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The right to roam provisions of Countryside and Rights of Way Act 2000 came into force at the start of October 2004. They allow the public limited access to registered common land and land which has been defined as ‘open country’ by the Countryside Agency
(in practice this will be any land that consists wholly or predominantly of mountain, moor, heath or down). The right to access is on foot for leisure. Thus, walkers and picnickers are allowed, but the access must be ‘for the purposes of open-air recreation’. Accordingly, it would not extend to a commercial activity, and it would probably not apply to someone who enters the land to (eg) protest at hunting.
There are various prohibited activities. For instance, there are prohibitions on lighting a fire, feeding livestock, hunting, shooting or fishing, using a metal detector, interfering with fences, failing to fasten gates, and camping. In addition, there is a prohibition on ‘doing anything disturbing, annoying or obstructive of someone doing lawful activity on land without reasonable excuse’ and it is likely that that provision could also be used to deny access to hunt protesters.
The penalties for breach are probably more theoretical than real. Apart from becoming a trespasser, the unauthorised entrant cannot, for 72 hours within leaving the land, exercise the right to roam over that land again. Under common law, a land holder is entitled to use reasonable physical force to remove a trespasser and thus could use force to remove someone who has broken the terms of the right to roam legislation. Perhaps more importantly, if someone enters under the right to roam legislation and engages in deliberately intimidatory behaviour, so as to obstruct or disrupt a lawful activity, then that person will be committing a criminal offence under CJPOA 1994. The police should act in such a situation, although whether they will be willing to do so is a different question.
The Act is being phased in so that there are different commencement dates for different parts of England (different rules apply in Wales). See introductory article in [2004] SJ 1078.
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