Response to UK Government consultation on trespass

In late 2019 and early 2020 the UK Government conducted a consultation entitled “Strengthening police powers to tackle unauthorised encampments” – following a pledge in the Conservatives’ pre-election manifesto to “make intentional trespass a criminal offence”.

While this measure is ostensibly aimed at traveller encampments, there has been widespread concern in the outdoors community about the implications for “wild camping”.

Below is OpenMTB’s response, drafted by committee member Jon Sparks…

OpenMTB

OpenMTB is a network of representatives from mountain biking groups across England and Wales – including advocates, volunteer trail builders, guides, writers and more. We work with national, regional and local bodies to champion increased access for off-road cycling. We aim to explore ways in which the access system in England and Wales can be improved for all user groups, and have been involved at all stages in the current process leading to eventual reform in Wales.

Summary of OpenMTB response

We are concerned about two issues with this consultation. First, many of the questions (particularly Q1 and Q2) are highly tendentious ‘leading questions’ which effectively  presuppose some level of support for the broad principle which this consultation is ostensibly about.

Second, the consultation itself appears to have been overtaken by the Conservative manifesto pledge, ‘We will make intentional trespass a criminal offence’. There is clear and worrying dissonance between this pledge and the specific focus of the original Home Office consultation.

OpenMTB believes that even the specific measures implicit in the consultation could endanger established and responsible access, especially ‘wild’ camping in remote locations, which has a long and generally trouble-free history. We are even more concerned that any ‘mission creep’ resulting in wider criminalisation of trespass presents a grave threat to legitimate access, at a time when Government’s priority should in fact be encourage and extend access, for many well-documented reasons.

We also note that the vast majority of police forces have stated that their current powers in relation to unauthorised encampments are adequate.

Consultation response

Q1: To what extent do you agree or disagree that knowingly entering land without the landowner’s permission should only be made a criminal offence if it is for the purpose of residing on it?

No response.

OpenMTB would certainly agree that entering land without the landowner’s permission should not be made a criminal offence for any other reason. However the question itself is fundamentally flawed. Any barrister would object to such a leading question. It makes no allowance for the possibility that we might oppose the criminalisation of trespass ‘for the purpose of residing on (land)’. This could mean that wild camping, as widely practiced in a responsible manner in places like the high fells of the Lake District, would become a criminal offence. It might be suggested that the law would never be enforced in such circumstances, but any law that requires such a presupposition is bad law.

If there is a perceived problem with ‘encampments’ then the correct approach to this consultation, and the framing of any future legislation, must include a precise and tightly limited definition of terms such as ‘encampments’, ‘residing’, etc.

 

Q2: To what extent do you agree or disagree that the act of knowingly entering land without the landowner’s permission should only be made a criminal offence if it is for the purpose of residing on it with vehicles?

No response.

The same overall comment applies as to Q1: this is a tendentious and leading question. As a mountain bike organisation OpenMTB is also concerned about the precise definition of ‘vehicles’. As far as we are aware, this word is not precisely defined in UK law: the Road Traffic Act 1988, for example, defines ‘motor vehicle’ but not ‘vehicle’ per se.

OpenMTB exists to promote and extend legal access for bicycles. We hold no brief for wider access by motor vehicles; but we are unable to agree with the proposition implicit in Q2. The imprecise wording of the question leaves any positive response open to interpretation as supportive of the criminalisation of trespass in a wider sense.

 

Q3: To what extent do you agree or disagree that the landowner or representatives of the landowner should take reasonable steps to ask persons occupying their land to remove themselves and their possessions before occupation of the land can be considered a criminal offence?

Agree.

OpenMTB agree that any extension of the law must include placing this responsibility on landowners; but we must reiterate that we remain wary of the criminalisation of trespass without extremely tight and limited definition.

 

Q4: To what extent do you agree or disagree that a criminal offence can only be committed when the following conditions have been met?

  1. a) the encampment prevents people entitled to use the land from making use of it;
  2. b) the encampment is causing or is likely to cause damage to the land or amenities;
  3. c) those on the encampment have demanded money from the landowner to vacate the land; and/or
  4. d) those on the encampment are involved or are likely to be involved in anti-social behaviour.

No response to all sections.

OpenMTB is unable to give a definitive response without greater clarity, in particular (as mentioned earlier) on the definition of ‘encampment’.

 

Q5: What other conditions not covered in the above should we consider?

This is a very loosely worded question. If ‘the above’ refers specifically to Q4, then we have no other conditions to add. However, if it refers more widely to all the preceding questions, then we would seek to reiterate our fundamental position; any new legislation must be thoroughly and carefully evaluated to ensure it in no way offers a deterrent to legitimate and responsible recreation, or to peaceful protest.

There is no demonstrable need to criminalise non-aggravated trespass on foot or by bicycle. People should be able to explore and enjoy the countryside without the background worry that straying from official routes could become a criminal offence. We also note that departing from the strict route of a Right of Way is all too frequently unavoidable due to illicitly locked gates and other obstructions.

In addition, there are innumerable instances where the established line of a path or track on the ground deviates, sometimes significantly, from the Right of Way indicated on the Definitive Map (and consequently on OS maps also). Even where such a path or track has been widely used over a long period without problems, it would be technically possible for its use to be construed as intentional trespass. Again, this is a scenario which risks criminalising normal behaviour.

 

Q6: To what extent do you agree or disagree that police should be given the power to direct trespassers to suitable authorised sites in a neighbouring local authority area?

