CRIMINALISING TRESPASS, PART ONE: SEDENTARIST IDEOLOGIES AND THE OUTLAWING OF TRAVELLING LIVES

by Tesni Clare

Something strange is happening. Certain ways of life are slowly, quietly being enclosed, along with the land on which those lives depend. 

Last year Priti Patel opened a consultation on ‘Strengthening police powers to tackle unauthorised encampments’ ; in short, the government hopes to criminalise the act of trespassing when setting up an unauthorised encampment in England and Wales. The consultation is now closed and responses are being reviewed. The decision came as no surprise, considering Patel’s draconian desire for control over minority ways of life, along with the Conservative Party’s 2019 manifesto commitment to ‘make intentional trespass a criminal offence’.

This bigoted and prejudiced pledge is largely targeted at Gypsy, Roma and Traveller communities for whom mobility is intrinsic to their way of life, and who therefore depend on common or other land on which to temporarily set up their home. But this move won’t just affect these communities. The proposals are ambiguously presented, and will potentially extend beyond encampments to anyone who knowingly trespasses.

Trespass is a commonplace, age-old practice and is something that me and you and everybody else does: likely without realising.

Trespass is a commonplace, age-old practice and is something that me and you and everybody else does: likely without realising. You could be sitting on the wall of a garden whilst waiting for a bus, or straying from a woodland path. To genuinely explore the land beneath our feet, without the disheartening confines of rampant privatisation or the threat of prosecution is a visceral desire of everybody’s, and a right that has been afforded to generations before us. As the Open Spaces Society have stated, ‘the criminalisation of trespass would have a chilling effect on public access in both town and country’. Rambling, roaming, wild camping, protesting, and let’s just say it – living – are hanging in the balance. 

Trespass has never been a criminal offence in England or Wales, apart from under certain circumstances, such as with a firearm. Rather, trespass has long been considered a civil offence or ‘wrong’ and only becomes illegal if residents of the camp refuse to comply with a court or police order to leave.

The government’s consultation, however, hopes to ‘broaden the existing categories of trespass to cover trespassers on land who are there with the purpose of residing in their vehicle for any period, and to give the police the relevant powers to arrest offenders in situ and to seize any vehicles or other property on existing unauthorised encampments […] immediately.’ This is incredibly worrying for the ballooning number of people – mostly young – for whom, thanks to today’s exorbitant and unregulated rent as well as crushing mortgages, living in a vehicle is a more viable option than living in a house. 

The Open Spaces Society (OSS), along with others, have stressed that the criminalisation of trespass is completely unnecessary. Existing laws under the Criminal Justice and Public Order Act 1994 afford police with sufficient powers to manage trespassers, and police forces have stated that they neither want nor need any additional powers. Negotiated Stopping is the fair way in which local authorities manage unauthorised encampments and this has never been subject to bureaucracy or red-tapism, and despite (or perhaps because of) this, has long been successful. 

Furthermore, at present, landowners who wish to do so can sue trespassers via the courts anyway, so the threat of criminal prosecution does nothing to resolve the immediate disruption caused by an encampment, as prosecution occurs long after the camp has moved on. And how can ‘intentional’ trespass ever really be proven? Intention has long proven ambiguous in law; as has ownership over land for that matter, due to the lack of transparency in the land registry.

…mobile citizens have long been considered disruptive to the national political imaginary.

The way of thinking embodied in the consultation has a history, as mobile citizens have long been considered disruptive to the national political imaginary. Settlement and territory hold a strong imaginative power in Western ideologies of progress and development: to settle, build, and cultivate the land is to become civilised. Bedouin pastoralists in North Africa and the Arabian peninsula, whose livelihoods are rooted in a nomadic way of life, have long been subject to harmful discourses of ‘chaotic, backward wanderers’. Extensive pastoralist ‘development schemes’ have endeavoured to immobilise the Bedouin in purpose-built villages, coercing a whole way of life into settled, commercial agriculture; replacing cyclical, seasonal ecologies and mobile herds of livestock with monocultural rows of cash crop. 

Necessarily bound up in this political ideology is the notion of private property, which is pretty much foundational to our legal system. Poet and Human Geographer Tim Cresswell, who has written extensively on place and mobility, has expressed how the State is grounded in a ‘sendentarist’ ideology, in which mobility is transgressive and disorderly, crying out for control. How can those who do not adhere to the ideal of private property ownership, security, exclusion, fences and walls, be kept in order? Movement must therefore be heavily regulated.

This violent process of forced sedentism has been experienced by nomadic populations around the world for time immemorial as itinerant livelihoods have become increasingly incongruous with the strong hand of modern society. The parallels with Gypsy, Roma and Traveller experiences in the West, of being funnelled into fixed Council-run sites, are obvious. 

Back in my city of Bristol, swaths of vehicle dwellers are being violently evicted from roadsides. Mayor Marvin Rees is terrifyingly intolerant of travellers and the Council are applying for an injunction of all van and caravan dwellers in the St Werburghs area – who have been there for as long as I can remember – no doubt to ‘cleanse’ the area in line with property speculators’ desires. 

How on earth have we come to a point where nomadic ways of life could be made illegal? How has land become something so fortified and commodified, and life so disinfected, legislated and bulldozed into ‘corridors of cautious existence’ (to quote writer Jay Griffiths), so as to tear apart any opportunity to live itinerantly? Traveller communities are in danger of losing a whole way of life, while all of us are in danger of being excluded from our common natural environment. 

What can I do? 

Featured image credit: Freddie Fielder


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