Trespass and Nuisance on Land

Confirmed as updated - 15/11/07

Principle
- General Public Interest Considerations
Guidance

Principle

Part V Criminal Justice and Public Order Act 1994 (CJPOA) Sections 61-80 <Archbold 29-56> conferred additional powers on the police and created new offences in connection with various forms of trespass, including

mass trespass
trespass by hunt saboteurs
trespass by squatters
nuisance caused by 'raves'.

The Act also introduced new powers to direct trespassers to leave land and amended existing legislation in relation to the use of violence to secure entry to premises.

General Public Interest Considerations

The passage of the Bill through Parliament attracted considerable media attention and controversy. Many defendants involved in offences dealt with in this chapter may have acted with ideological motives. Some of those defendants may not have been in trouble before and are of previous good character.

Neither an ideological motive nor good character can amount to a licence to commit crime. The presence of either factor does not itself mean that the public interest can never require a prosecution. If the evidential test in the Code for Crown Prosecutors is satisfied on the facts of a particular case, consideration of the public interest factors set out in the Code will follow in the usual way.

Guidance

Charging Practice: General

Defendants who have committed offences contrary to CJPOA may also have committed a wide variety of other offences, such as assault, offences under the Public Order Act 1986, obstruction, possession of controlled drugs and road traffic offences. You will wish to consider carefully whether a CJPOA offence best reflects the evidence and the criminality of the defendant.

Some offences under the CJPOA will be committed by defendants acting in groups or taking part in collective action. A particular defendant may have made only a small contribution to the collective misconduct. However, where participation in group misconduct is the mischief aimed at by the offence, the fact that a particular defendant may be peripheral, will not in itself be a reason not to prosecute.

Removing Trespasser from Land: Charging Practice

Section 61 CJPOA (Stones: 8-24900) enables a police officer to direct trespassers on land (who are there with the common purpose of residing there for any period) to leave the land where the occupier has taken steps to ask them to do so, and either

they have damaged the land; or

they have used threatening, abusive or insulting behaviour to the occupier, her or his family, employees or agents; or

between them they have 6 or more vehicles on the land.

Failure to obey a direction to leave or returning to the land as a trespasser within 3 months is an offence.

Section 62 provides a power for the police to seize vehicles of persons failing to comply with a direction under Section 61.

The senior officer present at the scene has to believe that the conditions set out in Section 62(1) have been fulfilled. Evidence that they were fulfilled in fact will be relevant only in an inquiry into the questions whether the senior officer held the belief and whether, if he or she did, the belief was reasonably held. A defendant charged with an offence under the section (or, for example, charged with assaulting a police office in the execution of her or his duty) will be entitled to raise these questions. Although a successful defence along these lines is likely to be rare, the senior police officer will need to provide evidence in all cases justifying his or her giving of a direction.

Raves: Charging Practice

Section 63 CJPOA (Stones: 8-24902) gives a police officer of at least superintendent rank power to direct persons gathering on land for a rave (or preparing or waiting for one) to leave the land. Failure to comply with a direction, or returning to the site within 7 days are offences.

Section 64 provides the police with powers of entry and seizure in relation to land to which it is reasonably believed the Section 63 power might apply.

A person who fails to comply with a police direction to stop a person within 5 miles of a rave proceeding to it, commits an offence under Section 65.

The direction-giving formula in Section 61 is "he may direct", whereas in Section 63 it is "he may give a direction". This is a difference of underlying expectation rather than of legal effect. The Section 63 direction is less likely than its Section 61 counterpart to be communicated by the officer giving it.

Section 63(5) provides that a direction under subsection (2) cannot apply to an exempt person. An exempt person is defined in subsection (10) as the occupier of the land, any member of her or his family, any employee or agent of the occupiers, and any person whose home is situated on the land. The term occupier has its Section 61 definition (which is a definition that incorporates civil law terms). The intention is that the control of raves should not be confined to trespassory raves, but it is not clear the extent to which a direction can be given to persons who are not trespassers. Where a person is, for example, an independent contractor arranging or staging a rave for the landowner, he or she may be regarded as an agent of the landowner, and will therefore be an exempt person.

