Decision on injunctions to restrain urban explorers awaited

Stuart Wortley, partner at Eversheds Sutherland

It is well known by most that signs signalling ‘Trespassers will be prosecuted’ are all bark and no bite when it comes to consequences (with some very limited exceptions), as trespass is not a criminal offence in England and Wales. So what steps can be taken to stop ‘urban explorers’ from trespassing on construction sites?

“Main contractors and companies at risk of trespass by protestors will be hoping that the Court of Appeal decision is upheld”

In recent years, several main contractors have considered it appropriate to protect construction sites by obtaining civil injunctions from the High Court to stop urban explorers from trespassing.

The usual remedies for trespass, which are available in the civil courts, do not provide an effective deterrent in these cases. The usual remedies are (1) an order for possession and/or (2) an award of damages. However, it makes no sense to seek an order for possession against urban explorers who merely want to climb a tower crane in order to take a photograph or a video; nor is a damages claim viable in circumstances where the incident has not caused any damage to the land or property.

The most obvious criminal offences engaged by this sort of behaviour do not provide an effective deterrent either, as urban exploring does not typically involve:

• criminal damage;
• burglary;
• aggravated trespass (trespass together with an intention to intimidate, obstruct or disrupt others); or
• public nuisance (conduct intended to cause serious harm to a section of the public) or other public order offences.

Experienced urban explorers understand, therefore, that provided they don’t cause damage (and they generally exercise care to avoid this), they can literally go where they please without fear of sanction from the civil or criminal courts. If they are stopped by security and the police are called, they might run the risk of being arrested on suspicion of having committed an offence, but ultimately they will be released and no further action will be taken.

Ultimate sanction

However, a civil injunction to stop trespass on a construction site does provide an effective deterrent. The injunction is granted by way of a court order and anyone who deliberately breaches a court order is immediately exposed to the risk of imprisonment for up to two years, even though contempt of court is not a criminal offence. This, therefore, makes it the ultimate sanction available in the civil justice system, and a useful tool in ensuring the rule of law is upheld.

Civil injunctions have been used extensively by companies and organisations that are exposed to the risk of trespass – not only by urban explorers, but also, for example, by nomadic communities and protesters. The claimants in such proceedings consider that the deterrent effect of the sanction for contempt of court is more effective than the evidential and procedural difficulties associated with securing a criminal conviction. One particular advantage of such proceedings is they may be issued against named individuals, but also ‘persons unknown’ falling within a defined class – so you don’t need to name an individual to secure the deterrent effect.

Between 2015 and 2020, about 40 local authorities successfully applied for injunctions to stop nomadic communities from trespassing on open land within their jurisdiction – so-called ‘borough wide’ injunctions – to discourage the problems often associated with unauthorised encampments.

Court challenge

In May 2021, the court’s jurisdiction to grant injunctions against classes of persons unknown was challenged in London Borough of Barking and Dagenham v Persons Unknown. In this case, all of the local authority injunction cases were consolidated and new rules were issued. These rules significantly curtailed the court’s power to grant injunctions against unnamed defendants and immediately resulted in every one of the local authority injunctions being discharged.

This decision was appealed and, in February 2022, the Court of Appeal issued revised guidelines restoring the law to a position most lawyers practising in this field had understood it to be. 

This Court of Appeal decision proved not to be the end of the story, however. In October 2022, an organisation known as London Gypsies and Travellers persuaded the Supreme Court to grant permission for a further appeal. Given the importance of these issues, the hearing was expedited and arguments were considered on 8 and 9 February 2023. 

Some three months later, we still await the Supreme Court’s decision. While it is possible that the rules will change again, main contractors and companies at risk of trespass by protestors will be hoping that the Court of Appeal decision is upheld. If the jurisdiction to grant civil injunctions against classes of persons unknown is removed or curtailed, contractors may be left without an effective deterrent.