APPEAL COURT, HIGH COURT OF JUSTICIARY
Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.
Appeal Nos: XJ1295/03
OPINION OF THE COURT
delivered by LORD MARNOCH
NANCY HARVIE McADAM, RONA McALPINE, PAM MHAIRI BOCHEL and GAVIN ROY McEWAN
PROCURATOR FISCAL, Dingwall
Appellants: Shead; Wheatley & Co. (McAdam): Shead; Drummond Miller (McAlpine):
Party (Bochel): Ogg, solicitor advocate; Gilfedder & McInnes (McEwan)
Respondent:McConnachie, A.D.; Crown Agent
8 July 2004 These are four Stated Cases at the instance of four co-accused persons in appeals under section 176 of the Criminal Procedure (Scotland) Act 1995. Each of the appellants was charged that on 23 August 2001 he or she
"did trespass on land in the open air namely a field at Tullich, by Munlochy, Ross-shire on which persons were engaged in or about to engage in a lawful activity namely sowing of seed and there did sit in front of a tractor towing a seed drill there and compel it to stop with the intent of having the effect of obstructing or disrupting that activity;
CONTRARY to the Criminal Justice and Public Order Act 1994, section 68(1)".
Section 68(1) describes this offence as being one of "Aggravated trespass". In that connection, it is apparent from the sheriff's findings that all four appellants were part of a group of individuals who wished to protest against the sowing in the field in question of genetically modified seed. It is clear, also, from the sheriff's findings that each of the appellants did sit down on a part of the field in the line of travel of a tractor towing the relevant seed drill and that he or she did so with the intent of obstructing or disrupting the activity of sowing the seed. Nonetheless, two main arguments were presented by or on behalf of each appellant in support of the appeal. Both, incidentally, had been canvassed unsuccessfully before the sheriff.  In the first place, it was submitted that there was no evidence to the effect that the appellants had "trespassed" on the land in question. In that connection reliance was placed on findings in fact 13-15 in each Case, which findings are in the following terms:
"13. On 23 August the senior police officer present, then Chief Superintendent William Ramsay McGhee of Northern Constabulary, spoke to a number of protesters beside the site.
14. When he spoke to the protesters, Mr. McGhee told them that there was no problem with them protesting about the sowing of the crop. He also told them that if they interfered with the tractor or other machinery, then they would be arrested on a charge of breach of the peace. He informed them that he had discussed the matter with the farmer the previous evening and had consulted the duty Procurator Fiscal and that the protesters would be allowed onto the field for the purpose of protesting.
15. Thereafter the protesters were taken by the police onto the field being sown, i.e. onto the site."
So far as the meaning of "trespass" is concerned, it is instructive that as long ago as 1928 in Dumbreck v. Addie & Sons (Collieries) Limited 1928 S.C. 547 at p. 554 Lord President Clyde said this:
"The word 'trespasser' ... means with us nothing more than a person who intrudes on the lands of another without that other's permission, and it does not involve or imply the commission of any legal offence. It is, in short, a popular term, not a legal one."
In our opinion, in the passage just quoted, Lord President Clyde provides as good a working definition of "trespasser" as can be found, and although he describes the word as a "popular term" that does not mean that it lacks the exactitude required for purposes of Article 7 of the European Convention on Human Rights. In so far as submissions were made to the contrary we reject them and, in so doing, we note in passing that the statutory definition for Scotland of the word, "trespass", in the 1994 Act, albeit expressly restricted in its application to section 61, is in terms not at all dissimilar from those employed by Lord President Clyde. All that said, the main thrust of this first argument was that in so far as the appellants had been taken onto the field by the police, they could not be said to be trespassing there. In that connection, although there is a finding in fact by the sheriff that Mr. McGhee did not hold any permission from the owner of the site to allow any protesters onto the site we consider that this finding sits uneasily with an earlier finding that on the previous evening Mr. McGhee had discussed with the owner, James Grant, a plan of action for dealing with the protesters and that "Grant was content for the police to deal with any protest". In his Note, however, the sheriff relies not so much on any lack of permission from the owner as on the fact that, at best, each appellant "had a conditional licence from the police to be present on the land provided he did not interfere with the sowing process". Once that condition was broken he or she could no longer claim to be present on the land with the consent of the owner or anyone else.  In our opinion the sheriff's reasoning on this matter is unimpeachable and it is, indeed, indistinguishable from the reasoning of this court in Ferguson v. MacPhail 1987 S.C.C.R. 52 - a case concerning section 20(2) of the Firearms Act 1968 which, interestingly enough, also uses the word "trespasser" as an essential element of the statutory offence there constituted. We would add, however, that, so far as the present offence is concerned, another way of looking at the matter might be that permission at any one time to stand or be on one part of the field should not be equated with unqualified permission to stand or be on every part of the field. It is true, of course, that the terms of the charge against each appellant include reference to trespassing on "a field at Tullich" but in our opinion it is quite sufficient if at the time of the alleged offence the Crown proves trespass on a part of the field so specified. For the foregoing reasons it is, in our opinion, clear beyond peradventure that each appellant was at the time trespassing on that part of the field on which he or she chose to sit down in the line of travel of the tractor.  