2. The Offence 2.1 The offence of criminal trespass on a protected site is created by sections 128 to 131 of the Serious Organised Crime and Police Act 2005, as amended by section 12 of the Terrorism Act 2006. A protected site means either a licensed nuclear site or a designated site. This guidance is concerned primarily with designated sites.
2.2 In England, Wales and Northern Ireland the categories of sites that can be designated by a Secretary of State are:
crown land land belonging to Her Majesty The Queen in her private capacity, or the immediate heir to the Throne in his private capacity a site which it appears to the Secretary of State to be appropriate to designate in the interests of national security all licensed nuclear sites 2.3 In Scotland the powers under section 129 provide that sites can be designated only on the grounds of national security.
3. Protected sites 3.1 Royal, governmental and parliamentary sites:
On 1 June 2007 an order designating sixteen royal, governmental and parliamentary sites as protected sites will come into force (The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007 (S.I. 2007 No. 930)). A copy of the order can be found at http://www.opsi.gov.uk/si/si2007/20070930.htm. The following sites will be designated as protected sites:
85 Albert Embankment, London Buckingham Palace, London Ministry of Defence Main Building, Whitehall, London Old War Office Building, Whitehall, London St James’s Palace, Cleveland Row, London Thames House, 11 and 12 Millbank, London The Chequers estate, near Aylesbury, Buckinghamshire 10 - 12 Downing Street site as well as 70 Whitehall Government Communication Headquarters (GCHQ), Harp Hill, Cheltenham GCHQ, Hubble Road, Cheltenham GCHQ, Racecourse Road, Scarborough, North Yorkshire GCHQ, Woodford, Bude, Cornwall Highgrove House, Doughton, Gloucestershire Palace of Westminster and Portcullis House site, London Sandringham House, Norfolk Windsor Castle, Berkshire On 4 May 2007 a further order was laid (S.I. 2007 No. 1387), which inserted an amended Chequers site map into Schedule 1 of S.I. 2007 No. 930. This order will also come into force on 1 June 2007. A copy of the order can be found at http://www.opsi.gov.uk/si/si2007/20071387.htm.
3.2 Ministry of Defence sites and licensed nuclear sites
There are, additionally, thirteen operational Ministry of Defence sites which were designated by order in 2005 (see Annex A). Licensed nuclear sites (see Annex B) became protected sites by virtue of section 12 of the Terrorism Act 2006, which amended sections 128-131 of the Serious Organised Crime and Police Act 2005. This guidance is not intended to refer to these sites.
4. Site boundaries 4.1 The offence applies to sixteen sites as they are defined in the designation order. Sites are defined either by their address and curtilage or by a map and description where they include substantial areas of land or have complex boundaries. The maps are at Schedules 1-10 of the order. Police officers will need to ensure that they familiarise themselves fully with the boundaries within which the offence applies. For those sites not described by the use of a map, the Home Office will provide an explanation of the boundary to the relevant police force.
5. Powers of arrest 5.1 For offences in England (and Wales), section 24 of the Police and Criminal Evidence Act (PACE) 1984 (as amended by section 110 of the Serious Organised Crime and Police Act 2005) applies. Home Office Circular 56/2005 refers. The legislation also contains powers of arrest in respect of offences in Northern Ireland and Scotland.
5.2 Section 24 (as amended) of PACE provides extensive grounds for arrest and provides sufficient powers in the majority of circumstances likely to be encountered at protected sites. There is no general offence of trespass. Officers will need to assess whether a person has entered or is on a protected site as a trespasser. This will be a question of fact in every case but the essential elements of trespass are that a person unlawfully enters on to land that is in the possession of another person; there is no need for any damage to occur.
5.3 Section 128 (7) provides that a person who is on any protected site as a trespasser does not cease to be a trespasser by virtue of being allowed time to leave the site.
Attorney general’s consent 5.4 Section 128 (6) provides that no proceedings for an offence may be instituted against any person in England (and Wales), except by or with the consent of the Attorney General.
