Trespass (to Land) and the Law

A ‘highway’ is a defined route over which the public has a right of access.

All highways must be kept open and available for public use at all times.

The term includes both public roads and public rights of way. Public roads can be used by anybody, whereas use of a public right of way is limited by its status.

A private right of way (or ‘easement’) is not subject to the same terms of use as a public highway.

There are about 145,600 km (91,000 miles) of public footpaths in England. They are legally ‘highways’ and allow a right to “pass and repass” on foot, which essentially means that someone can walk or run along public footpaths but they don’t have a ‘recorded right of access’ for anything bigger (like a horse or bicycle). The user may take what is termed as a “natural accompaniment” though – a pram or pushchair for example – or use a mobility aid like a mobility scooter.

A user may stop to rest or admire the view, but must stay on the path and not cause an obstruction (the Countryside Code says “Stay on marked paths, even if they’re muddy”).

• Users can not roam over land at will, and must not deviate from the line of the footpath (or any right of way) unless it is to pass an obstruction.
• There is no law requiring dogs to be on leads when being walked on a public footpath.
• Horses may NOT be walked ‘in hand’ on a public footpath.

A bridleway is a footpath over which the public have the following rights of way:

• a right of way on foot,
• a right of way on horseback or leading a horse.

Section 30(1) of the Countryside Act 1968 gives the public the right to ride a bicycle on any bridleway but, in exercising that right, cyclists must give way to pedestrians and persons on horseback. There is no obligation to improve a bridleway for cyclists (or ‘facilitate’ them).

There is no public right of way for any vehicles on a footpath or bridleway (except for bicycles). Landowners and occupiers may have private rights for their vehicles, which run in conjunction with a footpath or bridleway.

Dogs may be taken onto any public footpath but (in law) an owner must keep their dog under effective control so that it does not scare or disturb farm animals or wildlife.

Civil law focuses on a system of law (rules and regulations) concerned with with private relations between members of society. It includes matters against individuals, companies and can include matters against the state. Civil cases are usually filed by private parties, whereas criminal cases tend to be filed by the government.

Losing a civil law case won’t result in a prison sentence, but can result result in paying compensation, forfeiting certain rights, or making right a wrong.

It is possible to deal with civil law cases outside the courtroom – for example, through a third-party mediator.

When proving a civil case, it must be ‘on the balance of probabilities’ which is is a lower standard of proof than required for a criminal matter.

Criminal laws are enacted to ensure that the whole of society is protected. They are in place to prevent breaches of conduct that can negatively affect society in general.

Breaking criminal laws may result in a criminal prosecution, which involves a criminal proceeding normally being prosecuted by the Crown Prosecution Service on behalf of the state, either in the Crown Court or the Magistrates’ Court.

Conviction could result in a prison sentence, community order, or fine. The length and type of the sentence typically depends on the severity of the crime, existing criminal record, plea, and the offendor’s age. A community order could involve completing unpaid work such as removing graffiti – also known as community payback.

To be found guilty by the courts the standard of proof must be ‘beyond a reasonable doubt’ – so the jury or magistrates should consider this before making a decision.

The main objectives surrounding the proposal of the Police, Crime, Sentencing and Courts Act 2022 (Policing Act) was to impose further restrictions on actions such as protests (which might be taken to include hunt sabbing), crimes against children, and create further sentencing limits and guidelines (eg misogyny, hate crime, noise related provisions, and release of and sentence lengths for serious offenders).

Issues around trespassing appear focused on ‘unauthorised encampments’ and stopping nomadic Gypsies and Travellers moving onto public or private land without the owner’s permission.

For the first time unauthorised encampments on roadsides will also be covered: this may then affect grass-roots organisations setting up protest camps outside animal testing labs or protesting other breaches of animal rights. Note that Part 2 of the even more draconian Public Order Bill (which is going through Parliament as of March 2023) introduces Serious Disruption Prevention Orders that can be imposed on individuals who have carried out (or contributed to another person carrying out) activities relating to at least two protests within a five-year period, whether or not they have been convicted of a crime.

From June 2022 an offence is committed under the Policing Act if a person over the age of 18:

• resides or intends to reside on land in or with a vehicle (including a caravan) without consent; and fails to leave and/or remove their property (or re-enters the land) as soon as reasonably practicable when asked to do so; and has caused, or is likely to cause ‘significant’:

1. damage to land/property/the environment;
2. disruption to the use of land/supply of utilities;
3. and/or distress via ‘offensive conduct’, such as the use of threatening words or behaviour.

If an individual doesn’t leave by the deadline given by the police, the occupier or the representative of the occupier, then they can be arrested, and could lose their vehicles.

• The police do not need to obtain a court order before arresting people or impounding vehicles (though would have to get such action
  confirmed by a court).
  