The second main argument was that the Crown had failed to establish that the driver of the tractor was at the time engaged in a "lawful activity". This argument was based on the proposition that there had been a breach of a condition of the "consent" given to the sowing of the seed in the field in question by the Scottish Ministers under and by virtue of sections 111 and 112 of the Environmental Protection Act 1990. The "consent" document was lodged as Crown production No. 3 and in large measure it incorporates as its conditions answers given by the applicant to a fairly lengthy and detailed Questionnaire. In paragraph 31 of Annex 1 to the "consent", in answer to a request for
"The method for preparing and managing the release site, prior to, during and after the release, including cultivation practices and harvesting methods",
the answer given is as follows:
"The sites will be managed according to good agricultural practice (which includes provision for re-drilling in case of poor emergence), except for specific testing requirements, eg untreated plots in herbicide trials. After drilling transformed seed and before drilling untransformed seed, the drill will be cleaned of surplus transformed seed which will be collected and returned for secure storage to the trial operators and return to Aventis (for return to an Aventis facility on the Continent) or disposal in a local authority approved landfill site.
The plants will remain in the field for the normal growing season except as specified below
- termination prior to flowering with plant destruction by cultivation
and/or application of an appropriate herbicide
- termination up to seed formation, with plant destruction by cultivation
and/or application of an appropriate herbicide, but with destruction sufficiently in advance of maturity to minimise formation of viable seed. Based on advice from DETR in previous cases of termination after seed formation and when physical destruction would increase seed loss compared to normal harvest, the crop will be treated with an appropriate herbicide and the crop raked, burnt or physically smashed and the crop material incorporated into the soil.
All plant material resulting from early termination will be incorporated on site and/or disposed of in a local authority landfill site.
At harvest the combine will be cleaned before it is used to harvest any plots in adjacent trials destined to enter the food chain. Waste plant material will be destroyed (chopped and cultivated into soil).
There will be no oilseed rape on the site in two years subsequent cropping."
The substratum of the argument presented to us which, we may say, was advanced without any reference to authority, was that there should be incorporated into the reference to "good agricultural practice" the "SCIMAC Code of Conduct and Guidelines" which, it was said, represented the industry's view of what amounted to good agricultural practice in the context of the introduction of genetically modified seed. In that connection, it was submitted to the sheriff - although it does not appear to have been established as a fact - that the Scottish Minister for Rural Affairs and Development had informed the Scottish Parliament that in carrying out field trials of genetically modified crops in Scotland the SCIMAC Guidelines were being complied with. In our opinion, and in agreement with the submissions of the advocate depute, the proposition in question simply does not bear scrutiny. In rejecting it the sheriff apparently had regard to evidence from a Mr. Bearhop, a senior civil servant in the Scottish Executive responsible in 2001 for the issue of consents for the release of genetically modified organisms in Scotland, who apparently deponed that what amounted to "good agricultural practice" for purposes of the "consent" was to be found - and found only - in the content of paragraph 31. Mr. Shead for the first and second appellants and Miss Ogg for the fourth appellant submitted - in our opinion quite rightly - that the sheriff erred in having regard to that evidence in resolving what was essentially a question of law. That being so, we find it quite impossible to understand why in the same breath, as it were, both counsel submitted that on this matter the sheriff should in some way have had regard to the evidence of a defence witness, Mr. Rose, who appears to have given evidence about good agricultural practice, in general, without reference to the context of the "consent" document. While evidence regarding the particular circumstances surrounding the drawing up and issuing of the "consent" document may well have been admissible, we are quite clearly of opinion that the construction of the document itself was ultimately a pure question of law for the court to determine.  