Campaigners wanting to move beyond the limitations of a march through the streets or a pavement picket will discover how difficult it is to exercise rights to freedom of political expression and assembly on private land.
These difficulties are made worse by the increasing privatisation of “quasi-public” spaces, such as shopping centres and malls. In a case involving a group of residents who wanted to distribute leaflets in the centre of Washington, Tyne & Wear, to oppose plans to build on a local park, the European Court of Human Rights ruled in 2003 that, because the town centre has been sold to a developer, there is no obligation to provide a right of access to private property. The court told campaigners that they had other ways of reaching people through canvassing or the local press.
Landowners can afford to seek possession orders or injunctions against protestors (or people who simply “don’t fit in”). For example, in 2011 the Canary Wharf Group obtained an indefinite injunction that prohibits “any persons unknown remaining on the Canary Wharf estate in connection to protest action” that covers all 14 million square feet of what is privately owned land.
The police, meanwhile, are able to defend the interests of landowners by making arrests for ‘aggravated trespass’ if anyone tries to disrupt or obstruct lawful activity on private property.
The following is part one of a two-part guide to the basic law relating to protesting on private land and covers criminal offences such as aggravated trespass.
Part two – on civil law – covers civil trespass, possession orders and hearings and is available here.
Part one: criminal law and protests on private land or property
The criminal offence of ‘aggravated trespass’ is the one protesters on private land or property are most likely to face arrest for. When it was introduced in the Criminal Justice and Public Order Act in 1994, it represented a significant expansion of police powers that were later widened further and used to prosecute environmental and anti-war protesters, campaigners against the arms trade and demonstrators against tax avoidance.
Section 68 says that anyone trespassing on land in order to intimidate someone engaged in a lawful activity or to disrupt or obstruct a lawful activity on land is committing a criminal offence.
It is also an offence under Section 69 of the Act to ignore the directions of a uniformed police officer to leave the land, when the officer believes that the person is committing or is about to commit aggravated trespass, or to return to the land as a trespasser within 3 months.
The maximum penalty is three months imprisonment, or a fine of £2500, or both. First time offenders are likely to face a fine of between £200 and £300.
Does aggravated trespass apply only to open land, not buildings?
Originally section 68 referred to ‘land in the open air’ – the aim of the 1994 Act was to tackle outdoor ‘raves’, hunt saboteurs and mass trespass by protesters occupying a site to disrupt new road construction plans.
However, it was amended in 2003 in the Anti-social Behaviour Act, which extended provisions relating to the offence of aggravated trespass to cover trespass in buildings, as well as in the open air.
The inclusion of buildings was confirmed by a judgment of the High Court in an appeal against a conviction under Section 68 for aggravated trespass at the Millbank student protest in 2010.
What about on public footpaths?
You cannot commit aggravated trespass on a public road or on the pavement by the side of a road.
However, this does not include a footpath that is not beside a road, a path through private land where the public has a right of way on foot or on a horse (a bridleway), or a cycle track.
In what circumstances might aggravated trespass apply to a building?
People are allowed to enter a building (as customers of a shop, for example) with the permission of the owner, who can refuse entry or ask them to leave. A person refusing to leave is a trespasser, but aggravated trespass is aimed at individuals to deliberately intend to interfere with lawful activity in the building by an ‘additional act’ of intimidation, obstruction or disruption.
What might the police and courts call ‘intimidation’?
Protesters arrested at the UK Uncut action at Fortnum & Mason in March 2011 sought in 2013 to judicially review a decision of a District Judge convicting them of aggravated trespass following the occupation of the store. However, the High Court upheld the conviction, ruling that the demonstration was a ‘additional act’ distinct from the trespass and it could be inferred that by demonstrating they intended to intimidate.
What this means is that the police and the courts may classify any ‘additional’ conduct whilst trespassing as intention to intimidate : there is no requirement that it should itself be a crime and it could include activities such as playing a musical instrument or taking photographs.
Prosecutors are still required to prove there was an intention to obstruct, disrupt or deter by intimidating, in order to secure a conviction. However, it is no defence that the intention, if it existed, was unsuccessful.
What about if the landowner is not on the land or in the building?
A person must be physically present on the land or in a building and conducting lawful activity before a prosecution can prove they were intimidated. In 2000 a protest against an Aventis Cropscience UK GM crop trial in Dorset led to protesters trespassing into the field where the trial was taking place and destroying part of the crop. Convictions for aggravated trespass were appealed and in 2001, the High Court ruled that as neither the farmer who owned the land nor anyone connected with the Aventis were present when the trespass took place, no offence was committed.
