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
		10 February 2012

1. LORD JUSTICE GROSS: I am most grateful to both Mr Evans, who represented the appellant, and Mr Penny, who represented the respondent, for their assistance.
2. This is an appeal by way of case stated from a decision of District Judge Snow on 13 October 2011 in the City of Westminster Magistrates' Court, convicting the appellant of an offence contrary to section 68 of the Criminal Justice and Public Order Act 1994 ("the Act"). The appellant was convicted of the offence of aggravated trespass. The memorandum of conviction records the offence with which he was charged in its amended form:

"On 10 November 2010 at 30 Millbank Tower ... having trespassed on land, namely Millbank Tower ... and in relation to a lawful activity, namely persons working within that building, which persons were engaged in on that land, did an act, namely unlawfully occupied and remained on the land in company with more than 50 people whilst property was damaged and fires started, which you intended to have the effect of obstructing or disrupting that activity.

Contrary to Section 68(1) and (3) of the Criminal Justice and Public Order Act 1994."

3. I pause to observe that the amendment was properly introduced and properly acceded to before the District Judge to avoid there being any pleading point in the case. Counsel, as I have just indicated, were right both to introduce and not to oppose the amendment. It has enabled the real issues to be before the District Judge.
4. Section 68 of the Act provides, insofar as material, as follows:

"Offence of aggravated trespass.

(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 ... on that ... land ... does there anything which is intended by him to have the effect ...

(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. As already indicated, this is an appeal by way of case stated. This court is therefore strictly confined by the facts as found in the stated case. Insofar as relevant to this appeal, I turn to set out the material contained in the case.

"(4) The prosecution evidence at trial was agreed and read pursuant to section 9 of the Criminal Justice Act 1967. The appellant did not give evidence.

(5) I was satisfied so that I was sure that

(i) On 10th November 2010 a protest march took place in Central London against the proposals to increase tuition fees.

(ii) 30 Millbank Tower is a building which contains commercial tenants and 75 residential flats. Approximately 2,000 people work at the Tower. 30 Millbank Tower is private property. The offices of the Conservative Party Central Office are on the third floor of the premises.

(iii) At approximately 13:00 hrs a large number of protesters entered the reception area of the building, smoke bombs were ignited and a large plate glass window was smashed from the outside. Thousands more protesters were outside the building trying to enter. Those protesters were hostile. Within the building protesters were running through the ground floor areas, fire alarm glass was broken, fire alarms were activated. Eventually all the ground floor windows were broken. Protesters accessed the roof and threw objects from it including bricks and a fire extinguisher. Fires were lit in the courtyard. Graffiti was found on the pillars within the reception area. Damage totalling £170,852.56 was caused.

(iv) This behaviour prevented those within the building working. Significant fear was caused. Some workers were forced to seek refuge within the central part of the building. Eventually occupants were evacuated by the police, some through corridors lined by the police for their protection.

(v) At 18:20 hrs Police Officer Pearson entered the building where he saw a group of people who were detained by other officers. One of that group was the appellant who was wearing a black hat and hooded jacket. He was carrying a banner. He was arrested and taken to the Charing Cross Police Station where he was later interviewed, he made no comment to the questions he was asked."

6. On the basis of those facts and a reference to the law, to which I shall return, the District Judge set out his conclusion as recorded in paragraph 7 of the case:

"(1) I was satisfied so that I was sure that the appellant had entered 30 Millbank Tower as a trespasser. There was no evidence of when he had entered the premises or of his behaviour once inside.

(2) Nevertheless I was satisfied so that I was sure that the appellant had entered, or remained in the building, at the time when significant damage was caused to, or being caused to that building. I was satisfied so that I was sure that his presence encouraged the criminal behaviour of others. I was satisfied so that I was sure that he intended to disrupt and obstruct the lawful activity of the occupiers, and to intimidate those persons to deter them from engaging in their lawful activities."

7. It is convenient to divide paragraph 7 of this case into two numbered sub-paragraphs and I have therefore done so.
8. The District Judge went on to state concisely the question for the opinion of this court:

"Was I wrong to conclude that the appellant by entering or remaining in 30 Millbank Tower, at a time when significant damage was being, or had been caused to the premises, had committed a distinct or overt act beyond the trespass itself?"

