England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SIMON BROWN: This is an appeal by way of case stated against the adjudication of the Stipendary Magistrate of the county of Northampton sitting at Corby and Kettering on 21st January 1998 whereby he convicted each of the ten appellants, together with one other accused of an offence of aggravated trespass contrary to section 68(1) of the Criminal Justice and Public Order Act 1994.

2. Put at its shortest, the applicants were hunt saboteurs convicted of disrupting the Woodland Pytchley hunt on 5th April 1997. Their appeal raises essentially two points. First, they contend that the information which each of them faced was defective. Second, that the hunt was itself trespassing on railway land and indeed, for good measure, committing thereby an offence under the British Transport Commission Act 1949 and so was not, at the material time, engaged in a lawful activity.

3. The case stated sets out the facts found by the magistrate in very considerable detail. However, rather than repeat the findings in full, I prefer to summarise them as follows. On the morning in question, the hunt consisted of the hunt servants, i.e. the huntsman and two whippers-in, some 40 or 50 mounted members under the master, some 36 hounds and a large number of foot followers. As it set off from its meeting point, it was accompanied by a group of hunt protesters (including these appellants), and by a number of police officers. The hunt's route was initially along a public road and thence onto a public bridleway leading beneath the railway line to fields beyond which it was intended to hunt. Although, however, the Master took the horse riders under the railway, the hunt servants took the hounds on to the railway line and the adjacent embankment and began to draw that land. The huntsman wrongly believed that he had permission to go on that land as he had done on a number of previous occasions. The hunt protesters followed the hunt servants and hounds on to the railway land and there it was that the protest activities began, the sounding of horns, shouting and hollering. Its effect was to separate the hounds from the huntsmen and to cause them to leave the line together with the protesters themselves. Paragraph 2(f) of the case stated I will read in full:

4. The hunt had the permission of all the surrounding land owners to hunt their hand but had no permission to be upon the railway track itself. The protesters, for their part, were trespassers throughout: they had no permission either from the railway authority or from any of the surrounding land owners. Those are the central facts. I shall return shortly to the Magistrate's conclusions upon them. First, however, let me set out the material parts of section 68:

5. Next I must indicate the terms in which the information was laid here against each of these appellants:

6. As stated, the first point taken on this appeal is that the information was defective. Two arguments are advanced as reflected in the two limbs of the first question posed for the opinion of this court:

7. As to the first part of that question, let me at once make clear that the case was never put as one of intimidation and certainly the magistrate found expressly that:

8. The Magistrate himself concluded upon that point:

9. I agree. Clearly the information was ineptly drawn and no doubt it would have been sensible to amend it at the conclusion of the prosecution case to reflect what at any rate by that stage was clear, namely that the case was being put against the defendants solely on limbs (b) and (c), those of obstructing or disrupting the hunt. That said, however, there can be no doubt that the wording was apt to encompass those limbs as well as the intimidation limb to which at first blush it might have been thought principally to relate. Anyone having read the section would recognise from the use of the words 'obstructing' and 'disrupting' that limbs (b) and (c) were also being charged. When, moreover, one comes to ask what I believe to be the key question in all these cases, namely has any injustice been done to the accused by the infelicitous wording of the charge?, the answer here, to my mind, is a clear and emphatic "no".

10. What then of the second limb of question one, the contention that the information raises allegations under more than one of the three limbs of section 68(1) and is thereby defective as duplicitous. In support of this submission, Miss Holloway draws our attention to section 7(2) of the Public Order Act 1986 which is in these terms:

11. I need not burden this judgment by a recitation of those further sections. There is, Miss Holloway points out, no provision equivalent to section 7(2) in relation to section 68(1) of the 1994 Act. Similarly, she says there are no words here equivalent to those which complete section 9(2) of the Criminal Attempts Act 1981, namely, "... if it is shown that a person accused of an offence under this section intended that one of those offences should be committed, it is immaterial that it cannot be shown which it was."

12. For my part, I am wholly unpersuaded by these examples. Merely because on occasion Parliament has chosen to put any question of duplicity beyond argument does not, in my judgment, mean that a section such as that which confronts us here, criminalising as it does

13. I turn to the second of the two questions posed for the opinion of this court:

14. I now set out certain of the Magistrate's conclusions reached in the light of the primary facts:

15. Having reached those conclusions, the Magistrate then expressed the following opinion upon the issues now comprised within this second question:

16. Accordingly, he found that:

17. In criticising that conclusion Miss Holloway makes the following essential submissions. First, those who trespassed, namely the huntsman, the two whippers-in and the hounds, were, if not the main body of the hunt, at least an integral and important part of it. Second, that they deliberately trespassed in the sense of intentionally going onto Railtrack's land to draw it, even although mistakenly they thought they had permission to do so; this was no mere accidental or momentary trespass. Third, that the protesters' activities began whilst this trespass was being committed.

18. All that I recognise to be true. To my mind, however, none of it on analysis invalidates the Magistrate's approach to the section 68(2) defence or his conclusion as a matter of fact and degree that, at any rate by the time the trespass had ended, the hunt's activity had become lawful so that, by thereafter maintaining their protest for an appreciable time over an appreciable distance, the appellants had committed the actus reus specified in the section with the intention of obstructing or disrupting that lawful activity.

19. Clearly, if the hunt's central objective had been, for example, to hunt land over which they had no permission to go or upon which hunting was banned, then the mere fact that they proposed also to engage in some lawful hunting in the vicinity would not make their activity, as a whole, lawful. That, however, was not this case. Equally, had the protesters confined their protest to the period whilst a significant part of the hunt was trespassing, then too no offence here could properly be found established. That, too, however, was not the case.

20. I would accordingly reject this ground of appeal also and in the result answer the two questions posed as follows. 1(i) "No", 1(ii) "No", (2) "Yes" (or at least the magistrate was entitled so to find). I would therefore dismiss this appeal.

21. LORD JUSTICE SIMON BROWN: Legal aid taxation of most of the appellants' costs, Miss Holloway, is it?

22. MISS HOLLOWAY: Yes, my Lord. There are two appellants who have not had the benefit of legal aid. I would urge that in effect they will all be treated the same.

23. LORD JUSTICE SIMON BROWN: Well, that sounds sensible to me.

24. Mr Ellis, do you suggest to the contrary?

25. MR ELLIS: My Lord, there is an application for costs in respect of those non-legally aided.

26. LORD JUSTICE SIMON BROWN: No. We refuse to make any order for costs except for legal aid taxation of those that are legally aided.