England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2013

Lord Justice Moses:

1. These appellants were 10 out of at least 130 people who entered Fortnum & Mason, from Piccadilly, on 26 March 2011. There, they remained for about two and a half hours demonstrating as part of a group known as "UK Uncut" protesting against tax avoidance. These 10 were the first group of 30 charged and tried for aggravated trespass, contrary to s.68(1)(3) of the Criminal Justice and Public Order Act 1994 (The 1994 Act). They were convicted by District Judge Snow at Westminster Magistrates' Court on 17 November 2011. All save one of these appellants were conditionally discharged for six months and were ordered to make a contribution towards the costs of the eight-day trial. None of them gave evidence. The District Judge agreed to state a case, annexing to that case a written judgment.
2. In addition to the facts found in the stated case, by agreement between the appellants and the Crown Prosecution Service, the case was amended by "inclusion in the appended Agreed Note of Evidence, the witness statement of CI Clark, which served as her evidence-in-chief". I shall have more to say about the attachment of an Agreed Note of Evidence and the witness statement of Chief Inspector Clark to the Case Stated. For the present, I shall confine myself to those facts found by the District Judge and recorded in his judgment.
3. The circumstances in which these appellants entered Fortnum and Mason are important. Prior to the UK Uncut protest within Fortnum and Mason, there had been a well-organised and peaceful demonstration organised by the TUC in central London. The route of the protest led past Fortnum and Mason towards Hyde Park. The District Judge found that a second protest had been organised by UK Uncut, advertising that it intended to use "occupation" as a means of protest but keeping the target of its occupation secret. At 15.58 that target, Fortnum and Mason, was revealed on 'Twitter'. UK Uncut's protest marched in an organised fashion south down Regent's Street, cutting across the TUC march in Piccadilly, and heading towards Fortnum and Mason.
4. The management of Fortnum and Mason did not believe that they would be the target of any protest. Protesters were, so the District Judge recorded, welcomed into the shop, although their banners were removed and only returned by security staff when the protesters made their exit.
5. The District Judge found that just before 16.00, a substantial number of UK Uncut protesters "rushed through the doors of the store, forcing their way past security staff, who were trying to close the doors". The District Judge found that they had overwhelmed police who were trying to deny them entry.
6. The Judge then records the scene inside the store:-

"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." (5))

7. By this time there was widespread disorder outside. Protesters had climbed on to and damaged the canopy of Fortnum and Mason and sprayed its walls with graffiti. The District Judge is careful to record that this disorder outside was not linked to UK Uncut's protest within. But the effects of the behaviour of those within Fortnum and Mason would have been exacerbated by the widespread disorder outside. Anyone within the store must have been aware that the effect of their behaviour would be intensified by what was happening outside, even though they were no part of it.
8. As a result of the protest inside the store, the management announced that the store was closed and asked those inside to leave the building through the Piccadilly exit. Those wishing to leave, including a number of UK Uncut protesters, left at 16.19. UK Uncut announced on Twitter that they had closed Fortnum and Mason in a message timed at 16.59. The District Judge records that some of the customers continued as if the protest was not taking place but others were "terrified, frightened, confused, angry, intimidated and tearful". Some staff and customers were unable to leave the store. The protesters were arrested at 18.30 and left the building, linking arms as they did so.
9. The Judge then made findings of fact in relation to six of these appellants. The terms in which he did so are of significance in this appeal:-

"12) 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." (my emphasis)

Aggravated Trespass

10. The statutory definition of aggravated trespass is to be found in that part of the 1994 Act headed "Disruptive trespasses". Section 68(1) provides:-

"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."

11. The wording of that section shows that it is necessary to prove not merely an act of trespass but an act beyond that of mere trespass in relation to lawful activity. This requirement of an additional act beyond the act of trespass founded the essential argument in this appeal. It was argued that these appellants or, at the very least the four appellants who were not named as doing any specific act within the store, had done no more than trespass. The judge had found that the demonstration was an additional act. But, contended the appellants, continued presence as part of a demonstration was not an additional act. It was no more than the act of trespass. It was this point which, no doubt, led to the first question posed by the District Judge in his stated case:-

"Was I right to conclude that the defendants committed the second act required by s.68(1) of the Criminal Justice and Public Order Act 1994 on a joint enterprise basis?"

