The Law of Trespass in Scotland
It is a myth that the law of trespass does not exist in Scotland. The law of trespass is underpinned by both common law principles and statute, in particular the Trespass (Scotland) Act 1865. It is not only a civil wrong, but trespassing can also give rise to criminal liability.
Trespass can be described as entering or remaining on another's property without permission. In the context of civil liability, if a trespasser causes damage to the property or interference with the landowner's enjoyment of their property, the landowner may seek legal recourse against the trespasser, including damages or an interdict to prevent further trespass.
Under common law, a landowner has the right to exclusive possession of their property. Accordingly, if someone enters a property without the lawful authority of the landowner or refuses to leave the property, then this may constitute a criminal offence under the 1865 Act. The Act provides that anyone who lodges in a property or occupies or encamps on any private land without the consent of the landowner may be guilty of an offence. On summary conviction, an individual may be found liable to a fine not exceeding £200 and face up to 14 days imprisonment.
It should be noted, however, that the landowner cannot forcibly remove a person from their property, as this in itself may constitute a criminal offence. Should the breach persist, it should be reported to the police.
Co-existence with the 'Right to Roam'
More recently, the law of trespass in Scotland has had to co-exist with what has been colloquially referred to as 'the right to roam' governed by the Land Reform (Scotland) Act 2003. The legislation grants the public a right of access to land for educational, recreational and limited commercial purposes so long as this right is exercised responsibly.
The 2003 Act and the Scottish Outdoor Access Code set out both the legal position and guidance on exercising rights of access in the countryside responsibly and respectably.
This led to the 1865 Act being amended to exclude the exercise of rights of access under the 2003 Act from constituting an offence of trespass.
The right to responsible access is subject to many restrictions. It cannot be exercised in a motorised vehicle (except for one that has been adapted by someone who has a disability), therefore being on land without permission in a motorised vehicle (for example, on quad bikes) may constitute trespass. It also cannot be exercised where crops are sown, in buildings or places affording a person reasonable privacy (such as private gardens) or in school playgrounds, to name a few. These exceptions are set out in detail in the 2003 Act.
Consequently, although the public has a right to responsible access to the countryside, this does not permit "access all areas" and therefore, the law of trespass still has its place in safeguarding landowners against those who disregard their obligations in exercising responsible access.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.