This briefing is about your legal rights of access to ancient monuments and open land, whether to visit a sacred site or to get up close and personal with nature. Different sections deal with ancient monuments, trespass, exclusion zones, picking wild flowers and herbs, human rights, Stonehenge and discrimination.
Please note that this briefing only reflects the position in England and Wales. Access rights in other countries, including Scotland, are different.
Scheduled Ancient Monuments
Most ancient preChristian sites are protected as either ‘scheduled ancient monuments’ or ‘archaeological areas’. The applicable law is the Ancient Monuments and Archaeological Areas Act 1979 and the ‘schedule’ is simply the list of monuments kept by the Government. A ‘monument’ includes the remains of any building and structure above or below ground.
The National Heritage Act 1983 provides that the Government’s powers to manage schedule ancient monuments be delegated to a ‘non departmental public body’ called English Heritage
1. In Wales, the equivalent body is called Cadw. Many monuments are on private land, but where the monument is actually owned by the state or local authority then sections 19 and 20 of the 1979 Act provide for public open access. Public access could be described as the default position, but the Act allows English Heritage and local authorities to make regulations to strictly control the times of access, even restricting access completely if this is done in the interest of preserving the monument and surrounds. The law also allows a charge to be made for entry. Where there are regulations about entry, it is a criminal offence to breach them. (Section19(7) of the 1979 Act). The 1979 Act also prohibits the use of metal detectors, no doubt to deter amateur treasure hunters.
No self-respecting Pagan would want to deliberately damage a sacred site. The 1979 Act makes it a criminal offence to deliberately or recklessly cause damage to an ancient monument. It is also an offence to disturb the ground or tip materials on the land around the monument without permission.
Ritual items or offerings used at a sacred site will need to be innocuous and biodegradable or taken back home so as not to spoil the site.
Rights to Roam In the Countryside
Public Footpaths
An Ordnance Survey map will reveal a countryside that is criss-crossed by many public footpaths, and if you are moving about on foot, you can also use public bridleways, cycle tracks or byways open to all traffic. Not all footpaths are well maintained and unfortunately, many have become inaccessible for those with mobility difficulties because of obstacles such as overgrown vegetation. The local Highway Authority is in charge of maintaining routes – such as not letting vegetation grow too high on path surfaces - and also improving them with bridges, signs, etc. Their budget constraints mean footpaths usually have low priority for Highway Authorities, but persistent problems should be reported to the relevant local authority, which has powers to intervene if landowners are causing obstructions. Walkers are generally allowed to take a short detour around obstructions if this can be done without causing any damage.
Access Land
If you want to get away from the ‘beaten track’ then in recent years there has been a major change in rights of access to the countryside as a result of the Countryside and Rights of Way Act 2000. This law provides for access to all land in designated areas; in other words, you don’t have to keep to a specific footpath. At present most designated access land is in upland areas, usually over 600m or more in altitude above sea level, and consisting predominately of mountain moor, heath and upland forest. Other access land includes most registered village commons, some forests and some costal areas. On recently published Ordnance Survey maps (1:25,000 scale), designated access land is represented by tinted yellow-orange colour boundaries enclosing the access areas. More information is available from local authorities or on the Countryside Agency website.2
There are restrictions on the use of access land: dogs must be on a leash, generally no cycling is allowed and lighting fires or camping is prohibited. Certain access areas are closed seasonally, e.g. during the lambing season. There can be further restrictions near sites of historical interest and ecologically sensitive areas.
Access to Land in Public or Charitable Ownership
There is no automatic right of access to land owned by the Crown, Government Departments, public bodies or charities. Many of these organisations own swathes of the countryside, for example the Forestry Commission have 350,000 hectares of forestland and are by far the biggest woodland landowner. Most of their holding consists of coniferous plantations but in recent years, they have been committed to promoting more ecological diversity and more leisure access. The Forestry Commission and charity landowners such as the National Trust and Woodland Trust often provide ‘permissive access’ at their discretion to many (but not all) of their land holdings, on their own terms (there may be charge for use of car parks etc). These bodies have policies to encourage access where this is in sympathy with their aims.
What Is Trespass?
A person trespasses when he deliberately enters land without any right to be there, i.e. without the landowner’s or other lawful occupier’s permission. A person also trespasses when they exceed the permission that has previously been granted to enter the land. An example of exceeding permission is where people who have been allowed simply to walk across land decide to have a picnic or camp without obtaining further permission.
Trespass to land is classed as a civil wrong contrary to common law. English Common Law arises out of recorded decisions of the Courts sometimes over many centuries, rather than particular statutes of Parliament. Using the law, the aggrieved landowner can initiate proceedings – i.e. ‘sue’ - in the civil Courts, to ask a judge to provide a remedy against the trespasser.
A number of legal remedies are available to the Court such as ordering the trespasser to stay away from the land or stop doing a particular activity; this type of Court order is called an ‘injunction’. A Court has discretion whether to impose an injunction and this is usually only granted for persistent trespass or where compensation alone would not be an inadequate remedy. If the injunction is not complied with, a Court may find the trespasser has acted in ‘contempt of court’, a serious offence punishable with a fine or even (for very flagrant and persistent disregard of a court order) with imprisonment.