12. This argument, advanced on behalf of the appellants with a beguiling sense of reality by Mr Thomas, was founded on the decision of this court in DPP v Barnard [CO/4814/98] 1999 WL 85279. The information in that case alleged no more than that the accused had "unlawfully occupied the site and that they had done so with the intention specified in s.68". The Divisional Court concluded that the information did not disclose any offence known to the law. Section 68 makes plain that to prove an offence of aggravated trespass not only must a trespass be proved but also a further act, accompanied by one or more of the intentions identified in the section. In his judgment Laws LJ tabulated the three elements which s.68(1) requires to be proved:-

"(i) Trespass on land in the open air; (as the Act then provided)

(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."

13. The statutory question posed by s.68 is whether the prosecution can prove that the trespasser has done anything on the land ("there"), apart from trespassing, with the required statutory intent?
14. In the instant appeal and, in Barnard, the issue arose as to whether occupation as a trespasser could amount to the second act which s.68 requires to be proved. It is important to recall how the issue arose in Barnard. The prosecutor sought to amend the information by adding an allegation that the accused had unlawfully occupied the site. The court doubted whether it would have been proper to allow the amendment and whether that would be sufficient to disclose a defence under s.68. Laws LJ said:-

"Mr Starmer, who appears for one only of the respondents…concedes…that there may be circumstances in which unlawful occupation in company with others could amount to the second act required to be proved under s.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." (pp 5-6)

15. Both sides sought to derive advantage from this passage. The appellants contended that the prosecution had proved and, at least in the case of four of them, the District Judge had found, no more than "mere occupation". The prosecution sought to confine those comments to questions of pleading and contended that it was authority that unlawful occupation in force could amount to an act distinct from the act of trespass.
16. Barnard was a case concerned with pleading. It is not authority of the proposition that "mere occupation of land" cannot be a further act distinct from the act of trespass. It will all depend upon the circumstances in which that occupation took place. As Laws LJ seems to have accepted, if those who trespass continue to remain on land "in force" they may be guilty of aggravated trespass if they continue to occupy the land with the statutory intention. There is nothing "mere" about occupation which is intended to have the effect of intimidating persons so as to deter them from engaging in lawful activity on the occupied land. Of course, if that occupation is not "in force" or "mass" occupation it will be difficult, if not impossible, to prove the intention either to intimidate or to obstruct or to disrupt the lawful activity. But there is no warrant for the proposition that continuing occupation on land on which a person has trespassed cannot be a further act distinct from the initial trespass.
17. Irwin J recognised this in Peppersharp v DPP [2012] EWHC 474 (Admin) in relation to the entry of hostile protesters into Millbank Tower, who ignited smoke bombs and smashed a large plate glass window from the outside. He said:-

"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. [28]"

18. The invasion of Millbank Tower in November 2010 appears to have been more serious than in the instant case. But there is no requirement to prove that damage has been caused or that there is any intention to cause damage. If it is caused then it will be far easier to prove an intention to intimidate but mass invasion and continuing occupation may itself constitute "doing" something on the land over and above trespassing on it.
19. In this case the allegation was not only that the accused had trespassed but, once they had entered the premises, that they had demonstrated there. The charge read:

"…having trespassed on land, namely Fortnum and Mason…did an act, namely, entered the premises in the company of several others and demonstrated…"

There was, therefore, a clear allegation of an act over and above the act of trespass. It would have been better if there had been no reference to the entry, which was the act of trespass. If what was meant was entry "en masse" the charge should have said so. But there was no need; the essential allegation was "demonstrated".

20. The District Judge found that the second act alleged, namely, the act of demonstration, was proved. The Judge found as follows:-

"1) Did these defendants trespass on land?

An individual enters a shop on licence. A shop is entitled to refuse entry. The store had decided to allow entry to demonstrators on a limited basis. Security was present to ensure compliance with its policy. The protesters forced their way past both security and police. I have no doubt that the reason for keeping the target secret and flooding the store in such numbers was because the protesters generally, and those defendants in particular, knew that if their purpose was known entry would be refused. In other words they knew that they were trespassing and intended to do so.

From about 16.10 the defendants were aware that the store was closed and that they were required to leave, but they refused to do so.

I am satisfied so that I am sure that the defendants trespassed on land.

2) Was there an intention to intimidate?

The New Shorter Oxford Dictionary defines intimidate as:

Terrify, overawe, cow. Now esp. force to or deter from some action by threats or violence.

I am satisfied so that I am sure that it was the intention of these protesters to take control of the store. They were aware that they could not do so without flooding the store with protesters thereby cowing both police, security, staff and customers. I have no doubt that it was their intention to intimidate.

