The clauses making serious attacks on the right to protest in the proposed Police, Crime, Sentencing and Courts Bill, currently on pause, but soon to be brought back before Parliament, have garnered much of the attention from the media and protestors.
However, the Bill also contains substantial clauses aimed at strengthening law against trespass and targetting Roma and other travelling people.
The Bill would create a new offence of “residing on land without consent in or with a vehicle”, and allows much easier police action against ‘unauthorised encampments’. Amendments would also allow the police to remove unauthorised encampments on (or partly on) highways and prohibit unauthorised encampments moved from a site from returning within twelve months.
The proposed new police powers include a new criminal offence where trespassers have the ‘intent’ to reside
Part 4 of the Bill sets out the details of the new offence, to be inserted into Part 5 of the Criminal Justice & Public Order Act. This will apply when:
- A person aged 18 or over resides or intends to reside on land without consent of the occupier of the land;
- They have, or intend to have, at least one vehicle with them on the land;
- They have caused or are likely to cause significant damage, disruption or distress;
- They, without reasonable excuse:
o Fail to leave the land and remove their property following a request to do so by an occupier of the land, their representative or a constable; or
o Enter or, having left, re-enter the land with an intention of residing there without the consent of the occupier of the land, and with an intention to have at least one vehicle with them, within 12 months of a request to leave and remove their property from an occupier of the land, their representative or a constable.
Powers to seize a vehicle/home, imprisonment and fines
This new offence will be accompanied by powers to seize a vehicle (which in real terms is someone’s home and possessions) as well as imprisonment and fines, as outlined in 60C(5)/(6) and 60D PCSCB and in the Government’s response;
- Where there is reasonable suspicion that a person has committed this offence [trespass with intent to reside as outlined in Section 60C PCSCB] confers power on a constable to seize their vehicle/other property for up to three months from the date of seizure or, if criminal proceedings are commenced, until the conclusion of those proceedings.
- The maximum penalty will be three months’ imprisonment or a fine not exceeding level 4 (£2,500) on the standard scale, or both.
- The arrest and vehicle/property seizure powers will be exercised where a constable has reasonable grounds to suspect (for arrest) or reasonably suspects (seizure power) that a person has met the conditions of the offence. The reasonable excuse ‘defence’ enables a person to escape liability where they can show they have a reasonable excuse for failing to comply as soon as reasonably practicable with a request to leave and remove their property or for entering or re-entering within 12 months of the request with an intention to reside without consent.
The Bill also proposes amendments to existing police powers of eviction:
- Amend section 61 to broaden the types of harm that can be caught by the power to direct trespassers under that provision, to include damage, disruption and distress;
- Amend sections 61(4)(b), 62B(2) and 62(C) to increase the period in which trespassers directed away from the land under sections 61 and 62A must not return from 3 months to 12 months;
- Amend section 61(9)(b) to enable police to direct trespassers with a common purpose of residing on land to leave land that forms part of a highway.
Like the police need new powers to evict travellers:
There are already a range of eviction powers available for police, local authorities and land owners, including powers in the CJPOA and possession proceedings under Part 55 of the Civil Procedure Rules6 . Some of the powers, such as Section 61 of the CJPOA, can be triggered easily and enforce eviction as quickly as in an hour.
A good guide to the drastically negative impact these provisions would have on travelling people can be found in this briefing
As with the public order sections of the proposed bill, these are ‘issues’ the powers that be have been legislating against for a long time. For at least 1000 years in fact…
As a companion piece to our post on the history of public order acts, here’s a brief summary of laws enacted around control of and access to land, against trespass, and to suppress and harass travelling people and wanderers. It’s a dense post, because it is a very long list… We have also definitely missed some laws out!
But remember – resistance is as old as repression…
Land, trespass and access
Born in the common by a building site
Where the ground was rutted by the trail of wheels
The local Christian said to me
You’ll lower the price of property
You’d better get born in some place else
So move along get along
Move along, get along
Go! Move! Shift
Norman Forest Law
In Anglo-Saxon England, though the kings were often great huntsmen, they never set aside areas for hunting. When William the Bastard and his small band of heavily armed psychopaths conquered England in 1066, the new king began to rewrite the law on land ownership. Firstly by declaring all titles to land up till then null and void and that henceforth all title would derive from the royal gift under a hierarchical feudal system.
The most significant legal innovation relating to land brought in by William and his successors was the Forest Law. This set aside land where the needs of one class were elevated over another, and specifically placed it under different laws from other parts. During the Middle Ages, the practice of reserving areas of land for the sole use of the aristocracy was common throughout Europe.
It’s even thought that the very origin of the word ‘forest’ comes from ‘foris’, outside, perhaps via a Germanic source akin to Old High German forst, from Latin foris “outside” (related to the word foreign) – this was land declared to be “outside” the law of the land.
The Forest Law was designed to protect the “noble” animals of the chase – notably red and fallow deer, the roe deer, and the wild boar and prevent the lower classes from hunting or killing them – but it also protected the greenery that sustained these creatures, and gave them cover. This was not an animal rights measure – this was to stop the plebs getting their hands on meat that their betters needed to be chasing. Hunting was considered a noble sport, and the noble quarry was not for the poor.
Forests were designed as hunting areas reserved by prerogative for the monarch and by invitation the aristocracy. At the height of the Forest Law, in the late 12th and early 13th centuries, a whole third of the land area of southern England was designated as royal forest; this included at one point the entire county of Essex. On his accession king Henry II declared all of Huntingdonshire forest.
It’s worth pointing out that land declared ‘Forest’ in this way was not necessarily covered in trees. It was a legal designation – not a geographical one. Royal forests usually included large areas of heath, grassland and wetland – anywhere that supported deer and other game. When an area was initially designated forest, any villages, towns and fields that lay within it were also subject to forest law. This obviously restricted locals in their use of the land they had previously relied upon for their livelihoods. Common rights were not extinguished, but limits were placed on what people could do and at what times of year (so as not to inconvenience the toffs during hunting season).
The Forest Laws in many areas banned trapping game for food, collecting growth, wood etc for fuel, grazing animals on forest land, building on your own land itf it disturbed the ‘vert’ that sustained the game, and allowed for taxes and fines by foresters for all sorts of necessary economic functions. The common inhabitants of the forest might, depending on their location, possess a variety of rights: estover, the right of taking firewood, pannage, the right to pasture swine in the forest, turbary, the right to cut turf (as fuel), and various other rights of pasturage (agistment) and harvesting the products of the forest.
All this had a massive impact on the ability of the poor to subsist in areas declared to be ‘forest’.
A particular beef was the creation of the “New Forest”, an entirely new hunting playground for the royals, in Hampshire. The New Forest was proclaimed a royal forest, in about 1079. It was used for royal hunts, mainly of deer. It was created at the expense of more than 20 small hamlets and isolated farmsteads; hence it was then ‘new’ as a single compact area. According to 12th century chroniclers William I had villages rooted out and people removed to establish the forest.
Henry II’s reign (1154-89) saw a vast increase in the total area of the forest. By 1189, between one third and one quarter of England was considered by the king as within the bounds of the royal forest8 and some twenty-nine counties were affected to a greater or lesser degree. The Forest Laws were in part codified under the Assize of the Forest (1184).
