Unlawful physical entry to land or buildings can result in an injunction by the civil courts to prevent further trespass or damages. In terms of photographers or those filming video footage, taking photographs or footage from property where the person in question has the right to be is not considered trespassing. This includes public streets and roads but also adjoining private land where permission to shoot has been granted.
‘Trespass to goods’ refers to picking up a document or object without permission and photographing or filming it. ‘Trespass to the person’ refers to camera crews compelling a person to be filmed without their consent by stopping the person from getting into his/her home or place of work.
Trespass is not usually a criminal offence and, for this reason, a police officer should not threaten an arrest for civil trespass. The exception is specific laws covering such sites as the Ministry of Defence property and establishments where byelaws prohibit photography.
The Criminal Justice and Public Order Act 1994 (CJPOA 1994) created the criminal offence of aggravated trespass. Section 68 describes aggravated trespass as when a person trespasses on land and, in relation to the lawful activities of others, intimidates them so as to deter them from engaging in that activity or obstructs or disrupts that activity in any way. The lawful activities of the innocent party may be happening on the land being trespassed upon or adjoining land.
The original aim of the 1994 Act was to tackle the problems caused by people staging noisy ‘raves’ and protesters in such instances as people occupying a construction site to disrupt new building plans. A photographer or film crew covering such a protest therefore must be careful not to be accused of the offence of aggravated trespass.
Nonetheless, to be classed in this criminal category it is not enough to be merely present as a trespasser (according to the Crown Prosecution Service‘s guidelines for prosecutors). The conduct outlined above must have taken place and been intentional. The presence of the trespasser in an intentionally disruptive location on the land of others, however, may amount to obstruction.
Section 69 of CJPOA 1994 gives a police officer the powers to order any person believed to be involved in aggravated trespass to leave the land. If such a person refuses to leave after being ordered to by a senior officer or if they return to the land in question within a period of three months, this is counted as an offence. Aggravated trespass carries a penalty of up to three months’ imprisonment.
A possible defence for journalists, photographers and film crews who fail to leave the land in question is that they could under the Act have ‘a reasonable excuse’ to stay – namely to cover the event. There is, however, no guarantee that this defence will stand up in court.