Get off my land! Government bill seeks to thwart unauthorised traveller camps by making trespass a criminal offence but what does mean for rights of way?

My name is Julia. And I’m a trespasser. In fact, I’d put money on it that most of you are too.

Read more: Christmas gifts for mountain bikers (that don’t suck)

Words:  Julia Hobson
Photos: Roo Fowler, Sim Mainey, Andy McAndlish

In my local woods there’s a brilliant section of rocky, rooty, twisting trail that winds its way through the trees above the canal. Never too steep, or too technical, but challenging enough to keep you entertained, forcing you to pick a good line through the jumble of obstacles in order to find some flow. It’s perfect for bikes. It drains well and is rideable year round, and just so happens to link together two bridleways to make a fun off-road ride to the pub. It’s used by local riders and walkers, but it’s never busy, and it’s rare to experience anything other than a friendly greeting from most other trail users I pass.

But here’s the catch. It’s not actually a right of way, not even a footpath, so anyone who uses it is technically trespassing. I continue to enjoy it though; after all, I’m not doing any harm, just quietly enjoying riding through a beautiful bit of woodland.

I like to think I’m a fairly law-abiding citizen, but riding this local trail and others like it could soon see me labelled as a criminal thanks to proposed new English government legislation surrounding the laws of trespass.

But riding something like that isn’t really trespassing is it? Wrong. In the eyes of the law, it is.

It’s tough not to tresspass with such restricted rights of way

Trespass is the act of illegally entering another person’s property, which covers much more than you might realise, mainly because all land in the UK belongs to someone. If you set foot, or tyre, on land without the owner’s permission, you are trespassing unless there is some right of access for the public, such as a footpath, bridleway or byway. As soon as you stray off these paths, you become a trespasser.

To complicate things further, our Rights of Way laws in England and Wales are confusing and out of date, even to the experts. If you are riding a bike on a footpath, you are trespassing, because whether a route is a footpath, bridleway or byway is generally determined by its history of past usage, not at all by its suitability. This means cycling can be permitted on unrideable muddy bridleways where the effect of dozens of tyres would cause erosion issues, but not on a gravel or hard-surfaced, vehicle-width footpath.
Yes, it’s ridiculous.

But let’s get back to trespass. Under current English law, trespass is a civil offence. This means that a landowner can ask you to leave, or even try to sue you for intentional damage to their land in the civil courts, but the police aren’t involved, there is no criminal record for the offender, and the effort and time involved to take things to court means it rarely happens. The intimidating signs put up by angry landowners stating “Trespassers will be prosecuted” are really just empty threats.

Read more: 80% of mountain bikers ride on footpaths

The tolerance shown to wild trails could soon peter out

Criminalising trespass

Trespass is more than just riding on a footpath or straying off a right of way though. Do you ride or dig unofficial trails in your local woods? Have you ever wild camped or bivvied on a bikepacking trip? Walked across a field to swim in a lake or river after a hot day’s ride? Parked your van in a layby or empty car park near a trailhead to stay overnight?

Chances are, in doing any of these in England or Wales, you’ll have trespassed at some point in your life. So what’s the big deal if no one can do anything about it? Well you may soon want to think twice about those rebellious little acts.

In late 2019, Home Secretary Priti Patel announced that the government was looking at legislation which would criminalise trespass. Changes to the law seem to be aimed at increasing police powers against traveller communities from setting up encampments on public or private land, but could have serious implications for outdoor enthusiasts, including mountain bikers.

If trespass becomes a criminal offence, landowners could in theory call the police if they found anyone doing any of the things mentioned above. If caught, you could end up being prosecuted, facing large fines, and having a permanent criminal record.

What is worrying many even further, is that this could be part of a larger drive by the government to increase the powers of landowners at the expense of the rights of the broader public. This anxiety stems from the 2019 Conservative manifesto, which explicitly stated, “we will make intentional trespass a criminal offence”. Not much left open to question about a statement like that.

England’s fractured land is criss-crossed with red lines

Rights of way act

The government launched a consultation period for the proposed changes, which ended in March 2020. The wording of the questions was confusing and unclear, perhaps intentionally so to allow the government to pass new legislation without the public having properly been given the chance to respond.

Outdoor user groups including Cycling UK, the Ramblers Association, and the British Mountaineering Council, got together to send a joint letter in response to the Home Secretary, stating deep concern about the government’s intentions. They said that, among other things, this could deter people from accessing the countryside.

In England and Wales, we are already excluded from setting foot or wheel on huge amounts of our wild and beautiful land, simply because the historic UK class system has meant vast swathes of the countryside are inaccessible and off-limits to most except wealthy landowners. In fact, a report in The Guardian newspaper late last year showed that over half of England’s land is owned by just one per cent of the population.

Much of this country’s natural wealth remains under lock and key

The Countryside Rights of Way Act (CRoW) 2000, granted a right to roam across about eight per cent of the land in England and Wales. Despite this, a ridiculous 92 per cent of land still remains off-limits, a legacy of centuries of land ownership in the hands of a wealthy few. Unfortunately for us mountain bikers, the right to roam also only applies to access on foot. We are limited to bridleways and byways, which make up about 22 per cent of the 140,000 miles of public rights of way network, or about 31,000 miles. To me, and I’m sure many of you, that’s the only criminal thing in question here.

We live in a country where there are huge areas of green space, fields, woodland, moorland, and yet our access laws mean most of us will only ever get to use a tiny proportion of that to enjoy the outdoor sports we love, while the rest lies untrodden and fenced off for use by a privileged few.

