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 elses 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 someones 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 Scotlands
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
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