To deter trespassing on to land, a landowner would often erect signage stating ‘trespassers will be prosecuted’. However, those with legal knowledge know that trespass was, in fact, a civil wrong and not a criminal offence, meaning trespassers could not be prosecuted.

However, the introduction of the Police, Crime, Sentencing and Courts Act 2022 (‘PCSAC’) on 28 June 2022 makes trespass, in some cases, a criminal offence punishable by imprisonment of up to four months and/or a fine of up to £2,500.

In theory, this should provide landowners with some comfort, but will it work as an effective deterrent?

What was the legal position before the PCSAC?

Previously, landowners who suffered trespassers on their land had little option but to go to court seeking a possession order and damages (ie compensation), to unilaterally remove the unauthorised individuals from their land. The process could be costly and slow, with no prospect of recovering legal fees.

Some private enforcement agents advocate the ‘self-help’ remedy, whereby upon 24 hours’ notice having been given to the trespassers of the landowner’s intention to have them removed from the land, the agents are permitted under common law to use ‘reasonable force’ to remove the trespassers without a court order.

However, this is risky, because under the Criminal Law Act 1977, it is a criminal offence to use violence to gain entry to a premises against someone who is opposed to that entry. There is little judicial guidance on the tension between ‘reasonable force’ and the Criminal Law Act 1977.

The police could sometimes assist under Section 61 of the Criminal Justice and Public Order Act 1994, which gave them the power, exercisable at their discretion, to tell trespassers to leave provided any of the following criteria were met: (i) trespassers had caused damage to the land (ii) trespassers used threatening, abusive or insulting words towards the landowner or his agents, and (iii) where there were more than six vehicles on the land.

In reality the Section 61 powers were rarely deployed by the police, meaning landowners had to resort to either the self-help remedy, or the courts.

The real question is whether the PCSAC is a game changer in widening the discretion of the police, to enable landowners to remove trespassers more readily without resorting to the risky self-help remedy, or the time and costs of the court process.

When will an offence under the PCSAC be made out?

An offence will be committed under the PCSCA, if a person over the age of 18:

  • resides or intends to reside on land in or with a vehicle (including a caravan) without consent; and
  • fails to leave and/or remove their property (or re-enters the land) as soon as reasonably practicable when asked to do so; and
  • has caused, or is likely to cause ‘significant’:
    • damage to land/property/the environment;
    • disruption to the use of land/supply of utilities; and/or
    • distress via ‘offensive conduct’, such as the use of threatening words or behaviour.

Are there any defences?

It will be a defence for the trespassing person to assert they had a reasonable excuse to either refuse to leave and/or re-enter.

The PCSCA does not apply to some commercial and agricultural buildings.

Comment

Some landowners may welcome the introduction of the PCSCA as it provides a (potentially) potent and less costly option to remove trespassers from their land. However, the requirement to show ‘significant’ damage/disruption/distress sets a high bar.

The term ‘significant’ is not defined, but it suggests that a mere inconvenience will not suffice and that there must be compelling aggravating factors above and beyond mere trespass for the PCSCA to be engaged. This means the effectiveness of the PCSCA seems diluted and is compounded by the trespassers only needing to have a ‘reasonable’ excuse to be on the land.

It remains to be seen just how many police forces will utilise the PCSAC and how many prosecutions will be made.

For these reasons, our view, unfortunately, is that the PCSCA is far from a ‘cure-all’ and that landowners will still require legal support in pursuing the risk-averse route of obtaining a court order to ensure that trespassers are removed as swiftly as possible.