3) Was there a second act?

Although they attended as demonstrators, and became trespassers by doing so, the actual demonstration was a separate and distinct act from their intention. I am satisfied so that I am sure that the acts described in paragraph 5 above are separate and distinct acts."

The judge clearly meant that the actual demonstration was a separate act from trespass. His incorrect reference to an act distinct from intention was only a slip of the pen. He found, as he was entitled to do, that the demonstration he described in 5) was a second act, distinct from trespass.

21. In the light of those findings the next question was whether it was open to the District Judge to infer from the actions of the demonstrators that they intended to intimidate. As is apparent from the passage I have quoted, the Judge resorted to a dictionary, alighting on the verb 'cow' as a synonym for intimidate.
22. I agree with the appellants that it is important not to diminish the force of the word intimidate. It is a forceful word indicating, in its Latin root, the notion of putting someone in fear. It is to be contrasted with the other intentions identified within the section, namely, an intention to obstruct or an intention to disrupt, both of which indicate more moderate intentions that the intention to intimidate. It seems to me far better merely to consider the word used in the section in the context of the contrast between that word and the intention to obstruct, or an intention to disrupt.
23. I doubt whether, with respect to the District Judge, help is to be gained from the dictionary. Indeed, there is a danger in its use since by lighting on a dictionary definition, the force of the word used in the section is diminished. Looking up the dictionary to find synonyms does not assist in understanding the meaning of the word 'intimidating' in the context of s.68(1). I share Lord Upjohn's view that it is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; "you can look up examples of its many uses if you want to in your Oxford Dictionary, but that does not help on definition" (Customs & Excise Commissioners v Top Ten Promotions Limited [1969] 1 WLR 1163 at 1171.
24. Well-known though they may be, it is worth recalling the words of Lord Reid when he was considering whether the protest at Wimbledon against apartheid constituted insulting behaviour, contrary to the Public Order Act 1936. He concluded that the Divisional Court was wrong to proceed on the basis that the meaning of the word "insulting" was a matter of law. He said:-

"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word insulting being used in any unusual sense. It appears to me…to be intended to have its ordinary meaning. It is for the Tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the Tribunal has reached a wrong decision, then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no Tribunal acquainted with the ordinary use of language could reasonably reach that decision.

Were it otherwise we should a reach an impossible position. When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words and still further words which often include the meaning of the word for whose meaning one is searching.

No doubt the court could act as a dictionary. It could direct the Tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of the statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different." (Brutus v Cozens [1973] AC 854 861 C-G)

25. Although the District Judge selected cow from the dictionary definitions it cannot be said that he watered down the meaning of the word intimidating. It is necessary only to read his description of the chaotic scene inside the store to appreciate how intimidating in fact the protest must have been to those working in the store and to those who had gone there to browse or buy their groceries. The store, so counsel for the appellants said, was arranged on five floors. But each floor was a confined space and the sheer mass of protesters spread about the store, some of whom were behaving in the manner described, was ample evidence from which the District Judge was entitled to infer that anyone who chose to remain in the store after it was closed at 16.10, as part of the demonstration, had an intention to intimidate. The judge was not unreasonable in inferring from the facts of the demonstration that those who took part in it intended to intimidate.

Principals or Accessories?

