Aggravated Trespass

It is not normally a criminal offence, save for some notable exceptions (e.g. defence land with byelaws in place, the railway etc), for a person merely to trespass on someone else's land.

In such circumstances the landowner or their agent has the right to ask the trespasser to leave. If the trespasser refuses to do so, the landowner or their agent can use minimal force to physically eject them from the property, although that is not an option to be exercised lightly given the possibility of legal repercussions if excessive force is used. The police, should they be present, are permitted to assist a landowner in ejecting trespassers in these circumstances.

Contrary to popular belief, trespass can take place on premises or land that are open to visitors or members of the public. Trespass at these places, which have an implied right of access, only occurs after the landowner or their agent has asked a person to leave and they refuse to do so.

An adjunct to this is that trespass can, technically, take place on a public right of way, such as a footpath or bridleway.

In England and Wales there is a common law right for a member of the public to pass and repass along the highway (which encompasses public rights of way) and to use it for any other purpose that it is reasonable to use a highway for (e.g. to sit and have a picnic or breather if out on a long walk).

If, however, a member of the public uses the highway for any other purpose than to pass or repass - and certainly if they use it in any manner to the annoyance or inconvenience of the landowner - then they become a trespasser. Similarly they become a trespasser if they stray off the marked highway.

In the case of non-criminal trespass, as we have just described, the only legal recourse available to the landowner is to sue the trespasser for damages in the civil court. Should the trespasser regularly encroach on their property, the landowner could seek a civil injunction forbidding them from doing so.

In today's article we are going to explore the criminal offence of aggravated trespass.

We give the customary disclaimer that we cannot possibly cover every single angle of the offence, but hope to cover the most pertinent points. As always, we'd invited readers to consult the references mentioned below if they require any further information.

Aggravated trespass is an offence contrary to section 68(1) of the Criminal Justice and Public Order Act 1994, which states the following:

"A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, 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 68(1) of the Act was amended by virtue of section 59(2) of the Anti-Social Behaviour Act 2003, to remove the requirement that land had to be "in the open air". Case law, most notably the case of DPP v Chivers [2010] EWHC 1814 (Admin), has firmly established that land includes inside buildings.

Section 68(2) of the Act defines that a person is engaging in "lawful activity" on land if they are not trespassing or committing an offence - e.g. they have the landowner's permission to be going about their business there.

Section 68(3) of the Act sets the maximum penalty on summary conviction as a fine at level 4 (currently £2,500) and/or 3 months' custody.

Section 68(4) of the Act permits a constable wearing uniform to arrest, without warrant, any person he reasonably suspects of committing an offence under section 68(1).

Section 68(5) of the Act further defines the meaning of "land" as mentioned in section 68(1). Public footpaths, bridleways and byways fall under the definition of land, but public roads do not.

Section 69 of the Act, which we shan't dwell on for the purposes of this article, permits the senior police officer present to direct that any person he reasonably suspects of committing aggravated trespass leave the land. An offence is committed if that person fails to leave the land as soon as practicable or, having left the land, returns as a trespasser within 3 months.

The maximum penalty for an offence under section 69 of the Act is also a fine at level 4 and/or 3 months' custody on summary conviction.

Reading section 68 of the Act in its entirety, it can be observed that there are four elements to the offence of aggravated trespass:

• That the defendant must be a trespasser on land;
• That there is someone else lawfully present on that land (e.g. who is not trespassing), who is either engaged in, or about the engage in, some lawful activity;
• That the defendant must do an act on the land;
• That the act of the defendant was intended to intimidate all or some of the persons lawfully present on the land out of that activity, or to obstruct or disrupt it.

Considering these elements, some possible defences against a charge of aggravated trespass include:

• That the defendant was not actually trespassing - e.g. they reasonably believed they had the permission of the landowner to be there.
• That the person or persons lawfully present on the land were not engaging in lawful activity. This defence has been used successfully by saboteurs accused of disrupting hunting with dogs, where they could demonstrate that the hunting in question was an offence under section 1 of the Hunting Act 2004.
• That the defendant did not intend to intimidate, obstruct or disrupt the activity taking place at the time.

Case law (Nero & Anor v DPP [2012] EWHC 1238 (Admin)) has established that an individual's right to freedom of expression under article 10 of the European Convention on Human Rights does not preclude them from committing an offence under section 68 of the Act. This means protestors voicing their opinions can still be convicted of aggravated trespass.

It should also be noted that an offence can be committed in cases where a defendant does not actually cause intimidation, obstruction or disruption. All that is required is their intention to cause any of those situation.

In common with any other criminal offence, the prosecution could make an application for a Criminal Behaviour Order on the conviction of a defendant. The conditions of that order could seriously curtail their ability to commit similar offences in the future.