06 July 2020
Not reviewed after the date of publication
We have been discussing circumstances in which persons are invited into other people's homes, however things turn sour / an argument ensues and the guest refuses to leave.
We have discussed the person becoming a trespasser, or using reasonable force to remove them to prevent a breach of the peace, but we are uncertain of the correct way to deal with such situations. Please could you clarify?
Please find some information below that we hope will assist in clarifying the law in this area;
Common law trespass (whatever the length of time of the trespass) is a civil wrong and consists of an unjustifiable intrusion by a person upon private land / property in possession of another. We believe that a person who does not enter land/property as a trespasser may become a trespasser by abusing an existing right to be on someone else's land / property, including remaining on the land when permission has expired / been withdrawn, but this would be fact specific to the circumstances on each case that may arise.
As such, it is a matter that the owner has to deal with, either in person at the time of trespass, or by pursuing a course of action against the trespasser through the courts. 'Reasonable force' may be used by an owner, to remove the trespasser from their premises. What is deemed reasonable force will be 'no more force than is deemed necessary'. This is to be judged on a case by case basis and the owner must take care not to commit an offence themselves if proceeding with forcible ejection, and should be warned that they may be liable for the consequences. Please see our document on common law trespass to land for further information.
In Tullay v Reed (1823), it was stated (in brief) -
'If a person enters a house, with force and violence, the person whose house is entered, may justify turning him out, using no more force than is necessary, without a previous request to depart. But if the person enters quietly, a request to depart is necessary, before turning him out. The owner of the property should make a prior request for repossession to a peaceable occupier. If the unlawful occupiers leave without 'further ado' then all is well.'
An interesting and more recent case in relation to trespassers in households, is that of R v Cheeseman 2019, where a person entered premises lawfully and became a trespasser when he began to cause damage
Where a person commits civil trespass but then goes onto commit an offence, action may be taken by the police in relation to that offence. The situation you describe, where a person remains inside someone else's house, after being told to leave, could potentially result in an offence such as assault, damage, or harassment, being reported to the police. Where an offence is reported, the police have a duty to investigate and powers to deal accordingly.
Breach of the peace
This common law concept provides any person the power to arrest, intervene and/or detain by force, to prevent any action likely to result in a breach of the peace in both public and private places.
The case of R v Howell 1981 outlines the current test which must be applied for breaching the peace:
'A breach of the peace is committed whenever harm is done, or is likely to be done to a person, or, in his presence to his property, or, whenever a person is in fear of being harmed through an assault, affray, riot or other disturbance'.
This power may be considered, if following asking the person to leave, it is considered that a breach of the peace is imminent. If a person is arrested either by another person or by an officer, they should be released as soon as the danger of breach of the peace has ceased.
Please see our breach of the peach document, which gives detailed information on what constitutes a breach of the peace and what powers are available to the police, to deal with such an instance.