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Trespass and Nuisance on Land

Content:

Principle

Part V Criminal Justice and Public Order Act 1994 (CJPOA) s 61-80 conferred powers on the police and created 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 powers to direct trespassers to leave land and amended existing legislation in relation to the use of violence to secure entry to premises.

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General Public Interest Considerations

Suspects involved in offences dealt with in this guidance may be motivated by ideological beliefs and/or be of previous good character. Such factors do not mean that the public interest can never require a prosecution. If the evidential stage of the Full Code Test is satisfied, consideration of the public interest factors set out in the Code should be followed in the usual way.

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Charging Practice: General

Defendants who have committed offences contrary to CJPOA may also have committed other offences including: assault; offences under the Public Order Act 1986; obstruction; possession of controlled drugs; and road traffic offences. Prosecutors must consider carefully whether a CJPOA offence best reflects the evidence and the criminality of the defendant.

Offences under the CJPOA may 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, is not in itself a reason not to prosecute.

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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, the occupier's 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 s6 1.

The senior officer present at the scene has to believe that the conditions set out in s 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.

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Raves: Charging Practice

A rave is a gathering on land in the open air of 20 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality. Section 63 CJPOA provides the police with powers to direct persons gathering on land for a rave (or preparing or waiting for one) to leave. Failure to comply with a direction, or returning to the site within 7 days are offences.

Section 63(5) provides that a s 63(2) direction cannot apply to an exempt person, defined in s 63(10) as the occupier of the land, a member of their family, an employee or agent of the occupiers, and a person whose home is situated on the land.

Section 64 provides the police with powers of entry and seizure in relation to land to which it is reasonably believed the s 63 power might apply. Section 65 provides a constable in uniform with a power to stop persons from proceeding to a gathering to which s 63 applies. A person who fails to comply with a police direction commits an offence.

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Aggravated Trespass: Charging Practice

Section 68(1) CJPOA formerly provided that 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.

Section 59 of the Anti-social Behaviour Act 2003 amended s 68 by removing the words "in the open air".

Section 69(1) enables the senior police officer present at the scene 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 contrary to s 69(3). As with s 68 the words "in the open air" in s 69 were removed by s 59 of the Anti-social Behaviour Act 2003.

The Administrative Court considered the meaning of 'land', following the removal of the words 'in the open air', in DPP v Chivers [2010] EWHC 1814 (Admin). In that case the DPP appealed a decision that the respondents, who had been prosecuted for offences of aggravated trespass and failing to leave the relevant land when directed to do so by a police officer, had no case to answer, the alleged offences having been committed in a building. The Administrative Court found that 'land' in s 68 and s 69 of the amended CJPOA quite clearly included buildings. They remitted the case back to the magistrates' court with a direction to continue the hearing.

The s 68 offence is capable of being committed by hunt saboteurs or motorway protesters or any protesters who are trespassing on land, but it is not formally limited to protest groups.

Any activity falling within conduct described in s 68(1) is covered. Trespassing on land does not, in itself, amount to the commission of the offence: there must be trespassing on land together with the ss (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.

In Edward Bauer & Ors v DPP [2013] EWHC 634 (Admin), the Appellants appealed a decision of a District Judge convicting them of aggravated trespass following occupation of a store by demonstrators in protest against tax avoidance. The Administrative Court upheld the conviction as the demonstration was an additional act distinct from the trespass and it could be inferred that by demonstrating they intended to intimidate.

This additional conduct can be 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 (Stones: 8-24907).

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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 s 71 making it an offence to fail to comply with a direction not to proceed to a trespassory assembly.

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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). Refer also to Diplomatic Immunity and Diplomatic Premises, elsewhere in the Legal Guidance.

Consent

Proceedings under s 9 Criminal Law Act 1977 require the consent of the Attorney General.

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Squatting: Legislation

Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPOA) sets out, with effect from 1 September 2012, a specific offence of squatting in a residential building.

In order to prove the offence, the Crown has to show that the defendant:

  • is in a residential building as a trespasser having entered as a trespasser
  • knows or ought to know that he or she is a trespasser, and
  • is living in the building or intends to live there for any period.

Further information is set out in Ministry of Justice Circular 2012/04.

Meaning of Residential

To be a 'residential' building it must be designed or adapted, before the time of entry for use as a place in which to live.

Meaning of Trespasser

A person can only commit the offence if they have entered and remain in the residential building as a trespasser. Any intentional, reckless or negligent entry into a building will constitute trespass (see Archbold 21-116 2012). This means the offence will not apply to a person who entered the building with permission of the property owner, such as a legitimate tenant. This is so even if a legitimate tenant subsequently falls behind with rent payments or decides to withhold rent. Such a person is not a trespasser for the purposes of this offence. A property owner would be expected to pursue established eviction processes in the civil courts if they wanted to regain possession of their property in such circumstances.

The person must know or ought to know that he or she is a trespasser. The offence will not capture someone who reasonably believes they have permission to enter the property in good faith reasonably believing they had permission to do so. This might arise, for example, where a bogus letting agent encouraged an unsuspecting tenant to occupy somebody else's property. In such circumstances, however, it might be reasonable to expect the 'tenant' to provide evidence of a tenancy agreement or rent payments to show they had a reasonable belief that they were not a trespasser.

