Traditionally to be convicted of the result crime of malicious mischief it was necessary for the Crown to prove an element of malice, however today this is not the case, malice is only observed from the point of view of motive. Also the damage need not be considerable to result in a conviction. The Crown would have to prove the presence of the actus reus and the mens rea constituting the nominate crime of malicious mischief. Thereafter they would be required to establish a causal link between the two elements.
To prove the actus reus they would be bound to prove that Angela, by her own positive actions, damaged or destroyed the grass in the field belonging to the farmer, without his consent or permission. This could be proved by evidence that Angela, by erecting and camping in her tent, had flattened the grass and ultimately damaged or destroyed it. The mens rea element is always more complex. The Crown would have to decide whether they wanted to proceed by proving that Angela intended to damage the grass or that she did so with simple recklessness.
The mens rea of reckless malicious mischief is set down by the Lord Justice-Clerk (Aitchison), in Ward v. Robertson 1938 J. C. 32, "it is enough if the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property or possessory rights of others". This comment was approved by the Lord Justice General Clyde in Clark v. Syme 1957 J. C. 1. As clearly Angela did not damage the grass intentionally, the Crown would need to prove that she had the alternative mens rea of recklessness.
They would need to show facts from which it could be inferred that Angela should have had knowledge that she was damaging the grass, or failing that, that she showed the requisite disregard or indifference to the grass. Ultimately, the Crown would need to establish causation; that the actus reus together with the mens rea resulted in the harm, the damage done to the grass. The Sheriff in a summary trial or the jury in a solemn trial would need to believe the Crown's evidence "beyond a reasonable doubt" which is the standard in criminal law, for a conviction.
(3) The Criminal Justice and Public Order Act 1994 Part V (sections 61 to 71) applies to Scotland under the title of 'Public Order: Collective Trespass or Nuisance on Land'. The relevantrelevant sections apply to collective trespass, aggravated trespass and trespassory assemblies. There are no provisions in Part V applying to individual trespassers who are neither destructive nor threatening. It is questionable whether Angela could have committed an offence under this Act.
Sections 68 and 69 deal with trespassers of land in open air who do anything which is intended to intimate those carrying out lawful activities on the land (or adjoining land) or who destruct or disrupt those lawful activities, this offence being labelled "aggravated trespass". This offence was made so with field sport saboteurs in mind, however the farmer would be conducting a lawful activity in planting his crop and Angela's unauthorised presence in the field could be seen as intimidating or disruptive behaviour.
Therefore, the question to be answered by the farmer would be whether Angela's presence in the field prevented him from planting the crop as planned or whether he intended to plant the crop at a later date and her presence therefore had not affected his plans. Dickinson (Journal of the Law Society of Scotland page 63) states that the Act was brought into force as a governmental response to problems found more often in England and Scotland, namely new age travellers, field sport saboteurs and environmental protest groups.
In effect it impinges on those people who enjoy the outdoors, for example ramblers and hill walkers. Prior to the Act there was a "mutual tolerance" among landowners and walkers, however as a result of it (or rather a misunderstanding of it) landowners may erect signs on their land threatening trespassers with prosecution under the Act. The Act appears to have attracted wide controversy from all Scottish quarters as to its severity. Beckett and Bogie (page 26) argue that the Act is in contravention of the European Convention on Human Rights with regard to the rights of travelling people.
The Trespass (Scotland) Act 1865 already dealt with groups such as new age travellers and gypsies by protecting land owners from travellers occupying and camping on their property, therefore there was no need for further legislation which may lead to infringement of rights. At common law there is no criminal offence of trespass. What is available to the owner or legal occupier of land or property is the remedy of interdict, which is granted by the civil courts, to prohibit a named trespasser or trespassers from future intrusions.
Owners or legal occupiers may, in certain circumstances, use reasonable force to remove a trespasser from a house or building following a request to leave, however this is thought not to apply to outdoor trespass. Thus, Angela is not liable at common law to any offence of trespass. The Trespass (Scotland) Act 1865 at section 3 provides that a person who occupies or encamps on any private land without the consent and permission of the owner or legal occupier is guilty of an offence. The Act's original purpose was to deal with the problem of travellers, however any class of person may be prosecuted under it.
Angela appears to have committed an offence under this Act; she has the requisite actus reus and mens rea for criminal trespass. She pitched her tent in the field and spent four days camped out there without the permission of the owner, indeed he had asked her to leave, which she had refused to do; this would constitute the actus reus of the offence. Jones and Christie (page 287) surmise from the opinion of Lord Justice-General Normand in Paterson v. Robertson 1944 J. C. 168 that the relevant mens rea of the crime may be "knowledge on the accused's part that he had no entitlement whatsoever to lodge in the premises or encamp on the land".
Angela's knowledge may be inferred from the facts; that she was forced to cut through a barbed wire fence, which she found difficult, to gain entry to the field. Thus, she would have no reasonable excuse not to have been aware that she was not entitled to enter the field, the farmer having erected the fence to keep people out of his property. The punishment for this offence is found in section 4 of the Act as amended by the Criminal Justice Act 1982 and may be one night in prison and a fine of up to i?? 200. If Angela refused to pay the fine, say, on principle, she risks imprisonment.
In conclusion, trespass laws in Scotland appear to be imbalanced and illogical. The Criminal Justice and Public Order Act 1994 is needlessly harsh on travellers, who were already subject to the old Trespass (Scotland) Act 1865, and actually prejudices other groups who prior to the 1994 Act were able to peacefully enjoy the countryside. On the other hand, landowners have limited protection against people who make nuisances of themselves while crossing their property and who possibly do not show respect to the owners or their land.