Occupations have been used for decades as a form of political dissent. Many occupations end without any unpleasant incidents, arrests or prosecutions, and taking part in an occupation certainly does not mean you are committing a criminal act.
However, there are times when arrests are made at occupations – sometimes lawfully, sometimes not. This guide is intended to give people involved in occupations a basic understanding of some of the legal issues which may come up.
It is also aimed at giving you a little information about your rights in an occupation, such as your rights to take photographs, or in dealing with security guards.
This guide is intended to relate to occupations of shops, banks or other private buildings. There may be other laws which apply to other property such as Ministry of Defence land, or diplomatic premises, or bylaws in places like train stations. This guide is for information purposes only and is not intended to be an exhaustive legal document. Nothing on these pages is absolute as the law is always changing; if in doubt contact a trusted solicitor for further advice. We do not encourage you to break the law.
Information on possible offences committed during and occupation
Occupations generally involve entering private premises without permission, and this usually means you are trespassing.
Even if you enter the site with permission – as a customer, say – that permission can be withdrawn if you become involved in the protest, and you may be asked to leave.
Trespass itself IS NOT a criminal offence, although it can become one if you interfere with the ‘lawful business’ taking place on the site (see Aggravated trespass below). You cannot be arrested for trespass, and committing trespass DOES NOT give you a criminal record.
Because you have entered private property without permission, security guards or doormen CAN use reasonable force to remove you, IF it is necessary to prevent harm to others on the premises or to prevent damage to property. However, if security guards use excessive or unnecessary force, they may be committing an assault. It is unusual for the police to arrest security personnel for assault, but if you feel you have been assaulted by security guards you might wish to take legal advice on making a civil claim for damages.
Depending on the situation, security guards may call the police rather than attempt to remove you themselves, especially if there are a lot of you.
Once it is clear that a protest or occupation is taking place, security will probably try to stop anyone else from coming in. Any use of force against security guards – trying to push past them, for instance – could be assault, and they would then have the right to use reasonable force to defend themselves.
Police, and especially security guards, can sometimes get very agitated about people taking photographs of them. Generally speaking, there is no law against taking photographs in private premises such as shopping malls or shops . Some malls and department stores make it a ‘condition of entry’ that you don’t take photos, in which case taking a photograph might make you a trespasser. But you would still not be committing a criminal offence.
There are laws of harassment and breach of privacy which can apply to photography, but it is very unlikely that these will apply if you are simply taking photographs in the course of an occupation.
Neither security guards or police have the power to assault you for taking a photograph, or to delete images. The police have the right to seize a camera in certain restricted circumstances where it is necessary to secure evidence of an offence, but this is rarely used.
Companies who are the target of an occupation will often call the police. The presence of the police does not necessarily mean that they are going to make arrests.
The police may start by trying to find out how long you intend to be in occupation, and whether any criminal damage has been caused. They will probably also talk to the owners / managers of the building, and find out what their attitude towards it is.
If you make it clear that it is a short term occupation – half an hour for instance – they may well decide that they are happy to let you leave in your own time. However, if the business is determined to prosecute, or you look likely to continue the occupation for a long period of time, the police may be more likely to make arrests. By far the most likely reason for arrest in an occupation is aggravated trespass, but there are others.
Beware ‘intelligence gathering’ by police in these situations. They may want to know the names of those involved, especially the organisers. This information will be entered onto a police database, and it is usually best to avoid giving any personal details or information to the police.
Use of force
The police can use ‘reasonable force’ to remove you from the premises or arrest you if they believe you are committing aggravated trespass (or any other offence). Force used must be the ‘minimum necessary’.
Protesters sometimes use bike locks, or superglue to attach themselves to something on the site, to make it more difficult for the police to remove them. This is not unlawful in itself, but may make it more likely that you are arrested for aggravated trespass. If the ‘lock-on’ causes damage to anything, you may also be arrested for criminal damage.
Being arrested on an occupation does not mean that you will be prosecuted. This can depend largely on the attitude of the company or organisation you have occupied. Some may have a policy of prosecuting all protesters, but there are a number of reasons a company might not want to do this. They may not want the publicity or may be worried about loss of public support or custom.
Also, being prosecuted does not mean you will be convicted. The law is sometimes very grey, and a good lawyer can make all the difference.