Are there any defences? It will be a defence for the trespassing person to assert they had a reasonable excuse to either refuse to leave and/or re-enter.

Aggravated trespass is a criminal (ie arrestable) offence.

For trespass to be aggravated, a trespasser must be:

• Intentionally obstructing, disrupting, or intimidating others from carrying out ‘lawful activities’.

NB ‘lawful activities’ currently include ‘trail hunting’ and bird shooting. so sabbing a hunt or a shoot can be considered ‘aggravated trespass’ even when the intention might be to stop a crime (eg breaches of the Hunting Act 2004) being committed.

A senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land; if they refuse to leave after being ordered to by police officer, or if they return to the land in question within a period of three months, this is an additional offence.

Maximum penalty is 3 months imprisonment, or a fine of £2500, or both. First time offenders would likely get a fine of between £200 – £300.

The Firearms Act 1968 says that “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)”.

Having or using a firearm while trespassing is considered to be armed trespass, a serious offence. The trespasser 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 (£2500) or to both

For the purposes of poaching law a person shooting or sending a dog from a public road or footpath onto private land is trespassing.

• The police should always be called when someone is seen or found without permission on land (or in a building) with a firearm. The burden of proof is on the trespasser to prove that they have a good reason to be on the land carrying a gun.

Potentially, yes. If a path is used for access for twenty years or more without the legal owner objecting, the long useage creates a legal right of way sometimes called an “easement by prescription”.

For example if a pathway down the side of a house has been used by the public for over twenty years, it will likely now be a right of way and someone using it is not trespassing.

However, the law does not allow someone to profit from criminality. So if the use of the land, no matter the time period, was criminal, there will be no ‘easement’ and it will still be trespassing.

• If a designated right of way is not used for a period of twenty or more years, it does not stop being a right of way. In England and Wales a public right of way will exist indefinitely unless the path is destroyed (such as by erosion), or is closed by official order (for example if it is linked with crime).

The police will usually only get involved when a landowner has tried and failed to peacefully remove trespassers from their property.

But note that police will remove trespassers when the trespasser is committing a criminal offence. This could be one of the criminalised forms of trespass (including illegal gatherings or “encampments”; squatting; using private land as a shortcut; fly-tipping on someone else’s property), or a non-criminalised form of trespass in which the individual commits a separate criminal offence such as abusive and threatening behaviour or damage to property.

Armed trespass is a serious offence and the police will always intervene if a trespasser is (or is suspected of) carrying or using a firearm.

Trespassing is unlawful entry of one person on to another person’s property. If expressed or written permission is not given by the landowner, then anyone who is found on this land without permission is trespassing.

If an individual is considered to be trespassing, the first call of action is to ask them to leave. If the individual refuses, then a landowner is allowed to use ‘reasonable force’ to remove them. What ‘reasonable force’ means depends on the situation, but a landowner may be guilty of  several criminal offences if they forcibly attempt to remove the trespasser and their property from the land.

A landowner will usually call the police if there has been abusive or threatening behaviour from the trespassers towards the owner of the land, their family or employees.

• Under Section 61 of the Criminal Justice and Public Order Act 1994, the police have the power to ‘direct trespassers to leave land (but not buildings)’ where they have reason to believe they have entered intending to occupy it.

No a landowner certainly may not shoot a trespasser.

If a person refuses to leave land when asked to the landowner is allowed to use ‘reasonable force’ to remove them. A landowner is not expected to make fine judgments over the level of force used in the heat of the moment (and what ‘reasonable force’ means depends on the situation), but landowners are not permitted to use a firearm to remove a trespasser – this would be deemed excessive force and would likely constitute a form of assault.

• In the UK the only legal justification for shooting another person is self defense if they believe their lives are in danger.

Yes trespass does exist in Scotland. Although the Land Reform (Scotland) Act and its amendments created legal rights of access (a ‘right to roam’) there is no blanket permission to walk wherever we want and the rights came with responsibilities. These are “respecting other people’s privacy, safety and respecting the environment around them”. Details of the rights and their corresponding obligations and other information can be found in the Scottish Outdoor Access Code available online at outdooraccess-scotland.scot

The ‘right to roam’ does not include access to land that is adjacent to dwelling houses, farm buildings, compounds, schools, and the like, but a member of the public exercising their access rights under the Land Reform Scotland Act 2003 and behaving responsibly is probably not trespassing.

The law in Scotland also says that “Entering a piece of land or property is not considered trespassing if the following defences can be shown: 1) consent; 2) an emergency or judicial warrant which must be signed, dated and specify the address of the premises”.

• A landowner could commit several criminal offences if they forcibly remove an individual and his/her property from the land. A landowner may obtain a court order, which if breached may then turn into a criminal matter.

