Trespass - Aggravated trespass

Richardson and another v Director of Public Prosecutions; Nero and another v Director of Public Prosecutions: Queen's Bench Division, Administrative Court (London) (Lord Justice Laws and Mr Justice Owen): 29 March 2012

Sections 68 and 69 of the Criminal Justice and Public Order Act 1994 provide, so far as material: '68(1) A person commits the offence of aggravated trespass if he trespasses on land... and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land..., does there anything which is intended by him to have the effect - (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, (b) of obstructing that activity, or (c) of disrupting that activity....

'69(1) If the senior police officer present at the scene reasonably believes - (a) that a person is committing, has committed or intends to commit the offence of aggravated trespass on land...; or (b) that two or more persons are trespassing on land... and are present there with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity, he may direct that person or (as the case may be) those persons (or any of them) to leave the land. (3) If a person knowing that a direction under subsection (1) above has been given which applies to him - (a) fails to leave the land as soon as practicable, or (b) having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months [51 weeks] or a fine not exceeding level 4 on the standard scale, or both.'

In the instant proceedings, two appeals were heard together as they were closely linked. The proceedings concerned a shop in Convent Garden which sold products from the Dead Sea (the shop). The shop was owned by a UK registered limited company, A (UK) Ltd, a subsidiary of an Israeli company. There was evidence that A (UK) Ltd was supported financially by its parent company, whose factory was situated in a Israeli settlement in the West Bank in the Occupied Palestinian Territory (OPT).

The UK government subscribes to the international view that Israeli settlements in the OPT do not form part of the territory of Israel. A's products were labelled for consumers in the UK as made in Israel. In both cases the appellants had entered the shop with a concrete tube. They placed it on the floor and then positioned themselves with one arm each through the tube. They connected their arms through the tube with a padlocked chain for which they had no key. They had no intention of buying anything in the shop or using its services but intended on preventing the shop from trading in the way it would otherwise have done.

In both instances the police were called and the appellants were removed from the concrete block and arrested. In the second appeal (the section 69 appeal), the appellants had been given a warning by an officer, H, for the purposes of section 69 of the Criminal Justice and Public Order Act 1994 (the 1994 act). The appellants contended that the company that ran the shop and profited from its sales was guilty of: aiding and abetting war crimes contrary to section 52 of the International Criminal Courts Act 2001; misleading labelling contrary to, inter alia, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/127; cheating the public revenue at common law; and possession and use of criminal property, contrary to section 329 of the Proceeds of Crime Act 2002. All four appellants were tried together in the magistrates' court.

The appellants in the first appeal (the section 68 appeal) were convicted of aggravated trespass pursuant to section 68 of the 1994 act. The appellants in the section 69 appeal were convicted of the offence of failing to leave a premises knowing that a direction to do so had been given by a senior officer present pursuant to section 69 of the 1994 act. The appellants appealed by way of case stated.

The questions posed for the consideration of the court in the section 68 appeal were, inter alia: (i) whether the judge had been correct in ruling that the 'persons engaged in a lawful activity' in the instant case, meant the employee present whose activities were disrupted by the actions of the defendants, rather than the company that owned the shop; (ii) whether the judge had been correct in holding that only individuals who would be liable to be prosecuted personally could be construed to be 'committing an offence' for the purposes of secton 68(2) of the 1994 act; and (iii) whether the judge had been correct in holding that, until such time as A (UK) Ltd was prosecuted and the defence arguments were properly tested, the judge could do no more than accept that its shop was trading lawfully.

The essential issue in the section 68 appeal was whether the prosecution had proved that a lawful activity was being carried on at the shop. The section 68 appellants contended, inter alia, that: they could not be properly convicted of the section 68 offences unless the prosecution proved to the criminal standard, that A (UK) Ltd was not guilty of any of those offences; if material was adduced to indicate that the activity was or might not be lawful then the prosecution had to negate that the criminal standard; and the judge had been obliged to come to grips with the merits of the appellant's legal case.

The questions posed for the consideration of the court in respect of the section 69 appeal were: (i) whether the judge had been correct in finding that H had had a reasonable belief such as to entitle him to give a valid direction under section 69 of the 1994 act; (ii) whether the judge had been correct in concluding that the appellants were not entitled to claim that they had left 'as soon as practicable' after being given a direction to do so, when they had created a state of affairs that made it impossible for them to leave as soon as they would otherwise have been able to do in absence of that state of affairs. The section 68 appeal would be dismissed. The section 69 appeal would be allowed.

(1) Questions (i) and (ii) in the s 68 appeal were essentially the same question, namely whether section 68 was addressed only to acts of natural persons. As a matter of construction it was not. It was established law that the term 'person' in a statute included a body corporate unless the contrary intention appeared. The contrary intention did not appear from the context of the statutory provisions of section 68.

In the instant case, the judge had been wrong to conclude that, on the true construction of the term 'lawful activity' in section 68, it referred only to an act or activities carried on by a natural person or persons at the premises. Questions (i) and (ii) would be answered in the negative.

(2) As to question (ii), if the appellants were right, the issue of the company's alleged complicity in war crimes fell to be adjudicated in summary proceedings in which neither A (UK) Ltd nor any representative from the state of Israel was present. The balance of probability would be reversed so that the prosecution had to disprove guilt in order to prove that the activity was lawful. That was so impractical and unjust to undermine the rule of law and did no service to the cause of civil disobedience. The issue could only be litigated in proceedings properly constituted for that purpose.

The law did not allow the appellants to resist prosecution under section 68 by requiring the adjudication of the occupation of the Palestinian territories and associated matters.

The statutory language focused on the activity being carried on. It tied the issue of lawfulness to person
s engaged in that activity unlawfully. That did not exclude guilt of war crimes or any of the offences alleged from constituting illegality for the purposes of section 68 of the 1994 act. However, in order to do so the facts which went to establish guilt had to be inherent in the activity in question. In the instant case, the appellants case would have required proof of facts and events far remote from the acts and activities of the shop itself. Question (iii) would be answered in the affirmative.

Ayliffe v DPP; Swain v DPP; Percy v DPP [2005] 3 All ER 330 considered; R v Jones; Ayliffe v DPP; Swain v DPP [2006] 2 All ER 741 considered.

(3) It followed that question (i) in the section 69 appeal would also be answered in the affirmative. H had acted reasonably in believing that the retail activity was lawful.

(4) The respondent's argument and the judge's conclusions seemed to confuse section 68 with section 69. The act of tying themselves together had obviously been done before the officer gave his direction. On the judge's approach the appellants had been guilty as soon as the direction was given. That could not be right. It was unjust and unreasonable. Question (ii) in the section 69 appeal would be answered in the negative. The section 69 appeal would be allowed.

Jude Bunting (instructed by Irvine Thanvi Natas) for the appellants in the s 68 appeal; James Mehigan (instructed by Irvine Thanvi Natas) for the appellants in the section 69 appeal.