Forest law laid down harsh punishment for anyone who committed any of a range of offences within the forests; ranging from heavy fines up to blinding, castrating and death.
Anyone dwelling or holding land within the forest bounds was subject to a complex set of regulations, implemented by royal officials answerable only to the king. They were prevented from hunting freely and the laws of the ‘vert’ denied them the right to utilise their land as they saw fit. Penalties were imposed for offences falling into three main categories: waste, assart and purpresture. Waste occurred when land was cleared. Individuals found guilty of waste were not only burdened with a punitive amercement but also had to pay a sum equivalent to the value of any trees or brushwood that they had cut down.
The waste of forest land could result from collection of wood for fuel or building, or from assarting: creating new arable land. As with waste the creation of an assart frequently resulted in a dual financial penalty; an initial charge could be supplemented by an annual rent for the maintenance of the newly cleared ground. If the assarted land was enclosed or built upon, an additional charge would be imposed for what was called a purpresture.
Finally, there were payments connected with the grazing of livestock.
This ‘arbitrary legislation’ was enforced by a complicated network of courts and officials: riding and walking foresters, responsible for the day-to-day implementation of the forest law, under foresters-in-fee who in turn served under a warden or keeper; supported by agisters, verderers and regarders.
Declaring massive areas to be forest land, in particular the creation of the New Forest, was to develop into a central plank of in folk history, boosting the idea of the “Norman yoke” – the native English oppressed by the Norman landowning class. The size of the forests had expanded under the Angevin kings (from 1154). Forest laws not only provided for leisure grounds for the king – the wood and other resources made contained within these lands was hugely valuable to the monarchy. Especially later, when the monarchs started building navies…
Totally Off the Charters
The absolute rights of the king and aristocracy were never static and unchanging – they were tempered, by resistance. Initially, resistance to the king’s total control actually came from his barons, leading to the civil wars of the 13th century, when aristos fought the king to restrict his powers over them, and the populations of some cities and towns used the aggro to attempt to extend their own rights. But class struggle by the poor against the landowners was a constant factor, forcing concessions from the wealthy.
This resulted in the passing of charters in the early 13th century which had a lasting impact on land use, trespass and squatting.
The Magna Carta, first agreed in 2015, had some important clauses relating to the royal forests; clauses 47 and 48 promised that the lands added to the forests under king John and his predecessor Richard would be removed from Forest Law, and that the king would investigate the use of royal rights in this area, but notably did not address the forestation of the previous kings, while clause 53 promised some form of redress for those affected by the recent changes, and clause 44 promised some relief from the operation of the forest courts.
Magna Carta’s companion piece, the Charter of the Forest, adopted 2017, mitigated Forest Law to some extent, and re-established for free men rights of access to the royal forest that had been eroded by William the Conqueror and his heirs.
The main clauses that had an impact on access to forest land were that it:
- reduced forests back to those declared so in Henry II’s time and ordered investigation into origin of some of those even
- banned foresters or beadles from imposing levies of corn on inhabitants
- allowed pannage (feeding your pigs on what could be found in the forests or on common land) and stopped prosecutions of men for driving pigs through forests or for sleeping there overnight while doing so
- ended punishment of death or loss of a limb for killing game – instead reducing it to a heavy fine, or a year in prison if not able to pay, then banishment if you couldn’t pay sureties. Gee thanks boss!
- ended prosecutions for people building a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert on their own land if inside forest
- allowed residents rights to ‘the eyries of hawks, sparrowhawks, falcons, eagles and herons in his woods, and likewise honey found in his woods’.
- restricted the right of foresters to charge ‘chiminage’ – a toll levied on transport in the forest.
- pardoned some outlaws who had been outlawed just for offending against forest law.
Forest law entered into folklore – texts or bastardised texts of the clauses spread to all parts of the kingdom, and elements from the law became integrated into folk belief, legends and myths of outlaws like Robin Hood, protests against injustice from literary texts to folksong, and onto the legal defences of poachers and others hauled up in court… Here’s a great discussion of forest law in popular culture.
And a crucial development – though long in coming to its full effect – took place in parallel with these Charters, with the passing of the 1235 Statute of Merton. This was to give a legal basis for the enclosure of common land. One of its most far-reaching clauses gave authority for lords of the manor to enclose commons and ‘waste grounds’ in their lands, on condition that there was a permanent excess of land beyond the grazing needs of the commoners’ livestock, and other commoners’ entitlements, and that any of their tenants who complained were left with sufficient pastureland left to plough.
This enactment was of benefit to all lords of the manor and this included monasteries and other ecclesiastical bodies. By the terms, simple proof that sufficient pasture for tenants was available would allow for dispossession of common land.
The Statute of Merton was operative throughout the medieval period and hotly debated. This change to English law had minor effects for 300 years, and the clauses relating to enclosure fell into disuse… But in January 1550, in Edward VI’s reign, long after the Statute had fallen out of use, it was revived by the regent of England, John Dudley, Duke of Northumberland, to enable lords to enclose their land at their own discretion. This enabled the legal wholesale theft of access to the land from the poor.
The fundamental aim of enclosures was to exclude people form the land and combine holdings/remove obstructions and reduce traditional usages, so as to exploit resources more comprehensively. In that sense, Enclosures tried to redefine access to land.
Most were achieved by agreement by existing landowners – a remainder usually by acts of parliament for the land in question. 15th-19th century a huge percentage of land in England was enclosed
The scope of resistance to this should not be under-estimated. The better known riots and full blown rebellions (list) are only the tip of the iceberg – daily trespass, removal of gates and fences, was probably even more prevalent. Enclosure formed a massive re-adjustment of rural life across Britain: but it was only imposed by force on a hostile population in many places.
By the mid-17th century, enforcement of Forest law had largely died out, but many of England’s woodlands still bore the title “Royal Forest”.
But even after Forest Law began to decline in use, there was a hangover in some of those areas designated Forest, which remained hugely contested, and were at the centre of long wars over enclosures.
Huge protests in fact accompanied the process of dis-afforestation – the removal of Forest law from applying to particular areas – mostly because the Charter of the Forest and subsequent agreements had made access to resources inside he Forests beneficial for many inhabitants. Pressure to enclose land and dis-afforestation began to erode this access, which could affect the livelihoods of thousands. Dis-afforestation was the partial cause of two rebellions in the West Country, in 1548-9 and 1626–1632.
laws against travelling
“all persons wandering abroad…not giving good account of themselves”
Born at the back of a hawthorn hedge
Where the black hole frost lay on the ground
No eastern kings came bearing gifts
Instead the order came to shift
You’d better get born in some place else
Move along, get along
Move along, get along
Go! Move! Shift
In parallel with Forest Law and then enclosures restricting poor people’s access to much of the land, there were another set of laws, aimed at preventing people from moving around the country unless approved of by the powers that be.
There were several motivations for this, including:
- Restricting the number of beggars, wanderers and itinerants; partly because they felt these people were involved in crime, especially collective crime; or became a ‘nuisance’, but also because some of them genuinely were outlaws or rebels spreading underground political or religious ideas, or et a bad example, inspiring others to leave their home parishes
- Stopping serfs from leaving the land they worked and looking for better paid work elsewhere or a freer life in a town, which undermined the feudal system and prevented landowners getting maximum value from the work of the peasants
- Generally targeting migrants and specific ethnic groups – ie Roma
The 1285 Statute of Winchester was passed by King Edward I ostensibly to keep roads safe and towns secure from strangers. Also known as the Statute of Winton, the statute enacted that reformed the system of Watch and Ward (watchmen) of the Assize of Arms of 1252, and revived the jurisdiction of the local courts. The law displayed the fear and loathing of strangers – it notably laid down At what Times the Gates of great Towns shall be shut, and when the Night Watch shall begin and end.’
