Introduction
Signs stating "Trespassers will be prosecuted" are a common sight on private land throughout England and Wales. They are intended to deter unwanted visitors by threatening legal action. However, the statement is, for the most part, a legally inaccurate simplification. The fundamental reason for this is that trespass to land is primarily a civil wrong, or tort, rather than a criminal offence. This means a landowner can sue a trespasser, but they cannot usually have them "prosecuted" by the state. This essay will explain the civil nature of trespass and why the threat of prosecution is generally misleading, before examining the specific statutory exceptions where trespass can indeed lead to criminal charges.
Trespass as a Civil Wrong
Trespass to land is one of the oldest torts in English law. It is defined as any unjustified direct interference with land in the possession of another person (Horsey and Rackley, 2021). This interference can be as simple as walking across a field, placing an object on someone’s land, or remaining on the land after permission has been withdrawn. The classic case of Entick v Carrington (1765) established the principle that any invasion of private property is a trespass, emphasising the importance of a person's right to their land.
Because trespass is a civil wrong, the remedy lies in the civil courts, not the criminal courts. A landowner who finds a person trespassing can bring a civil claim against them. The main remedies available are damages, which are a monetary payment, and an injunction, which is a court order preventing the trespass from happening again. If the trespass has caused no actual damage to the land, any damages awarded may be nominal, meaning a very small sum is paid just to acknowledge that the landowner's rights were infringed. A landowner can also use reasonable force to remove a trespasser, which is a form of self-help. The key point is that this is a private dispute between two individuals, initiated by the landowner, not the state.
The Problem with "Prosecution"
The word "prosecuted" is what makes the signs legally incorrect in most situations. A criminal prosecution is the legal process of the state bringing a case against someone for a criminal offence. This is usually done by the Crown Prosecution Service (CPS) on behalf of the public. If found guilty in a criminal court, a person receives a sentence, which could be a fine, a community order, or imprisonment.
By contrast, a landowner who sues a trespasser in the civil courts is called a claimant, and the case is about enforcing their private rights. They are not "prosecuting" the trespasser. The purpose is to get compensation for harm or an order to stop the trespass, not to punish the person for a crime against society. Therefore, the threat of prosecution on a typical trespass sign is legally empty, as a landowner has no right to initiate a criminal prosecution for simple trespass.
When Trespass Becomes a Crime
Despite the general rule, Parliament has created specific laws that make certain types of trespass a criminal offence. In these specific circumstances, a trespasser can be prosecuted.
One major example is aggravated trespass, under section 68 of the Criminal Justice and Public Order Act 1994. This offence occurs when a person trespasses on land and does something which is intended to intimidate people from engaging in a lawful activity, or to obstruct or disrupt that activity. This law is often used in relation to protests, such as those aimed at disrupting hunts or construction sites.
Another significant criminal offence was created by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This made it a specific criminal offence to be a trespasser in a residential building, having entered as a trespasser, while living there or intending to live there. This law was aimed at tackling the problem of squatting in people's homes. Before this Act, squatting was generally a civil matter.
These examples show that while simple, peaceful trespass on open land is not a crime, the law has developed to criminalise trespass in more serious situations where there is disruption, intimidation, or the occupation of a home. In these cases, the threat of prosecution is very real.
Conclusion
In conclusion, the phrase "Trespassers will be prosecuted" is a legally imprecise and often misleading statement. The foundation of the law of trespass is the tort of trespass to land, a civil wrong that a landowner can sue over but not prosecute. However, the statement is not entirely without substance. Over time, specific statutes have carved out exceptions to the general rule, creating criminal offences for particular types of trespass, such as aggravated trespass and squatting in residential buildings. Therefore, while the sign on a farmer's gate may be an empty threat to a lone walker, it carries more weight in other contexts where trespassers intend to disrupt activities or occupy buildings. The sign serves more as a general deterrent than a precise statement of the law.
References
Cooke, E. (2021) Land Law. 4th edn. Oxford: Oxford University Press.
Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford: Oxford University Press.
Case Law
Entick v Carrington (1765) 19 St Tr 1030
Legislation
Criminal Justice and Public Order Act 1994
Legal Aid, Sentencing and Punishment of Offenders Act 2012
