing on your land in the first place. While it would be very difficult to prevent every instance of trespass, a few simple steps may make your property less susceptible to trespassers.

Think about likely entrance points, gates should be regularly locked with good-quality padlocks and hinges can be reversed or capped. It must be kept in mind though that gates crossing a public right of way should not be locked.

Laws relating to no trespassing signs are quite simple, provided it is not an area where the public has a right to be, such as open access land or a public right of way, then a sign can be quite effective at deterring people from trespassing unwittingly. You should make sure that areas that are off limits to the public are signed as such. It can be an offence to put up a notice containing any false or misleading statement likely to deter the public from using the way - section 57 National Parks and Access to the Countryside Act 1949.

Likewise, locks and security systems for barns, outbuildings and houses should be up to standard and regularly used.

Where areas are vulnerable or there are high value items it may be worth considering installing CCTV and security lighting. Technology has moved on a great deal in this area, and effective systems can be set up on a relatively modest budget. Be aware though that the use of CCTV falls within the scope of a number of rules and regulations, the body responsible for its enforcement is the Information Commissioners Office (ICO). The ICO have produced the CCTV Code of Practice to help organisations using CCTV stay within the law. Further information can be found on their website.

You should also make sure that vehicles are marked with an anti-theft system, like smart water. They should also be immobilised and preferably locked away in a secure building.

As an additional precaution it is always sensible to review your current insurance policy to check you have adequate cover for your needs. CLA Insurance can provide bespoke insurance solutions for farms, estates and landowners to protect your property and legal liabilities.

The Control of Horses (Wales) Act in 2014, and in England the introduction of the Control of Horses Act 2015, have brought about significant changes in the law dealing with fly-grazing (where horses or ponies etc. are left on another’s land without the occupiers’ permission). Both acts allow for tighter controls on the grazing of horses without the occupier’s permission (fly-grazing).

The Animals Act 1971 contains various provisions relating to livestock, including liability for trespassing livestock. Section 4 of the act makes an owner or person in possession of the livestock strictly liable for any damage caused while the animal is trespassing.

Where livestock strays onto land in the ownership of another, the occupier has the right to detain the livestock while ownership of the straying animals is being established and reclaim any reasonable costs of doing so. It is important that occupiers undertaking this ensure that within 48 hours of detaining the animals they notify the livestock owner (if known) and inform the officer in charge of the local police station. The person detaining the animals can claim the costs of any damage caused by the livestock and the cost of any reasonably incurred expense in keeping them. The occupier can sell the animals at a market or public auction after 14 days unless steps are being taken by the owner of the livestock to pay any money owed etc.

It is also the case that if a trespasser peaceably enters or is on land, the person who is in or entitled to possession may request him to leave and if he refuses to leave, remove him from the land. If a trespasser enters with force and violence, the person in possession may remove him without a previous request to depart.

While it is open to the landowner to attempt to remove the trespasser themself, this can be dangerous without the requisite experience in handling these situations. If the force or violence used by the landowner to remove a trespasser is deemed excessive then the landowner may be committing a “trespass upon the person”, which is a criminal offence. No more force than is reasonably necessary should be used. It may also involve the landowner being placed in danger if the trespassers become violent. Because of both the risk of danger to the landowner and the risk that a criminal offence may be committed if too much force is used, we would not usually recommend a landowner use this remedy.

Police should always be notified of an eviction and be called in to stand by to prevent a breach of the peace.

Another method of tackling trespass is to bring an action in trespass against the trespasser if they can be identified. This can in many cases be prohibitively expensive, financially it is only usually worthwhile when damage has been suffered as a result of the trespass.

This is not always the case though and where further trespass is likely court action can be very effective. On top of any award of damages, the court can also be asked to award an injunction to stop the trespasser coming back. In certain circumstances the courts will even award an injunction against "persons unknown".

An injunction can be a very effective deterrent because if the trespasser then breaches the terms of the injunction, it is generally punishable as contempt of court and, in some cases, can lead to a prison sentence.

Where people are encamped on your land, because of both the risk of danger to the landowner and the risk that a criminal offence may be committed if too much force is used, it is much more common for the landowner to engage a bailiff’s firm than try to move them on themselves.

Bailiffs can be instructed to remove travellers by relying on the landowner’s right to use reasonable force. If reputable bailiffs with practical experience in the area are used then this method has the potential to get the matter resolved quicker and with less expense than the traditional method. In areas where the bailiffs are known, this is said to be more effective as there is no recourse to force, merely the threat is sufficient.