The Statute was the primary legislation enacted to regulate the policing of the country between the Norman Conquest and the Metropolitan Police Act 1829. Of particular note was the requirement to raise hue and cry, and that “the whole hundred [an administrative division of each county]… shall be answerable” for any theft or robbery, in effect a form of collective responsibility for policing…
The Ordinance of Labourers and later the Statute of Labourers were passed in 1349 and 1351 respectively, to prevent people leaving their own district, in the wake of the black death, when the huge death toll lead to a massive labour shortage, which encouraged people to flee crap living and working conditions and seek better ones, or even to combine to demand improvements.
In 1360, the Statute of Labourers was amended to further curtail the movement of potential labourers.
In 1376, these laws against leaving your home district were confirmed and strengthened: anyone who ran off from serfdom was considered outside the law and could be punished even before being forcibly returned to their own area.
It’s worth noting that laws to enforce employers’ power over workers to prevent them from leaving their jobs lasted until 1875: the Master and Servant Acts allowed for prosecution of a worker quitting without due notice and could lead to imprisonment. Between 1858 and 1875 10,000 workmen on average were prosecuted each year for breach of some aspect of their “contract of service”.
In 1383, Justices of the Peace were ordered to examine ‘vagabonds’ and bind them over to good behaviour or imprison them. Extra impetus was added to the persecution of wanderers and force people back into what the ruling elites saw as their place, after the cataclysmic events of the Peasants Revolt in 1381. Wandering agitators and people moving from district to district were perceived as having helped spread the revolt.
1388: vagrancy was outlawed. Beggars unable to work were banned from moving around, and had to stay in own parishes, or be sent back to the parish they were from, or the towns in which they were living at the time of the Act; unless they could produce a written testimonial, showing reasonable cause for his departure, to be issued under the authority of the justices of the peace. Beggars able to work were punished, usually by being put in the stocks.
This is often regarded as that the first Act for the Relief of the Poor, for within its many restrictions each county “Hundred” was made responsible for relieving its own “impotent poor” who, because of age or infirmity, were incapable of work. Although lack of enforcement limited its effect.
Despite their potential significance for the English economy, however, over the next 150 years vagrancy laws were initially amended to increase penalties, but then gradually diminished in importance due to their overall inefficiency.
“The proletariat created by the breaking up of the bands of feudal retainers and by the forcible expropriation of the people from the soil, this “free” proletariat could not possibly be absorbed by the nascent manufactures as fast as it was thrown upon the world. On the other hand, these men, suddenly dragged from their wonted mode of life, could not as suddenly adapt themselves to the discipline of their new condition. They were turned en masse into beggars, robbers, vagabonds, partly from inclination, in most cases from stress of circumstances. Hence at the end of the 15th and during the whole of the 16th century, throughout Western Europe a bloody legislation against vagabondage. The fathers of the present working class were chastised for their enforced transformation into vagabonds and paupers. Legislation treated them as “voluntary” criminals, and assumed that it depended on their own good will to go on working under the old conditions that no longer existed.” (Karl Marx, Capital)
From the late 15th century, laws against ‘vagrants’, travellers and beggars were passed by the government tediously often. In the Tudor era, the moral panic par excellence was ‘sturdy beggars’ – able bodied vagrants.
“all wandring persons, and common Labourers being persons able in bodye using loytering and refusing to worke for such reasonable wages as is taxed or comonly gi,,, in such Parts where such persons do or shall happen to dwell or abide,not having lyving otherwyse to maynteyne thernselves.”
1494: The Vagabonds and Beggars Act tried to re-instate the 1388 vagrancy law. Vagabonds, idle and suspected persons were to be set in the stocks for three days and three nights and have none other sustenance but bread and water and then put out of Town. Every beggar ‘suitable to work’ was ordered to return “to the Hundred where he last dwelled, is best known, or was born and there remain upon the pain aforesaid”. Beggars who were too infirm to work were to remain in their Hundred and be permitted to beg.
In 1530, dormant vagrancy laws were revived to serve the additional purpose of curtailing criminal activities. New laws sought to punish ambiguously-defined persons, such as “someone who is merely idle and gives no reckoning of how he makes his living”or those considered to be “rogue[s]”. Penalties for such offences were increasingly severe and included having an ear cut off, being whipped until bloody, or even facing the death penalty. Under these evolving vagrancy statutes, “persons who had committed no serious felony but who were suspected of being capable of doing so could be apprehended”.
The Poor Law Act 1531 directed “how aged, poor, and impotent Persons, compelled to live by Alms, shall be ordered, and how Vagabonds and Beggars shall be punished”. The former were to be licensed to beg, the latter if found begging were to be whipped or put in the stocks for three days and nights with bread and water only and then to return to their birth-place and put to labour.
Justices of the peace were ordered to issue a licence to beg to the infirm poor, thus making begging by the ‘sturdy’ an offence.
The 1535 (Poor Law) Act required that “all Governors of Shires, Cities, Towns, Hundreds, Hamlets and Parishes shall find and keep every aged, poor and impotent Person, which was born or dwelt three years within the same limit, by way of voluntary and charitable Alms … for as none of them shall be compelled to go openly in begging. And also shall compel every sturdy Vagabond to be kept in continual labour … “ and gave powers to apprentice children aged between 5 and 13. Voluntary contributions for the relief of the poor were to be collected by the justices of the peace and churchwardens.
A year later an Act For Punishment of Sturdy Vagabonds and Beggars provided that “sturdy” vagabonds should be set to work after being punished, and even children should be put to service. This Act was not renewed, but was a harbinger of later laws.
The largest flurry of Tudor legislation came after Henry VIII’s dissolution of the monasteries, which sparked a social crisis, as the monasteries had provided the main welfare structure for centuries. Dismantling this over only a few years left many of the sick, elderly and beggars etc with nowhere to turn.
In 1545, as he was invading France, Herny VIII issued a proclamation “Ordering Vagabonds to the Galleys”, which ostensibly aimed to prevent people from avoiding the press gangs (conscription), but it didn’t end with the war. From that point on, vagrants could be used as galley-slaves, and the practice continued till the end of the reign of Elizabeth.
1547: The Vagrancy Act authorised branding and slavery as the punishment for persistent vagrancy. Any person who had offered vagrants work which they refused, was authorised to brand them on the breast with a “V”, hold them in slavery for two years, feed them during that period on bread and water, and hire them out to others. Attempts to run away were to be punished by lifelong slavery, and further attempts by hanging. Slavery, at least, was a step too far. Justices were reluctant to enforce such an appalling measure, plus it was impractical, and it was repealed in 1550.
In 1552, the Act For the Provision and Relief of the Poor banned begging altogether, under the (bold) assumption that licenced poor would now be relieved by the parish collections. A 1552 Pedlars Act made an exception to allow “Tinkers, pedlars, petty chapmen and “such like vagrant person” who were self-sufficient and not reliant on charity. But they had to be licensed by 2 or 3 justices on pain of 14 days imprisonment.