Meaning of 'live' or 'intend to live'

The offence also requires that the trespasser 'is living' or 'intends to live' in the building for any period. This ensures that the offence does not apply to people who are in the residential building momentarily or have no intention of living there. A person who enters the front hall or porch of someone's home to deliver junk mail, for example, might not have the permission of the property owner to do so, but he or she is not a trespasser for the purposes of this offence.

Subsection (2) makes clear that the offence cannot be committed by a person holding over after the end of a lease or license (even if the person leaves and re-enters the building). 'Holding over' is a term used to describe the situation where a tenancy or licence comes to an end, but the tenant or licensee remains in occupation. In certain circumstances, such a person may be alleged by the landlord to be a trespasser. This express provision is designed to ensure that the offence does not apply in these cases. The offence only captures those whose original entry and occupation of the building was unauthorised.

Subsection (3) defines the meaning of residential building. This includes any structure or part of a structure which has been designed or adapted for use as a place to live. This includes temporary or moveable structures to ensure the offence covers homes such as park homes, caravans or pre-fabricated homes (pre-fabs). The building must have been designed or adapted before the time of entry, for use as a place to live. This will ensure that where, for example, a barn has been converted into a country house or offices into flats, such buildings will be protected by the offence. But a trespasser who modifies a non-residential building by placing his bedding and personal effects in it would not be committing this offence because the building had not been adapted before the point he or she entered it.

There might be instances where a building has been occupied by a trespasser for a period of time, but on relinquishing the property the keys are handed over to another trespasser. Subsection (4) makes clear that for the purposes of the offence, the fact that a person derives title from a trespasser, or has the permission of a trespasser to enter the property, does not prevent them from being treated as a trespasser as against the owner or lawful occupier for the purposes of the offence.

Subsection (7) provides that the offence applies regardless of whether the trespasser entered the property before or after commencement of s 144. It means that trespassers who have been living in the premises for many months or years prior to commencement will be guilty of an offence if after commencement of the offence they are in the building as trespassers, they know or ought to know that they are trespassers, and they are living in the building or intend to live there.

Sentencing

A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

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Squatting: Charging Practice

Section 144 of the LASPOA provides greater protection to home owners than s 6 and s 7 of the Criminal Law Act 1977, as it does not require there to have been a request to the trespasser to leave.

Where squatters have been asked to leave by a displaced residential occupier or a protected intended occupier (as defined by the Criminal Law Act 1977) but fail to leave, an offence under s 7 Criminal Law Act 1977 will have been committed.

An offence under s 144 may also have been committed and prosecutors should therefore consider whether charging both offences is necessary and proportionate in the circumstances of the case. It is likely, that a single charge contrary to s 144 would in most circumstances provide the court with adequate sentencing powers.

A charge under s 7 may however be appropriate where a charge contrary to s 144 is not possible. The definition of 'residential premises' contained within s 7 is wider than the definition of 'residential building' contained within s 144. For example, it includes any building, any part of a building under separate occupation, or any land ancillary to a building, such as a garden. The new offence is limited to the building itself and does not cover land ancillary to a residential building.

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Squatting: Specific Public Interest Considerations

A prosecution must always be both necessary and proportionate.

Some public interest factors which should be considered when deciding on the most appropriate course of action are listed below. The following list of public interest considerations is not exhaustive and each case must be considered on its own facts and on its own merits:

  • Whether entry was forced.
  • Whether damage has been caused.
  • Whether there has been use of utilities (gas/electric/water).
  • Whether there were any other options available, such as local authority accommodation or assistance, accommodation with friends or family or a tenancy.
  • Mental health of the suspect.

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Violence to Enter Premises (Squatting): Charging Practice

The Criminal Law Act 1977 sets out offences relating to entering property without lawful authority and remaining there. The provisions are contained within two sections of that Act, namely s 6 and s 7.

Section 6 makes it an offence to use or threaten violence to secure entry into premises knowing that there is someone present who is opposed to the entry which the violence is intended to secure.

This section does not apply to a person deemed to be a:

'displaced residential occupier' - a person who was occupying any premises as a residence immediately before being excluded from occupation by anyone who entered those premises, as a trespasser provided that he continues to be excluded from occupation of the premises by the original trespasser or any subsequent trespasser,

or

'protected intending occupier' - a person who has a freehold/ leasehold interest with no less than 2 years left to run, who requires the premises for his own occupation, is excluded from occupation by a person who entered as a trespasser and he or someone on his behalf holds a written statement stating he requires the premises for his own occupation as a residence for himself and has satisfied ss 3.

Section 7 makes it an offence for any person on premises as a trespasser to fail to leave those premises on being asked to do so by, or on behalf of, a displaced residential occupier or an individual who is a protected intending occupier (Stones 8-24780). Section 74 CJPOA sets out supplementary provisions in relation to protected intending occupiers.

The offence of 'squatting' described above is likely to be the most appropriate charge in most cases as there is no requirement for the displaced occupier to ask the squatters to leave before the police can act. However, the definition of residential premises for the s 7 offence goes wider than the definition of a residential building under s 144 of the LASPOA. It covers, for example, any building, any part of a building in under separate occupation, or any land ancillary to a building. Therefore, where squatting is suspected on land ancillary to a residential building consideration should be given to a charge contrary to s 7.

The Protection from 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 s 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 L R 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.

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