Information and Advisory Note Number 10 Back to menu
1.1 There was much public debate about the aggravated trespass provisions in the 1994 Criminal Justice and Public Order Act during its passage through Parliament. This note explains the implications of this legislation for open air recreation.
2.1 Most of the 1994 Act has nothing to do with SNH's business. The aggravated
trespass provisions fall into Part V of the Act, Sections 61-80. This 'Public
Order1 part of the Act has provisions for the removal of trespassers residing on
land - Sections 61-62; for the control of raves - Sections 63-67; on disruptive
trespassers - Sections 68-69; and on trespassory assemblies - Sections 70-71.
The remaining Sections of
Part V do not apply to Scotland but they cover
squatters and powers to local authorities in England and Wales to remove
unauthorised campers from land.
2.2 So the main implications for recreation lie in Sections 61-62 and 68-69.
Sections 70-71, on trespassory assemblies, also have a little relevance to SNH.
This part of the Act creates a number of new offences, but the powers in
Scotland lie with the Police as an operational matter in the light of the
circumstances of any particular case. Prosecution for any offence lies with the
public prosecution service, and not individual landowners. Scottish Office Home
and Health Department Circular 17/94
provides some useful guidance on the possible use of this legislation.
3.1 Sections 61-62 enable a police officer to direct two or more trespassers who
are residing on land to leave. The occupier first has to have taken reasonable
steps to ask the persons to go, and they have to be either causing damage or
been threatening, abusive or insulting, or have between them 6 or more vehicles
on the land.
3.2 An offence is caused when a person does not leave on direction by the Police
or returns as a trespasser within three months. It is a defence that a person is
not trespassing or that the person has reasonable excuse for failing to leave
the land as soon as reasonably practicable.
3.3 The definition of land does not include buildings (other than agricultural
buildings or scheduled monuments) nor does it include a road (as defined in
Scotland) except where that definition covers footpaths and cycle tracks or a
bridleway, as defined under the Countryside (Scotland) Act 1967. So public
rights of way by foot, cycle, or horse are covered. Section 61 of the Act also
defines trespass as"... entering or, as the case may be, remaining on land
without lawful authority and without the occupier's consent".
3.4 This part of the Act is likely to have few implications for recreation, but it
does parallel the Trespass (Scotland) Act 1865 and conceivably it could be
deployed against recreational campers. Under the 1865
legislation an offence is caused by 'encampment' (and also by lighting fires)
without consent, while the new legislation provides only for an offence when a
person does not leave on direction (or re-enters as a trespasser within 3
months).
3.5 Little guidance Is given in the SHHD Circular on this legislation except
that the senior police officer may take account of the personal circumstances of
the trespassers, for example, the presence of elderly people, invalids,
children, and so on. The Circular also states that this Section will not affect
the toleration policy currently applying to traditional travelling people
(whereby there is tolerance where adequate provision of official sites does not
exist).
4.1 What the law says. Most of the recreational concern about the 1994 Act lies
with the provisions for aggravated trespass in Sections 68-69. Sub-section 68(1)
defines the offence of aggravated trespass in the following words:
"A person commits the offence of aggravated trespass if he trespasses on land in
the open air and, in relation 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.
4.2 An activity is defined as lawful if a person or persons may engage in the
activity on the land on that occasion without committing an offence or
trespassing on the land.
4.3 Section 69 empowers the senior police officer present to direct persons whom
he reasonably believes are committing, have committed or intend to commit the
offence of aggravated trespass to leave the land. It is a separate offence to
disobey such a direction or to return as a trespasser within three months. The
definition of land in this case does not include footpaths, bridleways and cycle
tracks as defined under various
legislation. There is no statutory defence to the offence of aggravated trespass
but, again, it is a defence against a direction to leave to show that a person
was not trespassing on the land or that he had reasonable excuse for failing to
leave the land as soon as practicable.
4.4 Guidance in SHHD Circular. The Circular provides some helpful guidance in
the following words
:
"The purpose of Sections 68-69 is to allow action to be taken against those who
deliberately set out to trespass to disrupt lawful activities on land in the
open air. During the passage of the legislation Ministers gave assurances that
peaceful activities such as hill walking would not be affected. While there may
be circumstances in which it could be alleged that hill walkers, etc. are
disrupting a lawful activity merely through their presence on the land, the
Crown Office has indicated that Procurators Fiscal are likely to confine
themselves to taking proceedings against persons who can be said to have acted
with a specific and ulterior motive and intention of obstructing or disrupting,
or intimidating persons engaged in a lawful activity."