In Scotland there is a ‘right to roam’ (or more accurately a ‘right of responsible access’) which allows access to most of the uplands, and this point about ‘Welcome to the Moor’ signs in the Cairngorms National Park recommending that the public “keep to paths and tracks when possible” was raised on Nick Kempe’s excellent parkswatchscotland blog some years back. The text below largely comes from his post “Grouse moor propaganda and the Cairngorms National Park“

Nick was involved in drawing up the Scottish Outdoor Access Code (SOAC), and says that nowhere in the Code is there an instruction to keep to paths and tracks. Walkers are advised to keep to a path or track – if there is one – when passing people’s houses, but states that “The whole point of the access legislation is it gives people a right to roam, whether on paths or off-paths”.

He goes on to say that “There is no justification for the “recommendation” on the sign. Driven grouse moor shooting takes place on only a few days of the year and model signage has been produced to inform walkers that shooting, like deer stalking is in progress.”

There are of course valid reasons to ask people to behave responsibly and protect a sensitive environment (even one ‘farmed’ for Red Grouse), but hinting that the public is somehow ‘doing something wrong’ if they leave footpaths (which is not the case) is not the way to put that across. And given their history of raptor persecution, the use of snares and traps, and their profit-driven model it’s little wonder that many of us view such ‘advice’ from shooting estates with suspicion and distrust.

• See also Nick Kempe’s post from November 2020: ‘Unlawful signs, access authorities and the right to roam‘.

Poaching is the illegal hunting or capturing of wild animals, and is usually associated with land use rights. It is essentially trespassing by an  individual or group of individuals with the intent to take or kill wild animals (most often rabbits, deer, pheasants, partridges, or grouse) without the owner or the occupier’s permission.

Poaching includes entering land to retrieve shot animals without the prior consent/permission of the landowner or occupier of the land where the animal falls.

Poachers are usually armed. Any indivdual trepassing with a firearm is commiting armed trespass. Armed trespass is a serious offence and the police should always be called.

Day Poaching: Under section 30 of the Game Act 1831 it is “an offence for any person to trespass in the daytime by entering or being upon any land in search or pursuit” of pheasant, grouse, partridges, woodcock, snipe or rabbits.

Night poaching: Under the Night Poaching Act 1828 it is an offence “at night to unlawfully take or destroy any game or rabbits on any land, open or enclosed, this includes public roads, paths and verges”.

An authorised person may require a person found committing an offence of poaching to give their full name and address, and leave the land immediately. If the details given are false or they fail to quit the land or wilfully continues on the land or returns to the land, they may be arrested. Authorised person here means the occupier or person with the right to kill ‘game’, persons authorised by them such as a gamekeeper, and of course a police officer.

It depends on what is done, because whether we like it or not (and we don’t) as long as no laws are being broken and shooters have the landowner’s permission to be on the site, shooting some species of birds and mammals is currently considered a ‘lawful activity’.

Trespassing without causing any damage or without trying to stop the shoot taking place is a civil offence (no one is sent to prison in a civil case, but may be left out of pocket if found liable for compensation). The police have no power to act, but may help in removing a trespasser. A landowner or their agent may ask trespassers to leave and subsequently may use “reasonable force” to remove an individual (“reasonable force” can be interpreted in many ways by the courts, and the use of ‘unreasonable’ force could leave a shoot operator open to prosecution).

The police are only likely to intervene in removing trespassers to prevent a breach of the peace.⠀

On private land (and almost all shooting takes place on private land) trespass becomes a criminal offence of aggravated trespass the moment a trespasser tries to prevent another person pursuing a lawful activity. Again it is up to the landowner on whose land there has been an incursion to decide on what action to take.

As of 2023 it’s unclear how the Police, Crime, Sentencing and Courts Act 2022 (Policing Act) or upcoming Public Order Bill may be used on eg monitors or sabs disrupting a shoot.

In Scotland, legislation relating to trespass is more complicated, and it is sometimes argued that the offence does not exist. However, anyone causing actual damage or disruption may be requested to leave. Police will of course respond to any criminal behaviour and react accordingly.

Wildlife crime is defined as any action which contravenes current legislation governing the protection of the UK’s wild flora and fauna, including species traded in the UK.

Note that wildlife crime does NOT include:

• Incidents involving domestic or companion animals such as dogs (other than dogs being used to hunt mammals), cats, rabbits, domesticated birds, etc.

• Wild animals that have been involved (killed or injured etc) in road traffic accidents.

Road accidents with wild animals do not need to be reported to the police, but note that domestic animals (as well as goats, horses, cattle, asses, mules, sheep and pigs) come within the remit of the Road Traffic Act.
If you have a road accident involving these animals you are required by law to report it to the police. 

If a wild animal is so badly injured in a road accident that there is no chance of recovery or the animal can not be returned to the wild then he or she may be euthanised, providing there is no appropriate long-term captive or semi-captive accommodation or when treatment would involve undue suffering or distress.