There are many myths that surround the Scottish Legal system. One such myth is that trespass does not exist in Scots law. I have herd this countless times by security operatives and even security trainers who deliver training courses to security operatives, often with little or poor legal knowledge themselves and deliver training courses and empart such mythology as fact due to their lack of legal knowledge.
Trespass is a civil wrong, called a delict in Scots law.
The origins of trespassing laws actually date back in Scotland many centuries. In fact to be more precise it dates back to a court decision from 1791 in the case of Livingstone v Earl of Breadalbane states that;
Definition of trespass
Under the Trespass (Scotland) Act 1865, trespass is considered a civil wrong but can also sometimes be considered a criminal offence,.
A description of trespass in Scots Law is ‘the process of entering another person’s property or land without permission’.
Livingstone v Earl of Breadalbane 
"…every man is the proprietor of his grounds, and entitled to the exclusive possession of them… No man can claim a road or passage through another man’s property… without a servitude… for amusement of any kind, however necessary for health…”
Livingstone v Earl of Breadalbane & the Trespass (Scotland) Act 1865
Some individuals may believe that this ancient court case does not actually bear much relevance to modern laws, but a person’s right to the full exercise of their property is protected by Protocol 1, Article 1 of the European Convention on Human Rights. Although the court decision from 1791 is old, it still accurately states the current legal position on trespass.
The legislation that established trespass as an offence (The Trespass (Scotland) Act 1865) has been amended by the Land Reform (Scotland) Act 2003 which establishes universal access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting people's privacy, safety and livelihoods, and Scotland's environment. The Scottish Outdoor Access Code provides detailed guidance on the responsibilities of those exercising access rights and of those managing land and water and sets out a number of exceptions where the land access right doesn't apply:
However, the waters were muddied by the introduction of what is commonly known as “the right to roam.” Public access rights were created by the Land Reform (Scotland) Act 2003. This Act provides the public the right to be on and cross most land and inland water in Scotland in a responsible manner. However, public access rights do not apply to the following places:
- Houses, gardens and non-residential buildings and associated land
- Land in which crops are growing
- Land next to a school and used by the school
- Sports or playing fields (where exercising access rights would interfere with their use)
- Airfields, railways, quarries, construction sites and military bases
- Visitor attractions or other places which charge for entry.
For a more extensive list of places where public access rights do and do not apply, see the Scottish Outdoor Access Code.
Where a member of the public accesses land which is not covered by public access rights, they are trespassing. A court can therefore make an order to prevent trespassers from entering the land. Breach of such a court order could become a criminal offence.
However, land owners also have responsibilities. If a member of the public is injured while exercising their public access rights, the land manager or owner could be liable for injuries sustained if they did not take adequate precautions to protect those on their land.
This may fly in the face of what some security operatives have been previously informed whilst attending a licence linked security course for their door supervisors or security guards licence.
In Scotland, Trespass can sometimes also constitute a criminal offence, e.g. trespass which breaches poaching laws. It can also be criminal to damage someones property whilst in the act of trespass.
Whilst most of the Criminal Justice and Public Order Act 1994 does not apply in Scotland, the sections concerned with trespass and several others DO apply.
Access which doesn't comply with the rights set out in the Scottish Land Reform Act would still constitute trespass. Trespass is generally committed by persons or animals, and must be distinguished from 'encroachment' which is committed by things. In Scotland, trespass is only committed by things if their presence on the land is temporary. So, if someone moved a boundary fence, the fence would be encroaching (not trespassing) on your land. However, the law is similar to the English law in that if you allow this state of affairs to continue unchecked, then you will be deemed to have consented to the encroachment and you will lose your rights to object. You can ask the individual to stop trespassing which will prevent any acceptance or consent to the trespass and preserve your rights to act against it.
The defences to trespass are:
- Judicial Warrant
- Exercise of a right. For example, this could be a servitude, a public right of way, or an access right under part 1 of the Land Reform (Scotland) Act 2003.
Regarding remedies, interdict is a possible remedy in Scotland as in England & Wales.
However, it should be noted that this remedy is discretionary and the person asking for interdict must show the likelihood of future trespass before the court will award interdict.
In addition, in Licensing law in Scotland if an 'Agent of a Licensee' asks a person to leave licensed premises, then they must do so as refusal would legally constitute Trespass.
Therefore a door supervisor or bar staff or even the Licensee themselves are legally permitted to use force to eject a trespasser. The use of force MUST be reasonable in the circumstances to which is being dealt with.
Any excessive use of force can be pursued in the civil or criminal courts so it is vitally important that ALL security operatives fully understand what legally constitutes Reasonable Force. Finally, damages can occasionally be obtained provided they can be proven, although this would be legally problematic for someone if they are the one who refused to leave peacefully when requested to do so, but that wouldn’t stop a case for damages if someone had legally been subjected to unreasonable force.
Section 116 of the Licensing (Scotland) Act 2005
Refusal to leave premises
Under this section the law states that where a person refuses or fails to leave any relevant premises as mentioned in subsection (1) or (2), an authorised person may—
(a) remove the person from the premises, and
(b) if necessary for that purpose, use reasonable force.
Another legal option is to call the police who are legally duty bound to provide ‘assistance’ in removing a trespasser from Licensed premises under section 116, subsection (4), (a) which states:
(4) A constable must, if—
(a) asked by an authorised person to assist in exercising a power conferred by subsection (3), and
(b) the constable reasonably suspects the person to be removed of having refused or failed to leave as mentioned in subsection (1) or (2), provide the assistance asked for.
Definition of relevant premises
It is worth noting that under the Licensing (Scotland) Act 2005 it states 'relevant premises' which are defined in the act of the Scottish parliament as any premises that serves alcohol. this would include off licensed premises such as supermarkets and off licensed premises.
Trespass on shops and licensed premises
This can also occur when an individual enters another property or piece of land with permission, but then subsequently that permission is withdrawn and the individual involved refuses to leave. For example, a person who walks into a shop or licensed premises, causes a commotion but refuses to leave upon request from the manager of security staff.
In R v Armagh Justices (1897) 2 Ir 57, Holmes J stated that a licence holder could pick and choose his customers. In an even earlier case, R v Rymer (1877) 2 QBD 136, it was held that a member of the public could not insist on being served in a public house.
Licensed premises, as well as those classified as relevant premises are not a “public place” and a member of the public cannot insist on remaining or attempting entry after they have been legally refused. The customer is there by invitation of the licensee and under their permission, only. Legally that invitation can be withdrawn at any time. Any attempt to remain on the premises or refusal to leave will see the person legally regarded as a trespasser, and again, an agent of the licensee such as a door supervisor can lawfully use 'reasonable force' to evict the trespasser.
The other aspect in refusal is that the term of 'undesirable' has no specific legal meaning, other than that of a person who the licensee or their agent, such as a door supervisor (acting on behalf of their employer/client) decides that their custom is not desired and the person is not entitled to a legal explanation, although they can ask, but the licensee, nor their agent (door supervisor) needs to provide an explanation. Again, the premises are classified as a private business and as such the law is on the owners side, so long as the customer, or would be customer is not discriminated under one of the protected characteristics of the Equality Act 2010 such as age, sex, sexual preference, or disability. There are many cases where business owners or security staff have clearly refused entry due to a person's sexual orientation, or other protected characteristic and damages (Delict) have been awarded.