4.5 Proceedings for criminal offences are brought by the Procurators Fiscal and it
appears from this guidance that cases are likely to come to the courts only in
quite confined circumstances.
4.6 The SLF view. The Scottish Landowners' Federation has set out guidance to its
members on dealing with aggravated trespass in which it states that:
".... the offence of aggravated trespass deals with matters of public order and,
in particular, the deliberate, planned disruption of lawful „ activity in the
countryside, including field sports. It has no other part to play in controlling
public access to private land. Its intended use is for dealing with those
seeking to sabotage field sports and other lawful activities. It has no
relevance to normal recreational users of the countryside."
4.7 The SLF note goes on to say that the
Federation will deplore any attempt by a
landowner to use the new law against people
enjoying the countryside in a reasonable way
and that the new law cannot be used for
unintentional disruption to countryside
activities, even where walkers behave
irresponsibly.
4.8 The note also states that"... a few situations may arise where walkers
deliberately ignore reasonable requests and insist on a course of action which,
as explained to them, they know will disrupt the stated activities. In such a
situation it might be thought that an innocent intention to climb a hill will
have changed to an intention to disrupt.*1 However, the note goes on to advise
strongly against invoking the law because it is the Federation's opinion that it
would be extremely difficult to secure any prosecution, and because any attempt
to use the law in this way would be highly controversial and likely to command a
great deal of public attention.
4.9 The view of recreational bodies. Most recreational bodies continue to view
this legislation with anxiety. First, they argue that this is a major extension
of the criminal law into access onto land and the scope of the law is as yet
uncertain. Second, there is concern that, notwithstanding the advice to
Procurators Fiscal and the expressions of goodwill from bodies like the SLF, the
new law may be used as a threat by some landholders to intimidate walkers. The
Mountaineering Council of Scotland has published a leaflet which asserts
strongly the Council's belief in the traditional freedom of access to the hills
and its intention to expose any misuse of the law.
5.1 The statement in Circular 17/94 is a very helpful clarification of the likely
circumstances in which prosecutions might be considered for aggravated trespass
under the new legislation. It does appear from this clarification that there is
very little likelihood of a recreational visitor to land being prosecuted.
5.2 However, the aggravated trespass legislation does alter the basis on which
people normally take access. At present, the relationship between an owner or
occupier and a visitor to land will be covered in most circumstances under the
common law. The new legislation creates a general offence of intention to
disrupt, obstruct or intimidate. So, a person on land may be in the position of
having to have a defence that they are not breaching its terms.
5.3 Hopefully, the combined effect of the advice given to Procurators Fiscal (as
set out in the words of the Circular), the strong advice given by SLF and the
likely public outcry were
this legislation to be misused, will all combine to ensure that the present
approach to access onto land is not diminished. The Concordat on access to the
hills and mountains should strengthen commitment to promote assured access
through consensus and goodwill.
6.1 The provisions to restrain trespassory assemblies - Sections 70-71 - are
unlikely to have any recreational importance. This part of the Act gives a power
to a Chief Constable to seek an Order from the local authority to prohibit
assemblies of more than 20 persons on land to which the public have no, or only
limited, right of access.
6.2 An Order may only be sought where the Chief Constable reasonably believes that
an assembly is likely to be held without the permission of the occupier of the
land; or to exceed the limits of the public's right of access: and where the
assembly may result in either serious disruption to the life of the community;
or where there may be significant damage to the historical, architectural,
archaeological or scientific importance of the land or a building or monument on
it.
6.3 There is no guidance as to how a Chief
Constable comes to a view as to whether
significant damage is likely to be caused to
the scientific importance of a piece of land,
but one might expect, should the matter ever
arise, that SNH's advice be sought.
Recreation and Access Branch
Research and Advisory Services Directorate
Scottish Natural Heritage
2 Anderson Place
Edinburgh EH6 5NP
Contact- John W Mackay
0131-446 2418