Unlike just common trespass, aggravated trespass is a criminal offence . To secure a conviction the police must first show that there was a ‘further act’ ,(DPP v Barnard) beyond mere trespassing. This ‘further act’ can be anything – playing music, putting up a banner, anything at all. Secondly, the police must show that this further act was intended to ‘deter, disrupt or obstruct’ the lawful business taking place.
There is no aggravated trespass if any disruption or obstruction is accidental.
It is a defence to claim that any disruption you caused was accidental and not intended, although magistrates may take the view that turning up with a load of people and banners does show you may have intended some level of disruption.
It is also a defence to show that the activity you are disrupting is unlawful. This is not easy to do, and you may be expected to provide substantial evidence of the law-breaking. Case law says there must be more than a “bare assertion” . You will also need to show that you have tried all other routes, where possible, to voice your concerns at the ‘illegal activity’ before taking action.
Aggravated trespass is a minor offence, dealt with by the magistrates court. The penalty at present is a maximum of three months imprisonment or a fine. It is very unusual for people to be imprisoned for aggravated trespass, and first time offenders are often given a conditional discharge – meaning that no further action is taken if you don’t repeat the offence.
Refusing to leave
The police can order you to leave if they believe you are committing or intend to commit aggravated trespass . If you refuse to leave then you are committing an offence, and can be arrested. The penalty if convicted is the same as for aggravated trespass.
Breach of the peace
In some occupations the police have reacted by making arrests to prevent a breach of the peace. In England and Wales, this is merely a power the police have to remove you from a place and detain you until the risk of a ‘breach of the peace’ is past. It does not give you a criminal record, or result in any criminal charges.
Nevertheless the police can only lawfully arrest for breach of the peace in very limited situations. They must have a ‘reasonable belief’ that there is an imminent risk of harm being done to someone, (or, in his presence, to his property). The police do not always keep to this definition, and if anyone is arrested in circumstances where there was no risk of harm, they should consider taking civil action for unlawful arrest.
In Scotland the situation is completely different, as there is an actual offence of ‘breach of the peace’, for which you can be prosecuted. It is a minor charge similar in some ways to s5 Public Order Act. You can be arrested if your conduct is ‘alarming and disturbing to a reasonable person’. Like s5 offences, it is horrendously wide ranging.
Public Order Act offences
It is possible that the police may seek to arrest for the more minor public order act offences.
S5 Public Order Act is a ‘catch all’ offence which criminalises any behaviour (including in writing, e.g. a banner) which is likely to cause ‘alarm, harassment or distress’ to any individual.
S4 Public Order Act covers conduct intended to cause alarm, harassment or distress, or which causes fear or provocation of violence.
It is highly unlikely that merely being part of an occupation would make you guilty of these offences. If you are arrested, don’t panic, get legal advice, and be aware of your right to make no comment to all questions including during an interview.
If you have damaged anything on the premises you may be arrested for criminal damage. The definition of damage is pretty wide, and includes damage that is ‘not visible or tangible’ according to the CPS. Even very minor damage has been used by police as an excuse to arrest, although it is less likely to result in a conviction in court.
You don’t have to have intended to damage something – it is enough if you have been ‘reckless’.
The police have to prove that it was you who caused the damage -, and that the damage wasn’t just an accident, although bear in mind ‘reckless’ behaviour.
It is a defence if you can show you had a ‘lawful excuse’, that you believed it was reasonable to commit the criminal damage in order to protect property that was in immediate need of protection.
Be warned – this is not an easy defence to run!
Damage of less than £5,000 is dealt with by the magistrates court. The maximum penalty is three months imprisonment or a fine. Sentences vary, but minor damage will normally result in a fine or conditional discharge.
If you have damaged something while trespassing in a property the police might arrest you for burglary. Burglary is an ‘either way’ offence, which means it can be heard either in the magistrates or the Crown Court.
It is far more difficult for the police to get a conviction for burglary than for criminal damage. They have to prove that you intended to damage property when you entered the property as a trespasser, and that intention can be quite difficult to show.
You have a common law right to silence in general and in particular in police interviews. It is often the case that the evidence the police rely on to prosecute someone comes from their own mouths or the mouths of fellow activists. Think very, very carefully before commenting in an interview and only do so after receiving advice from a solicitor you really trust and have used before. It is much more difficult to defend a case when there is a ‘confession’ or potentially incriminating comments than it is to defend a case where the right to silence has been exercised.