The 1555 Act For the Relief of the Poor required licensed beggars to wear badges designating them as such.
The Statute of Artificers in 1562 provided for the compulsory work of the able-bodied upon demand by two Justices, the breach of its particular provisions resulting in imprisonment.
“swarmes of idle persons”
Increasing enclosure and the lack of a welfare system led thousands to seek work in the growing towns and cities. This created problems for the authorities. In 1569, the City of London tried to deal with the huge increase in the poor and destitute flocking in to the City, by ordering that they must all be put into some institution out of sight, by category: able bodied beggars and vagrants to the Bridewell (originally a palace, then a proto-workhouse-cum-prison) where they be put to work; the sick and impotent to Barts and St Thomas’s Hospitals. City gates were guarded against economic immigrants who were sent packing. An Act of 1572 extended this idea nationwide. This remained the basis of the poor law till 1834. The foundation of the system was keeping people in the parish and not go to bother others. Begging licences had to be obtained… or you would go to jail if nicked. (Obviously this led to a trade in old/forged licences). Also discharged prisoners, soldiers etc had to be able to show papers to allow them to beg on their way home. Labourers refusing to work for ‘reasonable’ wages could be sent to the Bridewell.
A 1576 Poor Law Act authorised Justices of the Peace to establish houses of correction for vagrants; and set out the “Punishment of the Mother and reputed Father of a Bastard”. Overseers of the Poor were created. In 1580, poor folk on welfare were ordered to spin cloth for their dole, illegitimate kids were forced back on the sole responsibility of their parents.
An Act of 1578 stated that “…vagrants were to be summarily whipped and returned to their place of settlement by parish constables” (aka beadles).
In 1582 the Recorder of London, Judge William Fleetwood, had a sweep of ‘rogues’ in London, nicking over 100… Fleetwood was known as a very efficient justice, who often sped up trials and expedited executions of ‘crims’…
“Falling within the statutory meaning of “sturdy rogue and beggar” were all those outside of organised wage labour, as well as those whose activities comprised the culture, tradition, and autonomous self-understanding of this volatile, questioning, and unsteady proletariat. Marx and Engels called the expropriated a motley crowd.” (Peter Linebaugh)
Expropriation and resistance fuelled the process of colonisation, peopling the Sea-Venture and many other transatlantic vessels during the first half of the seventeenth century. While some went willingly, as the loss of lands made them desperate for a new beginning, many more went unwillingly, often being sentenced to be transported by the courts. This policy was expressed by leading justice (later Lord Chancellor) Francis Bacon in the aftermath of 1607 Midlands Revolt against enclosures: “For the surest way to prevent Seditions” was “to take away the Matter of them. For if there be Fuell prepared, it is hard to tell, whence the Spark shall come, that shall set it on Fire.” Arguments in favour of colonising Ireland in 1594 or Virginia in 1612 held that the “rank multitude” (unruly plebs) might thus be exported and the “matter of sedition … removed out of the City.”
An entire policy originated from the 1598 Act For the Punishment of Rogues, Vagabonds and Sturdy Beggars, whereby vagrants and rogues convicted of crimes (mostly against property) in England would be transported to the colonies and sentenced to work on plantations, within what Hakluyt saw as a “Prison without walls.” Here was the place for the inmates of London and indeed the whole realm. The first known English felon transported to the Americas was a dyer’s apprentice who took his master’s goods and absconded from a workhouse before being sent to Virginia in 1607, Thousands more would follow. The partisans of the Virginia Company knew that enclosure and expropriation created “swarmes of idle persons” who had once been sustained by the commons. The merchant, investor, and publicist Robert Gray recalled a time when the
“commons of our Country lay free and open for the poore Commoners to injOY, for there was roome enough in the land for every rnan, so that no man needed to encroach [on] or inclose from another, whereby it is manifest, that in those dayes we had no great need to follow strange reports, or to seeke wild adventures, for seeing we had not onely sufficiencie, but an overflowing measure proportioned to everie man.”
Although Gray’s assertion that encroachment and enclosure had been caused solely by population growth and overcrowding was inaccurate, Gray understood that many people in England had once lived differently more freely, sufficiently, even abundantly. When the commoners of the Sea-Venture decided that they wished to settle in Bermuda rather than go on to Virginia, they explained to the Virginia Company officials that they wanted the ease, pleasure, and freedom of the commons rather than the wretchedness, labour, and slavery awaiting them in Virginia.
The Elizabethan Poor Law of 1601 is often cited as the beginning of the Old Poor Law system – this legislation lasted for almost two centuries. It clearly distinguished between the “deserving” and “undeserving” poor: the former deserved aid, the latter were rogues, vagabonds, and beggars who were to be whipped or otherwise punished for their unwillingness to work. Able-bodied beggars who had refused work were often placed in Houses of Correction. Of course, refusing “work” meant any work offered, which was typically on appalling terms. In the end, deciding who deserved what was up to the Overseers of the Poor, usually churchwardens or landowners, who had zero incentive to be generous or fair. They tended to recognise as few “deserving” poor as possible (since they’d be responsible for them as Overseers, plus taxed for them as landowners), and were prone to tyrannical behaviour.
Legislation around ‘vagrants’ from this era extended beyond forcing people from a particular parish, to early attempts to impose a national border on wanderers. Just a couple of examples: Queen Elizabeth I’s 1596 order for black people to be kicked out of the kingdom, and 30 years later, Charles I’s 1629 “Proclamation for the speedy sending away of the Irish Beggers out of this Kingdome, into their owne Countrey, and for the suppressing and ordering of the English Rogues and Vagabonds, according to the Lawes.”
These initial xenophobic social control measures and proposals targeting ‘foreign’ migrants would be built on for the next four centuries, into our own decade…
Roma and travellers
‘outlandish people, calling themselves Egyptians’.
Born in the middle of the afternoon
In a horsedrawn carriage on the old A-5
The big twelve wheeler shook my bed
You can’t stay here the policemansaid
You’d better get born in some place else
Move along get along
Move along get along
Go! Move! Shift
Amidst the general onslaught of laws against wandering, moving around and not working, specific and targeted legislation was passed against Roma people, who arrived in England around the early 16th century, as part of the Romany diaspora. Many lived as itinerant traders, entertainers and fortune tellers, outside the frameworks of settled society.
The laws arose from a general suspicion of wandering peoples, seen as undermining the established order of settled life, work, staying in your place, being controllable. Being a specific ethnic group also opened up the Roma to the usual racism, as well as being a handy outside group to scapegoat, to divert attention from class tensions and unite rulers and ruled against a common ‘enemy’.
1530 saw the first specifically anti-Roma law, The Egyptians Act, ‘An Act concerning outlandish people, calling themselves Egyptians’. Who were accused of fortune-telling, deception, felony and robbery. ‘Egyptians’ were ordered to leave England within 40 days of the Act or be imprisoned and forfeit all their goods.
Mary I and Philip passed a new Egyptians Act in 1554, labelling ‘Egyptians’ as illegal aliens and ordering their removal. This law accused Gypsies of ‘such abominable living as is not in any Christian realm to be permitted’.
