The Right to roam

[big soft moose]

OK, how about using a map while on a walk? Many a time I have seen ramblers stopping to look at a map - is that a big NO NO?

as i said earlier technically you don't have the right to stop for any reason - but in practice I don't think any landowner is likely to object to you standing still looking at a map. - If they did you would still technically be trespassing and obstructing a right of way and would have to move on if asked.

However photography has a higher potential (although admittedly still very low) to agravate a landowner.

You can bring up as many daft examples as you like - what about eating a sandwich, tying your boot lace, picking your nose, whatever - but none of that changes the bottom line that the right to freely pass and repass does not give you the right to take photos - and if a landowner asks you to stop and you refuse you could face a trespass suit which you would probably lose.

Of course as i said 99.9% of landowners couldnt care less - but when you meet the 0.1% who do it isnt a good idea to stand on rights that you don't actually have ... its an even worse idea to get bolshy, shouty, or threatening - that way agravated trespass lies - and that is a criminal offence

 

[On the Huh]

Whatever you do, don't stop as it makes you an easier target for those shotgun happy types.

wear camouflage too!

 

[weybourne]

...but none of that changes the bottom line that the right to freely pass and repass does not give you the right to take photos...

Not only that, but you are on private land and strictly speaking, right-of-way or not, the landowner (or their agent) can refuse you permission to take photos - this has been thrashed out elsewhere on these boards - including examples where pavements along a public highway are studded to show what part falls under private ownership.

 

[Steve Smith]

If Trespasser's are not made aware that such activities occur, then its an accident waiting to happen in my opinion

Technically, they're not trespassers until you ask them to leave and they refuse.


Steve.

 

[Steve Smith]

wear camouflage too!

I tried to buy some camouflage trousers at the weekend... I couldn't find any!


Steve.

 

[big soft moose]

Technically, they're not trespassers until you ask them to leave and they refuse.


Steve.

not so - legally the act of tresspass is commiting any act on private land for which you don't have permission.

It is not just being on the land , although that is often how the lay person perceives it - so for example someone who is cycling on a footpath without consent is commiting the act of trespass regardless of whether a landowner stops them.

The really sailent point in practical terms is that trespass is a civil offence not a crime* - in one way this is good because it means that threats to report you to the police are just hot air (unless you refuse to leave/stop the activity - at which point they can ask the police for assistance in removing/stopping you), the landowner would have to take you to court which means both knowing who you are, and being able to demonstrate that you were in fact commiting trespass.

However if the landowner does decide to take a civil suit the bad things are that a) the burden of proof is lower than in crimnal court - it is a balance of probabilities thing rather than beyond reasonable doubt , and b) a suit can lead to damages although to get anything large the landowner would have to demonstrate not only that you were trespassing, but that by doing so you had caused him significant harm, nuisance, or expense.

* the addendums to this are that there are three (in fact there are others but its highly technical and not worth getting into here) sorts of trespass which are criminal offences

a) Agravated trespass - this basicallly means comitting a civil act of trespass but then agravating it by commiting another offence while trespassing - common agravating occurences are things like criminal damage - while photographing somewhere you shouldn't be, you cut/break a fence or tear down a sign , assault/affray e.g when asked to stop taking pictures you get arsey and get into a pushing and shoving match, or harrasment - this tends to be the preserve of paps but anyone could fall foul if they were stupid, e.g while on a footpath you repeatedly photograph someone or their property despite requests to stop.

b) Armed Trespass - much more serious in the eyes of the law. This is basically commiting an act of trespass while in possession of a weapon or anything which might be considered a weapon or used as such - while the obvious use is against poachers/badger baiters and such we all have to be careful of it as the weapons list would also include any knife with a blade longer than 2.5 inches , or any locking knife , it can also include anything you use as a weapon - so if while getting arsey with the landowner you threaten him with your monopod it could then be considered a weapon and you'd be heavily in the crap

c) Trespass on MoD land, Govt installations (a long list and not just the obvious) or anywhere with national security implications (an even longer list), this is extremly serious **** , and the sailent point to remember is its not just about being on the land - some MOD land is crossed by footpaths for example, but as soon as you stop to take photos you are trespassing and this may (although again equally may not) become a singularly serious offence.

at the bottom line four steps to avoiding getting into this legal minefield in the firstplace

1) Know your rights , including knowing what rights you don't have

2) be responsible - dont stray miles off a path on private land without permission, dont obstruct the path, don't take pictures through peoples windows etc

3) Know where you are, and if you are indeed on private land - and if you are and you want to do a lot of photography or any kind of comercial photography find the landowner or his agent and ask permission.

