Access to the countryside - The impact of the criminal justice and public order Act 1994

Journal of Planning and Environment Law

Volumn , Issue 6, 1996, Pages 447-460

  Card, Richard ^a   Ward, Richard ^b  

^a DE MONTFORT UNIVERSITY   (United Kingdom)

^b DE MONTFORT UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION;

EID: 0030319096     PISSN: 03074870     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. Hereafter called the 1994 Act. For a commentary on the 1994 Act, see Card and Ward. Criminal Justice & Public Order Act 1994 (Jordans, 1994).
2. Sporrong and Lonnroth v. Sweden (1982) Series A 52 para. 69, See, generally: Harris, O'Boyle, Warbrick, Law of the European Community on Human Rights (Butterworths, 1995).
3. See, generally: Bonyhady, The Law of the Countryside (Professional Books, 1988), pp. 123-129.
4. See The Times, September 25, 1995, reporting a rally of 4,000 members (not of itself trespassory) protesting against exlcusion from large tracts of moorland, mountain and woodland, and The Times, September 14, 1995. The Ramblers' Association have published a draft Access to the Countryside Bill: see The Times, December 13, 1995.
5. See The Times, September 25, 1995, reporting a rally of 4,000 members (not of itself trespassory) protesting against exlcusion from large tracts of moorland, mountain and woodland, and The Times, September 14, 1995. The Ramblers' Association have published a draft Access to the Countryside Bill: see The Times, December 13, 1995.
6. See The Times, September 25, 1995, reporting a rally of 4,000 members (not of itself trespassory) protesting against exlcusion from large tracts of moorland, mountain and woodland, and The Times, September 14, 1995. The Ramblers' Association have published a draft Access to the Countryside Bill: see The Times, December 13, 1995.
7. See the pledge by the Labour Party to introduce "right-to-roam" legislation, and to prevent the offence of aggravated trespass under s.68 of the 1994 Act being used against "innocent people enjoying the countryside", The Times, September 25, 1995,
8. As to which, see Hirst and Ague v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143.
9. The ramblers' charter of the Labour Party proposes that the public should be entitled to walk all over open country, defined as "any area which consists wholly or predominantly of mountain, moor, heath, down, cliff or foreshore (including any bank, barrier, dune, beach, flat or other land adjacent to the foreshore). . .", and would include access to woodlands and to certain land adjacent to canals; see The Times, December 13, 1995.
10. Re Ellenborough Park [1956] Ch. 131.
11. [1905] 2 Ch. 165.
12. See, now, s. 19. Ancient Monuments & Archaelogical Areas Act 1979, as amended by National Heritage Act 1983, which permits individuals to be excluded by an authorised person if he has reasonable cause to believe that the person excluded is likely to do anything which would tend to injure or disfigure the monument or its ameneties, or disturbs the public in its enjoyment of it. A person who contravenes or fails to comply with the provision of any regulation made under s.19 is liable to a fine, on summary conviction, not exceeding the statutory maximum.
13. The Times, October 11, 1986. See also Goodman. v. Mayor of Saliash [1892] 7 App.Cas. 633.
14. R. v. Somerset CC, ex p. Feuings [1995] 3 All E.R. 20; R. v. Wear Valley DC, ex p. Binks [1985] 2 All E.R. 699. For support for the general proposition that public authorities are not to be regarded in the same way as private individuals, see Derbyshire CC v. Times Neuspapers Ltd [1992] 3 All E.R. 65.
15. [1995] 3 All E.R. 20.
16. The public law element arose from the fact that the land was held under s.120(1)(b) Local Government Act 1972.
17. Private nuisance is the "unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it". Winfield & Jolouricz on Tort (14th ed.) p. 407.
18. Westwood v. Post Office [1973] Q.B. 591, [1973] I All E.R. 283, reversed on other grounds, [1974] A.C. 1, [1973] 3 All E.R. 54. Hiller & Pettigrew v. ICI (Alkali) Ltd [1936] A.C. 65; Canadian Pacfic Railway v. Gand [1949] 2 K.B. 239 at 249.
19. [1900] 1 Q.B. 752. Also see Harrison v. Duke of Rutland [1893] 1 Q.B. 142.
20. A licensee who holds over after the termination of a licence becomes a trespasser after the lapse of a reasonable time to leave and remove his property; Minister of Health Bellotti [1944] K.B. 298.
21. League Against Cruel Sports Ltd v. Scott (1985) 2 All E.R. 489.
22. Ashby v. White (1703) 87 E.R. 810.
23. See League Against Cruel Sports Ltd v. Scott [1985] 2 All E.R. 489, where damages in the range £5 to £50 were awarded in three cases of negligence against a master of foxhounds who negligently allowed his charges to trespass.