During reign of Elizabeth 1, in 1562, yet another Egyptians Act extended the penalties of the previous two, sentencing Roma to death: “All persons of their company, whether foreigners or English-born, except only children under 14, were liable to be treated as guilt of a felony by definition of being travellers, leading to the death penalty and forfeiture of goods.”
The Elizabethan statute also criminalised anyone ‘seen or found’ in Roma company, ‘or counterfeiting, transforming or disguising themselves by their apparel, speech or other behaviour like unto such vagabonds’.
Several dozen ‘Gypsies’ were executed over 100 years, though none after 1628, and the statute was regarded as obsolete when repealed in 1783. Roma however, remained exposed to the vagrancy laws and were frequently arrested for ‘not giving a good account of themselves’.
Thomas Harman, a Kentish magistrate, took a special interest, publishing a tract, ‘Caveat for Common Cursitors’, depicting Roma as ‘wretched, wily, wandering vagabonds … all thieves and whores’. Magistrates condemned them as ‘a pestiferous people’, ‘idle, lewd, and roguish’.
The Poor Law Act 1596 declared as rogues and vagabonds “…all tynkers wandering abroade… and all such p’sons, not being Fellons, wandering and p’ tending themselves to be Egipcyans or wandering in the Habite Forme or Attyre of counterfayte Egipcians”.
After a celebrated case in the mid 18th century, when a miscarriage of justice almost brought the Gypsy Mary Squires to her death, a journalist wrote that ‘if she were hanged, though innocent, what might matter, she was but a Gypsy’.
General Laws against travelling ‘vagrants’ as well as specific laws against Roma were revived in the eighteenth century.
The Justices Commitment Act, 1743, laid down that “all persons pretending to be Gypsies, or wandering in the habit and form of Egyptians, or pretending to have skill in palmistry, or pretending to tell fortunes”, were to be dealt with as rogues and vagabonds. Vagrancy offences were extended to new categories of persons, including those collecting money under pretence and “all persons wandering abroad and lodging in ale houses, barns, out-houses or in the open air, not giving good account of themselves”. Offenders were forced into workhouses.
In 1744 came the template of modern vagrancy law, King George II’s Vagrant Act, which divided beggars and idle persons into the unemployed without means of support and those refusing to work “for the usual and common wages” and those not supporting their families; rogues and vagabonds; and “incorrigible rogues” – those already convicted of one or more offences.
Rewards for rounding up beggars and vagrants had existed since 1713, with parish overseers being bound to pay five shillings to anyone who arrested an “Idle or Disorderly Person”. This became a serious abuse and encouraged corruption: one Hornsey overseer rounded up over 500 people in one year. Constables conspired with offenders to share the proceeds, and whole families would sometimes hand themselves in for a share of the reward.
By 1752, pamphleteers were calling for even more draconian sanctions, amid fears that the vagrants would turn into even more serious criminals such as pickpockets, burglars and highwaymen. One declared: “You may hang, or transport, or cut off a number of felons at this sitting, but like Hydra’s heads there will be more spring up at the next and ever will do so, as long as idle Vagrants [..] are suffered to go as they do unmolested”.
Another Egyptians Act in 1783 repealed the specific previous laws re ‘gypsies’, ending the death penalty for being Roma. But in parallel, another Rogues and Vagabonds Act was passed that year, which extended provisions dealing with Roma, wanderers and beggars
The laws had little effect in reducing the number of vagrants because they did not address the underlying causes of vagrancy. In 1821, a report from the Select Committee on the Existing Laws Relating to Vagrants noted the increasing number of vagrants and observed that the expense of administering the existing laws was significant. The report further noted that the procedure of sending vagrants back to their municipalities of origin was onerous and ineffective. The Committee recommended that, instead of sending vagrants back home, they should be imprisoned for longer periods to dissuade them from vagrancy.
English vagrancy laws evolved, and were subject to intense ‘mission creep’, being constantly adapted to deal with a range of concerns (labour, crime, popular morality, entertainment, religion and public health) as they arose through social and economic change, through prosecution of the offences of idleness, disorderly conduct, or status as a rogue or vagabond.
A snapshot of how vast an industry ‘removal’ of ‘vagrants’ from one parish & ensuring they went somewhere else, can be seen in this list of groups & individuals transported through and processed by one county, Middlesex, in one decade in the late 18th century: over 14,000 entries. It’s worth noting contractors were able to make profits from this process, foreshadowing modern transnational corporations raking in loot through carrying out deportations, prisoner transport, running private detention centres, administering benefit claims… you name it.
Concern about the problem or wanderers led to the formation of the Mendicity Society, one of those lovely private rightwing citizens’ societies (like the Society for the Reformation of Manners and the Society for the Suppression of Vice) which lobbied Home Secretary Sir Robert Peel for harsher vagrancy laws.
The Vagrancy Act of 1824
‘every person wandering abroad’
To cope with the obvious fact that previous laws were not working, the Vagrancy Act of 1824 was enacted “for the more effectual suppression of vagrancy and punishment of idle and disorderly persons” in England. The Vagrancy Act repealed all previous statutes on the subject, amended the definitions of idle and disorderly persons, rogues and vagabonds and set out powers to search persons and premises. The 1824 Act retained many of the traditional vagrancy offences whilst including new categories, such as offences of a kind that only “professional” criminals might commit (e.g. loitering with intent to commit an arrestable offence) and offences against public decency and morality (e.g. offensive behaviour by prostitutes and indecent exposure). Repeat offenders were deemed incorrigible rogues and could be whipped and incarcerated. The resulting Vagrancy Act 1824 survives in part today.
According to Section 1: “Every person wandering abroad, or placing himself or herself in a public place, street or highway, court or passage to beg or gather alms, or causing or procuring or encouraging any child or children so to do, shall be deemed an idle and disorderly person”. On conviction following the evidence of one or more credible witness or witnesses”, such an offender can be jailed for one month.
Section 4 was a catchall clause to tackle rogues and vagabonds, who might include:
• “every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty’s subjects”;
• “every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon not having any visible means of subsistence and not giving a good account of himself or herself”;
• “every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition”;
• “every person wilfully openly, lewdly, and obscenely exposing his person with intent to insult any woman”;
• “every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms”;
• “every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence”;
• “every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her.”
• “every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, or any highway or any place adjacent to a street or highway; with intent to commit an arrestable offence. . . shall be deemed a rogue and vagabond”
The ‘not giving a good account of yourself’ effectively means – if you’re on the street without a ‘proper’ defence, you’re suspect by definition… The last of these clauses formed the basis of the infamous ‘SUS’ laws, used by police into the 1980s to stop, search and arrest. people, generally Black youth. The previous one, about resisting arrest, was generally used to charge anyone nicked with assault on police… This led to campaigns against the law including the “Scrap Sus” campaign. The sus law was repealed on 27 August 1981, though Stop and Search powers under the 1984 Police and Criminal Evidence Act generally revive the spirit of 1824.
For section 4 offences under the 1824 Act, the penalty was three months’ imprisonment.
Since 1838, there have been amendments (palmists and fortune tellers were removed in 1989)…
The anti-Roma clauses in the Vagrancy Act were also used against spiritualist mediums, who were presumed to be committing trickery and fraud by claiming psychic arts. It was no defence that both client and the medium might be sincere believers in the spirit world, since it was considered that the deception had worked! Even having a home could not protect you from a conviction, as a home-owning medium called Monck found when he was jailed for three months in 1878.
