Trespass

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.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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9 thoughts on “Trespass

  1. that’s very interesting. I wish someone in the US would explain things like that. I know the laws here can vary not only from state to state, but also town to town… it gets very confusing. In some towns/counties/states, you can be involuntarily hospitalized simply if an MH professional thinks you may be a risk to yourself or someone else, even if you deny that risk and state that you will be safe.
    thanks for writing.

    1. Thanks for the feedback — it is amazing how much basic mental health laws vary from country to country and, as you say, within some countries. The UK has three legal jurisdictions and four health jurisdictions so it always amazes me that if the police detain someone in an emergency because they fear that the person will come to harm, the amount of time you can then be held for assessment of needs depends on where you’re detained :

      1. England / Wales – 72hrs
      2. Northern Ireland – 48hrs
      3. Scotland – 24hrs

      Why it takes longer to assess someone in England who is in crisis than it does in Northern Ireland, I don’t know … as you say, it’s just about a lot of this stuff be clear to everyone so we all know what the rules are! 🙂

      1. Is that a police power that allows 24h detention for assessment in Scotland? The emergency detention certificate (Scottish Mental Health Act), that gets used in A&E and elsewhere is 72hrs detention, but they do need a doctor for that, and I know doctors aren’t always easy to access quickly.

      2. s297 of the Mental Health (Treatment and Care) Act allows the police to detain someone and take them to a place of safety. It then affords 24hrs for health / social care to decide what to do next.

      3. Thanks! found it now. Appreciate you explaining all this. As someone who has been subject to a large number of detentions in hospital it helps to make it less frightening to understand the Act and how it is used. At the time of detention it is, in my experience (though this may be perceptual!) very rarely explained, which makes it seem arbitrary, as though people are just breaking into your house or following you and tracking you down and bundling you into a van then locking you in hospital. The fear and mistrust that induces lasts long after the detention itself. I wish someone local to me did training for staff involved on how this can be experienced by patients, and things that can be done to help. I get the impression a lot of the less great behaiour I’ve seen from staff is due to a lack of knowledge and though perhaps wanting to do the right thing, panicking.

  2. Really clear, thanks. I’ve been in the situation you mention where mental health staff and police have refused to leave my home, despite being asked to do so. I’ve been forcible restrained by mental health staff and police subsequent to this in my home also, when not an immediate risk to myself. I wish understanding of the long term impacts of such situations were better understood among staff, and alternatives tried first.

    Also on the trespass theme. I witnessed an incident at the mental health centre (NHS clinic) this week which was hard to watch. Whilst I was waiting another patient came into reception, crying but in no way aggressive or threatening and asked to see a member of duty staff from the nursing team. They sat waiting and crying. a few minutes later they were told noone could see them and were told to leave. He said he’d rather wait till someone was free. The nurses them came out of their office and said if he didn’t leave they’d call the police to have him removed, which they then did. He didn’t resist physically at all, other than not to follow instruction. I obviously don’t know the backstory for the man or any perceived threat, but it was tough to watch, and I wasn’t sure why police time was deemed so much less important than a nurses time in actually seeing the man.

  3. This was an interesting and informative piece. You don’t mention s.115 MHA 1983 which gives AMHPs the right to “enter and inspect any premises …. in which a mentally disordered person is living, if he /she has reasonable cause to believe that the patient is not under proper care”. I’m aware that this is a fairly toothless section of the MHA, but I wonder if this would give the AMHP any right to remain if asked to leave by a service user while the AMHP is carrying out such an inspection?

  4. It’s also worth noting that the threshold for using Section 17 PACE is quite high Syed v DPP covers this:

    “The test applied by the officers, and accepted by the justices in this case, was a concern for the welfare of someone within the premises. Concern for welfare is not sufficient to justify an entry within the terms of section 17(1)(e). It is altogether too low a test. I appreciate and have some sympathy with the problems that face police officers in a situation such as was faced by these officers. In a sense they are damned if they do and damned if they do not, because if in fact something serious had happened, or was about to happen, and they did not do anything about it because they took the view that they had no right of entry, no doubt there would have been a degree of ex post facto criticism.”

    Which seems to suggest there needs to be a ‘belief’ rather than a ‘suspicion’

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