4) If you are photographing on private land (including on a right of way) and the landowner asks you to cease just do so - don't get into a big shouty argument insisting on rights you don't actually have (see 1 above). Acting like a prat doesnt help you, and also doesnt help other photographers in the future

 

[kendo1]

5. Walk in Scotland.

Simples.

 

[big soft moose]

5. Walk in Scotland.

Simples.

but only if scottish rights to access are actually rights to photograph as well :bang:

I've never worked north of the border so i don't know (one set of laws and cases to learn was quite sufficient) but i'm guessing that it may not be as clear cut as some suggest - which returns to my point 1 - know your rights including what rights you don't have.

 

[Steve Smith]

Does the right to roam in scotland automatically confer the right to take pictures ?

In england and wales public access rights don't automatically confer anything other than the right to 'freely pass and repass by permitted means' with if you wish a usual acompaniment a long list but not one that includes photographic equipment

A few years ago I went on a guided walk which was being lead by a retired lawyer who used to do work for the National Trust and the local council on rights of way matters. He told us that taking photographs could not be stopped by the land owner when you are on a footpath. It is considered to be the same as any other public space.

(I know we're referring to right to roam here rather than footpaths).


Steve.

 

[big soft moose]

A few years ago I went on a guided walk which was being lead by a retired lawyer who used to do work for the National Trust and the local council on rights of way matters. He told us that taking photographs could not be stopped by the land owner when you are on a footpath. It is considered to be the same as any other public space.

(I know we're referring to right to roam here rather than footpaths).


Steve.

Assuming we are talking english law he's debateably wrong - I'm not sure if theres ever been a test case reference photography on a right of way (except with regard to byelaws which is another whole kettle of fish), but he's definitely wrong about it being like any other public space in general terms - there are numerous items of case law that demonstrate that the right to freely pass and repass by permitted means doesnt permit other activity

For example I was a witness on a case in 2009 where someone presented that as a defence to a civil suit for metal detecting without permission - they lost , and the court clearly stated that the right to freely pass and repass didnt confer rights to undertake unfettered activity.

Usually the acid test is whether the activity could be reasonably considered to be part of the use given by right or permitted (lets not even go into permisive rights as its a minefield) -

so for example on a footpath where the core activity given by right is pedestrian travel (including wheelchairs and class 1 and 2 mobility scooters) you could reasonably do anything that is part of going for a walk / run - so the earlier example of stopping to look at a map for example is likely to be reasonable , probably you'd also get stopping to eat your lunch (so long as you don't leave the definitive line) and so forth

Photography in that context is a very grey area because you could argue that taking pretty pictures of the view is part of your usual enjoyment of going for a walk. However there'd be much less justification for carrying out a N&G shoot as that clearly isnt part of the normal enjoyment of the right ( and this applies even more to stuff like wirewool spinning)

You might also find that it could depend on the gear - muggins walking with a compact might get away with it where someone with lots of pro spec gear might be found to have acessed the land for the purposes of photography, rather than going for a walk and incidentally taking a few photos.

The underlying point i'm making is that there is a difference between what you might get off with in court, and what you definitely have the right to do, and the CRoW act (and preceding acts) do not definitively give a right to photography on a rigt of way.