A Court may in principle award compensation for damage to the land or anything on it, or in cases of prolonged trespass/squatting on open land, an amount representing loss of use of the land or for the benefit gained by the trespass.
To start legal proceedings the landowner will usually need the name or address of the trespasser, but if you happen to be that person, you don’t have to supply your details if the landowner asks.
Reasonable Force by Landowners to Remove a Trespasser
Should a landowner or their agent tell you to get off their land, it is advisable to heed their request and leave quietly. The landowner has a common law right to try to remove a trespasser using ‘reasonable force’. This is not a right to punish a trespasser but the minimum force to make someone leave after they have been politely asked to do so and still refuse. Reasonable force in this context might include at least shouting and if strictly proportionate, manhandling the person from the land in the manner of a nightclub bouncer. Where you are a non-aggressive trespasser, in the middle of a field during daylight hours, a right to reasonable force does not excuse behaviour such as threatening you with physical violence or with a weapon. Serious confrontation is more likely if you loiter near residential premises or farm buildings and are suspected of being a burglar or other criminal; rural people and farmers are particularly vulnerable and nervous of crime because of a perceived lack of police in rural areas. However most landowners are wise not to attempt any force, for if this is in any way excessive they could face criminal charges themselves and compensation claims for assault and personal injury.
Trespass and Criminal Offences
Generally, trespass is not a criminal offence (some specific offences are set out below). Of course, if you attempt to access prohibited and sensitive areas such as airfields, military bases, nuclear installations and government buildings then in the current political and security sensitive climate you may be suspected of serious criminal activity. You should at least be prepared to be arrested and detained for questioning and it is not unreasonable to worry that the response of guards or the security services might put your life and limb in jeopardy.
There are also specific police powers of arrest and criminal penalties for deliberate trespass in designated restricted areas such as royal estates.
If you want to protest or demonstrate, you should obtain professional legal advice about what you intend to do; it’s also a very good idea to get help and advice from seasoned and well-run campaign groups.
For anyone thinking of trespassing, attempting to camp or arrange gatherings on land including sacred sites, you should also become acquainted with offences under the Criminal Justice and Public Order Act 1994 (abbreviated here to the ‘CJA’). Note that the police can arrest without warrant where there is reasonable suspicion that one of the specified offences have been committed.
Police Powers Requiring Trespassers to Leave Land
Section 61 of the CJA provides that if a policeman has a reasonable belief that two or more trespassers are causing damage to land or property OR have used threatening or insulting behaviour toward the occupiers of the land, household or their workers OR if the trespasser(s) have six or more vehicles on that land, and if the policeman is satisfied the occupiers have asked them to leave, he can direct the trespassers to leave “as soon as is reasonably practicable”. Persons directed to leave are not allowed to return for three months. Failing to obey the police direction is a criminal offence, allowing the police to arrest and seize any vehicles on the land. For a policeman to have “reasonable belief” hardly requires any evidence at all by the way.
It’s a defence to show that you are not trespassing or have a reasonable excuse not to leave the land as soon as reasonably practicable (or reasonable excuse to re-enter it). A reasonable excuse might include illness or childbirth but probably not a lack of engine parts or fuel for a vehicle.
Aggravated Trespass
This CJA Section 68 offence was controversially framed with hunt saboteurs and other protesters in mind. The offence of ‘aggravated trespass’ applies to anyone who intends to intimidate, obstruct or disrupt persons engaged in lawful activities in the open air (but not including a highway or building). The offence applies even if the disruption comes from ‘adjoining’ land. It should be noted that ‘lawful’ activities could include those which you might consider unethical. On the other hand, a trespasser deliberately disrupting an open air Pagan gathering, where those assembled have permission to be there, may also be committing an aggravated trespass.
Exclusion Zones
Sections 70 and 71 of the CJA add a new offence to Section 14 of the Public Order Act 1986. An assembly is not defined in the CJA but in section 16 of the Public Order Act 1986, the definition of an assembly is a gathering of 20 or more people in a public place in the open air or partly in the open air.
The law applies to protect sites of historical, architectural and archaeological importance or where ‘serious disruption to the life of the community’ may be caused (perhaps due to the numbers involved, or the noise and traffic). The political intention was almost certainly to stop certain free festivals in the English shires and was used to restrict solstice access to Stonehenge in particular. The Act provides that by agreement between the police, the local authority and the Secretary of State (the Government) the authorities can make an order forbidding assemblies in a particular area. While the term is not used in the Act, the media dubbed these designated areas as ‘exclusion zones’. The exclusion period can last for a maximum of four consecutive days at a time and the designated area has a maximum radius of 5 miles from a specified centre (for instance, a stone circle!). In the relevant area and period, a person can be prosecuted for knowingly organising a trespassers assembly (the more serious offence) or for the lesser offence of just taking part in such an assembly. The police also have the power of stopping anyone who appears to be proceeding i.e. travelling to the assembly (and arresting anyone who does not comply) but only within the applicable area itself.
