Trespass remains a frequent concern for farmers, small businesses, parish councils, and private landowners and, for various reasons, this often becomes a bigger issue during the summer. From unauthorised encampments and protests to walkers straying off public rights of way, understanding the legal framework – and knowing what you can and cannot do – is essential.
The effects of trespassing can be significant. Trespassers can cause serious business interruption, damage customer and employee confidence, create unwanted publicity, cause damage to property and – when they stay in premises and on land for extended periods of time – leave the owner with large clean-up and repair costs.
What the law says
Civil trespass (the general rule)
In England and Wales, trespass is primarily a civil matter, not a criminal offence. Trespass occurs when a person voluntarily enters or remains on land without the permission of the lawful occupier. In addition, trespass can occur by placing objects onto another’s land without consent.
As a civil issue, enforcement usually rests with the landowner or person in possession of the land at the time of the trespass, who may:
- Ask the trespasser to leave.
- Use force which is reasonably necessary to remove them (as a last resort and if the trespasser refuses to leave)
- Seek an injunction or damages through the civil courts.
Although for many people, their first instinct is to call the police when they discover trespassers, they will not usually intervene in ordinary trespass unless another offence is taking place.
Criminal trespass: key exceptions
As we have said, basic trespass is a civil matter. However, the law creates specific criminal offences in certain situations.
1. Aggravated trespass
Criminal Justice and Public Order Act 1994, section 68
Aggravated trespass is a criminal offence where a trespasser:
- Trespasses on land, and
- Intentionally obstructs, disrupts, or intimidates lawful activities taking place on that land.
This legislation is commonly used in cases involving protests that disrupt farming operations, construction work, or business activity.
Aggravated trespass is a Summary Offence and is typically heard in the Magistrates’ Court.
Penalties:
Up to three months’ imprisonment and/or a fine.
2. Trespass with vehicles / encampments
Criminal Justice and Public Order Act 1994, paragraph 61
Police can direct trespassers (including unauthorised encampments) to leave land where:
- It is reasonably believed that two or more persons are trespassing on the land and are present there with the common purpose of residing there for any period, and reasonable steps have been taken by or on behalf of the occupier to ask the trespassers to leave, and
- Those persons have between them six or more vehicles on the land, and
- Damage, abusive behaviour, or disruption has occurred.
Failure to comply with directions is a criminal offence.
3. Residential trespass
Police, Crime, Sentencing and Courts Act 2022
Since 2022, trespass involving residential property can be a criminal offence if:
- A person resides or intends to reside on the land or in a vehicle, and
- They cause significant damage, disruption, or distress.
Police now have powers to seize vehicles and arrest offenders in these circumstances. Conviction for this offence carries penalties of up to 3 months’ imprisonment, a fine of up to £2,500, or both.
4. Protected land and buildings
Trespass is criminal when it involves:
- Railway land
- Ministry of Defence sites
- Nuclear installations
- Certain licensed premises
Separate legislation applies to these locations.
Rights of way and the “right to roam”
As many rural businesses and landowners have discovered, things get interesting when the law on trespassing comes up against public access rights. The Countryside and Rights of Way Act 2000 (the Act) allows public access to certain open land for recreational use, as long as:
- No wall, fence, hedge, stile, or gate is damaged or broken in the process.
- The general restrictions in Schedule 2 and Chapter II of the Act are observed.
The Act also grants the public a statutory right of access to certain types of land for activities such as walking, but this is subject to restrictions including prohibitions on camping, using vehicles, or engaging in commercial activities without permission. Exceeding these rights may convert lawful access into trespass.
Generally, landowners have a duty to ensure that public rights of way on their land are not obstructed, closed or diverted without prior approval.
Plan ahead
Although the first sign that trespassing is going on is when it actually happens, there are things that can be done proactively to reduce the risk of incidents.
- Lock vulnerable sites, such as car parks, fields or land awaiting development. Tall fences and gates can be used where appropriate.
- Review access points and boundaries, ensuring that premises have deterrents, such as CCTV, alarms, and security guards (where practicable or appropriate)
- Maintain good relationships with local police and councils.
What to do if you encounter trespassers
The reaction to encountering trespassers will vary greatly, depending on the scale of the trespass, the demeanour of the trespassers and any previous incidents of trespass. Therefore, guidance on what to do in this situation must be general, but we can safely advise:
1. Stay calm and assess the situation
- Determine whether this is civil trespass or potentially criminal.
- Are lawful activities being disrupted?
- Is residential land involved?
2. Make your ownership clear
- Politely inform trespassers they are on private land.
- Ask them to leave.
- Clear signs help to establish intent if matters escalate.
3. Avoid confrontation
- Do not threaten or use unreasonable force.
- Regardless of previous history, allowing emotions to escalate can undermine your position.
4. Gather evidence
- Take dated photos or videos (from a safe distance)
- Keep a written log of behaviour, damage, or disruption.
- Witness statements are valuable if enforcement is required.
5. Contact the police- if criminal thresholds are met
This will include:
- Aggravated trespass is occurring.
- There is intimidation, damage, or obstruction.
- Vehicles and encampments are present.
- Residential trespass laws apply.
When speaking to the police, be as specific as you can about what offence may be occurring.
6. Seek legal advice early
- Solicitors can issue formal letters requiring departure.
- Injunctions can prevent repeat incidents.
- Parish councils may co-ordinate collective action