In 1875, a further Vagrancy Act was introduced to stop people gambling and gaming with cards or dice in the streets. The anti-begging clause was invoked haphazardly against charitable collections; but in 1884 striking miners won a notable victory in the High Court with a ruling that you were not a vagrant if you were collecting money or food for strikers and their families (Pointon v Hill, 1884)
Meanwhile an astonishing proliferation of 19th century, especially Victorian era, statutes attacked Roma people, loading them with fines for obstructing highways, grazing animals, lighting fires, or ‘damaging the growing grass’.
The Highway Act, 1835, again penalised Roma who camped on the highway.
The Pedlars Act, 1871 extended the penalties in the Hawkers and Pedlars Act 1810). This was again extended in 1881.
The Prevention of Crimes Act, 1871 made applicable to Scotland the section on Roma in the 1824 Vagrancy Act.
The Commons Act, 1876, empowered local authorities to make bye laws effectively closing Commons to Roma, on the grounds that their ‘intrusions’ caused a ‘nuisance’ affecting ‘the health, comfort, and convenience’ of the area’s inhabitants.
The Housing of the Working Classes Act, 1885, applied provisions of housing laws to ‘nuisances’ in tents, vans, etc. District Councils were empowered to make by laws in this respect, enabling attacks on Roma on the grounds of health provision (much as Sanitation Acts had allowed poor people in city slums to be evicted an masse).
The Hawkers Act,1888, extended previous Acts re hawkers.
The Local Government’ Act, 1889 allowed County Councils to make bye laws for the prevention of vagrancy
In the Local Government Act 1894 parish Councils were empowered to regulate village greens and open spaces and this allowed them to prevent ‘gypsy’ encampments.
The Commons (Inclosure) Act 1899 allowed District Council to apply to the Board of Agriculture to make bye laws for the regulation of Commons.
Yet another Vagrancy Act became law in 1898, this time against prostitutes (of both sexes) and those involved with the White Slave Trade, and to tackle kerb crawling.
The twentieth century did not see a let up in either anti-Roma or vagrancy measures.
The Highways Act of 1959 again made it illegal for a traveller to camp or pitch a stall on highway verges or laybys.
Some measure of sanity began to appear with the Vagrancy Act 1935, which provided that a person ought only to apprehended where s/he had a lodging or hostel available but had refused it. This still did not stop abuse of the Act by over-zealous constables, and in July 1936 the magazine Justice of the Peace approved a magistrate’s decision to throw out a charge against a man who had left a shelter early in the morning and fallen asleep on a bench on the Embankment. The editor held the law should not condemn a man who had “exchanged the close smell of the doss house for the freshness of a summer morning”.
It was also accepted that a person was not a vagrant if they were sleeping on the street under a cart or wagon, providing it was their own vehicle.
In response to this avalanche of discriminatory laws, battles over stopping places and camping sites have raged for over a century, fuelled by politicians, the press and local bigotry. In 1889 travelling showmen in Britain form the United Kingdom Van Dwellers Association, later called the Showmen’s Guild, to fight the Moveable Dwellings Bill, which restricts Travellers’ movements.
Laws attempting to redress the balance or even simply recognise the fact that if you block travellers from roadsides they have to have somewhere to go, have not been enforced. The Caravan Sites Act of 1968 required local authorities ‘to provide adequate accommodation for Gypsies’, but the law was never fully enforced and was repealed by the Criminal Justice and Public Order Act of 1994. Under the latter Act local councils became duty bound to identify land for private purchase by Travellers. Few local councils adhered to this. More than 5,000 families now have no legal home.
Settling doesn’t help Roma, as planning permission laws and other legislation is generally used to attack travellers who buy land and try to live on it.
The Anti-Social Behaviour Act 2003 amended the 1994 Criminal Justice Act, creating a new power for a senior police officer to “direct a person to leave land and remove any vehicle or other property with him on that land”. Certain conditions have to be met before any directions can be given – at least two persons must be trespassing on the land, they must have between them at least one vehicle, they must be present on the land with the intent of residing there, and the occupier of the land has asked the police to remove them. In addition, after consultation with the local authority, there are relevant caravan sites, which have suitable pitches available for the trespassers to move on to.
The 2003 Act also created an offence if a person fails to comply with a direction by an officer given under the above, or if, within 3 months of the direction being given, he returns to any land in the area of the relevant local authority as a trespasser with the intention of residing there. It also gives a police constable in uniform a power of arrest…
The new powers proposed in 2021 are just more of the same shit, really: tightening the screw on already near impossible conditions for travellers.
‘Significant damage, disruption or distress’ can mean anything; the sight of one vehicle an encampment is enough to trigger overkill.
The proposed exclusion period from an area for 3 months has quadrupled to 12 months, making it nearly impossible for families without a site to live on to keep any consistency in life – eg keep their places at school or to attend medical appointments.
Interesting how there’s a clause in new powers about ‘intent’ – remind you of anything? The SUS law – ‘looks to me like they’re about to do something, sarge’ is a crime again.
‘any entry into any lands and tenements’
The eastern sky was full of stars
And one shone brighter than the rest
The wise men came so stern and strict
And brought the orders to evict
You’d better get born in some place else
Move along, get along
Move along, get along
Go! Move! Shift
We’re not really going to address trespass in terms of buildings in detail here: squatting has a whole other set of histories. Trespass was historically mainly dealt with through civil law, except where force had been used to enter – the common law offence of forcible entry and any offence at common law of forcible detainer (holding somebody against their will while trespassing).
This applied to both buildings and to land. The crucial legislation in that case was a series of Forcible Entry Acts passed in 1381, 1429, 1588 and 1623. All these were repealed and replaced by the 1977 Criminal Law Act.
The Forcible Entry Act 1381 was enacted to establish order in land disputes. It forbade forcible entry on any land for any purpose – or so it appeared. It states:
‘And also the King defendeth that none from henceforth make any entry into any lands and tenements but in case where entry is given by law and in such case, not with strong hand nor with multitude of people, but only in lawful peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by imprisonment.’
In other words, even a squatter who was on land when there was a forcible entry committed could prosecute for forcible entry, affording squatters protection from violent eviction. Technical amendments to the Forcible Entry Acts were made by the Acts of 1391, 1429, 1588 and 1623. The Acts gave some defence to tenants and squatters, though this was more about the Crown’s constant struggle with the powerful feudal lords to acquire for itself a monopoly of the legitimate means of coercion, in its own interests…
According to folklore or common law in Britain and in many parts of Europe, it was widely accepted that if a person succeeded in erecting a dwelling on common or waste land between sunset and sunrise and lighting a fire in it, they could not lawfully be dispossessed. There are innumerable variants on this formula and on the definition of the amount of land that might be enclosed. ‘As much as he could inclose in the night within the throw of an axe from the dwelling’ was the belief in Radnor in Wales. There are also a variety of mistaken beliefs as to the period of time for which property should be occupied unchallenged to gain title ranging from six months to 30 years. In fact, in English law squatters obtained ‘a good title’ (ie ownership) when they have retained peaceful possession for twelve years against the owner (Adverse Possession). NB: This has been now amended to make it much harder to claim.