26. The passages from the judgment of the District Judge I have quoted provide, as I have indicated, ample findings of acts distinct from the acts of trespass and committed by all of those who took part in the mass demonstration. Although the behaviour of only six of the appellants was particularised, all had chosen to take part in the mass demonstration by remaining in force for nearly two and a half hours after the store was closed. Their intention to intimidate could be inferred from their participation in the continuing mass demonstration. All ten were guilty, even though there was no evidence to identify four of them as committing particular acts, such as using a loudhailer or playing with a beach ball. But I must emphasise that all ten were guilty as principals. The conduct element of the offence of aggravated trespass in the instant appeal was the trespass and mass demonstration. Each of those who took part in that mass demonstration, causing chaos within the store, had committed a distinct act separate from the act of trespass. They had perpetrated the conduct element of the offence of aggravated trespass (see, e.g., Glanville Williams Textbook of Criminal Law 3^rd Edition 14-001, page 452 and Smith and Hogan's Criminal Law 13^th Edition 8.3, page 188).
27. For that reason, it was wrong to consider this case on the basis that some of those taking part in the mass demonstration were perpetrators or principals and others were merely guilty of secondary participation as accessories. So to view this case raises unnecessary difficulty and, for reasons I shall come to, runs the risk of inhibiting legitimate participation in demonstrations and protests. We were told by counsel for the prosecution, who was not counsel at the trial, that the case was brought against these appellants accusing them both of being joint principal offenders and as accessories. In my view, it should not have been brought on that alternative basis. Properly understood, the prosecution case against each of those who took part in the mass invasion and control, by force of numbers, of the store were guilty as principals or not at all. By advancing the alternative that if they were not guilty as principals they were guilty as accessories, the prosecution led the judge into error.
28. It would only have been necessary to consider whether any particular defendant was an accessory if he was not guilty as a principal offender but had encouraged the principals to commit the offence. But that makes no sense in this case. If the principal offence was the demonstration in force within the confines of the store as described by the District Judge in his findings of fact at 5), it makes no sense to distinguish those taking part in that demonstration from those identified as doing some particular activity, save, possibly, for the purpose of sentence. Considering the case against any appellant merely as an accessory involves accepting that they were not guilty of the conduct element of the crime. There is no basis for saying any of those participating in the demonstration within Fortnum and Mason over that period of nearly two and a half hours was not guilty of the conduct element of aggravated trespass and thus not guilty as a joint principal.
29. The germs of the error into which the District Judge was led can be seen in his finding at 12). Of the four appellants who are not named there, he says "beyond presence, there is no evidence of the behaviour…except". Later he said this:-

"4) Was there a joint enterprise?

I remind myself that it is not an offence merely to be present when a crime is committed; nor, indeed, in the present circumstances, to stand by without taking steps to prevent it. The prosecution case is that each defendant did take part by encouraging others with his or her presence.

I am satisfied that each of the defendants attended the store with the intention of intimidating the staff, police, security and customers so that they could take control of it. Even if they did not use the methods described in paragraph 5 themselves, they were aware that many of them were being used. However, despite that knowledge none of the defendants took the opportunity to disassociate themselves from the behaviour by leaving the store. I am satisfied so that I am sure that:

a) Each defendant was present at the scene.

b) It was the intention of each defendant, by his or her presence, to encourage others.

c) that each defendant by his or her presence, encouraged others to commit the offence."

30. Of course the Judge is right to say that there will be circumstances when it is not an offence merely to be present when a crime is committed. But there was nothing "mere" about the presence of those participating as demonstrators. They were committing the conduct element of the crime. Of the many hackneyed phrases in the law which tend to mislead "mere presence is not enough" must rank amongst the most inaccurate. All of the Judge's findings up to that point show that the presence of each one of the demonstrators in force within Fortnum and Mason was the conduct element of the charge against them of aggravated trespass.
31. The origin of the misleading suggestion that mere presence is not enough seems to be an inadequate reading of R v Coney [1882] 8 QBD 534. Those participating in a prize fight in the ring were guilty of unlawful assault. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to watch the fight, they encouraged it by their presence. The decision of the majority of the Queen's Bench Division was that that direction was incorrect. Mere voluntary presence at a fight did not as a matter of law necessarily render those present guilty of assault. The court was not saying that the jury could not have convicted the spectators on the basis merely of their presence. The objection of the majority was that the case had been withdrawn from the consideration of the jury. The point is demonstrated in the short judgment of Lopes J:-

"I understand the ruling of the Chairman to amount to this, that mere presence at a prize fight, unexplained, is conclusive proof of aiding and abetting, even if there had been no evidence that the person or persons so present encouraged or intended to encourage the fight by his or their presence. I cannot hold, as a proposition of law, that the mere looking on is ipso facto a participation in or encouragement of a prize fight. I think there must be more than that to justify conviction for an assault. If, for instance, it was proved that a person went to a prize fight knowing it was to take place, and remain there for some time looking on, I think that would be evidence from which a jury might infer that such person encouraged and intended to encourage the fight by his presence. In the present case the three prisoners were merely seen in the crowd, were not seen to do anything, and there was no evidence why or how they came there, or how long they stayed."

