ABSTRACT
This chapter presents the policy debate through investigation of the law relating to trespass and unlawful occupation in Scotland, and in particular the criminal penalties available under the Trespass Act 1865. Legal construction of unlawful occupation in Scotland takes place within a context in which a landowner's right to exclude is strongly protected. Yet while the civil law will only compensate the owner if such loss has occurred, the criminal law will protect any infringement of the owner's right to exclude others from his or her land. The chapter focuses on workings of the Act to scrutiny, in the process illustrating some of convergences with, but also divergences from, relevant English provisions and the risks which may attend application of the new penalties under section 144. In the context of a proposal to introduce a law criminalising unauthorised camping in England, Scottish Office was asked to comment on the operation of the existing Scottish provisions.
