We’ve all seen the ‘Trespassers will be Prosecuted signs around a variety of properties in the countryside, towns and cities. But there is a great deal of confusion over what constitutes trespass in the UK and whether trespassers can actually be prosecuted.
What is Trespassing?
Trespassing in the UK is defined as the act of entering or remaining on private property without the owner's permission. It can also include:
- Disregarding signs that indicate the property is private or "No Trespassing"
- Failing to leave when asked to by the owner or their representative
- Using the property without the owner's consent, such as parking a vehicle or using facilities
- Hunting or fishing on the property without permission
It is important to be aware that trespassing is not a criminal offence, which many incorrectly believe it is. Trespassing is primarily a civil matter or a tort. This means the police cannot arrest someone for trespassing. What they can do is help the property owner deal with trespassers peacefully. The property owner has the right to sue the trespasser in civil court.
Public spaces, such as parks, often close at specific times. People can be asked to leave these premises, even if they have entered legally. If they don’t leave they are trespassing and can be sued
Areas of “access land” are often opened up to allow walking, running and other activities. But there are usually restrictions on what can and cannot be carried out in these areas.
Importantly, if you are the victim of trespass the first thing to do is to attempt to deal with the situation verbally. If this is not successful or if the trespass has caused other issues, such as damage, further action might be taken.
Is Trespassing Illegal in the UK?
As noted, trespassing is not a criminal offence in the UK. The police will not force an alleged trespasser to leave private land unless they are causing a disturbance, committing a crime, or have entered the land with the intention of occupying it. Property owners can potentially sue trespassers through the civil court.
What Action Can Police Take About Trespassers?
Under Sections 61 of the Criminal Justice and Public Order Act 1994, police have the power to direct trespassers to leave, but that is all they can do. They cannot arrest someone for trespass - so those signs stating ‘trespassers will be prosecuted’ are not very accurate. They should state: "Trespassers will be sued”.
If a trespasser is using land for residential purposes then the police can take action. The PCSC Act 2022 introduced this as a new offence.
You cannot return to the same land for 12 months after being asked to leave. If convicted of this offence, you can be sentenced to up to 3 months custody and/or a fine of up to £2,500, and your seized property does not have to be returned.
What is Aggravated Trespass?
Aggravated trespass is where things become more serious and the police can potentially take action.
Aggravated trespass is a criminal offense that occurs when someone trespasses on land or in a building and intentionally:
- Intimidates or deters others from engaging in a lawful activity
- Obstructs or disrupts a lawful activity
- Commits a crime (e.g. criminal damage, drug dealing).
The offense can result in a fine of up to £2,500, imprisonment for up to three months, or both. A senior police officer can order someone they believe is committing aggravated trespass to leave the land. If the person refuses to leave or returns to the land within three months, it's an additional offense.
Aggravated trespass is often used to curtail public protests. The government has increased its efforts to regulate protester behaviour, which has led to more arrests and prosecutions for this crime.
What About Drones - Are They Trespassing When They Fly Over My Property?
Drones have become increasingly popular and people therefore want to know whether a drone flying over their property is guilty of trespass.
The bottom line is very simple - nobody owns the air space over their land. Under Section 76 of the Civil Aviation Act 1982, a drone is classed as an aircraft and like other aircraft, as long as the drone flies at a reasonable height (50 metres) above the ground the simple act of flying over a site would not amount to trespass.
But, using someone's property to take off and land a drone, without their permission, would be considered as trespass.