Does Aggravated Trespass Require Proof of Mens Rea in Relation to the Trespass?

Published date01 April 2023
DOIhttp://doi.org/10.1177/00220183231167919
Date01 April 2023
Does Aggravated Trespass Require
Proof of Mens Rea in Relation
to the Trespass?
DPP v Bailey and Others [2022] EWHC
3302 (Admin)
Keywords
Protest, aggravated trespass, trespass element, mens rea, statutory intention
The six respondents had been involved in a protest organised by Animal Rebellion (a group aff‌iliated
to Extinction Rebellion) at the site of a dairy in Aylesbury which is the largest in the UK. They had
arrived shortly before 5.30 am on the day in question and had locked themselves onto two bamboo
structures and a van, thereby blocking entry into the dairy. The protest lasted for nearly 17 hrs and
caused considerable disruption to deliveries and departures from the site. Each respondent was
charged with the alternative offences of obstructing the highway contrary to s.137 of the Highways
Act 1980, and aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act
1994. Since the charges of obstructing the highway were later withdrawn, their subsequent trial
related to the s.68(1) offence alone. It provides that an aggravated trespass is committed where a
person trespassesonlandand,inrelationtoanylawful activity which persons are engaging in or
are about to engage in on that or adjoining land, does anything which is intended to have the effect
of intimidating the persons so as to deter any of them from engaging in the activity, or obstructing
or disrupting the activity.
At their trial, much of the evidence was not in dispute. This included the fact that the dairy was situated
in a business park on a private road rather than a public highway, and that at no time prior to their arrest
had any of the respondents been aware of this fact. The trial judge proceeded to f‌ind that the offence of
aggravated trespass requires proof of knowledge or recklessness in relation to the trespass, and accord-
ingly acquitted the respondents. The DPP appealed by way of case stated against his decision. The fol-
lowing question was set out for the opinion of the High Court:
Was I correct to conclude that in relation to an offence contrary to section 68 of the Criminal Justice and
Public Order Act 1994, the Crown must prove that a defendant either knew or was reckless as to whether
he or she is a trespasser?
Held, allowing the appeal, that the trial judge had erred in the approach taken. Whilst the elements of
the s.68 offence had been identif‌ied and considered in a number of cases, it had never been suggested that
the prosecution was required to prove an intention to trespass on the part of a defendant in order to secure
a conviction. On the contrary, an analysis of the offence was consistent with the plain meaning of the
statutory words, i.e., that what would otherwise be the civil wrong of trespass had been criminalised
where it was accompanied by blameworthy conduct on the part of a defendant which was particularly
Case Note
The Journal of Criminal Law
2023, Vol. 87(2) 151155
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231167919
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