Director of Public Prosecutions v Elliott Cuciurean
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] EWHC 736 (Admin) |
| Docket Number | Case No: CO/745/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 736 (Admin)
The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Holgate
Case No: CO/745/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Little QC and James Boyd (instructed by Crown Prosecution Service) for the Appellant
Tim Moloney QC, Blinne Ní Ghrálaigh and Adam Wagner (instructed by Robert Lizar Solicitors) for the Respondent
Hearing date: 23 March 2022
Approved Judgment
Introduction
This is the judgment of the court to which we have both contributed. The central issue for determination in this appeal is whether the decision of the Supreme Court in DPP v. Ziegler [2021] UKSC 23; [2021] 3 WLR 179 requires a criminal court to determine in all cases which arise out of “non-violent” protest whether the conviction is proportionate for the purposes of articles 10 and 11 of the European Convention on Human Rights (“the Convention”) which protect freedom of expression and freedom of peaceful assembly respectively.
The respondent was acquitted of a single charge of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) consequent upon his digging and then remaining in a tunnel in land belonging to the Secretary of State for Transport which was being used in connection with the construction of the HS2 railway. The Deputy District Judge, sitting at the City of London Magistrates' Court, accepted a submission advanced on behalf of the respondent that, before she could convict, the prosecution had “to satisfy the court so that it is sure that a conviction is a proportionate interference with the rights of Mr Cuciurean under articles 10 and 11 …” In short, the judge accepted that there was a new ingredient of the offence to that effect.
Two questions are asked of the High Court in the case stated:
“1. Was is it open to me, having decided that the Respondent's Article 10 and 11 rights were engaged, to acquit the Respondent on the basis that, on the facts found, the Claimant had not made me sure that a conviction for the offence under s. 68 was a reasonable restriction and a necessary and proportionate interference with the defendant's Article 10 and 11 rights applying the principles in DPP v Ziegler?
2. In reaching the decision in (1) above, was I entitled to take into account the very considerable costs of the whole HS2 scheme and the length of time that is likely to take to complete (20 years) when considering whether a conviction was necessary and proportionate?”
The prosecution appeal against the acquittal on three grounds:
1) the prosecution did not engage articles 10 and 11 rights;
2) if the respondent's prosecution did engage those rights, a conviction for the offence of aggravated trespass is — intrinsically and without the need for a separate consideration of proportionality in individual cases — a justified and proportionate interference with those rights. The decision in Ziegler did not compel the judge to take a contrary view and undertake a Ziegler-type fact-sensitive assessment of proportionality; and
3) in any event, if a fact-sensitive assessment of proportionality was required, the judge reached a decision on that assessment that was irrational, in the Wednesbury sense of the term.
Before the judge, the prosecution accepted that the respondent's article 10 and 11 rights were engaged and that there was a proportionality exercise of some sort for the court to perform, albeit not as the respondent suggested. In inviting the judge to state a case, the prosecution expressly disavowed an intention to challenge the conclusion that the Convention rights were engaged. It follows that neither Ground 1 nor Ground 2 was advanced before the judge.
The respondent contends that it should not be open to the prosecution to raise Grounds 1 or 2 on appeal. He submits that there is no sign in the application for a case to be stated that Ground 1 is being pursued; and that although Ground 2 was raised, because it was not argued at first instance, the prosecution should not be allowed to take it now.
Rule 35.2(2)(c) of the Criminal Procedure Rules relating to an application to state a case requires:
“35.2(2) The application must—
…
(c) indicate the proposed grounds of appeal”
The prosecution did not include what is now Ground 1 of the Grounds of Appeal in its application to the Magistrates' Court for a case to be stated. We do not think it appropriate to determine this part of the appeal, for that reason and also because it does not give rise to a clear-cut point of law. The prosecution seeks to argue that trespass involving damage to land does not engage articles 10 and 11. That issue is potentially fact-sensitive and, had it been in issue before the judge, might well have resulted in the case proceeding in a different way and led to further factual findings.
Applying well-established principles set out in R v R [2016] 1 WLR 1872 at [53]–[54]; R v. E [2018] EWCA Crim 2426 at [17]–[27] and Food Standards Agency v. Bakers of Nailsea Limited [2020] EWHC 3632 (Admin) at [25]–[31], we are prepared to deal with Ground 2. It involves a pure point of law arising from the decision of the Supreme Court in Ziegler which, according to the respondent, would require a proportionality test to be made an ingredient of any offence which impinges on the exercise of rights under articles 10 and 11 of the Convention, including, for example, theft. There are many public protest cases awaiting determination in both the Magistrates' and Crown Courts which are affected by this issue. It is desirable that the questions which arise from Ziegler are determined as soon as possible.
Section 68 of the Criminal Justice and Public Order Act 1994
Section 68 of the 1994 Act as amended reads:
“(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.
(1A) …
(2) Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.
(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.
(4) [repealed].
(5) In this section “land” does not include—
(a) the highways and roads excluded from the application of section 61 by paragraph (b) of the definition of “land” in subsection (9) of that section; or
(b) a road within the meaning of the Roads (Northern Ireland) Order 1993.”
Parliament has revisited section 68 since it was first enacted. Originally the offence only applied to trespass on land in the open air. But the words “in the open air” were repealed by the Anti-Social Behaviour Act 2003 to widen section 68 to cover trespass in buildings.
The offence has four ingredients, all of which the prosecution must prove (see Richardson v Director of Public Prosecutions [2014] AC 635 at [4]):-
“(i) the defendant must be a trespasser on the land;
(ii) there must be a person or persons lawfully on the land (that is to say not themselves trespassing), who are either engaged in or about to engage in some lawful activity;
(iii) the defendant must do an act on the land;
(iv) which is intended by him to intimidate all or some of the persons on the land out of that activity, or to obstruct or disrupt it.”
Accordingly, section 68 is not concerned simply with the protection of a landowner's right to possession of his land. Instead, it only applies where, in addition, a trespasser does an act on the land to deter by intimidation, or to obstruct or disrupt, the carrying on of a lawful activity by one or more persons on the land.
Factual Background
The respondent was charged under section 68 of the 1994 Act that between 16 and 18 March 2021, he trespassed on land referred to as Access Way 201, off Shaw Lane, Hanch, Lichfield, Staffordshire (“the Land”) and dug and occupied a tunnel there which was intended by him to have the effect of obstructing or disrupting a lawful activity, namely construction works for the HS2 project.
The Land forms part of phase one of HS2, a project which was authorised by the High Speed Rail (London to West Midlands) Act 2017 (“the 2017 Act”). This legislation gave the Secretary of State for Transport power to acquire land compulsorily for the purposes of the project, which the Secretary of State used to purchase the Land on 2 March 2021.
The Land was an area of farmland. It is adjacent to, and fenced off from, the West Coast line. The Land was bounded in part by hedgerow and so it was necessary to install further fencing to secure the site. The Secretary of State had previously acquired a site immediately adjacent to the Land. HS2 contractors were already on that site and ready to use the Land for storage purposes once it had been cleared.
Protesters against the HS2 project had occupied the Land and the respondent had dug a tunnel there before 2 March 2021. The respondent occupied the tunnel from that date. He slept in it between 15 and 18 March 2021, intending to resist eviction and to disrupt activities of the HS2 project.
The HS2 project team applied for a High Court warrant to obtain...
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