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Trespass Scottish

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A number of widely circulated myths regarding trespass law in Scotland are perpetuated, mostly based on (possibly selective) ignorance, and liable to cause problems if considered to be anything other than urban myths.

The most commonly perpetuated myth claims that there are no trespass laws in Scotland. Even before the recent Criminal Justice and Public Order Act 1994,[1] trespass had long been a delict (a civil wrong) remediable by the remedies of interdict and damages. However, The Land Reform (Scotland) Act 2003 [2] amends the Trespass (Scotland) Act 1865 [3] and establishes a statutory right of access.

Certain types of trespass have been criminal since the Trespass (Scotland) Act 1865 was passed, a legal instrument which few will be aware of. Section 3 of the Act makes it an offence for any person to lodge in any premises, or occupy or encamp on any land, being private property, without the consent of the owner or legal occupier. While the the use of the words lodge, occupy and encamp could be taken to imply a degree of permanency on the part of the trespasser, their scope could possibly be construed to apply to loitering by a determined lawyer if one did anything other than access, or cross over such property for example.

Scottish Outdoor Access Code

For those who wish to explore the open countryside and land, familiarity with the Scottish Outdoor Access Code is advisable. This came into effect on February 9, 2005, and lays out the rights and responsibilities for both land owners and land users with regard to land access. It gives the visitor the right to access the land provided it is done so responsibly, and it gives the land owner the right to impose restrictions provided these fall within the scope of the code. Either may be reported to the authorities for further action if they fail to comply with the requirements of the code.

Breach of the peace

Some visitors seem to have a self-appointed mission to access places and premises regardless of whether they have the right to do so, believing that the matter is trivial in as much as their actions are only civil wrongs with no criminal implications. This has resulted in the rightful owners, in many cases home owners who do not want strangers walking through their gardens, or past their windows and looking into their home, resorting to police assistance in order to deter such intrusion. In such cases, in Scotland, they can state that they are in fear of the intruder, and have them arrested for breach of the peace.

Breach of the peace
A breach of the peace is an offence relating to a disturbance caused when a person or their property is threatened with harm or harmed in their presence. It can also relate to an individual's fear of being harmed by an assault or other form of disturbance. A magistrate in England and Wales can only force an individual to keep the peace, but in Scotland a breach of the peace is an arrestable offence. (Originally sourced from the BBC's former crime glossary pages).

While it may be the case that the broad definition (or lack of definition) of this offence makes it something of a catch-all offence, it nonetheless exists and can be applied, with some 15,000 individuals being taken into custody annually.

References

1 Criminal Justice and Public Order Act 1994

2 Land Reform (Scotland) Act 2003

3 Trespass (Scotland) Act 1865

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