Wild Camping: The Legalities

I already mentioned below that Weird Darren is championing a petition requesting that wild camping be made legal in England and Wales.

What I’m going to do now is to dredge through the depths of my memory and consult a couple of my out-of-date texts on the subject and explore the legal position as regards access and wild camping in England and Wales (i.e. not Scotland, where the position is entirely different).

(I warn you now that I’m about to witter on at great length and congratulate in advance anyone who trudges all the way to the end!)

Access On Foot
Firstly, let’s start off with the public right to pass on foot over land. Until the implementation of the Countryside and Rights of Way Act 2000 (CRoW (which was not fully implemented until the end of 2005)), the only legal right one had to pass over a third party’s land was conferred via Public Rights of Way. This was a limited right, in that it only permitted passage along the line of the Right of Way and nowhere else. To stray from the line of the Right of Way would have constituted a trespass to land.

CRoW greatly improved that position as it gave the right to walk freely over designated areas of land. Straying off a Public Right of Way in such areas no longer constituted a trespass.

Access to Camp
The significant limitation (for people like me, at least) of CRoW was that the access granted specifically excluded the right to camp. As such, to pitch a tent or throw down your bivvy bag and spend a night without permission on someone else’s land still constitutes a trespass to land.

The Legal Position
So what does that mean in practical terms?

Well firstly, trespass is a civil wrong, not a criminal offence*. As such although wild-camping is not permitted by law, it is not illegal (a subtle distinction), so you are unlikely to gain a criminal record by pitching your tent on a mountainside*.

As a civil offence, the worst that is likely to happen if a person in possession of land (being not necessarily the owner) finds you unlawfully on his land (i.e. camping without his permission) is that he will ask you to leave.

You have three options at that point. You can negotiate terms for a pitch for the night, you can say ‘No I won’t. Go ahead and sue me’, or you can be polite, adhere to wild-camping etiquette and comply.

If you refuse to leave, then according to a precedent set at common law in the 1750’s, the land owner has the right to use reasonable force to make you leave. Whilst ‘reasonable’ is from a legal point of view an objective term, I wouldn’t like to test what is reasonable in this context!

Legal Remedies
Supposing, however, that you stick to your guns and the person asking you to leave doesn’t choose to force you off his land: what is the worst that can happen to you then? He can sue you**. To do so successfully does not require him to establish that you have caused any damage whatsoever. Trespass is actionable in and of itself.

Now it’s unlikely that any of us wants to be dragged through the courts and it’s extremely unlikely that anyone would go to such trouble just because someone has pitched on their land for a night or two, but let’s say that this scenario did occur: what then would be the cost to the trespasser?

For a civil wrong, a plaintiff is only able to claim damages to compensate him for the harm he has suffered. So, if a wild camper has caused no damage or nuisance, then the land possessor is somewhat limited in what he can claim. Just for the plaintiff establishing that the trespass occurred, a court would likely award nominal damages of a few pounds. In addition, the plaintiff would be entitled to claim the reasonable charge that he could have been levied for a licence to reside on the land for a night (i.e. pitch fees), which again would amount to a few pounds.

My guess (i.e. I’ve not looked for any precedent on this point) is that the courts would regard such an action against a trespasser on wild land, where no damage has been caused, as being frivolous and as such would be unlikely to award costs against the wild camper***. As such, even in the unlikely scenario of a land owner suing a peaceful wild camper and being successful in such action, I doubt that the cost to the wild camper who was willing to represent himself would be great (although undoubtedly the inconvenience to both sides would be significant).

So, What’s The Fuss About?
With it being the case that the remedies against a wild camper are limited to the extent that they are unlikely to be pursued, you may ask why I (and plenty of others by the looks of it) want to be granted a right at law to be able to camp in this manner.

I can only answer for myself, but personally I don’t like to act in a manner that is contrary to the law, whether the act is a civil or a criminal offence. I would hate to be challenged when I know that I’m in the wrong. When wild camping I avoid being seen by anyone else unless they are also wild camping (which antagonises Husband no end when I refuse to put the tent up until I’m happy that the very last person has left a hillside). For me, I want the right to be able to camp peacefully, without leaving any trace, in any reasonable place without being in fear of being challenged for doing that.

Footnotes:
* Just for completeness, there are circumstances where trespass is a criminal offence, for example via Sections 6-10 of the Criminal Law Act 1977 (so be careful of wild camping with a pen knife unless you can justify having that pen knife in your possession!). See also Section 39 of the Public Order Act 1986, which makes it a crime if you have refused to move on and have also used ‘abusive or insulting words’ towards the occupier of that land – but interestingly this one only applies if there are two or more of you.

** Technically he could sue you even if you did comply with a request to leave, as you’ve already committed the wrong at that point.

*** Actually, if the small claims procedure was followed, I can’t think how you’d avoid paying the costs, but in that case they'd be relatively low in any case.

Disclaimer:
It’s a long time since I studied this subject and I’ve had no call to keep up with any developments since that time. My textbooks on the subject are also long out of date – so it’s possible that I’ve said something above which is no longer true. If you know that I’ve said something untrue then let me know – I can soon remedy it by deleting the post!