24. See League Against Cnicl Sports Ltd v.. Scott, supra; Behrens v. Richards [1905] Ch. 614; Llandadno UDCv: Woods (1899) 2 Ch. 705; see generally Bonyhady, The Law of the Countryside (Professional Books, 1987), pp. 166-169.
25. (1878) 4 Q.B.D. 9. See also Calvert v. Gosling (1889) 5 T.L.R. 185; Read v: Edwards (1864) 17 C.B.N.S. 245; League Against Cruel Sports Ltd v. Scott, supta.
26. The speedier and more effective interim possession order procedure (Ord. 24 CCR) is not available in respect of land in the open air, but only in respect of premises within the meaning of the Criminal Law Act 1977, s. 12.
27. See, e.g., the facts of R. v. Devon & Cornwall Constabulary, ex p. CEGB [1982] Q.B. 458.
28. See British Celenese v. Hunt [1969] 2 All E.R. 1252; SCM v. Whitlall [1970] 1 W.L.R. 1077.
29. Sedlcigh-Denfieid v. O'Callaghan [1940] A.C. 880.
30. Sedleigh-Denfield v. O'Callaghan, supra; Page Motors v. Epsom and Ewell BC (1981) 80 L.G.R. 327.
31. [1993] 3 All E.R. 917. See also R. v. Ruffell (1992) 13 Cr.App.R.(S) 204.
32. Night Poaching Act 1828, s. 1, and Game Act 1831, s.30. Also see Firearms Act 1968, s.20 (trespass with firearm); Civil Aviation Act 1982, s.39 (trespassing on licensed aerodrome).
33. Police Act 1964, s.51(3).
34. See, for example, Moss v. McLahlan [1985] I.R.L.R. 76 where the breaches of the peace apprehended were not immediately proximate in either time or place.
35. Lavin v. Albert [1982] A.C. 546, [1981] 3 All E.R. 878; McConnell v. Chief Constsble of Greater Manchester Police [1990] 1 All E.R. 423; Percy v. DPP, [1995] 3 All E.R. 124.
36. The Independent, March 25, 1993.
37. The Times, November 21, 1994.
38. [1982] Q.B. 458.
39. See now Town and Country Planning Act 1990, s.325, which makes it a summary offence for a person to obstruct another person entitled to access to the land pursuant to the 1990 Act.
40. [1982] Q.B. 416.
41. Applied in Pakin v. Nonman [1982] 2 All E.R. 583, [1983] Q.B. 92.
42. [1995] 3 All E.R. 124.
43. A power existing both at common law and by virtue of Justice of the Peace Act 1361. See, generally: Lansbury v. Riley [1914] 3 K.B. 229; Hughes v. Holley (1988) 82 Cr.App.R. 130.
44. (1992) 95 Cr.App.R. 215.
45. The Times, November 21, 1994.
46. Michael Howard, Q.C., M.P., H.C. Vol. 235, vol. 25.
47. See H.C. Vol. 235, cols. 20-122.
48. By s.68(2) of the 1994 Act, activity is "lawful" for this purpose if the person engaging in it may do so without committing an offence or trespassing on land.
49. See League Against Cruel Sports Ltd v. Scott, supra.
50. R. v. Pratt (1855) 4 E. & B. 860.
51. League Against Cruel Sports Ltd v. Scott, supra.
52. An analogous provision is the crime of wilful obstruction of a constable acting in the execution of his duty, under s.51(3) Police Act 196-4, where the concept of obstruction has been construed objectively: see Eills v. Ellis [1983] Q.B. 680.
53. cf. Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439; Kaitamaki [1980] 1 N.Z.L.R. 59, affd [1985] A.C. 147; Cooper v. Schaub [1994] Crim.L.R. 531.
54. See Chambers v. DPP [1995] Crim.L.R. 846, where the actions of protestors demonstrating against survey work for the M11 road link was held to be disorderly. The term "disorderly" is to be given its ordinary and natural meaning.
55. See Card and Ward, op. cit., paras. 3.41-3.42.
56. Set out in s.69(4). It is a defence for an accused to show that he was not trespassing (sc. at the time of the direction) or that he had a reasonable excuse for failing to leave.
57. Not pan of English law, but increasingly influential in English courts.
58. See Daily Telegraph, November 7, 1994, The Guardian, November 21, 1994, Sol.Jo. February 3, 1995, The Time, June 17, 1995.
59. See Daily Telegraph, November 7, 1994, The Guardian, November 21, 1994, Sol.Jo. February 3, 1995, The Time, June 17, 1995.
60. See Daily Telegraph, November 7, 1994, The Guardian, November 21, 1994, Sol.Jo. February 3, 1995, The Time, June 17, 1995.
61. Italics supplied.
62. See, e.g., the Sunday Times case, Eur.Ct.H.R., Ser. A, para. 59.
63. Handyside Eur.Ct.H.R., No. 24, para. 48; Sunday Times, loc. cit. paras. 54-57.
64. Handyside, ibid.
65. Handyside, loc. cit., para. 49.
66. Vagrancy cases, Eur.Ct.H.R., Ser. A, No. 12, para. 93; Golder, Eur.Ct.H.R., Ser. A, No. 18, para. 45; Engel & ethers, Eur.Ct.H.R., Ser. A, No. 22, para. 100; Handyside, loc. cit., para. 48; Sunday Times, loc. cit., para. 58.
67. Vagrancy cases, Eur.Ct.H.R., Ser. A, No. 12, para. 93; Golder, Eur.Ct.H.R., Ser. A, No. 18, para. 45; Engel & ethers, Eur.Ct.H.R., Ser. A, No. 22, para. 100; Handyside, loc. cit., para. 48; Sunday Times, loc. cit., para. 58.
68. See Moss v. MaLachlan [1985] I.R.L.R. 76.