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By Root 312 0

seemed to realise that some change was inevitable, and best therefore to manage it as smoothly as possible – and by smoothly, I mean most in their own interest. The bill passed its second reading and was sent off to committee, where it was torn apart by the Conservatives, and reassembled in a way that bore practically no resemblance to the original. Limited access would be granted, but only after a tortuous, and potentially expensive, process of permission was applied for. The most controversial addition, however, was to make trespass a criminal offence for the first time in British history, with a fixed fine attached to it of anything up to £2.

‘Trespassers Will Be Prosecuted’ is a phrase embedded in our national DNA, for it is a perfectly British blend of archaic pomposity and empty threat. Like most people, I grew up all too aware of the menacing signs that frowned across gateways and fences, and could recite the words long before understanding what they actually meant. After all, the only other time I ever heard the word ‘trespass’ was when mumbling the Lord’s Prayer in church or school assembly – ‘forgive us our trespasses, as we forgive those who trespass against us.’ Even that changed when they brought in the trendy new Lord’s Prayer in the 1970s, the one that made older relatives tut with bewildered disapproval. In that, ‘trespasses’ became ‘sins’, and we knew all too well what those were. Stealing, lying, swearing, eating too many sweets, cheeking your parents, hitting your sister, rummaging around in your classmates’ pants – they were all sins, and so, apparently, was going into a forbidden field or wood. Everything that was fun seemed to be a trespass.

Yet the signs are a nonsense; ‘wooden liars’ as they became widely known. Unless you have caused actual damage, you cannot be prosecuted for trespassing; it is a civil matter, not a criminal one. The Limitation Act of 1623 made this very clear: ‘if the defendant disclaims any title to the land and proves that the trespass was negligent or involuntary and that he has tendered sufficient amends before the action was brought, the plaintiff will be non-suited.’ This gave rise to the long-held belief that, if you were challenged by a farmer or landowner, you should offer a couple of pennies in recompense of any damage, declare that you make no claim upon the land and no trouble would ensue. It didn’t always work out quite that simply.

Even with no basis in law, ‘Trespassers Will Be Prosecuted’ signs usually achieved their aim simply by scaring people off. This was a point frequently pondered upon in the many access debates in Parliament. In 1908, the Edinburgh Liberal MP Arthur Dewar said that the phrase was a ‘terminological inexactitude if ever there was one’, but that ‘it was quite enough to frighten away perfectly innocent people, because they did not know the law.’ In the 1938 debate, Labour and Liberal MPs, and even the odd Tory, confessed that they had knowingly trespassed on their walks, and would happily do so again. The soggy legal position was perhaps best illustrated by James Chuter-Ede, the Labour MP for South Shields and future Home Secretary in the Attlee government. He described a personal experience: ‘I recall walking along a footpath and being stopped by a gamekeeper who asked me if I knew that I was on private land, and I said “Yes, what about it?” He said, “My only instructions are to ask you if you know that you are on private land.” I said, “Does it not occur to you that we should not call it a public footpath unless it was on private land?” and he replied, “I know nothing about that, Sir. My job is to ask the people who come here, do they know that they are on private land.” I said, “I suppose that every one of them has turned back,” and he replied, “Yes, every one except you, Sir.” That kind of spirit is not the way to secure good feeling between the general public and the landowner. It is an abuse of the ignorance of the person who is legitimately using the footpath, and I am quite sure it would not be defended in public by any landowner.