1000s of squatter houses were built in this way over the centuries. Frequently they were people who had been squeezed out of the lowland villages where no more land was available. Hence in a county like Northamptonshire the so- called ‘forest villages’ in the 17th century were on an average half as populous again as the non-forest villages, because they had attracted so many of the rural poor who found the various common rights in the forests sufficient to give them a precarious living.’
In 1588, this trend sparked legislation to prevent squatters building DIY homes: the Erection of Cottages Act 1588, ‘against the erecting and maintaining of cottages’, which made illegal the building of a cottage unless it had four acres of land attached to it to support the occupant. The Act was directed against the dwellings of the poor.
“For the avoiding of the great inconveniencies which are found by experience to grow by the erecting and building of great numbers and multitude of cottages, which are daily more and more increased in many parts of this realm, be it enacted … that … no person shall within this realm … make, build and erect, or cause to be made, built or erected, any manner of cottage for habitation or dwelling, nor convert or ordain any building or housing made or hereafter to be made or used as a cottage for habitation or dwelling, unless the same person do assign and lay to the same cottage or building four acres of ground at the least, to be accounted according to the statute or ordinance De terris mensurandis being his or her own freehold and inheritance lying near to the said cottage, to be continually occupied and manured therewith so long as the same cottage shall be inhabited; upon pain that every such offender shall forfeit, to (the Queen) … £10 of lawful money of England for every such offence.”
Exceptions were made for those too old or inform to support themselves: cottages for the ‘impotent’ poor could be built on the village waste, so long as they had the consent of the lord of the manor and the parish officers. Other cottages might be licensed by the justices in Quarter Sessions, and much of the business of the Sessions in the 17th century was taken up by the pressing question of cottages, with ordering their demolition or sanctioning their erection, always as a measure connected with poor relief and the parish poor.
NB: The act was repealed by the Erection of Cottages Act 1775. The principal reasons for the repeal were the 1588 act had made it difficult for poor people to find ‘habitation’ (well, duh) and also that it may have caused a reduction in the rural population.
Enclosures, dispossession and other rural pressures increased in the fifteenth and early sixteenth centuries. Risings in Western England in the late 1620’s and early 1630’s turned in large part on Royal Enclosure and rights of squatters in the forests.
During the dislocation and upheaval of the English Civil War, the ferment of ideas combined with great poverty, hunger and suffering to produce political movements for whom land, access to it and how it was controlled were paramount questions. While the Leveller movement did write about the problems caused by enclosures, their more radical cousins the True Levellers, or Diggers, took matters in to their own hands, defying laws of trespass by squatting land and beginning to work it in common. This not only opposed existing rural social relations – including common rights as negotiated, established by custom or struggle on a local level – it called into question the entire system of property =, of ownership of land. No wonder they were so heavily repressed…
But even after the fledgling ‘digger’ communes were scattered, squatting continued, as it has always done, on the level of the individual family and cottage.
In 1662, after the restoration of the monarchy, the Act of Settlement was passed to restrict the movement of those who were not freeholders or who could not afford a rent of £10 a year. It declared that “by some defect of the law, poor people are not restrained from going from one parish into another and, therefore do endeavour to settle themselves in those parishes where there is the best stock, the largest commons or wastes to build cottages, and the most woods for them to burn and destroy”.
Access to land for leisure
I’m a rambler, I’m a rambler from Manchester way
I get all me pleasure the hard moorland way
I may be a wageslave on Monday
But I am a free man on Sunday
The working class movement that arose in the late eighteenth and nineteenth century developed a fierce consciousness of their and their ancestors’ dispossession from the land, of enclosure and how they had been forced into a wholly wage-based factory economy. Parallel to their struggles for better wages and conditions, for the vote, the ideas of the Spenceans, the Chartists, the land and Labour League often expressed the longing for a (sometimes idealised) rural past, rage against the theft of their ‘birthright’, and sometimes concrete plans to reclaim the land – whether by emigration to countries with more opportunities, establishing rural colonies, or revolution.
The late 19th century saw the beginning of struggles by these largely urban working class movements over access to open space within towns and cities for recreation and healthy exercise – reviving furious battles to maintain or establish urban green spaces. And as rambling and climbing became popular pastimes, thence to battles to access land in rural areas that their ancestors had been dispossessed from. This led to famous struggles around access and against trespass as at Winter Hill in Lancashire and Kinder Scout in the Peak District in 1932.
Entering as a Trespasser
In the 20th Century squatting mainly of buildings became massive, particularly in the late 1940s and then again from 1969-2012. The vast majority of squatting cases came under civil laws, except where it could be shown force was used to enter.
The Forcible Entry Acts (see above) in fact gave some protection to squatters against violent eviction.
However, some exceptions to the civil nature of trespass had crept in in high profile cases. In R. v. Bramley (1946) however, five communists involved in the organisation of squatting in London in 1946 were convicted of conspiring to incite others to trespass; the trial judge had directed the jury that if they thought the matter had “transcended the sphere where the property owner had ordinary redress in the civil courts”, and “passed into that sphere where it became a matter of public Concern of citizens interested in the maintenance of good order and security”, then they could convict on the conspiracy charge (they did). The Labour government in fact briefly considered passing a Criminal Trespass law – before the squatting threat receded as rapidly as it had appeared.
In 1974, the offence of “Conspiracy to Trespass” was virtually created where a wrongful action was considered to have involved ‘Invasion of the public domain’. Nine students from Sierra Leone appealed their convictions for conspiracy to trespass, and unlawful assembly. Together with others who did not appeal, they had organised the occupation of the London premises of the High Commissioner for Sierra Leone in order to publicise grievances against the government of that country. Upon their arrival at the Commission, they threatened the caretaker with an imitation firearm and locked him in a reception room with ten other members of the staff. Their appeal was dismissed, establishing a precedent for this offence.
In 1977, this was altered to a certain extent, with the introduction of the 1977 Criminal Law Act. conspiracy charges could now be brought in respect of any of the five new criminal trespass offences,
Part II of this Act related to ‘Offences relating to entering and remaining on property’. This Part implemented recommendations contained in the Report on Conspiracy and Criminal Law Reform (Law Com 76) by the Law Commission.
The crucial part was Section 6 – Violence for securing entry.
Section 6 created an offence of using or threatening unauthorised violence for the purpose of securing entry into any premises, while there was known to be a person inside opposing entry. Violence is taken to include violence to property, as well as to people.
Ironically, this section was usable by both owners and their agents and squatters – since the latter could get done for breaking in, but bailiffs etc could not use force to evict squatters while actually in the property, unless a Possession Order had been granted. (If you left the place empty they could break in and secure the place)
This section was widely used by squatters in England and Wales, as it made it a crime in most circumstances for the landlord to force entry, as long as the squatters were physically present and expressed opposition to the landlord’s entry.
Section 6 was referred to in printed legal warnings, which are commonly displayed near the entrances to squatted buildings.
Reasonable force used by a bailiff executing a possession order would not be considered unauthorised violence, so landlords can still legally regain possession through the courts.