Also because statute law is interpreted by case law particularly in civil suits, until theres a test case of a particular circumstance no one can really say for sure (it will depend very much on the judge, the credibility of various witness, and a multpilicity of factors), and a wise photographer doesnt want to be the test case , in case it doesnt pan out well

 

[Steve Smith]

Usually the acid test is whether the activity could be reasonably considered to be part of the use given by right or permitted (lets not even go into permisive rights as its a minefield) -

Photography in that context is a very grey area because you could argue that taking pretty pictures of the view is part of your usual enjoyment of going for a walk.

That was his point. His view was that taking photographs was part of going for a walk.

muggins walking with a compact might get away with it where someone with lots of pro spec gear might be found to have acessed the land for the purposes of photography, rather than going for a walk and incidentally taking a few photos.

there is a difference between what you might get off with in court

Get away with what? No law would be broken if you were on any land, not just right to roam areas, and photographed against the owners wishes.


Steve.

 

[big soft moose]

That was his point. His view was that taking photographs was part of going for a walk.

Taking photos could be part of going for a walk - depending on the nature of the photography, - for example is setting up a big camera on a tripod and waiting four hours in one place for the right light a usual part of going fo a walk ? is Taking a girl into the woods, getting her to disrobe and shooting a set of Art Nudes part of going for a walk ? Is stuffing a bird feeder full of wire wool igniting it and spinning it round your head part of going for a walk ?

No one can say for sure until those scenarios are tested in court, but there is a good chance that they wouldnt be thought to be reasonable in my opinion.

On the otherhand is taking a few pics of the view or of your family enjoying their day , a usual part of going for a walk ? My view is that the answer is probably that it is, but equally it can't be said with absolute certainty as no one can predict what a court might do.

Get away with what? No law would be broken if you were on any land, not just right to roam areas, and photographed against the owners wishes.
.

I do feel a bit like I'm speaking a different language - you are probably correct that no criminal law would be broken (barring tresspass on to MOD land etc) but if you do anything that you don't have either an explicit legal right , or permission to do, on private land then you are commiting an act of trespass against the landowner.

That isnt a crime (unless you agravate it as discussed above) but it does open you to civil suit.

What I meant by "get away with it" is that during a civil suit the court might decide that the behaviour was a usual part of going for a walk and therefore permitted by CRoW, and thus rule that an Act of Trespass had not been committed and therefore find in your favour (equally they might decide that whatever it was was not part of a usual enjoyment of your right to freely pass and repass and therefore find for the landowner )

Ive been involved with dozens of this sort of case - the most frequent being people cycling on a footpath , which is classic case of trespass against the landowner and usually results in a finding against the cyclist. Although there are exceptions where the court has found the otherway (usually arround whether there was a reasonable expectation that the cyclist knew they were on a footpath)

Just to inject some reality - as i said earlier 99.9% of landowners arent going to care about photography , and most of the 0.1% who do care arent going to do anything besides asking you to stop (so long as you then do). So I'm not saying don't take photos in the countryside , that would patently be silly. All i'm saying is that if a landowner does ask you to stop taking photos on his land, in England and Wales at least it would be a good idea to comply , unless you fancy fighting it out in court and potentially losing (Its also worth noting that even if you win in many of these cases each side will bear its own costs, so you could wind up vindicated but seriously out of pocket - which would be a very phyric victory)

 

[kendo1]

Photography is not banned in Scotland. Just the usual common sense stuff such as theft, littering, shooting...
Pretty much everywhere is accessible.

http://www.outdooraccess-scotland.com/outdoors-responsibly/your-access-rights/

 

[big soft moose]

That link doesnt mention photography at all - for or against. Which probably means that the situation is as grey north of the border as it is down here .

 

[kendo1]

That link doesnt mention photography at all - for or against. Which probably means that the situation is as grey north of the border as it is down here .

I don't think so.

