Forgive us our trespasses. Trespassers will be prosecuted. These two phrases are known by every English person, but few will have any strong sense as to what exactly is meant by the ancient term that describes one of the oldest concepts in our domestic law. “Trespass” is a word both familiar and unfamiliar.
A trespass is a transgression: an unwanted incursion. At law it is usually an intrusion on someone else’s land, though there can also be trespass of other things, whenever one person has legal rights in respect of a thing and there has been an interference by a person who does not. When presented with a trespass, a court will provide the means of removing that interference and preventing it from recurring. Trespass law is, in practice, the right of the haves to exclude the have-nots.
Unlike other legal wrongs, enforcing this law is not directly about winning compensation, but about action. In this way, it is different from other areas of English common law where the emphasis is on money remedies. A trespass is dealt with using personally coercive remedies, such as an injunction. Offering to pay damages is not enough: you must, as the riled farmer says, get off their land. Trespass is, in theory, about force.
But it is also about misdirection and bluff. The famous warning on a wooden sign that “trespassers will be prosecuted” is known to legal scholars as a “wooden lie.” For although trespassers may well be sued, mere trespass on open land is not generally a criminal matter. One faces ejection, but not normally a criminal record.
In addition to misdirection, the law also relies on easy deference. As the walker and activist Nick Hayes recently showed in his spirited The Book of Trespass, a great deal of land is regarded as out of bounds where there are no boundaries at all. People simply assume that they have no rights over other people’s private land, whereas they might in fact have legal rights of way and other rights of access. The lines drawn on a map are often only manacles in the mind.
Even where there are rights of exclusion, they are often not enforced or easily enforceable. If a sufficient number of people embark on a mass trespass, there is little anyone can do in the courts to lawfully stop them, regardless of what any signs say. Of course, the landowner may resort to doing something threatening or disproportionate—but he or she would then end up with the legal liability, not the intruders. Limitations to the rights of the landowner are now accompanied by numerous rights of the state in respect of surveillance and data retention. A person may regard their home as their castle, but it certainly is not a secure data centre.
The law of trespass has its problems: its use regarding land is inexact and open to abuse. The simple right of possession and exclusion has become outdated.
And yet in our technologically complex world, there are things that could still usefully be learned from the law of trespass. It is a legal concept that protects against violations of rights without any proof of loss. A right regarded by the legal system as worthy of protection in and of itself, without further ado.
The problem with this venerable law is therefore that it protects the wrong things. Instead of landed estates and enclosed commons, it should be employed in policing the integrity of the person, both physically and virtually.
One of the many wrong turns in recent legal history is that the courts did not develop the modern law of privacy by rooting it in the law of trespass to the person. By basing privacy rights instead in the doctrine of confidentiality, the courts focused on flows and publications of information, rather than the integrity of a person in their private realm.
“Trespass is about force: you must, as the riled farmer says, get off their land”
The law of trespass could also be a good model for the law relating to personal data and tracking. That a service provider trespassed upon your data should be enough to give you an instant legal right and an immediate legal remedy, and to give them an immediate legal problem. In today’s world, data fields rather than green fields would benefit from the law of trespass.
Returning to familiar usages, it is salient that the petition in the Lord’s Prayer is that one’s trespasses should be forgiven as one forgives the trespasses of others. This, of course, tells us nothing about what the law should be. Indeed, the legal systems of Christian societies, like most other societies, are premised on wrongdoers receiving sanctions and not forgiveness.
But at the heart of this prayer is equivalence, and indeed equality: a person is in a position both to trespass and to forgive trespasses. Every person has rights that should be respected. And we would be a fairer society if we could enforce our own rights against wrongful and unwanted interference as easily as the rights of those more powerful are enforced against us.
