than at risk in a shed or in the absence of a shed. She would be bound to prove these facts ‘on the balance of probabilities’, a lower standard than the Crown’s standard of ‘beyond a reasonable doubt’.
(1)(b)(i) Vandalism is described as a result crime where the definition of the crime contains a type of behaviour together with resulting consequential damage. For a conviction of vandalism the Crown would have to prove that Angela did wilfully or recklessly damage the farmer’s fence. Therefore, here, elements of both mens rea and actus reus must be established. The actus reus would be proven by showing that Angela damaged the fence as a result of cutting it. This would logically lead to show that the correct form of mens rea to be proved would be “wilfully” rather than “recklessly”. “Wilfully” means intentionally and it would appear straightforward for the Crown to be able to prove that Angela cut the fence intentionally, it being near impossible to cut through a barbed wire fence unintentionally.
(ii) Angela may raise the issue in her defence that she had a reasonable excuse to act as she did. She may put forward an argument that she wilfully damaged the fence to gain entry to the farmer’s field, with the intention of preventing him from planting the trial crop which she believed would eventually cause harm to her allotment and would have an effect on the future healthy growth of the vegetables there. She could argue that government research had not yet proved that the genetically modified crop was not dangerous in the long term. This argument might be strengthened if she could show that the sale of the vegetables provided her with an income upon which she relied. As this offence is tried summarily on complaint it would be for the Sheriff to decide ‘on the balance of probabilities’ whether or not this excuse was reasonable.
If Angela did raise such an issue then the burden of proof would be on the Crown to prove that Angela wilfully damaged the fence “without reasonable excuse” as they must prove every element of the definition of a crime. In John v. Donnelly 2000 SLT 11, where the accused’s appeal against conviction for vandalism was refused, it was held that a person could be held to have had a reasonable excuse when he acted in response to a particular and immediate stimulus, as in MacDougall v. Ho 1985 S.C.C.R. 199 where the accused had tried to prevent persons, whom he believed to have damaged the door of his shop, escape. Therefore the Crown would be bound to prove that Angela was not acting in response to this kind/
kind of urgent motivation in attempting to prevent the planting of the trial crop. This would not appear to be problematic, however as was pointed out in Murray v. O’Brien 1984 SLT 1051 it is for the justice to conclude the case on the facts.
(2) Traditionally to be convicted of the result crime of malicious mischief it was necessary for the Crown to prove an element of malice, however today this is not the case, malice is only observed from the point of view of motive. Also the damage need not be considerable to result in a conviction. The Crown would have to prove the presence of the actus reus and the mens rea constituting the nominate crime of malicious mischief. Thereafter they would be required to establish a causal link between the two elements.
To prove the actus reus they would be bound to prove that Angela, by her own positive actions, damaged or destroyed the grass in the field belonging to the farmer, without his consent or permission. This could be proved by evidence that Angela, by erecting and camping in her tent, had flattened the grass and ultimately damaged or destroyed it.
The mens rea element is always more complex. The Crown would have to decide whether they wanted to proceed by proving that Angela intended to damage the grass or that she did so with simple recklessness. The mens rea of reckless malicious mischief is set down by the Lord Justice-Clerk (Aitchison), in Ward v. Robertson 1938 J.C. 32, “it is enough if the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property or possessory rights of others”. This comment was approved by the Lord Justice General Clyde in Clark v. Syme 1957 J.C. 1. As clearly Angela did not damage the grass intentionally, the Crown would need to prove that she had the alternative mens rea of recklessness. They would need to show facts from which it could be inferred that Angela should have had knowledge that she was damaging the grass, or failing that, that she showed the requisite disregard or indifference to the grass. Ultimately, the Crown would need to establish causation; that the actus reus together with the mens rea resulted in the harm, the damage done to the grass. The Sheriff in a summary trial or the jury in a solemn trial would need to believe the Crown’s evidence “beyond a reasonable doubt” which is the standard in criminal law, for a conviction.
(3) The Criminal Justice and Public Order Act 1994 Part V (sections 61 to 71) applies to Scotland under the title of ‘Public Order: Collective Trespass or Nuisance on Land’. The relevant/
relevant sections apply to collective trespass, aggravated trespass and trespassory assemblies.