9. I turn briefly to the law, in terms much shorter than might otherwise have been the case, given the issues as they emerged before this court. It is however necessary to say something as to the law, if only to put the matter in context.
10. There are a variety of cases of high authority dealing with the difficult question of when criminal liability can be established in the case of someone who finds themself part of a group which is involved in criminal activity. It is unnecessary in the event to turn to those cases in any detail; they are well known and include such authorities as The Queen v Coney and others (1882) 8 QBD 534 and Regina v Clarkson [1971] 1 WLR 1402. The law is understandably concerned not to criminalise bystanders, and for obvious reasons. If a man stumbles across a crime being committed, without more, his mere presence at the scene cannot give rise to criminal liability.
11. The point is well made in an extract from the Law Commission Report on Participating in Crime (Law Com No. 305) at paragraph 2.23. There, the Law Commission gives the example of D sitting on a bus when a passenger, P, suddenly attacks the driver. D is under no obligation either to intervene or leave the bus. As the Law Commission however goes on to point out, the situation is different where D voluntarily goes to a place knowing or believing that an offence is taking, or will take, place. There, albeit the matter is intensely fact specific, the authorities suggest that D's conduct is capable of constituting encouragement. There are of course requirements of intention and consequences before such criminal liability can be established.
12. It is against that background, as it seems to me, that one comes to consider the offence contained in section 68 of the Act -- and I reiterate before doing so that it is only right that the law is concerned not to criminalise mere presence at a scene of criminal activity. The leading authority, so far as we are concerned, on section 68 -- strangely unreported, other than, it would seem, in the Criminal Law Review -- is the Director of Public Prosecutions v Barnard [2000] Crim LR 371. That was a case before the Divisional Court and the reasoned judgment was given by Laws LJ. It is unnecessary to delve into the facts of the matter which, as it happened, concerned what might be called a pleading point. Laws LJ said this at page 4 of the transcript:

"It is entirely clear that the statute requires proof of three elements: (i) trespass on land in the open air; (ii) the doing of some act - that must be some distinct and overt act beyond the trespass itself; and (iii) the intention by this second act to intimidate, obstruct or disrupt as provided by (a) to (c) in section 68(1) ... "

13. Later in the judgment, at pages 5 to 6, Laws LJ went on to say this:

"Mr Starmer, who appears for one only of the respondents, in his skeleton argument concedes at paragraph 5 that there may be circumstances in which unlawful occupation in company with others could amount to the second act required to be proved under section 68. I would accept this; but in such a case I doubt whether a bare allegation of occupation would be satisfactory. At least I think it should be supported by some further particulars of what it is said the defendant was actually doing. The starting point is that the second act required by the statute must, in my judgment, be distinct and overt. Occupation may, in reality, in some cases amount to no more than the initial trespass. If the case being made were that the second act was constituted by the Respondents distinctly remaining on the land in force and thus intimidating those lawfully engaged there, then I would expect to see something more than mere occupation with others pleaded in the information."

