We need to be clear from the start of the important difference between a footway and a footpath.
Footways are paths alongside roads set aside for pedestrians and it is an offence to cycle along them.
Footpaths, on the other hand, are stand-alone paths which include around 80% of public paths in the countryside as well as many urban paths supplementing the road network. In general it is not an offence to cycle on these, except where individual paths are subject to local bye-laws or traffic regulation orders. There do not appear to be any decided cases to suggest that cycling along a footpath is a public nuisance and hence a criminal offence.
Conventional wisdom is that where it is not an offence to cycle along a footpath, it is nevertheless a trespass against the owner. If this is so, then the owner has the right to remove the trespasser. This would be a civil matter between the owner and the cyclist and nobody else would be concerned – for example, members of the public who dislike people cycling on footpaths would have no role. So it is important to explore whether cycling on a footpath really is a trespass.
We first need to look at what trespass means. The basic common law principle is that owners have the right to the exclusive enjoyment of their land. This means they can remove people who come on their land, even though they may not be doing them any harm. But owners cannot do this to people who have lawful authority to be on the land.
Using a right of way is one form of lawful authority. But this has its limits. A user only has lawful authority whilst actually passing along the right of way, or doing something directly associated with passing such as stopping to consult a map. Where a right of way is limited to one mode of travel, as in walking along a footpath, then this gives no lawful authority to pass by another mode.
Unreasonable action removes access rights
Even those exercising a right of way may not have lawful authority if they act unreasonably to the owner. A leading case from the Victorian era concerned the antics of a Mr Harrison who, for reasons now lost in history, tried to disrupt a moorland shoot. He repeatedly walked up and down a highway, opening and closing an umbrella, so as to prevent birds being driven towards the butts. This was held to be trespass because, although he was certainly exercising a right of way, he was doing so unreasonably.
But if we assume that exercising a right of way is the only lawful authority to be on the highway, we arrive at some rather odd conclusions. There are numerous activities that routinely take place on highways that are nothing to do with passing along them. Think of children playing, newsvendors selling papers, people chatting with their friends or the Salvation Arm singing hymns. Are they all trespassers who could be removed by the landowners? But if not, then what lawful authority do they have to be there?
There are very few legal precedents. A case in 1861 at Bristol Assizes concerned a particularly difficult owner who tried to remove a lady who was pushing a pram along an urban footpath. The judge advised the jury that if pushing a pram constituted driving a carriage then the owner would be justified in removing her as the right of way was on foot only. However, the jury concluded, and the judge agreed, that pushing a pram was not driving a carriage but merely associated with walking. Thus his view that the owner could have removed a carriage driver has only the status of an obiter dictum.
Later cases where people were held to be trespassers on highways dealt with instances of unreasonable use (such as the Harrison case described above). The courts seem to have been reluctant to hold that use not in accordance with the right dedicated was automatically a trespass, where there was no element of unreasonable use.
Definition of reasonable use expanded
After many years in the legal doldrums this matter was again considered by the House of Lords in 1999 in the case of DPP v Jones . Here the issue was whether peaceful protestors standing on a highway verge carrying placards were trespassers. After a detailed analysis of past cases in highway law, the Lords decided that there was no trespass.
There is no logical basis for believing that the right of access to a footpath should be limited to access on foot. Rather the issue is whether use is reasonable.
It is important to understand the reasoning followed. There was no suggestion of any overriding justification based on a fundamental right to peaceful protest, or similar human rights issues. The analysis considered peaceful protest simply as one of many routine uses of highways other than passage and were not ancillary to passage (like reading a map). It was concluded that these did not constitute trespass because there was a right of public access to a highway which arose from a highway being a public place. This access was, however, subject to a test of reasonableness so someone like Mr Harrison would still be a trespasser. Unreasonable use was defined as either a public nuisance (such as use that blocked the highway) or was a private nuisance to the owner of the land (again like Mr Harrison).
A public footpath is a highway and hence a public place. So the public have a right of access – presumably on the basis that if there is a public right of passage the owner clearly cannot enjoy the exclusive enjoyment of the land. There is no logical basis for believing that the right of access to a footpath should be limited to access on foot. Rather the issue is whether use is reasonable.
Cycling along footpaths has not been held to be a public nuisance. If cycling was a private nuisance to the owner it would be a trespass even with a right of way. So if cycling along, say, a bridleway is not a private nuisance then cycling along a footpath cannot be. The clear implication is that a cyclist on a public footpath has lawful authority to be there and is not a trespasser.
I am not suggesting that cyclists should immediately get out there annoying walkers by cycling everywhere there is a footpath. But it does seem to be a useful negotiating point in the CTC objective of obtaining access to a wider range of rural paths.
See also CTC's briefing on footpaths .