There are no provisions in Part V applying to individual trespassers who are neither destructive nor threatening. It is questionable whether Angela could have committed an offence under this Act. Sections 68 and 69 deal with trespassers of land in open air who do anything which is intended to intimate those carrying out lawful activities on the land (or adjoining land) or who destruct or disrupt those lawful activities, this offence being labelled “aggravated trespass”. This offence was made so with field sport saboteurs in mind, however the farmer would be conducting a lawful activity in planting his crop and Angela’s unauthorised presence in the field could be seen as intimidating or disruptive behaviour. Therefore, the question to be answered by the farmer would be whether Angela’s presence in the field prevented him from planting the crop as planned or whether he intended to plant the crop at a later date and her presence therefore had not affected his plans.
Dickinson (Journal of the Law Society of Scotland page 63) states that the Act was brought into force as a governmental response to problems found more often in England and Scotland, namely new age travellers, field sport saboteurs and environmental protest groups. In effect it impinges on those people who enjoy the outdoors, for example ramblers and hill walkers. Prior to the Act there was a “mutual tolerance” among landowners and walkers, however as a result of it (or rather a misunderstanding of it) landowners may erect signs on their land threatening trespassers with prosecution under the Act. The Act appears to have attracted wide controversy from all Scottish quarters as to its severity. Beckett and Bogie (page 26) argue that the Act is in contravention of the European Convention on Human Rights with regard to the rights of travelling people. The Trespass (Scotland) Act 1865 already dealt with groups such as new age travellers and gypsies by protecting land owners from travellers occupying and camping on their property, therefore there was no need for further legislation which may lead to infringement of rights.
At common law there is no criminal offence of trespass. What is available to the owner or legal occupier of land or property is the remedy of interdict, which is granted by the civil courts, to prohibit a named trespasser or trespassers from future intrusions. Owners or legal occupiers may, in certain circumstances, use reasonable force to remove a trespasser from a house or building following a request to leave, however this is thought not to apply to outdoor trespass. Thus, Angela is not liable at common law to any offence of trespass.
The Trespass (Scotland) Act 1865 at section 3 provides that a person who occupies or encamps on any private land without the consent and permission of the owner or legal occupier is guilty of an offence. The Act’s original purpose was to deal with the problem of travellers, however any class of person may be prosecuted under it. Angela appears to have committed an offence under this Act; she has the requisite actus reus and mens rea for criminal trespass. She pitched her tent in the field and spent four days camped out there without the permission of the owner, indeed he had asked her to leave, which she had refused to do; this would constitute the actus reus of the offence. Jones and Christie (page 287) surmise from the opinion of Lord Justice-General Normand in Paterson v. Robertson 1944 J.C. 168 that the relevant mens rea of the crime may be “knowledge on the accused’s part that he had no entitlement whatsoever to lodge in the premises or encamp on the land”. Angela’s knowledge may be inferred from the facts; that she was forced to cut through a barbed wire fence, which she found difficult, to gain entry to the field. Thus, she would have no reasonable excuse not to have been aware that she was not entitled to enter the field, the farmer having erected the fence to keep people out of his property. The punishment for this offence is found in section 4 of the Act as amended by the Criminal Justice Act 1982 and may be one night in prison and a fine of up to £200. If Angela refused to pay the fine, say, on principle, she risks imprisonment.
In conclusion, trespass laws in Scotland appear to be imbalanced and illogical. The Criminal Justice and Public Order Act 1994 is needlessly harsh on travellers, who were already subject to the old Trespass (Scotland) Act 1865, and actually prejudices other groups who prior to the 1994 Act were able to peacefully enjoy the countryside. On the other hand, landowners have limited protection against people who make nuisances of themselves while crossing their property and who possibly do not show respect to the owners or their land.
Vandalism and Malicious Mischief 1986 JLSS 232
Ward v. Robertson 1938 J.C. 32
Clark v. Syme 1957 J.C. 1
McCall Smith and Sheldon: Scots Criminal Law (2nd ed) chapter 18
I.S. Dickinson “Collective Trespass and Related Issues” 1995 JLSS 63
T.H. Jones and M.G.A. Christie Criminal Law (2nd ed) chapter 11
Jason Beckett and Martin Bogie “Travellers and the Law in Scotland” 1998 JR 21
Gordon Criminal Law (2nd ed) chapter 22.01-22.03,
Green’s Encyclopaedia of Scots Law Volume 12 pages
Stair Memorial Encyclopaedia Volume 18 pages
W.M. Gordon Scottish Land Law pages
Paterson v. Robertson 1944 J.C. 168
Criminal Justice and Public Order Act 1994 Part V
Trespass (Scotland) Act 1865