Mixed Moss - Trespass Law in Scotland

I tend to think that AR usually got things right. So I was surprised to read, in the current Mixed Moss, an article claiming that “Ransome knew that Scottish law is different but hadn’t checked the details”. This refers to GN? and the belief of Captain Flint and the Sea Bear crew that they might be “trespassing” by their presence on the island. The author of the article claims that in Scotland “you are at liberty to wander where you please”, ie that Capn Flint and the others need not have worried, and that the McGinty had no power to order them off his land.

Oh yes he had. It has been a popular myth for years that there was no trespass law in Scotland (the position is much changed since the Land Reform (Scotland) Act 2003 but that is of no concern here). The Trespass (Scotland) Act 1865 (cited in the article) said that “Every person who . . . occupies or encamps on any land, being private property, without the consent and permission of the owner . . . shall be guilty of an offence punishable as hereinafter provided.” The operative word here is “occupies”. Whilst to walk straight across another’s land was not “occupying”, to stop and carry out some sort of activity could be held to be “occupying” the land. An example of this would be fishing, or digging into the ground, or maybe even stopping for a picnic. Interfering with, or rounding up, animals on the land would certainly constitute “occupation” for this purpose and might also involve criminal damage.

Far from being ignorant of Scottish law, Captain Flint was spot-on. You could not get a better brief explanation of the law in Scotland than his statement “Galloping about on someone else’s land doesn’t matter much. But chasing deer’s serious.”

In my view, Arthur Ransome had checked the details.

A masterly legal analysis Peter. Really I believe that there is nothing anyone can add unless they have a special interst in the minutia of the Scottish law on trespassing!