Criminal Trespass onto Protected Sites
The offence of criminal trespass on a protected site is covered by sections 128 to 131 of the Serious Organised Crime and Police Act (SOCPA) 2005, as amended by section 12 of the Terrorism Act 2006. A protected site means either a licensed nuclear site or a designated site. In 2007 an order designating sixteen royal, governmental and parliamentary sites as protected sites, including Parliament.
Protesters from London Palestine Action were threatened with arrest under section 128 when occupying the Cabinet Office in July 2014.
Penalties for a successful conviction include imprisonment of up to six months, a fine of up to £5000 or both. However, a person charged can use as a defence the fact that she did not know, and had no reasonable cause to suspect, that the site was a protected site.
In 2008, the first ever prosecution under SOCPA against an Aldermaston peace campaigner for trespass on a nuclear licensed was dismissed. The judge ruled that the legislation applied only to the nuclear licensed site, not the entire space within the perimeter fence at Aldermaston.
A trespassory assembly is a static gathering involving more than 20 people in the open air on land to which the public has no right, or a limited right, of access.
Section 14A of the Public Order Act 1986 provides a chief police officer with powers to apply for an order to prohibit all trespassory assemblies in a district, as long as he has a reasonable belief that assemblies are planned on land where:
- The public has no right or limited right of access.
- The occupier has not granted permission of the occupier, or an assembly might exceed the occupier’s permission or the public’s right of access.
- There is a risk of serious disruption to the “life of the community”.
- There is a risk of damage to land or any building of historical, architectural, archaeological, or scientific importance.
In such circumstances, the chief officer can apply to the council of the district where trespassory assemblies make take place, asking it to make an order, with the consent (in England and Wales) of the Home Secretary. In Scotland, a council can make an order without seeking consent.
If an assembly is planned in the City of London or the Metropolitan police district, the chief officer of police may, with the consent of the Secretary of State, make an order prohibiting trespassory assemblies without making an application to either the City of London Corporation or the Greater London Authority.
Section 14B says that anyone who organises, takes part in or incites others to participate in an assembly prohibited by an order is guilty of an offence.
Under Section 14C, a police constable in uniform who reasonably believes someone is on the way to a prohibited assembly may stop and direct the person not to proceed in the direction of the assembly. Officers can only exercise this power within the area where the order applies. It is an offence to fail to comply with the constable’s direction.
In 1999, the House of Lords ruled that the first two protesters arrested for trespassory assembly were wrongly convicted. Dr Margaret Jones and Richard Lloyd had taken part in a peaceful roadside demonstration in June 1995, marking the 10th anniversary of the infamous “Battle of the Beanfield“, when demonstrators had sought to gain access to Stonehenge. Salisbury District Council had made an order prohibiting the holding of all anniversary “trespassory assemblies” within a radius of four miles from the ancient monument.
Jones and Lloyd were arrested and convicted by magistrates, but cleared on appeal by Salisbury Crown Court. In January 1997 two High Court judges ruled that the Crown Court had misinterpreted the law but in March 1999, the Lords ruled, on a 3-2 majority verdict,that the defendants had not committed the offence of taking part in a trespassory assembly. Their ruling established that the use of a public highway did not amount to trespass and the rights of the public extend to peaceful assembly, so long as the assembly does not obstruct the highway.
Trespass inside Residential Buildings
In 2012, Section 144 the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) made it a criminal offence to trespass in residential properties with the intention of living there. It does not apply if:
- the property is not residential,
- people are or were tenants (including sub-tenants) of the property
- people have (or had) an agreement with someone with a right to the property
- people in the property are not intending to live there
Although squatters are at the greatest risk of arrest under Section 144, it has been used against housing protesters – although the law remains untested.
In October 2013, members of Housing Action Southwark and Lambeth occupied two council houses in protest against Southwark council’s decision to sell them. On this occasion, the police threatened but then declined to make arrests under section 144, accepting that trespassing in a residential building as a political protest was not the same as living in the building.
In February 2014, however, demonstrators from Camden Housing Action Group occupied a residential building owned by Camden council, in protest against its sale and the sell-off of council housing across London. Two were charged under Section 144 but acquitted at the end of August 2014.
Continue to part two of Netpol’s guide to the law on protesting on private land, covering civil proceedings