England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		23rd June 2010

1. THE PRESIDENT: In proceedings in the Northwest Surrey Magistrates' Court before District Judge Tempia on 29th and 30th September 2009 the respondents were variously alleged to have committed offences of aggravated trespass, under section 68 of the Criminal Justice and Public Order Act 1994, and offences under section 69 of the 1994 Act of failing to leave the relevant land having been directed to do so by a police officer.
2. The land in question was that of Bam Nuttall in Camberley. The nature of the alleged unlawful activity is exemplified by the allegation that Daniel Chivers locked himself to a stair railing using a D-lock round his neck, that Ian Fitzpatrick occupied a stairwell and that Carl Von Tonda glued himself to the front door of the building. The District Judge heard evidence from police officers broadly to this effect.
3. The original informations alleged that the section 68 offences had been committed in the open air. This was because the originally enacted version of section 68 of the 1994 Act contained this provision and text books and others had not caught up with the fact that the these words had been removed by amendment by the Anti-Social Behaviour Act 2003. The informations were duly amended to omit the words "in the open air". The facts were that the alleged aggravated trespasses took place within one or more buildings.
4. At the close of the prosecution case, with the encouragement of the District Judge, the defence submitted that there was no case to answer on the basis that "land" (in section 68) does not include buildings or at least that it was not clear that it did. Reference was made to the definition of land in section 61 of the 1994 Act, to which I shall refer. The District Judge upheld the submission and dismissed the informations.
5. The Case Stated, which is dated 11th December 2009 and is now before this court, asks whether she was right to do so. The question of law which the Case poses is expressed in these terms:

"What is the definition of 'land' in section 68 and 69 of the Criminal Justice and Public Order Act 1994 as amended by the Anti-social Behaviour Act 2003 and specifically does it now include buildings other than those mentioned in section 61 of the 1994 Act?"

6. The relevant parts of section 68 of the 1994 Act are as follows:

"(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

...

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both

...

(5) In this section 'land' does not include—

(a) the highways and roads excluded from the application of section 61 by paragraph (b) of the definition of 'land' in subsection (9) of that section; or

(b) a road within the meaning of the [S.I. 1993/3160 (N.I. 15).] Roads (Northern Ireland) Order 1993."

Section 69 provides, subsection (1):

"(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 in the open air 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 subsection (1) above has been given which applies to him—

(a) fails to leave the land as soon as practicable, or

(b) having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

...

...

(6) In this section 'lawful activity' and 'land' have the same meaning as in section 68."

Neither section 68 nor section 69 thus provides a definition of land beyond that in section 68(5) to which I have referred.

7. Section 61 provides power to remove trespassers from land. Section 61(9) provides as follows:

"(9) In this section—

...

'land' does not include—

(a) buildings other than—

(i) agricultural buildings within the meaning of, in England and Wales, paragraphs 3 to 8 of Schedule 5 to the [1988 c. 41.] Local Government Finance Act 1988 or, in Scotland, section 7(2) of the [1956 c. 60.] Valuation and Rating (Scotland) Act 1956, or

(ii) scheduled monuments within the meaning of the [1979 c. 46.] Ancient Monuments and Archaeological Areas Act 1979;

(b) land forming part of—

(i) a highway unless it falls within the classifications in section 54 of the [1981 c. 69.] Wildlife and Countryside Act 1981 (footpath, bridleway or byway open to all traffic or road used as a public path) or is a cycle track under the [1980 c. 66.] Highways Act 1980 or the [1984 c. 38.] Cycle Tracks Act 1984; or

(ii) a road within the meaning of the [1984 c. 54.] Roads (Scotland) Act 1984 unless it falls within the definitions in section 151(2)(a)(ii) or (b) (footpaths and cycle tracks) of that Act or is a bridleway within the meaning of section 47 of the [1967 c. 86.] Countryside (Scotland) Act 1967..."

It will be noted that section 68(5) excludes the Highways and Roads excluded from section 61 under section 61(9)(b) but does not include in that exclusion, the exclusion in section 61(9)(a), which is where buildings are excluded from the application of section 61. It will be further noted the exclusion in the section 61 is introduced by the words "in this section" and so without more it does not apply to other sections. Although the words "in the open air" were removed from section 68 of the 1994 Act, those same words were not removed from section 63 which concerns power to remove people attending or preparing for a rave, nor from section 77, which concerns powers to direct unauthorised campers to leave land.

8. The District Judge's reasoning is contained in these paragraphs of the Case Stated where she said:

"I find section 61 holds the relevant definition of land for sections 68 and 69, and that excludes buildings. So, by section 68(5)(b), referring to the application of section 61(b) of the definition of 'land'. Amendments made by the Anti-Social Behaviour Act 2003 remove 'in the open air'. Nothing is added, save for the explanatory note I give that limited weight. My view is the appellants could be convicted of a very serious offence by way of an explanatory note which, in the interests of justice, is manifestly wrong and therefore I find no case to answer."

