R v Bailey an Ors
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp, P |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3302 (Admin) |
| Docket Number | Case No: CO/1923/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3302 (Admin)
PRESIDENT OF THE KING'S BENCH DIVISION
and
Mr Justice Cavanagh
Case No: CO/1923/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Boyd (instructed by the Director of Public Prosecutions) for the Appellant
Owen Greenhall (instructed by Hodge, Jones & Allen) for the Respondents
Hearing date: 6 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Director of Public Prosecutions (the DPP) appeals by way of case stated against the decision of District Judge Sharma sitting at High Wycombe Magistrates' Court on 4 April 2022, to acquit the respondents of aggravated trespass, contrary to section 68 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) on the basis that the prosecution had not proved that the respondents had knowingly or recklessly trespassed on land belonging to Arla Foods Ltd.
The judge set out the following question 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?”
Our answer to that question is “no”.
The background facts
The prosecution in this case arose out of the respondents' involvement in a protest at the site of a dairy owned by Arla Foods Ltd in Samian Way, Aylesbury. The protest was organised by Animal Rebellion. This is a protest group which is affiliated with Extinction Rebellion. The dairy is located on Aesop Business Park. The Aylesbury site of Arla Foods Ltd is the largest dairy in the United Kingdom. Raw milk is received from suppliers which is then pasteurised and cleaned before it is bottled for distribution and then transported from the site for supply to customers.
Shortly before 5.30 a.m. on 31 August 2021, sixteen protesters, including the six respondents, attended at the site and locked themselves onto two bamboo structures and a van thereby blocking entry into the dairy. The final protester was removed at 10.10 p.m. The protest lasted for nearly 17 hours and caused considerable disruption to deliveries and to vehicles leaving the site.
On 1 September 2021, the respondents were each charged with one offence of aggravated trespass, contrary to section 68 of the 1994 Act, and one offence of obstruction of a highway, contrary to section 137 of the Highways Act 1980. The wording of the charge under section 68 of the 1994 Act for each respondent was that:
“On 31/08/2021 at AYLESBURY in the county of Buckinghamshire, having trespassed on land belonging to ARLA FOODS LTD, and in relation to a lawful activity, namely the production and distribution of dairy products by, from and to ARLA FOODS LTD, which persons were engaged in on that land, did an act, namely attaching yourself to a stationary object, thereby blocking the road and entrance to ARLA FOODS, which you intended to have the effect of obstructing or disrupting that activity.”
The charges of aggravated trespass and obstruction of the highway were alternative charges. On 1 and 8 October 2021 the charges of obstructing the highway were withdrawn at the first hearings at High Wycombe Magistrates' Court.
The trial of the respondents before the judge took place on the 31 March, 1 April, and 4 April 2022. Much of the evidence was not in dispute. The judge found the following facts:
i) The location of the bamboo structures and the van to which the respondents had locked themselves was in an area of the business park that belongs to Arla Foods Ltd. It is a private road and is not a highway.
ii) None of the respondents had known that the above location was on private land. Nor had any of them been reckless as to that fact. The structure and van had been placed before the gate that appeared to delineate the boundary of the private area. That gate had been open when the respondents arrived and a deliberate decision had been made to place the van and structure before, and not beyond, that gate.
iii) At no time before their arrest had any of the respondents become aware that they were on private land.
The judge went on to find that the offence of aggravated trespass requires knowledge or recklessness in respect of the trespass, and having regard to the facts found, therefore acquitted the respondents. The case stated says this:
“On behalf of the applicant it was contended that it is no defence to the tort of trespass that the trespass is due to a mistake of law or fact and consequently there is no requirement of either knowledge or recklessness as to trespass. The decision in R v Collins [1972] 56 Cr.App.R 554 can be distinguished for the reasons that follow below.
a. The offence of aggravated trespass is designed to build upon the civil tort of trespass. Paragraph 13 of Richardson v DPP [2014] UKSC 8; [2014] 2 W.L.R. 288 sets this out where it is stated that:
“The intention of the section is plainly to add the sanction of the criminal law to a trespass where, in addition to the defendant invading the property of someone else where he is not entitled to be, he disrupts an activity which the occupant is entitled to pursue.”
b. There is already an actus reus and mens rea requirement within the offence. There is no need to read in an additional mens rea requirement. It there was, then mistake in law as to the element of trespass could operate as a defence and that cannot be right.
On behalf of the respondent it was contended that Collins is equally as applicable to the offence of aggravated trespass as it is to burglary.
I was of the opinion that Collins applied to the offence of aggravated trespass. The offence of burglary also required (at that time in relation to an intention to rape) an additional mens rea requirement. That is not a reason therefore to distinguish Collins. Furthermore, a mistake in a civil law concept such as the ownership of property can operate as a defence where that equates to a lack of mens rea (see Blackstone's Criminal Practice 2022 at A3.9 with particular reference to Smith (David Raymond) [1974] QB 354). Trespass is similarly a civil law concept and there seems to be nothing to differentiate it in this respect.
I did not find any assistance from the excerpt from Richardson that is relied upon. It appears to me to simply set out the intention behind the legislation to criminalise trespass in the specified circumstances and not to indicate in any way as to whether knowledge (or recklessness) as to the trespass itself is required.
Accordingly, the offence of aggravated trespass requires knowledge or recklessness as to the trespass. I therefore acquitted the respondents.”
The legislative framework
Sections 68 and 69 of the 1994 Act are contained in Part V of the 1994 Act, which is headed “Public Order: Unauthorised Encampments and Collective Trespass or Nuisance on Land”. This Part of the Act created a number of new offences and police powers, including those in sections 68 and 69, aimed at trespassers who are misbehaving on private land.
One example is section 61 of the 1994 Act. This gives a senior police officer on the scene the power to direct trespassers to leave land if the officer reasonably believes that reasonable steps have been taken by the occupier to ask them to leave, and that the trespassers have caused damage, disruption or distress, or have more than six vehicles on the land. If a person, knowing that such a direction has been given to him, fails to leave the land as soon as reasonably practicable, or re-enters the land, he commits an offence. Another example, is section 62A and B of the 1994 Act (inserted in 2003) which provides that if more than one trespasser is on land with a caravan or caravans, with the purpose of residing there for any period, and it appears to the senior police officer on the scene that there is a suitable alternative pitch on a relevant caravan site for the caravan or caravans, the officer can direct the trespassers to leave.
As originally enacted, section 68(1) applied only to trespass “in the open air” and to the disruption of lawful activities “in the open air”. These words were deleted by the Anti-Social Behaviour Act 2003, section 59(2). Further “trespass” offences were added by the Anti-Social Behaviour Act 2003 and the Police, Crime, Sentencing and Courts Act 2022.
The statutory definition of aggravated trespass is to be found in that part of the 1994 Act headed “Disruptive trespasses.” Section 68 defines the offence of aggravated trespass. Section 69 confers powers on the police to direct persons committing or participating in aggravated trespass to leave the land, and creates a separate offence of failing to comply with such a direction; and another offence if such persons, having left, again enter the land as a trespasser within the period of three months.
Section 68 as amended provides in part as follows:
“68. Offence of aggravated trespass.
(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) The reference in...
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