Hansard

PE2060, which is to review existing legislation and legal remedies against trespassers, has been lodged by Daithi Broad. The petition calls on the Scottish Parliament to urge the Scottish Government to review and revise existing legislation to offer better protection against trespassers. The SPICe briefing outlines the circumstances in which the public have the right to roam, noting that exceptions to that include domestic houses and gardens. The briefing also notes that many people incorrectly—I was quite surprised by the briefing, I have to say—believe that the law of trespass does not exist in Scotland. Police Scotland has highlighted difficulties in applying the law in practice. Notably, the police have no jurisdiction, as trespass to land is a civil matter and they cannot assist in the removal of trespassers. Police Scotland’s comments on trespass state that the best and safest course of action is to obtain a court order, which, if breached, may then turn into a criminal matter. The Scottish Government’s response to the petition also outlined information about the current law on trespassing. In response to the petition’s ask regarding responsibility for injuries on the land, the Scottish Government stated that the duty of care is the same regardless of whether an individual has permission to be on the occupier’s land, but factors such as the foreseeability of unauthorised entry and any steps taken to prevent unauthorised entry and to warn of dangers may be of relevance in determining whether reasonable care has been taken in the particular circumstances. The response also notes that the evidential burden to prove trespass would depend on whether the individual was pursuing a criminal or civil law case. For my own part, having read the briefing, I think that it is saying that there is little that you could risk doing, particularly in the current climate in which it seems to me that your interests are secondary to those of the people who want to trespass on your property. That is basically how it reads to me. Although we pretend otherwise, the reality is that that is how it will be if you seek to do anything. It is also very difficult, because the briefing does not define what “force” is; I imagine that, if you were to escort somebody off, “force” would now include even laying hands upon somebody, however gently that was done. I found the briefing quite dispiriting. Do colleagues have any suggestions on what we might do?