Section 7 – Adverse occupation of residential premises – Section 8 – Trespassing with a weapon of offence, and Obstructing Court Officers – were also relevant to squatting, allowing for arrest / eviction under PIO, DRO and prosecution for resisting bailiffs…
Repeal of the Forcible Entry Acts while passing the 1977 act in fact also affected licensees, and subtenants, as it strengthened the position of landlords to evict them after asking them to leave or while they were out…
The 1977 act was in part an attempt to prevent workers occupying their factories, a then huge trend in the UK, as well as at cracking down on the then massive squatting wave.
The emergence in the 1970s and 80s of ‘new age travellers’ as a culture – mostly people dropping out of settled society to go travelling in vehicles, intimately connected to the festival scene – sparked a moral panic among government, police and property owners reminiscent of the 16th century scare about ‘Egyptians’ and ‘study rogues’. (In fact one description of them that caught on was that they were like ‘medieval brigands’)
The campaign against new age travellers – in particular the ‘peace convoy’ – climaxed with the banning of the Stonehenge free festival in 1985 and the heavily armed police attack on the convoy at the ‘Battle of the Beanfield in June.
Legally, police mainly used existing legislation up till 1986. Injunctions were used by police to try to prevent the travellers from coming near Stonehenge. Injunctions are court orders banning a specific action, usually pending a court case (civil or criminal). Some injunctions carry a financial penalty – others can result in imprisonment. (Injunctions have since become an important weapon against protestors, being especially used to stop blockades, pickets, protests at particular sites, useful as they can be targeted at both individuals and organisations.)
The 1986 Public Order Act gave police the power to break up any group of 12 or more vehicles, which made it easier to break up and harass the convoy.
However, rave culture and the resulting revival of free festivals led to further legislation in the passing of the Criminal Justice Act 1994. This Act brought in a further criminal offence of ‘aggravated trespass’.
The whole of Part V of the Act covered collective trespass and ‘nuisance’ on land and included sections against raves and against disruptive trespass, squatters, and unauthorised campers. Significantly this involved the criminalisation of previously civil offences. This affected many forms of protest including hunt sabotage and anti-road protests.
Under the Offence of aggravated trespass:
(1) A person commits the offence of aggravated trespass if he trespasses on land [in the open air] and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect—
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.
(2) Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.
(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.
(4) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.
(5) In this section “land” does not include—
(a) the highways and roads excluded from the application of section 61 by paragraph (b) of the definition of “land” in subsection (9) of that section; or
(b) a road within the meaning of the Roads (Northern Ireland) Order 1993.
It’s worth noting civil law offences against trespass are superseded in the interests of law ‘n’ order – eg the Police and Criminal Evidence Act 1984, which allows the police to enter private land for the purposes of carrying out an arrest. Hence cops can come into your home and nick you.
However – under legislation in Scotland, ‘trespassing on a moor with the intention of disrupting (even peacefully) a legally organised shoot and other similar activities is now a criminal offence, punishable with a fine of up to £2500 or a 3 month prison sentence’.
Swinging Back the Other Way: Access legislation
The Ramblers Association and other reasonably respectable organisations had objected to the ‘aggravated trespass’ clauses in the 1994 CJA as they felt they could easily be used against walkers in rural areas.
Their long campaigning around access to previously closed land was rewarded by Tony Blair’s New Labour government.
In 2000 the Government legislated to introduce a limited right to roam, without compensation for landowners. The Countryside and Rights of Way Act 2000 (CROW) was gradually implemented from 2000 onwards to give the general public the conditional right to walk in certain areas of the English and Welsh countryside: principally downland, moorland, heathland and coastal land. Forests and woodlands are excluded, other than publicly owned forests, which have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above.
The 2003 Land Reform (Scotland) Act 2003 secured the traditional rights and freedoms to access land, coast and inland water in Scotland.
However, as noted in our companion piece of Public Order Legislation – passing this (undoubtedly liberal) law which had great positive consequences for walkers was not accompanied by repeal of the Criminal Justice Act. Labour felt the need to hang on to all the repressive legal armouries the tories had bequeathed them…
Laws regarding squatting residential properties were revised in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which effectively criminalised squatting in residential property. Squatting remains more possible in commercial premises.
It’s My Way – or the Highway!
Wagon tent or trailer born
Last month, last year or in far off days
Born here or a thousand miles away
There’s always men nearby who’ll say
You’d better get born in some place else
Move along, get along
Move along, get along
Go! Move! Shift
It’s also worth noting that laws can often be flexibly interpreted to make them useful to the propertied, even when they don’t seem to apply in a given situation. For instance – when is a public highway NOT a public highway? When you are using it to protest or hold a rally or meeting…
19th century radicals and socialists spread their ideas in many ways, but holding meetings in the open air, whether on the street or on open green spaces, was long a popular tactic. This faced decades of repression from the authorities and the police, and speakers were often arrested, charged and imprisoned. In the street this was for Obstruction of the highway under a succession of Highways Acts (currently applied under Section 137 of the Highways Act 1980).
In parks and green spaces, there was often a local authority bylaw against holding meetings (check out the back of those bog notices at park entrances – there’s a long list of things you aren’t permitted to do there…) ‘Free speech fights’ over arrests of speakers became a regular occurrence in the 1880s and 1890s for UK socialists and anarchists.
There’s also a legal precedent, going back to a law case from 1892 (Harrison v Duke of Rutland, 1892), laying down that if your on the road you should be walking and nothing else… A man was prosecuted for obstruction of the highway when he attempted to disrupt a grouse shoot on the moors outside Hathersage in the Peak District. The owner of the land and head of the grouse shoot, the Duke of Rutland, got his servants to restrain and hold down the man on the road. The man appealed for unlawful imprisonment, but his appeal was rejected because he was ‘admittedly on the highway, not for the purpose of using it as a highway but for the purpose of preventing the Duke and his friends from exercising their undoubted right of shooting [therefore] he was a trespasser on the road’.
This was a significant judgement as free passage along a public highway is a common right, whether or not it goes across private land, but the case proved that people could only use the public highway for getting from A to B, and not for other purposes!
Katrina Navickas cites this case as an example of what she calls the ‘static/mobile’ binary, in which landowners and static uses of property have precedence over mobile or nomadic uses.
Undoubtedly this could be applied to much of the above legislation. From the Statute of Winchester, and perhaps before, the assumption has always been that the stranger, anyone who doesn’t remain in one place, is a danger and a threat to the ‘settled’ community. It’s worth adding that the threat is defined by those with property, and aimed at those without, though they can enclose many of the latter to gang up on others on the basis of any number of false dichotomies – colour, race, nation, religion and what kind of home people live in…
The law remains fully committed to backing the ‘static’ but specifically to the propertied ‘static’. Modern methods of control over space and access to it are not only legal but technological – CCTV and other surveillance, ID cards, swipe cards, fingerprint and face recognition software. Open space in many of our cities appears free and easy, but lots of concourses, squares and plazas in new developments are privately owned, and you can be prevented from protesting, hanging out or doing pretty much anything depending on the power and will of private corporations. Meanwhile London councils are planning to build on any open space they can get way with.
… If wandering offends against the controls ruling elites have over us…
… If our collective defence offends the laws they make to fence us in and fence us out…
… If their hirelings can arrest and fine us for not respecting their imaginary boundaries…
The powers that be have trespassed against us for 1000 years.
We have concentrated here on the legal and repressive actions of the authorities, rather than on resistance, though obviously some of that has been mentioned.
Some articles we have written on resistance to enclosure
For advice/legal help