Occupy protesters outside St Paul’s Cathedral , 2011

This is the second part of a two-part guide to the basic civil and criminal law relating to protesting on private land. Part one – on potential criminal offences facing protesters – can be found here.

Part two: civil law and protests on private land or property

Civil Trespass

Trespass means encroachment onto or occupation of land without a legal right to be there: either because you do not own or lease the land, do not have permission or ‘licence’ to use it or there is no existing right of way.

When protesters occupy a building or land, landowners can lawfully use reasonable force to remove trespassers in an emergency but risk committing an assault or breaching Section 6 of the Criminal Law Act 1977, which makes it an offence to use violence to secure entry onto ‘premises’ (which includes buildings, land around it or a site with a number of buildings).

Section 6 explicitly says that “the fact that a person has any interest in or right to possession or occupation of any premises shall not… constitute lawful authority for the use or threat of violence.”

What are possession orders?

Landowners, leaseholders or holders of a licence to use land or property are more likely to therefore apply to the civil courts for a possession order, which requires that the claimant is granted possession (exclusive physical control). This can include local authorities, who may claim for possession of public spaces if this right is implicit in its statutory management powers.

A possession order may cover land under occupation by trespassers or a larger area that includes it – for example, it may cover not only a small area of woodland where protesters are camped, but the whole forest. In one case, a possession order was granted for an entire university campus, although students had occupied only particular buildings.

To regain possession more quickly, landowners may also seek an interim possession order (IPO). Courts may grant an IPO in limited circumstances: for example, if a landowner is claiming possession only but not damages or an injunction, or only possession of a building solely occupied by trespassers but not a wider surrounding area.

An IPO imposes criminal sanctions, under Section 10 of the Criminal Law Act 1977, on trespassers is they refuse to end an occupation of land. If an IPO is granted, it is a criminal offence to remain for more than 24 hours after an IPO is served and anyone who does is considered a trespasser, even if they were not part of the initial occupation. Section 10 carried a maximum penalty of six months imprisonment and/or a £5000 fine.

Although in theory an IPO is granted for a limited period only, until a main court hearing, in practice it usually means the end of a protest occupation. A landowner must file an IPO at the same time as a standard possession order.

Is it necessary to attend the hearing and do we need a lawyer?

An initial possession hearing is most often held at a county court and is very short – if no-one contests the claim, the possession order is granted immediately. If someone does intend to contest the claim, they are expected to file a defence that includes any evidence that they wish to rely on.

If the court assesses that the claim is genuinely disputed on grounds that appear to be substantial, it is likely to set out procedural instructions that both parties must follow, called case management directions and then a new hearing date, Alternatively the court might grant an adjournment if there is a possibility of a realistic defence. If defendants have no legal representation, courts might be more willing to grant an adjournment to provide them with more time to prepare.

It is therefore essential that activists planning an occupation of private land consider in advance how they intend to deal with an application for possession and arrange for legal representation.

Are we likely to face huge costs?

Possession orders may name individual defendants who are known participants in an occupation, or ‘persons unknown’, or often both. The advantage of having at least one named defendant is that it allows someone to present a defence in court, but an individual who is named is at an increased risk of facing thousands of pounds in costs if, as is likely, the case is lost.

Often, one named individual can present a defence on behalf of a group of people who have ‘the same interest in the claim’. Courts have discretion over costs and are more likely to treat a losing party sympathetically if proceedings are not disrupted, the court’s time is not wasted, a defendant is unable to pay or if a judge accepts an argument that occupation of land was for moral or ethical reasons rather than personal benefit. However, this is dependent completely on how understanding – or otherwise – the judge is.

Whilst a losing party is liable for costs, the ability of a defendant to pay may sway a sympathetic court to reduce the costs,

When can the landowner seek an eviction?

Once a possession order is granted, a landowner has three months to apply for a warrant of possession, which is usually granted automatically. A landowner may also decide to apply to the High Court to seek a writ enforcing the order, which is usually quicker than a county court.

A warrant gives authority to county court bailiffs to attend the property and execute it, whilst a writ is executed by High Court Enforcement Officers. Bailiffs can use reasonable force to gain possession and remove all those in occupation of the land. If the police also attend, they can arrest any trespasser who resists bailiffs, often for breach of the peace.

What is an injunction?

Protesters may also face the threat of an injunction – a court order that instructs them to stop an existing activity or refrain from undertaking a particular future action. Breach of the terms of an injunction is contempt of court and can result in a fine or imprisonment. Again, injunctions may name particular individuals or ‘persons unknown’.

The grounds for an injunction include preventing:

Harassment injunctions under the 1997 Act have been criticised because it provides corporations with the same legal protection as individuals who face intimidation by stalkers and has been used widely against antiwar, climate and animal rights protesters (in 2013, for example, in Gloucestershire against opponents of the badger cull).  These injunctions typically ban demonstrations against companies’ premises or to prevent protesters from even raising their voices or take photographs in specific areas. Court orders have been granted based on claims that protesters are “alarming or distressing” employees, often at emergency hearings and using police statements of support or hearsay evidence that is impossible to challenge because protesters were not invited or were unrepresented.