6. Penalty 6.1 The penalties attached to this offence in England (and Wales) under section 128(5) are that a person guilty of the offence is liable on summary conviction to (a) imprisonment for a term not exceeding 6 months, or (b) to a fine not exceeding level 5 on the standard scale, or to both. The same penalties exist in Northern Ireland and Scotland.
7. Defence 7.1 Section 128 (4) provides that a person charged with a trespass offence may use as a defence the fact that he did not know, and had no reasonable cause to suspect, that the site to which the offence was alleged to have been committed was a protected site.
7.2 It is for the defendant to prove this defence. This is viewed as appropriate because in such a case the facts to be proved would be within the defendant’s own knowledge.
8. Right to roam legislation 8.1 Section 131(1) disapplies right to roam provisions in England (and Wales) under section 2(1) of the Countryside and Rights of Way Act 2000 (c.37) to land in respect of which a designation order is in force.
8.2 Similar disapplications are also available in respect of designations in Northern Ireland and Scotland in the event of designations being made there.
9. Signage 9.1 Section 131(2) provides that the Secretary of State may take steps he considers appropriate to inform the public of the effect of the designation order, including displaying notices on or near the site to which the order relates. Under these powers Home Office officials have negotiated with site-owners the implementation of a number of measures, involving police representatives as appropriate. In the main, the measures will consist of signs on external boundaries and at entrances to sites.
9.2 There is a clear link between the powers of the Secretary of State in section 131(2) and the defence to the offence in section 128(4). The steps that the Secretary of State takes under section 131(2) will assist in ensuring that the defence is not available to persons knowingly trespassing on a protected site. Police officers therefore need to familiarise themselves fully with the measures implemented at sites to ensure, if considering arrest and further proceedings, whether they could satisfy the requirements of this offence.
9.3 Good practice when encountering a trespasser at such sites would be to warn the individual verbally that the site is a protected site under section 128 of the Serious Organised Crime and Police Act 2005 and that trespass on the site is a criminal offence. This would ensure that even if the individual could prove he or she met the defence in respect of original entry to the site, he or she could still be proceeded against if they did not subsequently leave the site following the warning.
10. Points of contact 10.1 Any questions or queries should be addressed to the Home Office on 020 7035 1975.
Annex A Protected Ministry of Defence sites HMNB Clyde RNAD Coulport Northwood Headquarters RAF Flyingdales RAF Menwith Hill RAF Croughton RAF Lakenheath RAF Feltwell RAF Mildenhall RAF Brize Norton SMC Marchwood RAF Fairford RAF Welford
Annex B Licence nuclear sites Civil sites:
Sellafield, Cumbria Dounreay, Scotland Capenhurst, near Chester Drigg, near Sellafield Harwell, near Oxford Springfields, near Preston Windscale, within Sellafield Winfrith, near Wool in Dorset GE Healthcare sites in Amersham and Cardiff London University’s Imperial College of Science and Technology site in Ascot, Berkshire Berkeley, near Bristol Scottish Universities Environmental Research Centre at Birniehill, East Kilbride And the following nuclear power station sites:
Chapelcross, Dumfriesshire Dungeness A and B, Kent Hartlepool, near Middlesborough Heysham 1 and 2, Lancashire Hinkley Point A and B, Somerset Hunterston A and B, Ayrshire Oldbury, near Bristol Sizewell A and B, Suffolk Torness, East Lothian Bradwell, Essex Calder Hall, within Sellafield Wylfa, on Anglesey Trawsfynydd, Dolgellau, Wales Defence sites:
Atomic Weapons Establishments sites near Aldermaston and Burghfield, Berkshire Devonshire Dock Complex, Barrow-in-Furness, Cumbria Devonport Royal Dockyard, Plymouth Rolls Royce Neptune site and Nuclear Fuel Production Plant in Derby Rosyth Dockyard, Fife