Richardson and another v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lady Hale,Lord Toulson,Lord Hodge,Lord Hughes |
| Judgment Date | 05 February 2014 |
| Neutral Citation | [2014] UKSC 8 |
| Date | 05 February 2014 |
| Court | Supreme Court |
[2014] UKSC 8
Lady Hale, Deputy President
Lord Kerr
Lord Hughes
Lord Toulson
Lord Hodge
THE SUPREME COURT
Hilary Term
On appeal from: [2012] EWHC 1228 Admin
Appellant
Hugh Southey QC
Jude Bunting
(Instructed by Irvine Thanvi Natas)
Respondent
Duncan Penny
William Hays
(Instructed by CPS Appeals Unit)
Heard on 12 November 2013
Lord Hughes, (with whom Lady Hale, Lord Kerr, Lord Toulson and Lord Hodge agree)
This appeal concerns the proper ambit of the offence of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"). That section provides, so far as material:
"(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…"
The present case concerns trespassers who wished to make a protest, as do some other reported cases upon this section. But the offence is not limited to such people. Those who trespass and obstruct the activity of others might include many in different situations, such as for example business rivals or those engaged in a personal dispute, as maybe between neighbours.
By definition, trespass is unlawful independently of the 1994 Act. It is a tort and committing it exposes the trespasser to a civil action for an injunction and/or damages. The trespasser has no right to be where he is. Section 68 is not concerned with the rights of the trespasser, whether protester or otherwise. References in the course of argument to the rights of free expression conferred by article 10 of the European Convention on Human Rights were misplaced. Of course a person minded to protest about something has such rights. But the ordinary civil law of trespass constitutes a limitation on the exercise of this right which is according to law and unchallengeably proportionate. Put shortly, article 10 does not confer a licence to trespass on other people's property in order to give voice to one's views. Like adjoining sections in Part V of the 1994 Act, section 68 is concerned with a limited class of trespass where the additional sanction of the criminal law has been held by Parliament to be justified. The issue in this case concerns its reach. It must be construed in accordance with normal rules relating to statutes creating criminal offences.
Under the section there are four elements to this offence:
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.
The present case concerns the second element and in particular the meaning of "any lawful activity". Given that by subsection (2) an activity is lawful if those on the land may engage in it without committing a criminal offence, what connection if any is required between any offence which may be committed and the activity which the defendant is said to have intentionally disrupted (etc)? Is any offence committed on the land, however remote from or incidental to the occupant's activity, or however technical, a bar to the conviction of the invading trespasser?
The defendants mounted a non-violent but determined protest in a London shop. They objected to the shop because its wares were connected with an Israeli-owned business in the West Bank. The shop specialised in selling beauty products derived from Dead Sea mineral material. Not all the products sold in the shop originated from the Dead Sea but the vast majority did. The defendants' objection was grounded in the facts that (i) those products were produced by an Israeli company, in an Israeli settlement adjacent to the Dead Sea in the West Bank, that is to say in the Occupied Palestinian Territory ("OPT") and (ii) the factory was said to be staffed by Israeli people who had been encouraged by the Government of Israel to settle there.
The defendants arrived at the shop on a trading day, equipped with a heavy concrete tube. With the help of colleagues they connected their arms through the tube anchored by a chain secured by a padlock to which they said they had no key. The district judge found that they had no intention of buying anything; rather, their intention was to disrupt the shop's trading. When asked to leave they failed to do so. They succeeded in their aim because the manager concluded that trading was impossible and closed the shop. She called the police. The police found the defendants polite and co-operative except in refusing to free themselves. It was necessary for tools to be used to break through the concrete. When the defendants had thus been released, they were arrested and in due course charged with the offence contrary to section 68. The Crown case was that the lawful activity which they had intentionally disrupted was retail selling.
The defendants had no defence to elements (i), (iii) and (iv) of the offence. They contested the charge on the basis that the activity being carried on in the shop was not lawful. They asserted that it involved the commission of criminal offences for one or more of four reasons.
i) The company running the shop was guilty of aiding and abetting the transfer by the Israeli authorities of Israeli citizens to a territory (the OPT) under belligerent occupation; the transfer was said to be contrary to article 49 of the Fourth Geneva Convention of August 1949, and aiding and abetting it to be an act ancillary to a war crime, made a criminal offence in England and Wales by sections 51 and 52 of the International Criminal Court Act 2001.
ii) The products sold in the shop were criminal property, as the product of this offence of aiding and abetting a war crime; accordingly the company running the shop, which at least suspected this, was guilty of the offence of using or possessing criminal property, contrary to section 329 of the Proceeds of Crime Act 2002.
iii) The products had been imported into the UK as if covered by an EC-Israeli Association Agreement, which conferred certain tax or excise advantages. But the European Court of Justice has ruled that products originating in the OPT do not qualify for this treatment. Accordingly, it was said, the company running the shop was guilty of the offence of cheating the Revenue.
iv) The products sold in the shop were labelled " Made by Dead Sea Laboratories Ltd, Dead Sea, Israel." This was said to be false or misleading labelling because the OPT is not recognised internationally or in the UK as part of Israel. Accordingly the company running the shop was guilty of one or both of two labelling offences, contrary to the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) or the Cosmetic Products (Safety) Regulations 2008 (SI 2008/1284).
The district judge convicted the defendants in the magistrates' court. Their appeal by case stated was dismissed by the Divisional Court of Queen's Bench. One part of the district judge's reasoning was not upheld by the Divisional Court, for he had held that only the activity of a natural person fell within section 68, and that neither the shop manageress nor the sales assistants were even arguably guilty of any offence. The Divisional Court rightly held that section 68 plainly included a company within the expression "person… engaging in" (lawful activity). Its conclusions on that issue are not challenged and no more need be said about it. The live issue relates to the meaning of the expression "lawful activity" and in particular to when the commission of a criminal offence by the occupant whose activity is targeted by the trespasser has the effect of making unlawful the occupant's activity. The question certified by the Divisional Court was:
"Should the words 'lawful activity' in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are 'integral' to the activities at the premises in question?"
The meaning of the expression "lawful activity" in section 68(2) has received some previous attention from the courts. Three propositions were not in dispute in argument in the present case.
i) Section 68 is concerned only with a criminal offence against the law of England and Wales. The House of Lords so held in R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136. Thus a defendant trespassing at a military base was not entitled to assert that the ordinary activities of the base were unlawful because the UK Government was, or might be, committing an act of international aggression in preparing to despatch military hardware to Iraq.
ii) In a prosecution under section 68 the Crown is not required to disprove the commission of every criminal offence which could conceivably be committed by the occupant(s) of the land. A specific offence or offences must be identified by the defendant and properly raised on the evidence. The Divisional Court so held in Ayliffe v Director of Public Prosecutions [2005] EWHC 684 (Admin), [2006] QB 227, see particularly para 50. Thus a bare assertion by trespassers at...
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