A new option in the arsenal against trespass

What is the new trespass offence?

With effect from 28 June 2022, the Police, Crime, Sentencing and Courts Act 2022 (PCSCA) introduces a new criminal offence of residing on land with a vehicle without consent.

The new offence applies to those who cause significant damage, disruption or distress while residing on land without permission in or with a vehicle. The offence does not arise where no harm is caused. This should ensure that a person will not be criminalised for their mere presence on the land. Unintentional instances of trespass (such as hikers and walkers accessing the countryside as part of a recreational pastime) will not be caught.  The UK government has also expressed its respect for the rights of the traveller community to follow a nomadic way of life. It has confirmed its expectation that enforcement action will not be based on race or ethnicity.

In what circumstances will the new trespass offence arise?

The offence of residing on land with a vehicle without consent will arise where:

• a person is 18 or over;
• they reside, or intend to reside, on land without the consent of the occupier;
• they have, or intend to have, at least one vehicle;
• the legal occupier of the land [1], a representative of the occupier or a police officer requests that person to leave the land or to remove their property from that land; and
• that person has caused, or it is likely that they will cause, significant damage, disruption or distress as a result of them residing on that land or resulting from their conduct.

The circumstances in which this offence may arise are therefore limited. There are important exclusions, for example where persons occupy commercial buildings (rather than open land), or where it is not possible to identify whether or not a person is over the age of 18.

Further, only the lawful occupier or a police officer can make a request for the person to leave and remove their property from the land. This may require co-operation from a tenant where a landlord is seeking removal of trespassers, which cannot always be taken for granted.

Damage and disruption are defined in PCSCA.  Whether damage or disruption is ‘significant’ will be for the police or the courts to assess. Factors to consider include how the use of the land is affected (for example, if it is severely obstructed), how frequently the land is used and the wider impacts, including environmental damage (meaning excessive smells, noise and incidence of waste and rubbish can be taken into account).  PCSCA also defines the types of offensive conduct which might give rise to significant distress, and which might therefore trigger the offence.

If the conditions above are satisfied, a person will commit an offence if they fail to comply with the request to leave the land, or if they re-enter the land within the prohibited period (currently 12 months from the date of the request to vacate the land).

There will be a defence if those accused can show that they have a reasonable excuse for being on the land.

New police powers associated with trespass

Alongside the new offence, PCSCA introduces a new police power (beyond their power to arrest) to seize and remove any property that they believe belongs to the offender or is in their possession or control. The power applies to vehicles and any other property on the land.

The police do have existing powers to remove trespassers under the Criminal Justice and Public Order Act 1994 (CJPOA), although those powers are not commonly used.

The new PSCSA police powers (in addition to amendments introduced to widen the application of existing powers under CJPOA) could be a powerful and cost effective remedy against trespass. However, it remains to be seen how the police will apply these new powers in practice.

How we can help with trespass

The new offence of residing on land with a vehicle without consent and associated police powers should provide further remedies for landowners and lawful occupiers, and potentially a quicker and more cost effective route to obtaining possession, compared to pursuing civil remedies for trespass through the courts.  Given the limited use of existing police powers and the exclusions from the PCSCA, however, civil remedies may, in many instances, remain necessary.

Walker Morris’ Real Estate Litigation team has extensive expertise when it comes to dealing with trespass [2].  Our experienced and approachable solicitors will be happy to help any business faced with trespassers or the threat of traveller/protestor disruption to review all available options, and to implement appropriate and effective strategies. For further information or advice, please contact David Manda or any member of the team.

[1] the legal occupier might be the freehold landowner, or any lessee or licencee

[2] see our earlier briefings for further information and advice