Sunday, 24 March 2013

The Fortnum and Mason protest ~ Aggravated trespass

On 26th March 2011, around 130 UK Uncut supporters protested against tax avoidance on the part of large companies by occupying Fortnum and Mason's shop in London.  The actions of the protesters were criticised by some politicians.  Boris Johnson stated on BBC Question Time that the protesters had 'stormed' the building, 'terrified staff' and 'upset customers' and had caused 'tens of thousands of pounds' of damage.  A police Chief inspector persuaded the protesters to leave, via a specified route.  The protesters were arrested.  At subsequent trials, some were acquitted whilst others were convicted

Videos of Boris Johnson on BBC Question Time and the Chief Inspector talking to protesters may be viewed at UK Uncut

In Bauer and others v DPP  [2013] EWHC 634 (Admin) - Moses LJ and Kenneth Parker J - the court heard an 'appeal by way of case stated' from the decision of District Judge (Magistrates' Courts) Snow (Westminster Magistrates' Court) to convict ten individuals of aggravated trespass contrary to the Criminal Justice and Public Order Act 1994 section 68 .   This form of appeal is not a rehearing of the case but it is an opportunity for the High Court to consider the relevant law and its application in the Magistrates' Court.  The definition of the offence is:-

(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 - (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.

The offence is triable summarily and carries a maximum penalty of 3 months imprisonment or a Level 4 fine or both.

The words 'in the open air' were included in this section when it was first enacted but they were removed by the Anti-social Behaviour Act 2003 s.59   The explanatory notes to the 2003 Act state that section 59 amends sections 68 and 69 of the Criminal Justice and Public Order Act 1994 to extend provisions relating to the offence of aggravated trespass to cover trespass in buildings, as well as in the open air.   Land is defined in the Interpretation Act 1978 so as to include buildings and also see  DPP v Chivers [2010] EWHC 1814 (Admin).

Clearly, the offence may not be committed unless the individual is a trespasser.  Trespass is a civil law concept and is not, in itself, without difficulties.  Some other offences, notably burglary, are defined by reference to trespass.  When a shop is open to customers, individuals enter on a licence and the shop is entitled to either refuse entry or to withdraw the licence.  Essentially, access to the shop is permitted to individuals for the purpose of purchasing goods.  Those who go beyond the limits of the licence will be trespassers.  The aggravated trespass offence is aimed at individuals who intend to interfere, in one of the stated ways, with lawful activity on the land.  There are three stated ways in section 68(1)(a) - intimidation, (b) - obstruction and (c) - disruption.

The Bauer case is interesting for its discussion of what is required to prove the offence.  It is not sufficient merely to prove a trespass.  There has to be some distinct and overt act beyond that and the act must be accompanied by the intention to intimidate, obstruct or disrupt.   An individual's presence as part of a continuing occupation may amount to such a further act.  There is no requirement to prove that any damage occurred: Peppersharp v DPP [2012] EWHC 474 (Admin). 

The judgment also discusses the approach to interpreting words such as 'intimidate.'  They idea of looking up ordinary words in a dictionary and substituting some other word was deprecated.  On the facts of the case, the court found that there was ample evidence to infer that anyone who chose to remain in the store after it was closed, as part of the demonstration, had an intention to intimidate.  The intention of the appellants could be inferred from their participation in the continuing mass demonstration.

The court emphasised that all were convicted as PRINCIPAL offenders.  It was wrong to consider the case on the basis that some of those taking part were perpetrators or principals whilst others were guilty of secondary participation as accessories.  Of course, it is not an offence to be merely present when others commit an offence but, in this instance, those who remained were committing the conduct element of the offence. 

The judgment highlights the conduct of some of the protesters (para 6):

"The scene inside the store was chaotic. Protesters were shouting and screaming at a very high volume. There were chants of 'if you don't pay your taxes, shut you down', 'Whose shop, our shop', 'Occupy, occupy. Pay your taxes'. Megaphones were used. The old Piccadilly door was controlled by protesters. Some protesters were masked. Many carried placards and were handing out flyers, other protesters hung banners. Drums were beaten, horns sounded and bagpipes were played. Tents were erected. Volleyball was played across the displays. Some goods were stolen, some were damaged and others swept on to the floor. Tape was wrapped around the outside of the store and around displays, the tape had the words 'Closed by UK Uncut' printed across it. Some of the staff were subject to chants of 'pay your taxes' being directed at them and had their photographs taken."

Regarding the ten appellants, the court noted:

"Beyond presence, there is no evidence of the behaviour of any of these defendants inside the store except; Mr Coleman was seen to use a loudhailer in the Atrium. Mr Jones carried a furled up banner into the store. Mr Lichmann picked an umbrella up from the floor and opened it. He played with a beach ball. Mr Pope carried a placard into the store. Mr Ramsay used a loud hailer. Mr Storrar played the bagpipes."

Referring to Articles 10 and 11 of the European Convention on Human Rights, the court noted (at 38, 39):

  1. .... it will maintain and protect the rights enshrined in Articles 10 and 11, in the context of peaceful protests, to focus on the question whether those participating in a demonstration are themselves guilty of the conduct element of the crime of aggravated trespass. If the prosecution cannot prove that their presence as part of the demonstration itself constituted that criminal conduct then it should not fall back on the far more difficult proposition that whilst their presence was itself peaceful it encouraged others to commit the criminal offence of aggravated trespass...... .

  2. In the instant appeals the District Judge, towards the end of his judgment, asked whether the prosecution breached the defendants' Articles 10 and 11 rights. Once he had found that they were guilty of aggravated trespass there could be no question of a breach of those rights. He had, as he was entitled to, concluded that they were guilty of aggravated trespass. Since no one suggests that s.68 is itself contrary to either Article 10 or 11, there was no room for any further question or discussion. No one can or could suggest that the state was not entitled, for the purpose of preventing disorder or crime, from preventing aggravated trespass as defined in s.68(1).
This case makes the individual's criminal liability likely to depend on the overall conduct of the group since continuing presence as part of a demonstration is capable of being the conduct element of the offence and the required intention may also be inferred from presence.  Perhaps rather more should be required if a case is to be established on the basis of intimidation which, as the court itself said, is a forceful word indicating the notion of  putting someone in fear.

Note for practitioners - see the court's comments regarding FACTS in relation  to 'case stated appeals' and also regarding costs.

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