This issue has become particularly relevant following the decision of the Supreme Court earlier this year in R v McCafferty which considered whether there could be a public nuisance on private land.
The background to the McCafferty case concerned six defendants who on 8 September 2022, participated in an “Animal Rebellion” protest at Muller UK’s dairy works located within Stonebridge Cross Industrial Estate near Droitwich.
The protesters obstructed access to the site by chaining themselves to fencing and attaching themselves to the road surface outside the entrance so that, for several hours, no vehicles could enter or leave the site. The road in question was Pointon Way, a private no-through road, providing the only road access from the main Kidderminster Road to various business premises within the estate, with a sign stating “PRIVATE LAND CCTV is in operation and no trespassing is permitted”.
The protesters were charged with intentionally or recklessly causing a public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022. The prosecution said that the defendants had obstructed the public or a section of the public in the exercise or enjoyment of a right capable of being exercised by the public at large and the Court had to decide whether people travelling to private business premises, such as employees, customers and suppliers, were exercising a “right that may be exercised or enjoyed by the public at large” when approaching, entering or leaving the Muller premises.
The Court decided unanimously that the public at large were not authorised to pass along a private road such as Pointon Way. In general, the only people who may lawfully use a private road are the owner or other occupier of the land and anyone who has been granted a right of way along the road or permission to use it by the occupier such as employees and visitors.
The Defendants were acquitted.
This means that businesses operating from sites accessed by private roads facing trespass and protest activity cannot assume that those trespassers will be prosecuted under public nuisance legislation. Instead, they may have to look to private nuisance remedies. Those remedies include court claims for possession and/or injunctions, which are court orders to do something or to refrain from doing something, and claims for damages. Physical recovery without court proceedings is possible only if entry can be gained peaceably, as using or threatening violence to gain entry is a criminal offence where someone is present and opposes re-entry.
In addition, the protesters may be committing the criminal offence of aggravated trespass if they are intentionally obstructing lawful activity on the land, in which case the police do have powers to direct them to leave. Interestingly, in the McCafferty case the Crown chose to charge the protesters solely with intentionally or recklessly causing a public nuisance under the Police, Crime, Sentencing and Courts Act 2022 rather than aggravated trespass.
If access to your land or business is being disrupted by protesters or trespassers, early advice can be crucial. Contact Johanne Spittle, Director, Litigation & Dispute Resolution to discuss the options available to protect your property and minimise disruption. Tel: York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email law@warekay.co.uk.
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