Huddleston B commented to similar effect on the direction of the Chairman of Quarter Sessions:-

"If he had told the jury that going to a prize fight to see the combatant strike each other, and be present when they did so, was evidence from which they might find that the defendants countenanced what was going on, and that therefore they might find them guilty, I should have been disposed to support that ruling. But that is not the effect of his summing up." [560]

32. R v Coney, therefore, is authority for the proposition that presence is not conclusive evidence of encouragement. It is not authority for the proposition that it cannot be sufficient evidence of encouragement. Thus, the distinction the District Judge made between the named appellants in 12) and the other four was not a basis for distinguishing between the perpetrators and accessories. Once the District Judge was satisfied that the presence of all the appellants amounted to an act distinct from trespass and as to their intention, not only was there no need, but it was wrong to go on to consider whether the defendants had taken part by encouraging others with their presence.
33. This erroneous consideration, as to whether the appellants had encouraged others by their presence, was echoed in Peppersharp v DPP [2012] EWHC 474 (Admin). That case seems to me to be another example of confusion between the perpetrator of an offence of aggravated trespass and an accessory, not himself, guilty of the conduct element of that offence. The District Judge in that case had found that a large number of protesters had entered Millbank Tower at 13.00 and had thereafter caused significant damage. Their behaviour prevented those within the building from working and caused significant fear. The appellant was found at 18.20 in the building in a group, wearing a black hat and hooded jacket, carrying a banner. It was argued on behalf of the appellant that his presence and arrest at 18.20 could not be related back to the disorder earlier in the afternoon which had stopped at 18.00. The District Judge disagreed and concluded that the appellant had entered and remained in the building at the time when significant damage was caused [6(2)]. The Divisional Court agreed that his presence in the building after 18.00 was a fact from which it could be inferred that the appellant had accompanied the group doing the damage [25]. But if that was the inference then the appellant was a principal who had committed the conduct element of the offence of aggravated trespass. There was no basis for considering him to be an accessory. Yet the District Judge had concluded that he was satisfied that "his presence encouraged the criminal behaviour of others". Gross LJ said:-

"The District Judge could say that on those facts he was sure that the appellant had not just come into the building by coincidence after 6.00 p.m., 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."

34. But with respect to Gross LJ, who was led into questions of whether it was proved that the appellant had encouraged others by the way the prosecution put the case, there was no need to prove any encouragement at all. If the facts showed that the appellant was part of the group who had committed the aggravated trespass, then he was as guilty as the rest as a joint principal. The allegation against him was that he himself had committed the conduct element of the aggravated trespass in taking part in the damaging and disruptive protest within Millbank Tower.
35. Looking at this case and Peppersharp, it appears to me that those prosecuting protesters for aggravated trespass have not properly focussed on the question whether those taking part in the protest were guilty of the conduct element of that offence. If they can prove that, then, in my view, it is wrong and misleading to suggest that they are guilty of encouraging others. The question of whether they were encouraging others only arises on the hypothesis that they themselves have not committed the conduct element of aggravated trespass. In the context of the invasion of a building in force, it makes no sense to distinguish any of those participating in that invasion by categorising some of them as principal offenders and others as accessories.
36. I have laboured this point because it seems to me that in the type of aggravated trespass of which Peppersharp and the instant appeals are examples, there is a contradiction between the facts as found and the conclusion that participants were guilty only as accessories because they encouraged others to commit the offence. That conclusion carries with it the assumption that they themselves had not committed the conduct element of the offence. But if their presence as part of the demonstration did not amount to the conduct element of the offence, because it was not an act distinct from the act of trespass, presence would not have been a sound basis for inferring an intention to intimidate or an intention to encourage. Far better to ask whether they were part of the demonstration and whether that demonstration was itself an act distinct from the trespass, and whether it could be inferred that those participating in the demonstration had one of the three intentions identified in s.68.

Articles 10 and 11 ECHR

37. There is another reason why it seems to me important not to confuse criminal liability of those participating in the demonstration with the suggested liability of some of them as accessories. Liberty has intervened to express its concern that the rights to freedom of expression and freedom of assembly enshrined in Articles 10 and 11 of the European Convention on Human Rights are in danger of erosion. Neither they nor the appellants suggest that s.68 amounts to a disproportionate interference with those rights (see Laws LJ in Nero v DPP [2012] EWHC 1238 (Admin)). But the important rights of freedom of expression and freedom of association which protect effective but peaceful protests reinforce the need to ensure that criminal liability is not imposed on those who are taking part in a peaceful protest merely because others commit criminal offences. In Ezelin v France [1991] 14 EHRR 362 an avocat was reprimanded by the French Bar Council because he had taken part in a demonstration against two judgments, during which others had daubed graffiti on buildings and hurled abuse at the judiciary. The Commission found a violation of Article 11. It said:-

"An individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the course of the assembly, if he himself remains peaceful in his intentions and behaviour." [34]

