Richardson v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE OWEN |
| Judgment Date | 29 March 2012 |
| Neutral Citation | [2012] EWHC 1238 (Admin) |
| Docket Number | CO/7082/2011; 7085/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 March 2012 |
[2012] EWHC 1238 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Owen
CO/7082/2011; 7085/2011
MR BUNTING appeared on behalf of the Claimant RICHARDSON
MR MELLIGAN appeared on behalf of the Claimant NERO
MISS A MORGAN appeared on behalf of the Defendant
These are two appeals by way of Case Stated which are closely linked and have accordingly been listed together. For reasons which will become apparent, I will refer to the first appeal, in which the appellants are Matthew Richardson and Gwen Wilkinson, as the section 68 appeal and the second appeal, in which the appellants are Jessica Nero and Christopher Osmand, as the section 69 appeal. Both concern decisions made by District Judge Baker at Highbury Corner Magistrates' Court to convict the respective appellants of offences under the Criminal Justice and Public Order Act 1994 arising out of events which happened at the Ahava Shop in Covent Garden. Paragraphs 1 to 4 of the Stated Case in each appeal are identical and set out the background facts as follows:
"1. Ahava is a shop in Covent Garden were products extracted, processed and imported from the Dead Sea are sold. Health and beauty treatments are also carried out on the premises using such and other products. Not all the products sold or used on the premises originate in in the Dead Sea, but the vast majority do.
2. Ahava is owned by a UK registered limited company Ahava (UK) Limited, a subsidiary of Ahava Dead Sea Laboratories Limited, an Israeli company. There is evidence that the UK company is supported financially by its parent company, whose factory is situated in Mitzpe-Shalem, an Israeli settlement in the West Bank in the occupied Palestinian Territory (OPT).
3. The UK government subscribes to the international view that Israeli settlements in the OPT do not form part of the territory of Israel. This is also the view of the United Nations, the International Court of Justice, the European Union and other international organisations and bodies.
4. Ahava's products are labelled for consumers in the UK as 'made by Dead Sea Laboratories Limited, Dead Sea, Israel.'"
Mr Richardson and Miss Wilkinson were convicted of an offence of aggravated trespass under section 68 of the 1994 Act on 21 November 2011. Section 68 provides, as far as relevant:
"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.
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."
I turn to the undisputed primary facts of the section 68 appeal as recounted in the stated case:
"5. Mr Richardson and Miss Wilkinson enter the Ahava Shop on 2 October 2010 with a heavy item that they or others had made, essentially a concrete tube. They were helped by colleagues. They placed it on the floor and then positioned themselves with one arm each through the tube. They connected their arms through the tube with a padlocked chain. They later said they had no key to the padlock. They had no intention of buying anything in the shop or using its services, on the contrary they intended to prevent the shop trading in the way it otherwise would have done.
6. Mr Richardson and Miss Wilkinson considered that in doing so they were preventing the committing of a crime or crimes…
7. On 2 October 2010 the Ahava Shop was staffed by a Miss Monica Kania, an employee. She had worked there for 4 years. She had experience of earlier demonstrations and had an idea what to expect. As a result of what Mr Richardson and Miss Wilkinson began doing she approached them and tried to stop them and to expel them from the stop. Mr Richardson and Miss Wilkinson failed to leave after it was made clear to them by her words and actions that they should do so.
8. Miss Kania called the police and after some time closed the shop. She considered that it was not possible to continue trading in the circumstances that Mr Richardson and Miss Wilkinson had created.
9. There is no suggestion that Ahava or its employees were occupying the shop premises as trespassers.
10. Police officers, including Inspector Clive French, PS Stephen Jaques and others attended the Ahava store. They described Mr Richardson and Miss Wilkinson as "very polite", "very helpful" and "a pleasure to work with". Officers used a hammer and a screwdriver to break through the concrete and Mr Richardson and Miss Wilkinson assisted the officers in this task. When they had been released from the concrete tube Mr Richardson and Miss Wilkinson were arrested and charged with an offence under section 68 of the Criminal Justice and Public Order Act 1994."
Miss Nero and Mr Osmand were tried together with Mr Richardson and Miss Wilkinson, and on 21 April 2011 were convicted under section 69 of the 1994 Act of an offence of failing to leave the premises knowing that a direction to do so had been given by the senior officer present. Section 69 provides, as far as material:
"1. If the senior police officer present at the scene reasonably believes -
(a) that a person is committing, has committed or intends to commit the offence of aggravated trespass on land… or -
(b) that two or more persons are trespassing on land… and are present there with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity he may direct that person or, as the case may be, those persons or any of them to leave the land.
3. If a person knowing that a direction under (1) above has been given which applies to him -
(a) fails to leave the land as soon as practicable… he commits an offence.
4. In proceedings for an offence under (3) it is a defence for the accused to show -
(a) that he was not trespassing on the land or -
(b) that he had a reasonable excuse for failing to leave the land as soon as practicable or, as the case may be, for again entering the land as a trespasser.
6. In it section "lawful activity" and "land" have the same meaning as in section 68."
The facts of the section 69 appeal, as set out in the Stated Case, are these:
"5. Mr Osmand and Miss Nero entered the shop on 22 November 2010 with a heavy item that they or others had made, essentially a concrete tube. They were helped by colleagues. They placed it on the floor and then positioned themselves with one arm each through the tube. They connected their arms through the tube with a padlocked chain. They later said they had no key to the padlock. They had no intention of buying anything in the shop or using its services. On the contrary, they intended to prevent the shop trading in the way that it otherwise would have done.
6. Mr Osmand and Miss Nero considered that in doing so they were preventing the committing of a crime or crimes…
7. Mr Osmand and Miss Nero, along with their colleagues Mr Richardson and Miss Wilkinson, had conducted extensive research on the activities of Ahava. This has led them to conclude that the company and its employees at the shop had been acting unlawfully. This evidence… was compiled into lengthy documents which were handed out to police officers and members of the public at the scene.
8. When the police were called, PS Hayman, who had never dealt with aggravated trespass before, took advice from his Inspector about the procedure to be followed. He printed out and later read the necessary warnings to the defendants for the purposes of section 69. He satisfied himself that the premises were lawfully occupied and that the shop was meeting its obligations in that regard. He did not engage with the detailed allegations of unlawfulness made by Mr Osmand and Miss Nero.
9, a police team removed Mr Osmand and Miss Nero from the concrete block. This took several hours. Both defendants were compliant throughout this procedure. Once they were removed from the concrete block they left without incident, albeit under arrest."
On the section 68 appeal District Judge Baker concluded that in the circumstances the employee at the shop, Miss Kania, was the person "engaged in lawful activity", and section 68 was not directed at the company, Ahava (UK) Limited. The District Judge was satisfied that Miss Kania for her part was not committing any offence. The appellants had maintained, and maintain in this court, that the company was guilty of aiding and abetting war crimes contrary to section 52 of the International Criminal Court Act 2001; of misleading labelling contrary to the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer (Safety) Regulations 2008; of cheating the revenue contrary to common law and of the possession and use of criminal property contrary to section 329 of the Proceeds of Crime Act 2002.
District Judge Baker considered that if his primary view was wrong and section 68 was potentially directed at the company, as opposed to the individual only, he was not trying the company and had heard no argument on their...
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