9. The explanatory note to which the District Judge refers is note 128 to the Parliamentary proceedings of the Anti-Social Behaviour Act 2003 and it provides that section 59 amends section 68 and 69 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), to extend provisions relating to the offence of aggravated trespass to cover trespass in buildings as well as in the open air. The result is that the offence of aggravated trespass will be constituted where a person trespassing, whether in a building or in the open air does anything which is intended to intimidate or deter persons from engaging in the lawful activities or to obstruct or disrupt that activity.
10. We have been referred to R (On the application Westminster City Council v National Asylum Support Service [2002] 4 All ER 654, where Lord Steyn discusses the nature of Parliamentary explanatory notes and the extent to which they may be used as an aid to interpretation and we have also referred to Mucelli v Albania [2009] UKHL 2, where there are similar references to that kind of notes.
11. More pertinently perhaps, schedule 1 of the Interpretation 1978 defines "land" in any Act as including buildings and other structures unless the contrary intention appears (see section 5 of the 1978 Act).
12. Miss Hobcraft, for the respondents, supports the District Judge's conclusion with the following essential submissions. She says that Part 5 of the 1994 Act is littered with definitions of land for various purposes, thereby displacing the definition in the Interpretation Act. Before the amendment by the 2003 Act, section 68 had its own definition in section 68(5) referring back to section 61(9) but land cannot then have included buildings because of the words "in the open air". Omitting those words by amendment should not be taken to have altered the meaning of land when section 68(5) itself was not amended and when an intention to include buildings was not clearly stated. The explanatory note should not carry the day, for reasons mentioned by Lord Roger in Mucelli. The resulting legislation is at best ambiguous and lacking in legal certainty and the respondents should not risk prosecution upon a provision which is unclear.
13. Miss Hobcraft stresses the need for clarity and legal certainty, particularly in relation to penal provisions and she says that any ambiguity should be resolved in favour of the subject.
14. I do not accept these submissions. In my judgment, it is clear that "land" in section 68 of the 1994 Act (as amended) and therefore also in section 69 includes buildings. Considering section 68 in its amended version and without reference for the moment to its form before amendment, it is true that various adjoining sections in Part 5 of the 1994 Act had references to what land does not include. These are not self-contained definitions without a reference point to what land would comprise if the relevant element were not excluded. You start therefore with the definition in the Interpretation Act which includes buildings. Section 68(5) excludes highways and roads, with reference to the exclusion in section 61(9)(b), but significantly this exclusion does not extend to section 61(9)(a), so that buildings are not excluded and this is a positive indication that buildings are included, otherwise the reference would have dealt one way or another with section 61(9)(a). That, in my view, is the plain construction of section 68 in its amended form and the District Judge was wrong if she somehow thought, as she may have done, that the reference to section 61(9)(b), somehow carried with it section 61(9)(a). The relevant words in section 61(9) are introduced by the words "in this section" and plainly therefore without more do not extend to other sections.
15. In its unamended form section 68 did not include buildings within the definition of "land" because of the inclusion of the phrase "in the open air". The purpose and effect of the amendment was, in my view, quite plainly to negative the exclusion of buildings. This is so, both because of the amendment itself and its plain purpose and because of the proper construction of the section in its amended form. It is, in my view, quite artificial to suggest that land had a limited meaning in the unamended section which somehow would carry through to the amended section unless some express further qualification were also introduced. That was unnecessary. All that was necessary was to construe the section in its amended form. The obvious intention of the amendment provides an additional reason for the construction which I have indicated. There is, in my view, no ambiguity and there is no need to look for assistance to explanatory note 128.
16. I do not get assistance in this respect from sections 145 to 148 of the Serious Organised Crime Act 2005, nor from section 12 of the Criminal Law Act 1967. In my judgment section 68 and therefore section 69 is not unclear and there is no problem here with legal certainty.
17. For these reasons, therefore, in my judgment, the District Judge misconstrued land in section 68 and was wrong to dismiss the informations for the reasons she gave. The answer to the question of law is that in section 68 of the 1994 Act land includes buildings.
18. Miss Hobcraft unpersuasively submits that we should not remit the matter to continue the trial in the light of the time that has passed since the trial was opened and since the police officers gave their evidence. In my view it is in the public interest that this matter should be completed and I would allow the appeal and, if asked to do so, remit the matter with a direction to continue the hearing.
19. MR JUSTICE BLAIR: I agree and would only add that the definition of "land" as including buildings appeared first in the first Interpretation Act of 1850 and was carried through to the Interpretation Act of 1889 which was the predecessor of the Interpretation Act of 1878.
20. I respectfully agree with my Lord, the President of the Queen's Bench Division, that there is no ambiguity in this case.
21. THE PRESIDENT: There you are, Mr Harris, the appeal is allowed and you are going to ask for it to be remitted.
22. MR HARRIS: I am grateful. I would ask for it to be remitted.
23. THE PRESIDENT: There we are. We are grateful to both of you. Thank you very much.