The court also found that the reprimand from the Bar Council inhibited the avocat's rights under Article 11:-

"The Court considers, however, that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited – is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion." [53]

38. It seems to me that 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. I of course exclude from that consideration those who are properly identified as accessories, namely, those not themselves present who have procured or encouraged the demonstration which amounts to aggravated trespass.
39. 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).
40. The District Judge also referred to the judgment of Moses J in Dehal v DPP [2005] EWHC 2154 (Admin). Whatever the merits of that judgment, it does not seem to me that it should be construed as requiring the prosecution to prove more than conduct which falls within s.68(1). If the prosecution proves that the conduct of a defendant falls within s.68 and that the defendant had the necessary intention, it has nothing additional to prove. It does not have to prove, in addition to the guilt of the defendant, that the prosecution was proportionate. Dehal should be read as no more than an application of Sedley LJ's warning in Redmond-Bate v DPP [DC.23.7.99] that "freedom only to speak inoffensively is not worth having". The warning has no relevance to the instant appeals. Although I must take the blame, Dehal equally was not an authority that the District Judge needed to consider. Once he found that the case against these appellants was proved under s.68(1) that was an end of the matter.
41. The facts found by the Judge justified the conclusion that each one of these appellants was guilty of aggravated trespass by virtue of their presence within Fortnum and Mason over a period of nearly two and a half hours as part of the demonstration described by the Judge. They were guilty because they themselves had the intention to intimidate, and because they had committed the conduct element of that offence. Whilst, therefore, I have sought to emphasise that the Judge ought not to have considered whether the defendants' actions encouraged others, I would not allow the appeal on that basis. They were guilty of the offence of which they were charged. On the basis of the facts found by the District Judge, and in particular his description of the scene within Fortnum and Mason, there could be no conclusion other than that those who participated in the demonstration were guilty of the offence of aggravated trespass.

Notes of Evidence

42. There are two further points with which I should deal. A substantial part of the appellant's written argument contained extracts from the evidence. The Judge said he was attaching the note of evidence as agreed by the parties, and subsequently the statement of the Chief Inspector was also attached. There was no basis for doing so, and it should not have happened. The facts upon which the appeal had to be conducted were the facts as found by the District Judge. No question was asked as to whether the findings of fact made by the District Judge were supported by the evidence. If the appellants wished to appeal on the basis that there was no evidence to support the findings of fact then the District Judge ought to have been asked to state the case on that basis and asked a question accordingly. It is worth recalling 64.1(2) of the Criminal Procedure Rules 2011:-

"(2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the Magistrates' Court could come to its decision, the particular finding of fact made by the Magistrates' Court which it is claimed cannot be supported by the evidence before the Magistrates' Court shall be specified in such application."

If the Appellants wished to argue that the Judge had omitted important findings of fact then an application should have been made to him to add those facts or, if he refused, an application made to this court to amend the case stated. I wish to emphasise that it was impermissible merely to annex notes of evidence as a basis from which extracts could be chosen to advance the appeal. If the appellants wished to challenge the findings of fact then they should have appealed to the Crown Court.

Costs

43. The second question asked by the District Judge was whether he was right to award costs, which may take considerably longer than 12 months to be paid in full. As I have recalled, all save one of the appellants was conditionally discharged. The District Judge correctly considered the individual circumstances of each appellant and divided a proportion of the prosecution costs amongst the appellants equally, ordering them to pay £1,000 each. Taking into account their personal circumstances, save for the appellants Colman and Rodker, the longest it would take any of the appellants to pay was 20 months. But it would take the appellant Colman 3 years, 11 months and 2 weeks to pay the sum of £1,000 in full and Rodker 4 years and 2 months to pay the sum of £1,000 in full.
44. There is no principle that a period of payment may not be longer, or much longer, than one year, provided it is not an undue burden (see the passage in R v Oliver and Oliver [1989] 11 Criminal Appeal Reports (Sentencing) 10 in the judgment of Lord Lane CJ). It is therefore not possible to say that save for the two appellants I have mentioned, the periods for payment were oppressive and too long. But it does seem to me that in relation to Colman, who had no income and savings of £300, and Rodker who earned £100 a week, with outgoings of £100 a week, with savings of £200, that the period for payment in their cases was outwith a reasonable range. I would, accordingly, allow the appeal of those two appellants so far as costs is concerned and make no order as to costs against them.

Mr Justice Kenneth Parker:

45. I agree.