There is an argument that the category of exempt person may be wider still. Where the person is running a rave for his or her own purposes, so as not to be an agent of the landowner, but with the permission from the landowner to use the land to do so, he or she may be an occupier of the land. This is because permission necessarily confers a licence to use the land, and the licence may be construed as an interest in the land. Any member of the audience who is not a trespasser similarly has a permission that confers a right to enjoy the land that may amount to an interest (a temporary and non-exclusive interest) in the land so as to constitute him or her an occupier. But the exempt person is the occupier, not merely an occupier, so this argument may not be sound.

Aggravated Trespass: Charging Practice

Trespassers on land in the open air who engage in conduct intended to obstruct or disrupt lawful activity on that land or who intend to intimidate those taking part in that lawful activity commit an offence under Section 68 CJPOA. (Stones: 8-24907)

The offence is capable of being committed by hunt saboteurs or motorway protesters or any protesters who are trespassing on land in the open air, but it is not formally limited to protest groups.

Any activity falling within conduct described in Section 68(1) is covered. Trespassing on land in the open air does not, in itself, amount to the commission of the offence: there must be trespassing on land in the open air together with the subsection (1) additional conduct. It seems that mere presence as a trespasser will not be sufficient. The requirement appears to be for conduct over and above the act of trespassing although a person taking up a position which obstructs the lawful activity may be sufficient to make out the offence.

This additional conduct is anything. There is no requirement that the additional conduct should itself be a crime, so activities such as playing a musical instrument or taking a photograph could fall within anything. What limits the scope of anything is the intention that must accompany it: the intention to obstruct, disrupt or deter by intimidating. Ramblers for instance, may trespass, and may disrupt a lawful activity (for example, rounding up sheep) by doing so, but unless they have the relevant intention, they do not commit the offence. Proof of this specific intent is necessary for conviction. It is no defence that the intent was not fulfilled.

Section 69 enables the senior police officer to order persons to leave the land if he or she reasonably believe they are committing, have committed or intend to commit the offence of aggravated trespass. A person disobeying such a direction or returning to the land as a trespasser within 3 months commits an offence.

Trespassory Assemblies: Charging Practice

Section 70 CJPOA amends the Public Order Act 1986 by inserting two new Sections (14A and 14B) in respect of trespassory assemblies.(Stones 8-27733A). A chief officer of police who reasonably believes.

that an assembly will be held on land (being land to which the public has no or only a limited right of access);

that the assembly is likely to take place without the permission of the occupier; and

that it may result in serious disruption to the life of the community or damage a site of historical archaeological or scientific importance,

may apply for an order prohibiting the holding of all trespassory assemblies for a period of not more than 4 days. (Note there are some differences in procedure for assemblies in London and for the rest of England and Wales).

To organise a prohibited assembly, to take part in one and to incite others to take part in one are all offences.

Section 14C is also inserted by virtue of Section 71 making it an offence to fail to comply with a direction not to proceed to a trespassory assembly.

Trespass on Premises of Foreign Missions

Section 9 of the Criminal Law Act 1977 creates an offence of trespassing on the premises of foreign missions, (Stones: 8-24783). This offence requires the consent of the Attorney General. Refer also to <Diplomatic Immunity and Diplomatic Premises, elsewhere in this guidance>

Violence to Enter Premises (Squatting): Charging Practice

The offences of using violence to secure entry to premises and failing to leave residential premises when required to do so are created by Sections 6 and 7 Criminal law Act 1977. (Stones 8-24780). The offences are not common. They are amended by Sections 72/74 CJPOA to exclude displaced residential occupiers or protected intending occupiers.

The Protection of Eviction Act 1977 <Archbold 29-61>provides protection against unlawful eviction and harassment. Where the person occupying the premises is a residential occupier as defined by Section 1(1) of the Act, then regardless of the rights or interest of the person seeking to regain possession, it is an offence to deprive the former of possession unlawfully or to harass him or her.

Where there is evidence of unlawful eviction or sustained harassment, proceedings will inevitably be required. In R v Brennan and Brennan [1979] Crim LR 603 the Court said that the use of threats and force to evict tenants was a particularly bad form of the offence and sentences of imprisonment will invariably be imposed.

Removal of Unauthorised Campers and Other Persons from Land: Charging Practice

Enforcement of Sections 77/80 CJPOA will be a local authority responsibility and will be of little concern to the CPS.

Consent

Proceedings under Section 9 Criminal Law Act 1977 requires the consent of the Attorney General.

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