14. It was doubtless with those observation in mind that the amendment was made to the offence with which the appellant was charged, thus specifying that it was more than simply the initial trespass which formed the gravamen of the count against him.
15. I turn next to the rival arguments on the appeal. Mr Evans, for the appellant, submitted that the appeal should be allowed. He said that the facts did not, and could not, support the conviction. When pressed, however, he accepted -- and, for my part, realistically so -- that if it could be inferred that the appellant had been present during the course of the disorder and violence that afternoon and had accompanied the group, or a sub-group, around the building while the damage was being done, then that could properly give rise to the conclusion of encouragement to which the District Judge came. For my part, that concession was properly made.
16. Mr Evans, however, focused his submissions on a much narrower point, entirely specific to the facts of this case. He contrasted the District Judge's language in paragraphs 7(1) and 7(2) -- as I have sought to characterise paragraph 7 of the case -- and said that in the light of the District Judge's conclusions in 7(1), it was not open for him to reach the conclusions in paragraph 7(2). Moreover, Mr Evans submitted that all one knew was that the appellant had been arrested at 6.20 pm; that fact could not be related back to the disorder earlier in the afternoon so as to be satisfied to the criminal standard that he had been there then and, even if he had, that he had been accompanying the group around the building.
17. Thus clarified, the point is an extremely narrow one. It comes down to whether the District Judge was entitled to infer that the appellant had been in Millbank earlier than 6.20 pm -- in fact before 6.00 pm, when it seems clear that disorder, on the facts of the case, had ceased -- and, if so, whether he had been accompanying the group.
18. Mr Penny, for the Crown, responded to the appellant's case by submitting, firstly, that we needed to read paragraph 7, in effect, as a whole; understandably, whereas Mr Evans had placed the emphasis on paragraph 7(1) Mr Penny focused more on 7(2) Mr Penny submitted that it was open to the District Judge on the facts of the case to draw the inference that the appellant had been present earlier. Mr Penny emphasised where the appellant had been arrested, that he had been arrested with others, that he was dressed as the case described him and that he was carrying a banner.
19. I interpose to say that Mr Evans sought to suggest that there was material outside the case relating to the carrying of the banner. It would not be open for this court to stray outside the case but in any event, for my part, it would not matter where or how precisely he was carrying the banner; that he was carrying one is the important feature.
20. Returning to Mr Penny's argument, on the basis of all the facts and the violent nature of the disturbance that afternoon, the number of those who had been occupying the land, their conduct and the sight and sound of that conduct, Mr Penny submitted that the District Judge could be sure that the appellant had been there earlier, that he was accompanying the group and, if so -- as was realistically accepted by Mr Evans -- that amounted to encouragement.
21. It seems plain to me that if indeed there was a distinct and overt act going beyond mere trespass then the inference as to intention in the circumstances of this day was inevitable.
22. I turn finally then, although shortly, to consider the key question of whether it was open to the District Judge to draw the inferences which were necessary if this conviction is to be sustained. I underline that the sole live issue was whether those two narrow factual inferences could be drawn. In approaching this task I confine myself, for the reasons I have already sought to emphasise, to the material contained in the case.
23. In reading the case, however, I am content and indeed persuaded that I must read paragraph 7 as a whole. It seems to me, therefore, inescapable that when the District Judge said in paragraph 7.1 that there was "no evidence" of when the appellant entered the premises or of his behaviour once inside, he must have meant no "direct" evidence. If he did not mean that, then it would be impossible sensibly to read those two sub-paragraphs together and I can see no basis for reaching that conclusion.
24. I therefore turn to consider whether the inferences -- and they were inferences -- drawn in paragraph 7.2 are justified. In my judgment, the District Judge was entitled to draw those inferences on the basis of the following facts:

The appellant was arrested within the building.

There is no evidence to suggest that in fact he was brought inside the building by arresting officers. Indeed, had there been evidence to such effect, it is inconceivable that he would have been treated as a trespasser in the first place; indeed I should record that the fact of his being a trespasser was not challenged before us on this appeal.

The appellant was dressed as described in the case, wearing a black hat and hooded jacket. He was also carrying a banner. From those facts it is, to my mind, unavoidable that any suggestion that he was there simply in some other capacity as an observer or reporter or in any other "innocent" capacity, can safely and properly be excluded.

25. Against that background, it seems to me that the conclusion to which the District Judge came was proper. He could say that on those facts he was sure that the appellant had not just come into the building by coincidence after 6.00 pm, after the disorder appears to have ceased, and that on all those facts his presence there was not unconnected to the group who were doing the damage. He was entitled to infer from those facts that the appellant would have accompanied the group; against that background, it follows, as Mr Evans has accepted, that it was proper for him to conclude that the appellant had encouraged them with the requisite intention to found liability under the section.
26. For my part, I might have gone further and said that in a case when the appellant had remained silent at the trial, the inference could be drawn from that silence that he had no case to suggest that he had only just entered the building between 6.00 pm and 6.20 pm but I do not rest my decision on that inference because the District Judge did not follow that route.
27. It follows that this conviction appeal must be dismissed but I would add this: the issue here was not some broader issue of when presence crosses over into encouragement. It is always necessary to take care before alleging or concluding that it does. Any such allegation always requires careful consideration to avoid, as I have already sought to emphasise, criminalising the mere bystander. None of those more complex points arise and this appeal, for my part, should be dismissed.
28. MR JUSTICE IRWIN: I agree with the dismissal of the appeal and I agree with the reasons given by my Lord, Gross LJ. I would emphasise the importance of the final remarks in his judgment. The requirement under section 68 of the Criminal Justice and Public Order Act 1994, as interpreted by the Divisional Court in Barnard and others, for a "distinct and overt act" apart from trespass, does call for careful consideration in the context of the facts of a given case. It should never be assumed. It needs to be particularised for a proper prosecution to be mounted. On facts such as this, however, the mass invasion of a building and the particular persistence in remaining in the building while occupants have to leave, their business disrupted, and even more certainly whilst damage is caused to the building constitutes much more than mere trespass and is perfectly capable of constituting an overt and distinct act, satisfying the requirement under the legislation.