Picking Wild Flowers and Herbs
If you are in the countryside and you want to gather wild flowers, wild fruits, mushrooms, odd leaves and flowers, then it is not theft to take wild growing plant materials, though it would be against the law to take commercially grown crops or fruit. You must not permanently damage the plants or kill the plants by uprooting them. Certain rare plants are specifically protected by conservation laws such that it is a criminal offence to damage such plants at all.3 Hopefully we can learn about and distinguish our wild plants!
Access to Sacred Space and Human Rights
The Human Rights Act 1998 enshrines the European Convention on Human Rights into United Kingdom law. Today anyone can complain through the civil court system about a breach of human rights and apply for a remedy in the English Courts including compensation. However, it should be clarified that a person cannot complain of a breach of human rights by another private individual acting in a private capacity; generally, only public authorities can breach human rights.
There is a presumption that common law principles and criminal legislation (such as the Criminal Justice Act) should be interpreted in a manner that is consistent with Convention rights and freedoms where possible, and it is possible for the higher courts to declare a particular statute or regulation to be ‘incompatible’ with human rights principles, though it is still up to Parliament to decide whether to change that law.
If a public authority prohibits a pagan group doing ritual on land then human rights law will be very relevant. One would certainly consider Article 9 of the Convention: dealing with freedom of thought, conscience and belief including the right to freely manifest that religion or belief. Another relevant right is enshrined in Article 11 dealing with the freedom of peaceful assembly and association. A difficulty is that, like most of the Convention rights, Article 9 and 11 rights are ‘qualified’ i.e. they may be limited by laws to protect certain rights and freedoms of others where necessary in a democratic society. Any legal interference with or limitation of such rights must be proportionate, that is, no more than the minimum needed to achieve a particular aim. In our example of a pagan group wanting access for a ritual, if the public body can show they have legitimate rights or public interests to protect, then it might still be argued that a complete ban is not proportionate, because the alternative exists of allowing access but under certain conditions.
Stonehenge, Druids and a Human Rights Case
Access to Stonehenge at the summer solstice was the subject of a legal action between a Druid Order and the Government in the 1980s. The case of A.R.M. Chappell v UK (application no.12587 in 1986) arose prior to the 1998 Human Rights Act – in those days complainants had to take their human rights cases ‘abroad’ to the European Court of Human Rights in Strasbourg (where cases are still heard on appeal if people can’t get a remedy in the English Courts). The case was brought by a member of the ‘Secular Order of Druids’ and it was examined by the European Commission for Human Rights. Perhaps surprisingly, the Commission declined to give a view on whether Druidry was a religion or belief, but said that if it was, then a ritual at Stonehenge was a manifestation of such belief, so bringing that ritual/religious belief within the protection under Article 9 of the Convention. However, the Commission then applied the qualifications to the Article 9 right. They accepted Government allegations of previous disorder at the site (in 1984 and 1985) and that a ban on access for a midsummer ritual at Stonehenge was for the time being a justified interference. While this disappointing result does not set a binding precedent, it demonstrates that when judges consider human rights cases they may have to carefully weigh up competing interests. It would still be correct to raise human rights principles if a similar case happened today - and it is possible that a different decision would result.
Readers will be aware that English Heritage currently allows a period of open albeit regulated public access to Stonehenge at the summer solstice. But the legal power relationship remains in favour of the authorities who have legal responsibility to protect the site. Future open access is not guaranteed or set in stone (if you pardon the pun) but requires on going careful negotiation.
Anti-Discrimination and Access for Ritual Purposes
New laws against religious discrimination will be relevant to arguments over access to land for ritual or spiritual purposes. The Act provides that it is unlawful to discriminate on grounds of religious belief (and also lack of religious belief) in the provision of goods and services. The law applies to landowners who manage premises and who normally offer rights to access or occupy any land or building, under a let, hire charge or otherwise. So if land is usually open to the public or available for a charge, then the landowner cannot ‘pick and chose’ whom to let in merely on grounds of religious belief. Pagans should not in future be explicitly excluded only because of their actual beliefs. Of course, it also helps to try to educate landowners and the authorities who may have prejudiced views about what pagans will “get up to” on their land!
Disclaimer
This article is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law. Legal advice should always be sought to confirm whether and how any of any information in this article applies to your particular situation. TDN accepts no liability for any adverse consequences arising from reliance on this article in place of getting legal advice
Footnotes
1. English Heritage's website is found at www.english-heritage.org.uk. (back to text)
2. A specific website and the maps of access areas in the countryside plus advice and the 'countryside code' is to be found at www.countrysideaccess.gov.uk. (back to text)
3. Under the Wildlife and Countryside Act, 1981, which covers Britain, it is illegal to uproot any wild plant without permission from the landowner or occupier. Uproot is defined as to 'dig up or otherwise remove the plant from the land on which it is growing', whether or not it actually has roots; and, for the purposes of the legislation, the term 'plant' includes algae, lichens and fungi as well the true plants and mosses, liverworts and vascular plants. Under Schedule 8 of the 1981 Act, certain plants are listed as specifically protected. (back to text)
