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Home » Legal Resources » Legal Guidance » S to U » Trespass and Nuisance on Land

Trespass and Nuisance on Land

Principle

Part V Criminal Justice and Public Order Act 1994 (CJPOA) Sections 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.

Charging Practice: General

Defendants who have committed offences contrary to Criminal Justice and Public Order Act 1994 (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.

General Public Interest Considerations

Suspects involved in offences dealt with in this chapter may be motivated by ideological beliefs 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.

 

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 Section 61.

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

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 Section 63(2) direction cannot apply to an exempt person, defined in Section 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 Section 63 power might apply. Section 65 provides a constable in uniform with a power to stop persons from proceeding to a gathering to which Section 63 applies. A person who fails to comply with a police direction commits an offence.

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 section 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 section 69(3). As with section 68 the words "in the open air" in section 69 were removed by section 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 sections 68 and 69 of the amended CJPO quite clearly included buildings. They remitted the case back to the magistrates' court with a direction to continue the hearing.

The section 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 Section 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 subsection (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.

This additional conduct is 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).

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


 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 Section 9 Criminal Law Act 1977 require the consent of the Attorney General.

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. 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. 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 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 Section 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 LR 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.