Current government proposals to make trespass a criminal offence have been criticised by groups representing Gypsies & Travellers, and the Ramblers. Trespass has always been a civil offence, but the change to criminal office would increase police powers and potential sentences for those convicted. Guy Shrubsole, as always, is at the helm of bringing the issues to attention.
This is not the first time that the government have tried to do this, nor received criticism from both Gypsy/Traveller groups and the Ramblers’ Association.
Criminal Justice bill 1994 and ‘aggravated trespass’
The Criminal Justice and Public Order bill of 1994 raised huge opposition. The most famous resistance was by ravers and New Age Travellers against the clauses aimed at outdoor raves, restricting events playing ‘repetitive beats’.
But another major intervention was the clause that developed a new offence of ‘aggravated trespass’. Section 68 (1):
A person commits the offence of aggravated trespass if he trespasses on land in the open air, and in relatio to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect
a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
b) of obstructing that activity or
c) of disrupting that activity.
Section 68 (1) Criminal Justice and Public Order Act 1994
The Ramblers’ Association challenged the clause. Their correspondence about the bill is now in London Metropolitan Archives.
The Ramblers did consider what the landowning associations thought would be the application of the Act, and were consoled by the fact that in the December 1994 issue of the Country Landowner Association magazine, their legal advisor warned that ‘it would be imprudent in the extreme for Members to misuse the provisions to cover ordinary forms of trespass … it should not be used to curtail peaceful forms of protest’. They noted the expense and publicity if such a case were prosecuted would be adverse, ‘and would give credence to the argument that the offence is a ruse to make trespass generally a criminal offence’. The warning against using the legislation against trespassers was supported by an agent for several Peak District landowners. (magazine, July 1995, in LMA, 4287/03/057, Ramblers’ Association file on the Criminal Justice Act 1995).
The first court case raised by the Act and the section on aggravated trespass was against Richard Lloyd and Margaret Jones, who took part in a peaceful protest on the road near Stonehenge to mark the 10th anniversary of the Battle of the Beanfield, which in itself was a landmark event in the history of protest about the freedom of public assembly. Penny English published an excellent analysis of the long-duree history of battles of access to Stonehenge from 1894 onwards, from which this summary is taken (English, 2002).
In 1985, the Free Festival that had taken place at Stonehenge for many years, was banned by English Heritage and the National Trust. People travelling to Stonehenge for the festival were arrested on charges of unlawful assembly, obstruction of the highway and obstruction of police. The incident and the New Age Travellers who were the targets, were a key target of the 1985 Public Order Act, together with gypsies and also striking miners.
Ten years later, in 1995, Salisbury district council prohibited the holding of trespassory assemblies within 4 miles of Stonehenge. Jones and Lloyd were convicted under section 14 of the 1986 Public Order Act, and although their appeal to the Crown Court was successful, the Divisional Court reinstated their convictions. The court held that ‘peaceful assembly does exceed the limits of the public’s right of access to the highway’. A further appeal to the House of Lords was successful. (English, 2002, 14).
The Ramblers’ papers on the 1995 Act contain a report of the case from one of the defendants’ character references. It concluded ‘three points of concern to ramblers that the prosecution made:
that an assembly need not necessarily include twenty people
that they do not have to have common purpose
that the right of the public on a highway is limited to passing and repassing’.
‘static/mobile’ or ‘sedentarist’ binary in law
In an advice sheet to members, the RA and British Mountaineering Council noted that under the new legislation in Scotland, ‘trespassing on a moor with the intention of disrupting (even peacefully) a legally organised shoot and other similar activities is now a criminal offence, punishable with a fine of up to £2500 or a 3 month prison sentence’.
Although they didn’t mention the legal precedent, this harks back to a law case from 1892 ( Harrison v Duke of Rutland,  1 Q.B. 142 (1892). A man was prosecuted for obstruction of the highway when he attempted to disrupt a grouse shoot on the moors outside Hathersage in the Peak District. The owner of the land and head of the grouse shoot, the Duke of Rutland, got his servants to restrain and hold down the man on the road. The man appealed for unlawful imprisonment, but his appeal was rejected because he was ‘admittedly on the highway, not for the purpose of using it as a highway but for the purpose of preventing the Duke and his friends from exercising their undoubted right of shooting [therefore] he was a trespasser on the road’. (Manchester Guardian, 5 December 1892; LMA, 4287/02/010, Harrison v Rutland, 1892; Sheffield Independent, 5 December 1892).
This was a significant judgement as free passage along a public highway is a common right, whether or not it goes across private land, but the case proved that people could only use the public highway for getting from A to B, and not for other purposes.
This is an example of what I am terming the ‘static/mobile’ binary, in which landowners and static uses of property have precedence over mobile or nomadic uses. As I’ve blogged before, I’m influenced by Antonia Layard’s model of the ‘trespass/licence binary’ in English law, that explains why anyone who doesn’t have licence to use a piece of land is automatically a trespasser. My ‘static/mobile’ binary framework also echoes Zoe James and Rebekah Southern’s idea of what they call a ‘sedentarist binary’ that discriminates against Travellers, Gypsies and Roma in legal and social policy, and is relevant for the current government’s proposals on trespass.
But the RA and BMC did conclude that, as long as climbers and hillwalkers behaved responsibly, they could not be liable to be prosecuted for aggravated trespass. There was clearly a class and ethnic consideration to the sorts of people who were more likely to have the legislation used against them.
Richard Card and Richard Ward’s study of the Act in the Journal of Planning and Environmental Law in 1996 argued that ‘ramblers who simply trespass, or the family who picnic beyond the confines of the footpath (and who thus become trespassers) do not intend to have any of the effects set out in section 68 (a, b and c above, about intimidating or obstructing the lawful activity on adjoining land) … irrespective of whether their conduct has such an effect or not.’ Nor does the section criminalise mass trespass, unless something is done in relation to any lawful activity, actual or imminent, on the land or adjoining land’. (Card and Ward, 1996, 6).
i.e. there has to be an intent of disruption or obstruction of landowners, deliberately, for it to be aggravated trespass.
I’m researching more on legislation and especially county council policy towards gypsies and travellers, and how it has changed over time. More anon.
Richard Card & Richard Ward, ‘Access to the Countryside: the impact of the Criminal Justice and Public Order Act 1994’, Journal of Planning & Environmental Law (1996)
Zoe James and Rebekah Southern, ‘Accommodating nomadism and mobility: Challenging the sedentarist binary approach to provision for Gypsies, Travellers and Roma’, International Journal of Sociology and Social Policy, Vol. 39 No. 3/4 (2019)
Penny English, ‘Disputing Stonehenge: Law and Access to a National Symbol’, Entertainment Law, Vol.1, No.2 (Summer 2002), 1–22
Gavin Parker and Neil Ravenscroft, ‘Land, Rights and the Gift: The Countryside and Rights of Way Act 2000 and the Negotiation of Citizenship’, Sociologia Ruralis, 41: 4 (2001)