DPP v Bayer and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,LORD JUSTICE BROOKE |
| Judgment Date | 04 November 2003 |
| Neutral Citation | [2003] EWHC 2567 (Admin) |
| Docket Number | Case No: CO/2665/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 November 2003 |
[2003] EWHC 2567 (Admin)
Lord Justice Brooke and
Mr Justice Silber
Case No: CO/2665/2003
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Francis Chamberlain (instructed by the Crown Prosecution Service) for the Appellant
Nerida Harford-Bell & Anya Lewis (instructed by Bindman and Partners) for the 1 st, 2 nd and 4 th Respondents
The 3 rd Respondent appeared in person.
This is a judgment of the court.
This is an appeal by way of case stated by the Director of Public Prosecutions from the decision of District Judge House sitting in the Sherborne Magistrates' Court on 7 th March 2003 whereby he adjudged the respondents Olaf Bayer, William Hart, Elizabeth Snook and Richard Whistance to be not guilty of the offence of aggravated trespass. The charge against each of them was in these terms:
"that you, together with …, having trespassed on land in the open air, namely Horselynch Plantation, Weymouth, and in relation to a lawful activity, namely the planting of maize seeds which persons were engaged in on that land, did an act, namely attached yourself to a tractor engaged in lawful activity on that land by means of a strap and metal carabineer clip which you intended to have the effect of disrupting that activity."
Contrary to section 68(1) and (3) of the Criminal Justice and Public Order Act 1994.
Section 68(1) of that Act provides that:
"(1) A person commits the offence of aggravated trespass if he trespasses on land in the open air, and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect –
…
(c) of disrupting that activity."
Section 68(3) provides that this offence is triable summarily and prescribes the penalties on conviction.
The findings of fact made by the district judge were on the following lines. On 16 th May 2002 the respondents went onto Horselynch Plantation. This is private land farmed by Michael Ronald Jones. It is a six hectare site. 2.5 hectares were being drilled with genetically modified ("GM") maize and the remainder with non-GM maize. The GM maize was being grown as part of trials being conducted on behalf of the Government. A company called Aventis provided the seed and herbicide. The release of any GM crops was controlled under EU directive 90/220, which is being implemented in this country by the Department for the Environment, Food and Rural Affairs.
Consents for the release of GM crops are only given after it is established that such a release would not have any detrimental effect on human health or the environment. Under the directive the forage maize crop grown at this site was granted a Part C marketing consent in 1998. It can therefore be grown legally anywhere in the United Kingdom and Europe.
The site bordered a wetland/bird reserve.
The planting of GM modified crops had attracted adverse publicity in the Weymouth area.
The respondents entered Mr Jones's field. Although people did walk in the fields there were no public footpaths on it. The respondents had no permission from anyone entitled to give it to enter the field. While in the field the respondents attached themselves by various means to tractors engaged in the drilling process.
At the time the trespass took place, Mr Charles Foot (the farm contractor) and other members of his staff were present at the field with tractors. They were attempting to drill the fields. Mr Thomas Foot, who was in charge of the farm staff that day, was an experienced and properly trained farmer. He had been to agricultural college, and followed all the basic guidelines of good farm management.
Each of the respondents was arrested in or near the field, taken to a police station and interviewed. They were then charged with aggravated trespass.
The respondents, whilst entitled to be on the land, became trespassers within the meaning of section 68 of the 1994 Act by carrying out the acts outlined in the charge. They felt, however, that they had no other recourse to prevent the drilling in that the contractors were undertaking a lawful activity, and they could not afford to obtain an injunction. They were of the view that their non-violent and peaceful protest was justified to prevent damage to the environment. Their actions were not effective, and the crops were sown by other tractors.
It was common ground that the respondents were trespassers within the meaning of the 1994 Act. The prosecutor contended that by interrupting the planting of the maize, the respondents were guilty of aggravated trespass.
The respondents' defence ran along the following lines:
(i) The planting of GM crops was not a criminal activity, but such crops could cause damage to surrounding property by pollen distribution, animal transfer and soil transfer;
(ii) The word "property" includes nature, crops and domestic animals, all of which were in close proximity to the site;
(iii) A proper regulatory system was not in place and the respondents were obliged to take action;
(iv) The respondents' knowledge and beliefs were honestly held;
(v) The test to be applied was: "Were the respondents' actions reasonable in all the circumstances?
(vi) They therefore had a defence under common law for the defence of property.
The district judge said that he was of the opinion that the respondents were aggravated trespassers within the meaning of the 1994 Act. He held, however, that:
(i) They had honestly held and genuine beliefs about the dangers of GM crops;
(ii) They had genuine fears for surrounding property;
(iii) They had reasonable grounds for those beliefs and fears given their scientific knowledge concerning GM crops tests and given also their knowledge of the locality;
(iv) Taking into account those beliefs and fears, they acted with all good intentions and had gone no further than was absolutely necessary to try to prevent the saving of the crops;
(v) Their actions were therefore reasonable in all the circumstances and came within the defence at common law of defence of property.
For these reasons he dismissed the charges.
He posed the following question for the opinion of this court:
"Whether the finding by me that the actions of all four respondents in locking or attaching themselves to the tractors was reasonable in the defence of property was a finding properly open to me, judging the issue of reasonableness objectively."
This case again highlights the difficulties which face the lower courts and those who appear in those courts because we do not have a readily intelligible criminal code in this country. On the face of it, all the ingredients of the offence of aggravated trespass were present. The case stated shows that the prosecutor had proved:
(i) That the respondents trespassed on Mr Jones's land in the open air;
(ii) That Mr Charles Foot and other members of his staff were engaging in a lawful activity on Mr Jones's land in the open air with their tractors;
(ii) That by attaching themselves to the tractors the respondents were doing acts which were intended by them to have the effect of disrupting that activity.
A person will not however commit a crime if he or she was or may have been lawfully justified in acting in the way complained of. Many statutes contain words like "unlawfully" or "without lawful excuse" in order to give a warning about the application of this principle. The principle, however, will be applied even if these words are omitted, because the defendant will lack the necessary mens rea (except in relation to offences of strict liability).
This was made clear by Lawton LJ in Renouf [1986] 2 All ER 449, in which the Court of Appeal ruled that the statutory defence set out in section 3(1) of the Criminal Law Act 1967 ("a person may use such force as is reasonable in the circumstances … in effecting or assisting in...
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