 

[big soft moose]

okay so ive just had a look at the act ( I just love scottish law - it actually makes sense which is more than can be said down here much of the time)

It seems you are broadly right in that

Everyone has the statutory rights established by this Part of this Act. .
(2)Those rights (in this Part of this Act called “access rights&#8221 are— .
(a)the right to be, for any of the purposes set out in subsection (3) below, on land; and .
(b)the right to cross land. .
(3)The right set out in subsection (2)(a) above may be exercised only— .
(a)for recreational purposes; .
(b)for the purposes of carrying on a relevant educational activity; or .
(c)for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

that would certainly seem to permit most forms of photography

However you do have the obligation to use the rights responsibly

A person has access rights only if they are exercised responsibly.....In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

that is you can , but you must not do so in a way that conflicts with the interests of others - so wirewool spinning in the middle of a dry field , or taking nudey shots at a well used beauty spot are probably out

Also there are a fair list of places not covered - including most arable farm land, and any buildings and such

(1)The land in respect of which access rights are not exercisable is land— .
(a)to the extent that there is on it— .
(i)a building or other structure or works, plant or fixed machinery; .
(ii)a caravan, tent or other place affording a person privacy or shelter; .
(b)which— .
(i)forms the curtilage of a building which is not a house or of a group of buildings none of which is a house; .
(ii)forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above; .
(iii)consists of land contiguous to and used for the purposes of a school; or .
(iv)comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed; .
(c)to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden; .
(d)to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted; .
(e)which has been developed or set out— .
(i)as a sports or playing field; or .
(ii)for a particular recreational purpose; .
(f)to which— .
(i)for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and .
(ii)after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted; .
(g)on which— .
(i)building, civil engineering or demolition works; or .
(ii)works being carried out by a statutory undertaker for the purposes of the undertaking, .
are being carried out;
(h)which is used for the working of minerals by surface workings (including quarrying); .
(i)in which crops have been sown or are growing; .
(j)which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable. .
(2)For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

That seems a damn site clearer than the English and welsh access law, although there is still room for interpretation arround not causing nuisance to others

 

[kendo1]

Everybody loves Scot's Law!

 

[magicaxeman]

The edge of the footpath is your boundary, common sense really isnt it? it is only the footpath/bridle way you are entitled to use, either side of it remains private property and does not need to be signed, its assumed that those using the countryside would be aware of such things, also not all tracks are public rights of way, unless its either signed or marked on a map its not a public right of way.
You'd have come unstuck reporting him as you could have found yourself in trouble for trespassing on private property.

As pointed out many landowners either shoot themselves on their land or authorise others to shoot on their land, his claim that you could have gotten shot was probably genuine for those reasons.

There is no right to roam over peoples private property and with good reason too not only the fact that a lot of land is used for shooting (like it or not landowners are compelled by law to control certain vermin on their property) but also in this day and age the fact that some whining nancy/idiot is likely to trip over a clump of grass or walk into a cow pat then try and sue the landowner.

(ex public rights of way officer)

 

[amp88]

A few more relevant sections from the full text (direct link to PDF) of the Scottish Outdoor Access Code, with my emphasis:

Everyone, whatever their age or ability, can exercise access rights over most land and inland water in Scotland, at any time of day or night, providing they do so responsibly. These rights do not extend to all places or to all activities (see paragraphs 2.11 to 2.15). Provided you do so responsibly (see Parts 3 and 5 of the Code), you can exercise access rights in places such as:
• hills, mountains and moorland;
• woods and forests;
• most urban parks, country parks and other managed open spaces;
• rivers, lochs, canals and reservoirs;
• riverbanks, loch shores, beaches and the coastline;
• land in which crops have not been sown;
• on the margins of fields where crops are growing or have been sown;
• grassland, including grass being grown for hay or silage (except when it is at such a late stage of growth that it is likely to be damaged);
• fields where there are horses, cattle and other farm animals;
• on all core paths agreed by the local authority;
• on all other paths and tracks where these cross land on which access rights can be exercised;
• on grass sports or playing fields, when not in use, and on land or inland water developed or set out for a recreational purpose, unless the exercise of access rights would interfere with the carrying on of that recreational use;
• golf courses, but only for crossing them and providing that you do not take access across greens or interfere with any games of golf;
• on, through or over bridges, tunnels, causeways, launching sites, groynes, weirs, boulder weirs, embankments of canals and similar waterways, fences, walls or anything designed to facilitate access (such as gates or stiles).