Strongly agree / Agree / Neither agree or disagree / Disagree / Strongly disagree

Please explain your answer

N/A

 

Q7: Should this be subject to conditions around agreements being in place between local authorities?

N/A

Q8: Should there be a maximum distance that a trespasser can be directed across?

N/A

Q9: Should there be any other conditions that should be considered when directing a trespasser across neighbouring authorities.

N/A

Q10: To what extent do you agree or disagree that the period of time in which trespassers directed from land would be unable to return should be increased from three months to twelve months?

 

Q11: To what extent do you agree or disagree that the number of vehicles needing to be involved in an unauthorised encampment before police powers can be exercised should be lowered from six to two vehicles?

Disagree

Please explain your answer

We note police responses to a recent (November 2019) Freedom of Information Request. 75% of responses indicated that their current powers were sufficient and/or proportionate. Additionally, 84% did not support the criminalisation of unauthorised encampments and 65% said lack of site provision was the real problem.

With this in mind, we see no evidence of any clear case for lowering this threshold, and we are concerned that this might criminalise currently accepted and responsible recreational users parking at the roadside for short periods to access remote areas.

 

Q12: To what extent do you agree or disagree that the police should be granted the power to remove trespassers from land that forms part of the highway?

Neither agree or disagree

As stated several times already, OpenMTB remains firmly opposed to any criminalisation of trespass on ordinary land.

We do feel that there is scope to explore a broader exploration of powers to require the removal of obstructions on the highway (as mountain bikers we are specifically concerned with bridleways and byways).  However we must point out that our experience is that traveller encampments and the like are rarely experienced as a cause of obstruction to Rights of Way. The plain fact is that obstructions to legitimate passage on foot, by bicycle or on horseback along the highway are far more likely to be due to negligence, and sometimes deliberate action, by landowners or their representatives. As such these can create a deterrent to legitimate recreational access.

OpenMTB would welcome the opportunity to engage in such a discussion, with the proviso that all forms of obstruction to Rights of Way are equally under consideration.

 

Q13: To what extent do you agree or disagree that the police should be granted the power to seize property, including vehicles, from trespassers who are on land with the purpose of residing on it?

Q14: Should the police be able to seize the property of:

  1. i) Anyone whom they suspect to be trespassing on land with the purpose of residing on it;
  2. ii) Anyone they arrest for trespassing on land with the purpose of residing on it; or
    iii) Anyone convicted of trespassing on land with the purpose of residing on it?

No response to ii and iii

Again we feel that these are leading questions. As explained in previous responses, anything that could potentially be used against responsible recreational users (e.g. people wild camping by a high mountain tarn) should be avoided.
However we must make particular objection to the word ‘suspect’ in the first part of the question. To allow confiscation merely on grounds of suspicion flies in the face of fundamental principles of British law.

 

Q15: To what extent do you agree or disagree that the proposed amendments to sections 61 and 62A of the Criminal Justice and Public Order Act 1994 contained in this consultation are sufficient measures to tackle the public disorder issues which are associated with unauthorised encampments without the requirement for introducing specific powers that criminalise unauthorised encampments?

No response

Q16: Do you expect that the proposed amendments to sections 61 and 62A of the Criminal Justice and Public Order Act 1994 contained in this consultation would have a positive or negative impact on the health or educational outcomes of Gypsy, Roma and Traveller communities?

No response

Q17: Do you expect that criminalising unauthorised encampments would have a positive or negative impact on the health or educational outcomes of Gypsy, Roma and Traveller communities?

No response

 OpenMTB does not feel qualified to respond.

 

Q18: Do you have any other comments to make on the issue of unauthorised encampments not specifically addressed by any of the questions above?

OpenMTB wishes to restate its strong opposition to any legislation that could potentially deter people from responsibly exploring and enjoying the countryside.

We are particularly alarmed by the dissonance between this Home Office consultation, with specific focus on trespassing when setting up unauthorised encampments, and the Conservative manifesto pledge at the last election, i.e. ‘We will make intentional trespass a criminal offence’.

We note with deep concern that this consultation does not in any way address the issues raised by that manifesto pledge, and we regard it as absolutely essential that any potential legislation which goes beyond the specific issue of ‘unauthorised encampments’ should be subject to a fresh public consultation.

We further reiterate our view that there is a clear public benefit in encouraging and extending public access to the countryside. The benefits of self-propelled access and of spending time in outdoor environments are well documented. There is overwhelming evidence of the benefits for physical and mental health, and in addressing other issues such as inactivity, obesity, air quality and the climate emergency.

We believe that any legislation which has the potential to criminalise or even call into question any aspect of responsible countryside access is detrimental to these vital public benefits. Already there are many people who are unclear about their rights and where they can legitimately walk or ride. Any measures which have the potential to curtail legitimate access can only act as a further deterrent at a time when, for the reasons stated above, Government should be committed to encouraging more people to access the countryside.

We also believe that such legislation has potential to foster antagonism between landowners/managers and responsible users of the countryside. Again, there is no upside to such an outcome but an obvious downside for all concerned.

We repeat that the vast majority of police forces see no need for new legislation even to tackle the narrow issue of ‘unauthorised encampments’. No doubt what would be far more helpful to police would be to have the resources needed to enforce existing law effectively. We are unconvinced of the need for new legislation on this issue.

We are, on the other hand, entirely convinced that any move toward the criminalisation of trespass beyond this would be unnecessary, cumbersome, intrusive, and dangerous.

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