Narrow Margins

Trespass means to cross the boundary of private property. 

Private property and its boundaries are performed. In other words, they are produced continuously in a number of ways: by law, by material features such as fences and hedges, and always in relation: between at least two people in relation to an object.

They are not simply performed by by the titleholder, but a shifting combination of those who have permission to use the land (think renters, family and friends, customers) and those who have the authority to enforce the boundaries of private property (the police, private security, and often also people with use-permissions). 

Ownership is complicated and has many layers. What matters is who is deemed a trespasser, and who ultimately has the authority to designate them as such. 

Today, private property is such a significant social fact that owners, permitted users, and enforcers have more and more discretion over what constitutes trespass — without much legal recourse for “trespassers”. 

There is juridicial difference between civil and criminal (aggravated) trespass. This summary will covers some of the laws that define the difference, and increasingly granting greater discretion to owners, permitted users, and enforcers of trespass. 

Partly because their level of discretion is so high, we need to be as specific as possible about what the law says, as well as understand that the law is one of many factors that produce private property. Therefore, it is best to understand the difference between civil and criminal trespass as a spectrum that is contingent on social and spatial factors. It is also best to understand permission, and therefore trespass, as another spectrum that is dependent on social relations.

For instance, the Right to Roam campaign can claim that trespass, under their recommendations, is a civil offence. To our knowledge, not one person has been convicted of aggravated trespass as part of their campaign activities because they fall within the conditions of civil trespass. The campaign strongly encourages ‘trespassers’ never to cause damage to private property, to assert their knowledge of the law, but ultimately to obey a notice to leave. 

What makes Right to Roam campaigners different to people who are street homeless, or Gypsies and Travellers? That’s an important question, and we can gain insight into the difference between civil and criminal trespass by looking at Scotland.

In Scotland, trespassers have a ‘right to roam’: there is a default of inclusion across land, which means landowners have to make a case for why this right is limited in some cases. For instance, entering someone’s back garden without permission is still trespass. So, contrary to popular belief, trespass does exist in Scotland. In fact, it is a much stronger law with more significant consequences for those who do trespass. 

Legal scholar Bonnie Holligan has studied Scotland’s trespass laws, particularly the continued impact of the Trespass (Scotland) Act 1865. This was amended with the Land Reform (Scotland) Act 2003, which granted the ‘right to roam’. However, this right extends to “recreational purposes” and is contingent on responsible use under guidance from the Scottish Outdoor Access Code. As Holligan writes:

“the (perhaps odd) effect is that someone camping purely for entertainment purposes will be protected, but a homeless person lighting a fire in order to survive may still be subject to the penalties in the 1865 Act.” 

https://www.taylorfrancis.com/chapters/edit/10.4324/9781315815565-5/criminalisation-squatting-bonnie-holligan

Not all who trespass are equal — even in Scotland. Indeed, there are a number of laws with a vast array of contingencies for what constitutes civil and criminal trespass, which can be applied largely at the discretion of owners, permitted users and enforcers across a variety of conditions. 

We’ll soon update this article to delve into some of these laws and their conditions of what defines trespass. But first, let’s start with the recent Police, Crimes, Sentencing, and Courts Act 2022. It is this act we’re most concerned with, because it brings us closer to the state of criminal trespass in Scotland (without its access freedoms, of course). Therefore, certain already marginalized groups are further squeezed into more precarious spaces, of which there are less and less.

The Narrow Margins project is concerned with three groups:

1. Gypsies and Travellers
2. People living street homeless
3. Environmental campaigners

The Police Act 2022 affects these groups in significant ways.

1. It criminalizes trespass with a vehicle, on punishment of a fine and confiscation of a vehicle, meaning people’s mobile homes can be removed.
2. It repeals the Vagrancy Act which criminalizes homelessness, but only when new legislation on vagrancy is passed. (Our research partner Streets Kitchen, as well as the human rights charity Liberty, warn us that this is expected to be more severe.

Together, we find these changes have produced a ‘chilling effect’ across these groups. This means it has empowered owners, permitted users and enforcers of trespass to act with greater discretion, even when specific laws are not actually applied or enforced. This poses a great danger of misuse and an inability to hold these actors accountable, but also inhibits negotiation on the ground and in courts. 

While the Police Act 2022 adds new conditions as to what constitutes trespass, it is important we recognise how laws of trespass work together, even if they might date all the way back to 1865. These conditions can be used in conjunction with each other in order to control land use. 

Check back here in early 2024 for summaries of trespass laws.