The starting point is to say that entry onto private land must be by express or implied invitation, or by exercise of a statutory or common law right, failing which it will amount to a trespass. In the case of a shopping mall it is not hard to imply an invitation to members of the public to enter that shopping mall, and that then creates a revocable licence. Such a licence would, normally, be revocable at will.

In SIN [1995] the dispute involved a privately owned shopping mall that had been created in the centre of Wellingborough, where once there had been public highways containing shops. The mall owners wanted to exclude local youths who allegedly caused a nuisance. Accordingly they wrote to each terminating the licence they had to enter the mall, and threatening declarations and injunctions. The trial judge took the view that all the public had an irrevocable right to enter the mall whenever the doors were open, but this was subject to equitable, reasonable, conduct (which meant that an injunction could be granted against rowdy youths). But, the CA disagreed with that approach and held that a private landowner can arbitrarily refuse access to a member of the public. It has to be said, however, that the trial judge was following principles that were well established in many other jurisdictions, and which have found favour with English academics. But, the principle does seem clearly established – arbitrary and unreasonable exclusion is allowed.

One final point worth noting is that much has happened in the law since that case was decided in 1995. Firstly, we have more extensive antidiscrimination legislation; secondly, health and safety legislation has become more pervasive; thirdly, the Human Rights Act 1998 may give greater protection to the ‘dignity’ of the individual. Taken together, these developments in social law may mean that the concept of ‘unreasonable exclusion’ would these days be more attractive to the CA. For more on this see [2006] NLJ 1501.  © Practical Lawyer