Scotland’s Land Reform Act points the way for greater access

Scotland’s example

In contrast, north of the border, The Land Reform Act in 2003 granted a legal right of access to almost all land and water, meaning Scotland enjoys some of the most progressive access laws in the world. Despite warnings from landowners that the system would create havoc, reports show that mountain biking thrives in harmony with all other outdoor uses and contributes greatly to local economies.

The Covid-19 outbreak, and the restrictions on movement and outdoor activity, have brought into focus just how important it is for people to be able to connect with nature as part of their daily lives. I for one would have lost my mind without the opportunity for a daily ride in the nearest woods during spring when the country was in lockdown. We all witnessed more and more of the population begin to appreciate the great outdoors, and realise the necessity of it for improving our health and happiness, and connecting us to the environment.

Nature should be accessible for all, and ‘access’ should be more than just a right to walk in some places. There are more people taking up mountain biking than ever before, but with such a vast proportion of our countryside off limits, it’s no wonder trail centres and honeypot areas of National Parks are overflowing with visitors, and conflict continues to arise on some trails between different user groups. We’re all trying to get outdoors, but there aren’t enough trails or areas of land that we can legally use to allow us to do that without creating hotspots of overcrowding.

Trespass is a civil offence but it may not stay that way for long…

United solutions

Surely the government should be finding ways to open up more land to the public for recreation, making more paths available to cyclists, rather than seeking to change the law and criminalise those who don’t stick to the tiny amounts available?

In reality, the police are unlikely to have the manpower or resources to prevent riders using footpaths in remote parts of the country, but there’s another implication to consider surrounding the proposed law changes.

Many of us enjoy riding on unofficial or off-piste trails, and there are areas where trails like this have existed for a long time with little conflict. Some have even evolved to become established and recognised trail networks over time, with builders and landowners cooperating and maintaining trails, and areas often having spin-off benefits of riders spending money in local cafes and pubs, contributing to the local economy. The law changes could cause a massive clampdown on these unofficial trail networks. In Shropshire for example, there is real concern that any new legislation could foster antagonism between landowners and local riders. John Bellis from the Eastridge Trail Partnership (ETP) explained the problem. “Eastridge has a real mix of official maintained trails and what Forestry England class as ‘wild trails’. These wild trails are normally more advanced and include features which probably wouldn’t pass a trail centre risk assessment. Although the wild trails aren’t condoned, they are tolerated to an extent, as long as they don’t cause conflict with other trail users.

It’s hard to avoid treespassing if you pitch up for the night

Recently there have been complaints regarding some of these wild trails close to the village of Snailbeach. While the Eastridge Trail Partnership has tried to find some middle ground on this, inevitably Forestry England has sided with the well-written letters and emails from certain individuals and decided to close these trails, citing the lack of permission and rider safety implications as the main justification.

There is serious concern within the ETP that the proposed changes to the trespass laws will be abused by people who simply don’t like mountain biking to strengthen their argument for the immediate closure of all wild trails in the woods. Even if Forestry England wanted to be pragmatic, it may be forced into following the letter of the law with closures and investigations into those responsible being its first port of call, rather than being able to turn a blind eye or engaging with trail builders to make problem trails safe.

It’s going to be interesting to see how the new rules will be applied…

These are concerns echoed by many involved in trail advocacy and access groups all over the country. Simon Bowns from Ride Sheffield had this to say: “While I don’t see the proposed trespass laws as something directed at rights of way, it does worry me that we could see the criminalisation of ‘kids riding in the woods’. Increased access for mountain bikes takes time and positive action – we can’t expect immediate use of every bit of land, but equally we shouldn’t see overly heavy-handed action by landowners and police. That reinforces an ‘us and them’ attitude 
that rarely helps any situation.”

Access to the countryside should be encouraged not deterred

Growing opposition

Bowns continues: “Although we haven’t seen too many brand new rights of way granted locally, Ride Sheffield has found that working proactively with landowners and managers has led to increased access at another level – purpose-built mountain bike trails, permissive routes and bridleways, along with more of an understanding of desired lines and unofficial tracks. I do believe that can continue, despite proposed rule changes.”

Hopefully Ride Sheffield is right, and the work done by it, and other groups like it, to engage with landowners and work towards increased access, will be unaffected by the proposed changes to the law.

As for kids riding in the woods, often they don’t understand why a particular area might not be a good place to build or ride trails, but with a bit of guidance, and if their energy and enthusiasm is channelled in the right way into helping with recognised trail maintenance or dig days, they are the future of our sport. The very fact that they are outside, connecting with nature, is to be encouraged. Giving them a criminal record is unlikely to foster any long-term respect for landowners and the countryside.

Criminalising trespass seems completely unnecessary. Three-quarters of police forces have already stated that they do not need additional powers to deal with unauthorised traveller community encampments. With more people getting on bikes and getting outside than ever before, now is not the time to be implementing legislation that could make people afraid of where they can go without risking breaking the law.

Promoting increased access to the outdoors should be the government’s priority. It is a critical part of the response to the climate emergency, poor air quality, high levels of obesity and inactivity, and the mental health crisis our country is facing. England already lags far behind the progressive access policies of Scotland and many other countries, and seeking to criminalise trespass can only be a backwards step in this respect.

The latest update is that a petition to stop the criminalisation of trespass reached 100,000 signatures a couple of months ago, enough for it to be considered for debate in parliament. Let’s hope there is support from enough MPs to challenge the proposal as it is currently worded, and ensure that any new legislation does not negatively affect us all by further limiting our freedom to enjoy mountain biking in England and Wales. Watch this space.