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Freedom to Roam

 

There is a legally defined Freedom to Roam in Scotland, and of course there is no Law of Trespass in Scotland.... These and similar comments have been heard on many IOSA and SOTA frequencies from time to time.....

Up until now, in early 2005 these statements were wrong, and in the following I shall outline what I believe was the historical  situation in Scotland.

First of all; I am not professionally qualified on any legal matters what-so-ever, but I have spent some time discussing these topics with friends associated with Scottish Right of Way and Access Society, Scottish Natural Heritage and other similar organisations as well as raided the Edinburgh Central Library for books on the topic.

FREEDOM TO ROAM People in Scotland has for some time been able to enjoy a traditional ‘freedom to roam’ i.e. to go anywhere they pleased, and so long as no damage was done, the landowners could do nothing about it. Well, this is partially true. The Freedom to Roam has no legal standing in Scottish Law. It is NOT an ancient right as it only started to creep into the vocabulary over the last 100 to 150 years or so.

LAW OF TRESPASS Contrary to popular belief, there is a Law of Trespass in Scotland. However, the Law of Trespass in Scotland has been difficult to implement, and it is therefore rarely invoked. Whereas in say England and Wales the Law of Trespass makes it an offence to be on someone else's land without their permission, in Scotland the Law of Trespass only makes it an offence if there is damage to the land or property on that land. As always in Scottish Law, the onus of proof is on the accuser i.e. before raising a case for trespass the landowner or legal tenant or occupier of the land would need to be pretty certain that he could prove at damage had been done. The landowner has one ace up his sleeve as under Scottish Law, if someone is on someone else’s land and is asked to leave, he must do so at once. If the person or persons do not comply with such a request at once, the landowner has the right under Scottish Law to ‘use any such force as is reasonably required to remove the offender from the land’. The interpretation of this law is difficult of course, and in practice is therefore rarely invoked. So, if one wishes to stay on someone’s private land for a period of time for the purposes of camping overnight, operating amateur radio or whatever, it makes sense to obtain permission first.

PUBLIC PLACES All Scots have a right to be in a Public Place e.g. the unhindered use of public roads, parks, public rights of way (usually defined as a right to follow an established path from one public place to another) and markets etc.. What few people appear to realise is that under Scottish Law the shoreline of the Scottish mainland and of all the islands is defined as a Public Place. This Public Place extends from the low water mark to the Spring High Tide mark. The public enjoyment of the shores along Scotland’s extensive coasts for recreational purposes is long established in law. As the Spring High Tide can be as much as 3 to 4 metres higher than the average high tide, this gives plenty of scope for an aerial and operation from most Scottish Islands. There are a few exceptions e.g. it is believed that the ownership of the island of Eday in the Orkneys extends right down to the low water mark. Also, there are places where exemptions have been declared, and these are usually marked as such locally e.g. Nature Reserves, Special Areas of Conservation, Sites of Special Scientific Interest and Ministry of Defence areas etc..

Well, that was the position...... until early 2005

The Scottish  Land Reform (Scotland) Act came into being in 2003 and the Scottish Outdoor Access Code was approved by The Scottish Parliament in July 2004.

The various Scottish Executive agencies and other interested parties contributed to what is now called the "Responsible Land Access Code". This was published in early 2005, and it is available as a download in PDF-format from the SNH -  website; see the link below. It is also available in printed form of course.
I strongly recommend that anyone planning to partake in the great Scottish out-of-doors familiarise themselves with the Access Code and the rights, as well as obligations, it places on all concerned.

All the details of the Outdoor Access Code are available on the following website:

http://www.outdooraccess-scotland.com


Further up-to-date information is available from one or more of the links below where you will also be able to find out more about this topic:

Scottish Natural Heritage

Scottish Right of Way and Access Society

Historic Scotland
 

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This page was updated on 19th of January 2009