2.7 “Recreational purposes” is not defined in the legislation. It is taken to include:
• pastimes, such as watching wildlife, sightseeing, painting, photography and enjoying historic sites;
• family and social activities, such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite;
• active pursuits, such as walking, cycling, horse riding and carriage driving, rock climbing, hill-walking, running, orienteering, ski touring, ski mountaineering, caving, canoeing, swimming, rowing, windsurfing, sailing, diving, air sports and wild camping; and
• participation in events, such as walking or cycling festivals, hill running races, mountain marathons, mountain biking competitions, long-distance riding events, orienteering events and canoeing competitions.

Access rights extend to activities carried out commercially or for profit, provided that these activities could also be carried on other than commercially or for profit (ie by the general public for recreational purposes or for educational activities or for crossing land). For example, a mountain guide who is taking a customer out hill-walking is carrying on a commercial activity but this falls within access rights because the activity involved – hill-walking – could be done by anyone else exercising access rights. The same would apply to a canoe instructor from a commercial outdoor pursuits centre with a party of canoeists. Other examples would be a commercial writer or photographer writing about or taking photographs of the natural or cultural heritage.

If you wish to take detailed photographs of houses or other buildings, you need to respect the privacy and peace of mind of those living or working there. Talking to the occupier can help a lot. If you wish to film a TV programme to further people’s understanding of the natural or cultural heritage and which requires only hand-held equipment and involves no vehicles off the road, talk to the land managers beforehand and
listen carefully to any advice provided. If you need to use vehicles or stay in an area for a few days or put down equipment or are filming for other purposes, you still require the permission of the relevant land managers. If you are writing a guidebook, leaflet or other promotional material about access in an area, try to talk to the relevant land managers to see if any local issues relating to privacy, safety or conservation need to be referred to in the publication.

Note: I realise the OP specifically wasn't taking "detailed photographs" of houses or other buildings, but included this passage anyway for more information.

It's also disappointing to see people suggesting you can camp in people's gardens. The code specifically states you cannot do this:

The main places where access rights do not apply are:
• houses and gardens, and non-residential buildings and associated land;
• land in which crops are growing;
• land next to a school and used by the school;
• sports or playing fields when these are in use and where the exercise of access rights would interfere with such use;
• land developed and in use for recreation and where the exercise of access rights would interfere with such use;
• golf courses (but you can cross a golf course provided you don’t interfere with any games of golf);
• places like airfields, railways, telecommunication sites, military bases and installations, working quarries and construction sites; and
• visitor attractions or other places which charge for entry.

Anyway, as I understand it the OP was not in the wrong at all (as long as none of the exemptions above apply, which appears to be the case). The somewhat irate landowner (it's debatable whether the comment about getting shot was delivered jovially or in a serious fashion) was in the wrong to ask for ID. Though, I'd have to say that I'd probably have handled it in a similar fashion as the OP (i.e. calmly explained the situation and volunteered to show the pictures I'd taken). If I felt the threat about nearly being shot was serious I might be inclined to contact the police - but that's difficult to judge without having been in the situation myself.

 

[big soft moose]

The edge of the footpath is your boundary, common sense really isnt it? it is only the footpath/bridle way you are entitled to use, either side of it remains private property and does not need to be signed, its assumed that those using the countryside would be aware of such things, also not all tracks are public rights of way, unless its either signed or marked on a map its not a public right of way.
You'd have come unstuck reporting him as you could have found yourself in trouble for trespassing on private property.

As pointed out many landowners either shoot themselves on their land or authorise others to shoot on their land, his claim that you could have gotten shot was probably genuine for those reasons.

There is no right to roam over peoples private property and with good reason too not only the fact that a lot of land is used for shooting (like it or not landowners are compelled by law to control certain vermin on their property) but also in this day and age the fact that some whining nancy/idiot is likely to trip over a clump of grass or walk into a cow pat then try and sue the landowner.

(ex public rights of way officer)

only true in england and wales - in scotland there is since the 2003 land reform act