CRIMINALISING TRESPASS, PART THREE: SUFFOCATING SPACES OF RESISTANCE

by Tesni Clare

For those who don’t know – and there are many who don’t, because the press have been worryingly silent on the matter until recently – there are a number of small, self-organised communities of activists living in tents and treehouses between London and Birmingham, along the proposed route of high speed railway HS2. The railway, and the protest camps, thread through some of this country’s last remaining pockets of ancient broadleaf woodland. Whilst many have been evicted, some camps have been there for over a year. 

I recently went to stay at Crackley Woods protection camp in  Kenilworth, which acts as the ‘safehold’ of all camps along the route: a place where activists can rest and recuperate and monitor construction from a rickety watchtower, and a place where people new to the campaign against HS2 can learn about the railway, learn to climb trees, and meet other activists.

Despite HS2 Ltd’s multiple attempts to litigate against the camps, they are not criminal places. I found Crackley to be a place of community, care and knowledge-sharing; a place where strangers, bound by nothing but a common love for wilderness, would share meals and build shelters. I felt a strange déjà vu for a time I’d never lived, remembering the zealous grassroots activism and ad-hoc, communal living I’d seen in photos of the Twyford Down protest camps of 1992.

In the soft white moonlight, under a kaleidoscope of stars, I sat with camp residents as smoke spiralled from a glowing fire into the night above. People were sharing melancholic stories of the now 10-year struggle against HS2. Whilst the environmental case against the railway is glaringly obvious, a woman told me that ‘there is a deeply social side to this problem.’ I then learnt of the ‘necessary’ acquisition of over 17,000 acres of land, including common land and ancient woodland, and the 50,000 Compulsory Purchase Orders that would be, or already had been issued: people losing their land, family homes and livelihoods, for little or no compensation. 

…people losing their land, family homes and livelihoods, for little or no compensation.

Hence the establishment of the protest camps, and action after action after action of innovative, courageous and dangerous occupation. Occupying land, trees and machinery as a form of resisting ecological destruction and the privatisation of property dates back several centuries, to the sweep of enclosures in 16th century Britain. As McDonagh and Griffin (2016) state, ‘occupation [has] functioned as the basis for a legal defence of common rights, a way of resisting encroachments on common land,’ grounded in the idea that ‘possession was nine-tenths of the law.’ 

As Part One of this series explained, the Tories are seeking to criminalise trespass, ‘when setting up or residing on an unauthorised encampment.’ But what could this mean for activists such as those against HS2? 

Whilst one cannot ‘trespass’ on public land (although there have been cases of HS2 workers and NET officers violently and unlawfully evicting walkers from public woodland), as more and more land is privatised for infrastructure projects, activists must trespass in order to protest these developments. 

Currently, trespass is only a civil offence, not a criminal one. Aggravated trespass, however, is considered a criminal offence. To commit aggravated trespass, one must be ‘intentionally obstructing, disrupting or intimidating others from carrying out ‘lawful activities’’ on said land. Veteran Activist ‘Swampy’ was arrested in December on these grounds. Following the many cases of ecocide, felling trees without proper ecological surveys nor licences, and of violence, however, it remains debatable as to whether HS2 counts as a ‘lawful activity’. 

Whilst trespass remains a civil offence, activists protesting against HS2 have been criminalised under the next best thing: injunctions. An injunction is a court order requiring a party to refrain from doing a specific act, and has been used in recent history by Cuadrilla and Ineos to quash anti-fracking protests. Claimants (in this case HS2) can choose which judge oversees the court hearing, and injunctions can be ordered on mass to unidentifiable ‘persons unknown’, as well as named defendants, and on a pre-emptive basis, meaning that simply evidence of an intention to trespass is sufficient. 

The raft of injunctions ordered against the anti-HS2 protesters are a warning of what is to come if trespass is criminalised.

As campaign group TINAAR states, ‘injunction makes something as harmless as slow-walking or trespass into a criminal offence as opposed to a civil matter. An offence that, according to the criminal justice system, is worthy of imprisonment or having one’s assets stripped, forever.’ The week I visited, long-term activist ‘Jellytot’ was facing imprisonment for breaching an injunction – imprisonment, for trying to protect ancient woodland. 

This malleable use of the law to exercise power is terrifying.

The raft of injunctions ordered against the anti-HS2 protesters are a warning of what is to come if trespass is criminalised. Making trespass a criminal offence would make it a lot easier to disband protestors, and would go perfectly hand-in-hand with the neoliberal enclosure and privatisation of land around the world: two sides of the same coin. 

Trespass and occupation are vital acts of resistance, used by countless movements such as Black Lives Matter, Extinction Rebellion, and the newer campaign against the building of a tunnel through World Heritage Site, Stonehenge.  Anti-HS2 group TINAAR stands for ‘This Is Not About A Railway,’ and I would say in a similar vein, that trespass is not just about land. It’s about our right to protest, our right to protect different ways of life, nature and spiritual places, our right to demand equality, and our right to demand a place in the world. 

                             
The consultation is now closed and responses are under review. A petition against the criminalisation of trespass, gaining 134,928 signatures, will be debated in parliament on the 25th of Jan. You can write to your MP and ask them to attend the debate, using this template.

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