0 Unwelcome Visitors

TRESPASS TO LAND - UNWELCOME VISITORS!

SCENARIO

You are just going to check that everything is in order for the big event or show. For years you and your club having been trying to get it held at your ground. Just think what it will do for the club and the town. You round the bend and what do you see?

Caravans, four-wheel drives, flat beds, box vans and lorries. There are unwashed kids running around. Chained to some of the vans are dogs of a breed and size that readily suggests they are not kept as family pets. There is rubbish all over the place. Several half-dismantled vehicles litter the site. The perfect, green velvet you left last night is now pitted and rutted with vehicle tracks. There are piles of rubbish. Someone has emptied the contents of a caravan toilet onto the ground, ugh!

How did they get in? The gates had been securely chained and padlocked. Where are the gates?

FACTS

The area is owned by the club and not part of any public open space or common land. The gates and padlock have disappeared (or are there and damaged), and there was no other means of access to the land.

The vehicles have done damage to the area.

WHAT CAN YOU DO AND, MORE IMPORTANTLY, CAN THE SHOW GO ON?

THE LEGAL SPEAK

Broadly speaking trespass is a civil wrong. In law-speak it is what is known as a "tort". However, it can also be a crime under sections 6-10 of The Criminal Law Act 1977 and also sections 61-80 of The Criminal Justice and Public Order Act 1994.

A trespasser is a person who intentionally interferes with your possession of land. It is not necessary to prove damage to the land. Just being on the land is sufficient for a claim for trespass to arise. League Against Cruel Sports v Scott (1985)

Trespass is committed against an occupier of land, which means the person entitled to possession of the land by virtue of an estate or interest held by him. Where the land is "Common Land", within the meaning given to it under Section 22 of The Commons Registration Act 1965, occupier means a "commoner" ie a person with legal rights of common or where the general public also have rights of access to common land then a Local Authority.

There are 3 basic defences to trespass. The first is a licence to be there; an easy example is the man who buys a ticket to see the Golf Open. The second is lawful authority; the police, H M Customs & Excise, the Inland Revenue and many others have or can obtain a right of entry by statute or court order. Without a properly obtained warrant a search of your property by the police would be a trespass. The third is necessity; such as the person at your door who asks you to phone 999 to report a car accident outside your house.

What civil remedies does the law offer?

The remedies are 1 damages, 2 an injunction, 3 re-entry, 4 mesne profits, 5 ejection, 6 distress damage feasant and 7 abatement. (See footnote)

The primary, effective civil remedy is that of an injunction which is an order of the Court for the trespassers to leave your land. To disobey the Court Order will amount to Contempt of Court which, usually after a number of warnings by the Judge, can lead to a term of imprisonment. The Courts do not readily commit people to a short term of imprisonment, especially when prisons are already over-crowded and the Prison Service is over-stretched.

Don't get carried away by unrealistic and unachievable solutions. You probably don't have the time, inclination or the money to pursue all the available remedies. Do you really think you will successfully recover damages from persons whose identity you do not know or cannot be sure of, who arrived under cover of darkness from who knows where and who will probably depart, just as they arrived, heading in an unknown direction.

The Government enacted The Criminal Justice and Public Order Act 1994 so as to provide a more effective remedy, which the civil law did not provide but which still depends upon the discretion of the Police.

Before you phone for the police to ask for their help, you or someone acting on your behalf must have taken reasonable steps to ask the trespassers to leave. The odds are that the trespassers know more about the law than you do. It's in their interests to do so. They've probably been in this position many times before and they know all the tricks. Don't go looking for a confrontation. Don't go alone. Remember they might just be caravans to you but they are homes to the trespassers. Take a colleague or two as witnesses but do not go mob handed otherwise you may find yourself at the wrong end of a police prosecution for a public order offence.

If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on your land and are there with the common purpose of residing on your land for any period and you have taken reasonable steps to ask them to leave and that any of those persons has caused damage to your land or to property on your land or used threatening, abusive or insulting words or behaviour towards you, a member of your family or an employee or agent of yours or that those persons have between then six or more vehicles on your land then he (the senior police officer) may direct those persons, or any of them, to leave your land and to remove any vehicles or other property they have with them on the land.

Vehicles include caravans, so 3 caravans and 3 towing vehicles are sufficient for the police powers to be exercised. The direction to move persons and property off the land need not be communicated in person by the most senior police officer present at the scene but can be communicated by any uniformed police constable present at the time.

A trespasser, knowing that a direction has been made and which applies to him, who fails to comply with the direction as soon as reasonably practicable or having left the land returns to it within 3 months, commits an offence with a maximum penalty of 3 months in prison or a fine or both on summary conviction. It is a defence for an accused to show that he was not a trespasser, that he had a reasonable excuse for not leaving the land as soon as practicable or for re-entering it as a trespasser.

Where a direction has been made and a trespasser fails to remove a vehicle, the police may seize and remove the vehicle. Seized vehicles may be retained, disposed of or destroyed. Charges for the removal, retention, disposal or destruction of a vehicle may be levied on the person from whom it has been seized.

By section 77 of The Criminal Justice and Public Order Act 1994 your Local Authority also has power to direct people camping in caravans or other vehicles on unoccupied land, or on occupied land without the owners consent, to leave and remove their vehicles. Those concerned need not be trespassers, nor have behaved in a particular way. Failure to comply with such a direction as soon as practicable or returning to the land within 3 months is an offence punishable with a fine.

A constable in uniform may arrest anyone they reasonably suspect of committing such an offence without a warrant.

For the purposes of this legislation land also includes agricultural buildings and also scheduled monuments but not other buildings. It does not include a highway unless it is a footpath, bridleway or byeway open to all traffic or a road used as a public path or a cycle track.

If you are in the business of hiring out your ground for shows and other events you should take care to include contractual terms and conditions either to exclude or, at least, to limit the extent of your liability in the event that an event is cancelled or delayed. It would also be advisable for you to insure against the risk.

Footnote

1 Damages - if only a trivial trespass will be nominal. If the trespass has caused deterioration to the land then the measure of damages will be the diminution in value. Where the trespass is flagrant the Court can award exemplary damages.

  • 2 Injunction - a Court order to quit the land.
  • 3 Re-entry - peaceable re-entry or even the use of reasonable force by a displaced residential occupier. By the Criminal Law Act 1977 it is otherwise a criminal offence to use violence to effect a re-entry.
  • 4 Mesne profits - a hypothetical form of rent.
  • 5 Ejection - a legal process for a trespasser to be ejected from land.
  • 6 Distress damage feasant - the right to retain any property (excluding animals) which has caused the trespass.
  • 7 Abatement - is self help, and constitutes the removal of the trespass, without Court proceedings, should be done promptly and as an emergency measure.

THE RESULT

Damage has been caused to the land by the travellers' vehicles (no proof of damages to the gate). It is within the power of the police to direct them to leave and to remove their vehicles immediately. You should, in theory, get your site back in time for the big event, but you may have a bit of clearing up to do.

However, the police power to remove is discretionary. For whatever reason, they may decide not to direct the travellers to leave. It is up to the police.

Moral of the story - make sure you have a good relationship with your local police.

Please note: This is a general statement of the law at 12 November 2002. The law is constantly changing. You are strongly advised to consult with your legal adviser who should let you know about any changes in the law.

Chris Dunham
Solicitor
Elliott & Co
83 Newhall Street
Birmingham
B3 1LP

Tel 0121 236 9690

Fax 0121 236 6697

cmdunham@elliottco.co.uk

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