In his new book, illustrator and writer Nick Hayes makes the case for greater access rights to the land
The first thing you should know is that the famous sign ‘Trespassers Will Be Prosecuted’ is an out-and-out lie. Jolowicz [a Professor of Law] calls such signs ‘wooden falsehoods’, a neat phrase he borrowed from the arch-trespasser of the 1920s, G. H. B. Ward. Since 1694, the misdemeanour of trespass has resided in the province of civil, not criminal, law, and can only be brought to court if damages have been incurred. However, if you resist the landowner’s command to leave, if you are impolite, the police can be called and if you resist them, you can be done for a breach of the peace, or for obstructing a police officer.
A landowner is allowed to use reasonable force to encourage you to leave the land, though no one can agree what that means. They are not allowed to detain you, nor are you compelled to give out your name and address. When they do ask you to leave, you don’t necessarily have to retrace your steps; it is your right to leave at the closest available exit. If you return to the property, the landowner is allowed to apply for an injunction, which they have to send to you by post, which will be impossible, because they don’t have your address. If they do manage to serve you with an injunction and you are caught back on the land, you will now be in contempt of court, which most likely means paying a fine but, in theory at least, can mean prison.
However, owing to two relatively recent pieces of legislation, trespassing can be scaled up into the criminal sphere. In 2005 the Serious Organised Crime and Police Act (SOCPA) extended the arrest powers for the police and allowed them to keep DNA evidence of suspects, even after they had been cleared. Perhaps most controversially of all, it criminalised unauthorised demonstrations in Parliament Square, finally clearing the ten-year anti-war demonstration of activist Brian Haw, emptying the square and silencing his protest. Following the advice of the Armstrong report of July 2003, an extra section was sneaked into the Act, which as a statutory instrument required no new debate from Parliament. Its purpose was to ‘create a deterrent to intrusions at high-profile secure sites and to provide police officers with a specific power of arrest of a trespasser at such sites where no other apparent existing offence had been committed’. On these sixteen sites alone, walking is a criminal act.
But the real hocus pocus had come a decade before. The Criminal Justice and Public Order Act 1994 introduced criteria to arrest people for the newly invented crime of ‘aggravated trespass’. In 1992, 20,000 ravers and travellers met on common ground for an impromptu May Day rave in the Malvern Hills. It lasted a week and prompted police from the surrounding districts to descend on the land, searching diligently, desperately, for something to arrest them for. In the absence of any actual crime, this proved both difficult and embarrassing. So the bobbies lobbied hard, and two years later, alakazam! – trespass stepped up a gear.
The lawyers define ‘aggravated’ in their own breezy way as ‘any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences’. A hidden knife would be aggravated assault; and from 1994, a hidden intention had the same effect. Section 61 of the Act legislated that a police officer could remove two or more people from any private land, if they have met for a common purpose. That’s for the ramblers. Section 63 criminalises any gathering of twenty people or more who meet to dance to amplified music. That’s for the ravers. Section 68 criminalises the intimidation, deterrence, obstruction and disruption of lawful activities on land, which turns all protest on land not owned by the protesters into an illegal activity. At the time, this was primarily to restrict the hunt saboteurs, but is used in the vast majority of protests of all flavours, from fracking, to animal rights, to war. Your right to protest is secured by Articles 10 and 11 of the European Convention on Human Rights, but for the last twenty years, if you do it anywhere but your back garden or a highway, you can be arrested and sent to jail. On top of this, since 2014, a common ruling has inserted the phrase ‘additional conduct’. If you are trespassing on land and engaging in any additional conduct, literally anything, it can now be classed as intimidation
But there is another dimension to trespass that runs deep beneath the scaffold of the law. ‘Trespass’ is one of the most charged words in the English language. For such a small legal infraction, the notion of crossing a fence line, wall or invisible boundary is wrapped in a moral stigma that runs to the heart of English political and civil life. Many of our liberties and the restrictions on them are expressed in terms of land, parameters and property, so much so that it is hard to tell which is a metaphor for the other.
If someone has crossed the line, they have strayed over the limits of acceptable action and their words or deeds are deemed to be beyond the pale (the old Saxon word for fence). We talk of access equally in terms of the physical, with disability rights and the right to roam, and in the abstract realm, in terms of education, health and opportunity. Segregation, which directs the mindset of race and gender, is a word whose Latin root means to be cast out of the flock, and which reinforces the prejudice that racial groups that can be distinguished by a line alone. The legal texts are full of variants of an old word seisin, whose origin lies in the French word saisir, to seize. This word was the French version of the Latin rapio, which leads us to the word rape, where our understanding of sexual politics is structured through metaphors of personal space and acceptable boundaries.
To wander and to roam are implicitly connected with moral failings and the word ‘vagrancy’ has as much sense in morality as it does in legal cases concerning homeless people. A deviant is someone who has turned off the right way. To stray from the path suggests a clearly marked line of righteousness, signposted by societal or religious doctrines. And the most fundamental link between the physical world of trespassing and its moral parallel, is the origin of the word itself. Trespasser is the French verb meaning to cross over, which came from the Latin word transgredior, from whose past participle we get the English word: transgression. Transgression, which carries with it that pungent whiff of candle smoke and incense, that sense of religious damnation, is the reason Christians pray for the Lord to Forgive us our trespasses.
Extracted from The Book of Trespass: Crossing the Lines that Divide Us by Nick Hayes (Bloomsbury). Buy a copy here.
Nick is a guest on A Drink with the Idler this Thursday 17 September. Register for free here.
To find out more about Nick’s advocacy work, visit righttoroam.org.uk.