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
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