As mentioned above, trespass is a civil matter, so the police will not usually be interested in reports of trespass, but some types of trespassing are also covered by criminal law, meaning the police are more likely to be willing to intervene.

The fact that aggravated trespass is an offence in itself acts as a deterrent. In addition, prosecutions for aggravated trespass have been effective in several instances, most notably against hunt saboteurs.

The offence is of relatively modern origin, dating back to the Criminal Justice and Public Order Act 1994. It actually came about following a hard-fought CLA campaign. The offence is committed when a person trespasses on land to intimidate someone engaged in a lawful activity or to disrupt a lawful activity on the land. Police may tell the trespasser to leave the land if an officer believes the person is committing or is about to commit the offence.

Another area where there is a criminal offence relating to trespassing is armed trespass. The most well-known offence from a rural perspective is the offence relating to armed trespass to land. This can be particularly relevant where it is unlikely a court would have sufficient evidence to show that a defendant was in pursuit of game. The offence is set out at 20(2) Firearms Act 1968:

A person commits an offence if, while he has a firearm [or imitation firearm] with him, he enters or is on any land as a trespasser and without reasonable excuse (the proof whereof lies on him).

If someone is found guilty of this offence, they may be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale or to both.

There is also a similar offence set out at 20(1) Firearms Act 1968, which relates to armed trespass where someone enters part of a building without reasonable excuse. The offence potentially carries a heavier sentence.

There is also an offence relating to having a firearm in a public place without lawful authority or reasonable excuse the proof of which lies with them. It is worth noting that a public place includes highways, such as roads but also footpaths, bridleways, restricted byways and byways open to all traffic. In addition, a public place may include a premises or place to which at the material time the public is permitted to have access whether that access is paid or not.

Parliament has determined that in certain circumstances, it shall be appropriate for the police to take action on behalf of a landowner. The act also gives the local authority powers to remove illegal trespassers.

If the senior police officer present believes that:

a) Two or more persons have entered land as trespassers with the common intention of residing there for any purpose; and

b) reasonable steps have been taken by or on behalf of the occupier to ask them to leave;

and either;

i) any of them has caused damage to the land or property on the land, or

ii) any of them has used threatening, insulting words or behaviour to the landowner or a member of his family, or

iii) they have six or more vehicles on the land,

he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

These provisions are also extended to cover all rights of way on the definitive map and land to which the public has access including common land.

A direction to leave may also be given where temporary consent had been given by the landowner for persons to reside on his land and that consent had been breached.

The offence occurs if a person knowing that such direction has been given which applies to him/her and either:

Fails to leave the land as soon as reasonably practicable, or

having left, again enters the land as a trespasser within the period of three months, beginning with the day on which the direction was given.

The offence is punishable by up to three months in prison or a fine not exceeding £2,500 or both.

Section 62 of the act creates an offence of failing to remove from the land any vehicles the constable may seize and remove them.

This is a separate power for the police to direct the trespassers to leave land and remove any vehicles and property where they believe there is a suitable alternative site for the trespassers to pitch.

In order to exercise the power, the police must ensure that:

a) At least two people are trespassing on the land and intend to reside there for any period;

b) the trespassers have at least one vehicle on the land;

c) the trespassers have a caravan in their control and there is a suitable alternative pitch for the caravan or caravans at another pitch.

The constable will need to speak to the relevant local authorities to ascertain whether there is a suitable alternative pitch.

If a trespasser fails to leave following such a direction or leaves and then enters any land within the relevant authority within three months it could lead on summary conviction to three months in prison or a fine not exceeding £2,500 or both.

It will be a defence if the trespasser has a reasonable excuse for not complying, for instance if the vehicle he is using has broken down.

Section 62C CJPOA also provides a power to seize and remove vehicles. This applies where a constable who reasonably suspects that a person to whom the direction under section 62A was made has failed to remove the vehicle or has entered onto land as a trespasser within the relevant authority within a three-month period.

Under section 77 a local authority has powers to direct persons to leave any land and remove their vehicles from the land if they are residing in vehicles without the consent of the owner. Failure to obey a direction to leave is a criminal offence punishable with a fine of £1000.

A magistrate’s court can under section 78 on the application of the local authority make an order authorising the local authority to enter and take steps to remove the vehicle from the land.

If you’re a CLA member and you have any further questions relating to UK trespassing laws, get in touch with your regional office for further advice.