It was not open to the judge to find that a common law defence of private defence or protective force succeeded in relation to charges of aggravated trespass against persons protesting against the planting of genetically-modified crops. The defence was not available on the facts since the respondents were not reacting to an unlawful or criminal act.Appeal by way of case stated, from the decision of District Judge House on 7 March 2003, that the respondents were not guilty of aggravated trespass under s.68 Criminal Justice and Public Order Act 1994. The respondents were protesters, arrested after attaching themselves to tractors in a field where a genetically-modified ('GM') maize crop was being planted as part of trials conducted on behalf of the government. The judge was of the opinion that they were aggravated trespassers within the meaning of the Act. However, he held that the respondents had: (i) honestly held genuine beliefs about the dangers of GM crops; (ii) genuine fears for surrounding property, which included a wetland reserve; (iii) reasonable grounds for their beliefs; and (iv) acted with good intentions and had gone no further than absolutely necessary to try to prevent the saving of the crops. Accordingly the judge dismissed the charges because he held that the respondents' actions were reasonable in all the circumstances and came within the common law defence of property. The case stated was whether that finding was properly open to the judge.HELD: (1) A court in which a defence of lawful justification was put forward had first to determine as a matter of law whether the defence was available to the defendants on the facts, and then to determine whether the defence, if available, permitted them to succeed in rebutting the charge. (2) Assuming that when the respondents tied themselves to the tractors they were using force within the meaning of "protective force" and if the respondents thought that unlawful damage was being or was about to be inflicted on the property of another, then the defence should be available if they prevented the damage by tying themselves to the tractors rather than by attacking the tractor drivers. However, it was a requisite ingredient of the common law defence that what was being experienced or feared was an unlawful or criminal act. The judge did not address that ingredient at all. (3) It was clear that the respondents knew quite well that there was nothing unlawful about the planting of GM maize seed. They acted as they did because they strongly believed that the seed was a danger to neighbouring property and they knew that the law would not help them because what was going on was not unlawful or criminal. (4) The judge ought to have directed himself that the defence of private defence or protective force was not available to the respondents on the facts. He moved directly to considering their subjective beliefs without first considering the ingredients of the defence. The defence of defence of property was not available to the respondents. (5) The case had to be remitted to the judge with a direction to convict since all the ingredients of the offence were established and no defence of lawful excuse was available.Appeal allowed.

[2003] EWHC 2567 (Admin)