The Law and You
TRESPASS
Elyned Ashcroft
Elyned Ashcroft is a solicitor with Cartmell Shepherd of Carlisle who are ranked the top agricultural law practice in the North West by the independent Chambers guide. She lives on a hill farm in the Pennines with her husband and three children, where they keep Kendal Rough sheep and pedigree Fell ponies. Her contact is eda@cartmells.co.uk
Most people are aware that trespass is the unjustified entry on to land in the possession of another. However, there is still a lot of confusion about trespass. This is not surprising given the many signs proclaiming “Trespassers will be Prosecuted”. Trespass, as a rule, is not a criminal offence.
There are inevitably exceptions. Such as when it is an aggravated trespass to which the provisions of sections 61-80 of the Criminal Justice and Public Order Act 1994 apply. These were designed to deal with the problems of hunt saboteurs and mass protests. Section 69 gives the Police the power to direct that someone they suspect of committing, or intending to commit, trespass with the purpose of intimidating, obstructing or disrupting people carrying out a lawful activity must leave the land. If the trespasser fails to do so or re-enters the land within 3 months he commits an offence for which the punishment is a fine or up to 3 months in prison. Another example when trespass is a criminal offence is when the trespasser enters land without reasonable excuse with a firearm contrary to section 20 of the Firearms Act 1968.
In the vast majority of situations trespass is a civil matter and if an owner or occupier of land is concerned that another person, often a neighbour, is wrongly entering or placing objects, such as rubbish, on their property then they can sue in trespass. It is significant that in proceedings for trespass it is unnecessary to show damage and often no loss or quantifiable damage is caused. The outcome can simply be the removal of the trespass/trespasser and an injunction to stop future trespass. This contrasts with an action in nuisance which is closely related and can in some circumstances also apply. However, to succeed in an action for nuisance you have to be able to show that you have suffered some actual loss or damage.
One trespass case I recently dealt with on behalf of a farming client concerned the use by Network Rail employees of a track over which Network Rail had no right to pass. Little actual physical damage was caused by the employees although my client’s evidence showed they used the track regularly. The expert employed to assess the amount of damage did so on the basis of the value to Network Rail of using the track in saving time and expense being what, in turn, my client could have charged Network Rail for its right of way. The case settled before the hearing.
For an action to be successful it is vital that it is backed with strong evidence. In that case, cameras linked to a computer were used to gather evidence to show the frequency of the trespass by Network Rail employees.