When we think of trespassing, we usually think of trespass to land. It is also possible to trespass against the person or against goods, but this post is concerned with our intuitive thought of entering land or property belonging to other people. Such trespass is not, per se, a police issue – it is a civil tort. One person against the other and legal reparation for trespass is via the civil courts. It is for that reason I always laugh at signs like this one, which I think seek to cause people to think they could be arrested and criminally prosecuted for trespass. It probably should read “trespassers will be sued” if the landowner feels that strongly about it!
There are aggravated versions of trespass that are criminal offences, but the version of me standing on your property against your express will and without your permission, is a civil issue. As the property owner, you could forcibly eject me using reasonable force and seek redress by initiating your own legal action.
The police are often drawn into these issues: when trespassers will not leave private property, officers are often asked to assist in removing them and if transgressors insist in remaining or resisting, we start to see breaches of the peace, assaults and other matters emerging that are very properly police business where trespassers can be arrested. Crucially, they are not arrested or sanctioned for the trespass, but for the manner of the resistance to the legal requirement to move made by the landowner.
IMPLIED RIGHTS OF ACCESS
It is not the case that those who enter your property without explicit, advance authority are trespassers – it is far from being as straight-forward as having to have expressed permission. There is an implied right of access for people to enter your land or property for certain purposes. For example, if you have any form of front garden with a path, people can walk up it to knock on your door and deliver your mail, your pizza or to see if you want to come out to play. They don’t need express permission for this. However, if you objected to the person’s ongoing presence on your doorstep, you are entitled to ask them to leave your front garden. I do this quite often when people interrupt my blogging and tweeting to influence my world view on various things from religion to double-glazing.
So it would be correct that police officers, mental health professionals and others would have a right to walk to your front door and knock on it, to make enquiries after someone’s health and wellbeing, if need be. Having done so, whether they can enter the household or remain on the front door step is a matter of ongoing permission or legal authority. If specifically asked to leave your private property, then even police officers, mental health professionals and anyone else must do so, unless they can establish a legal basis to override that instruction. Such authorities are specific and very much the focus of training – or should be!
PERMISSION TO REMAIN
Permission is quite straight-forward when the occupant lives alone: they either give permission for you to enter / remain or they don’t. If a person who lives alone tells you to leave their home or front garden, you must do so unless you have a legal authority to remain there. It all starts to get difficult when two people occupy the house and it doesn’t matter whether those two people are married, in a relationship or simply flatmates — where one demands that you leave but the other invites you to remain, there is a permission to stay put as long as the person granting that access has the legal right to do so.
So where a service-user lives with their spouse or parents and MH professionals have been called because of concerns about someone’s wellbeing, the MH professionals have a legal permission to be there if the spouse or parents give it, even in the face of the service-user objecting. If, for example, they are then able to form a view via a meaningful assessment, that someone should be subject to an application for admission to hospital, they may make it. Of course, that doesn’t mean the objecting patient has to remain somewhere in particular to be assessed or interviewed. They are still at liberty to leave the premises, lock themselves in the bathroom or move about the property as they prefer. They are still entitled to peaceful enjoyment of their property, despite their spouse or parents.
LEGAL AUTHORITY TO REMAIN
It starts to get complicated when we talk about the legal right of someone to remain in private property against the owner’s wishes. Some professionals have limited rights to disregard a landowner or property owner’s view. For example, police and mental health professionals may turn up to an address with a warrant from a Magistrate under either s135(1) or s135(2) of the Mental Health Act. These are the most intrusive powers, for it not only entitles them to trespass on land, but also for the police to force entry in order for them to do so. Once inside, they can then search for and remove certain people for mental health assessment, admission or re-admission against their will, which would otherwise be a trespass against the person.
There are further circumstances –
- Police officers have a right to enter or remain on premises against the owner’s wishes, if they are doing so whilst intending to arrest people for indictable offences. Essentially, these are the more serious ones like burglary, robbery and theft; GBH, ABH and sexual violence.
- The police may also enter and remain to search for evidence in relation to offences – contrary to popular belief, they do not need a warrant to enter or remain in order to search for evidence if they have already arrested someone for an offence. Under s18 of the Police and Criminal Evidence Act 1984, an inspector can authorise a premises search and under s32 of PACE, arresting officers can search a premises in which they have arrested someone.
- Officers also have a common law right to force entry in order to prevent a breach of the peace or apprehend people for a breach of the peace which is ongoing.
WHAT DOES THIS MEAN FOR MENTAL HEALTH ASSESSMENT?
Well, it means that if any professionals are present at a property or inside it and they do not have a MHA warrant or any of the other lawful grounds to remain, they are obliged to leave a property that if they are told to do so. Only the police may remain in situ after such direction and even then, only where one the above justifications exist. There is no automatic right in law to disregard someone’s direction to leave their property purely because you believe that they are suffering a mental illness or even if you think that someone is “in immediate need of care or control”, as per s136 of the Mental Health Act.
Parliament limited the scope of s136 to public places for a reason so this legal principle becomes even more difficult if you genuinely believe someone is at risk. Of course, section 17 of PACE allows police officers to enter and remain against an occupier’s preference where they can argue that entry is necessary “to save life and limb”. And of course, you can then get into debates which I’ve covered elsewhere about what potential the Mental Capacity Act may afford you to intervene where you believe someone is at serious risk. But, in the absence of thinking that someone’s life is (literally) at risk, people still have a right to peaceful enjoyment of their possessions and property, as a key plank of their human rights (Article 8). As the case of D’SOUZA v DPP (1993) made clear, warrants should be obtained under the Mental Health Act to enter and remove people where the threshold for using s17 PACE is not met.
This post arises from two things: a Twitter query about trespass from a service user who asked mental health professionals to leave their house and found that they just point blank refused to do so, even though the person was not “sectioned”. Secondly, it arises from an incident another response team shift in my area dealt with where the same thing occurred. It puts the police in a difficult position: how should an officer respond when they are at an incident where other professionals are refusing to comply with a lawful direction to leave property? The answer might be “help that patient evict them.” These are very difficult and sensitive issues but at the heart of them has to be respect for people’s legal autonomy and human rights.
Very obviously, we are discussing these things through the prism of laws written at a the time of when Buddy Holly sang live music and all adults had a Ration Book whilst we are busy responding to a deinstitutionalised, community-oriented 21st century mental health system. But until the law is modernised, it’s what we have to work within.
Winner of the Mind Digital Media Award.