As to that, no reason whatever was offered by Mr. Shead or Miss Ogg or, for that matter, by Miss Bochel (who appeared on her own behalf) as to why, by way of implication, the Code and Guidelines should be regarded as incorporated as part of the "consent". In particular, no reference was made to any authorities, of which there must be many, on the subject of the test to be applied when an attempt is made to imply terms into a written document such as the one here in point. In this connection, it should be explained that the relevance of incorporation was that in the Code and Guidelines there were apparently to be found provisions which suggested that the tractor and drill and driver's clothes and footwear should be cleaned before leaving the field at any time so as to minimise any risk of contaminating the public road and environment generally. As can be seen from its terms, however, para. 31 of Annex 1 deals expressly with numerous aspects of what might be said to be "good agricultural practice", including the matter of cleaning the drill and other machinery in certain specified circumstances which do not include the day to day situation just described. It accordingly seems to us that the terms of para. 31 are, on the face of them, fully comprehensive thus leaving no room for implication. Put otherwise, the maxim expressio unius est exclusio alterius applies.  For the foregoing reasons we are satisfied that the sheriff was in the end correct in disregarding the SCIMAC Code and Guidelines. Even if we were wrong about that, however, and even if the farmer or his employees were, or had been, breaching conditions of the "consent" when travelling to and from the field - and thus committing offences under sections 111 and 118 of the 1990 Act - it is, in our opinion, quite unwarranted to infer from that that they were committing an offence or carrying out other than a "lawful activity" when sowing seed in the field. Both Mr. Shead and Miss Ogg asserted the contrary but we are quite unable to see the basis for that assertion. Miss Bochel, for her part, was inclined to place more reliance on what was claimed to have been represented to the Scottish Parliament by the Scottish Minister for Rural Affairs and Development. However, even if that were established, it could not on its own, in our opinion, affect the legal construction of the "consent" document, Crown production No. 3. In the result, we have ultimately formed the view that there is no substance whatever in the second main argument presented in the appeal.  It remains only to deal with an additional argument advanced by Miss Bochel. That was to the effect that the activity of sowing the genetically modified seed in the field was in any event unlawful because of breach of the general condition at the time implied by section 112(5)(c) of the 1990 Act that the holder of any "consent" should, in relation to the release of genetically modified organisms,
"use the best available techniques not entailing excessive cost for preventing any damage to the environment being caused as a result of their being released or, as the case may be, marketed."
The fact that there had been no cleaning of the tractor or drill or clothes of the driver when leaving the field and returning to the farm constituted, it was said, a breach of that condition, if none other. There are, in our opinion, a number of difficulties surrounding this argument. In the first place, subsection (5) of section 112 is expressed as being subject to subsection (6) which states that the general condition implied under, inter alia, subsection (5) shall have effect subject to any conditions imposed under subsection (1) of section 112. The condition or conditions contained in paragraph 31 of Annex 1 to the "consent" document were, it seems, imposed by virtue of the last mentioned subsection with the result that, at least as regards the matter of cleaning machinery and the like, one is simply brought back to the terms of paragraph 31. In the second place, even if there had been a breach of the implied condition under section 112(5)(c) of the 1990 Act, it was again a breach which took place outwith the field in question. If such a breach had been established the "consent" could doubtless have been revoked in terms of section 111(10) of the 1990 Act. In the meantime, however, it seems to us that the sowing activity within the field would remain - and did remain -a lawful activity covered by an extant "consent". In that connection we refer particularly to section 68(2) of the 1994 Act which provides that,
"Activity on any occasion on the part of a person or persons on land is lawful if he or they may engage in the activity on the land on that occasion without committing an offence ... ".
And, lastly, and in any event, we note that no expert evidence of any sort was led before the sheriff on the matter of damage to the environment with the result that in our opinion he was not only entitled, but obliged, to conclude, as he does in his Note, that on the whole evidence led before him there was no basis for holding that any accidental release of the type envisaged would be damaging to the environment or, indeed, that any reasonable doubt had been raised by the evidence in that regard. For all these reasons we must reject this last argument advanced by Miss Bochel although, in so doing, we pay tribute to the graceful and restrained manner in which she presented it. Before closing, there was one incidental matter raised by Miss Bochel which was clearly a source of great concern to her. In short, she queried the validity of findings in fact Nos. 46 and 47 in each of the four Stated Cases which are in the following terms:
"46. The genetically modified organism sown at the site on 23 August 2001 was incapable of causing harm to the environment.
47. The genetically modified organism sown at the site on 23 August 2001 did not cause any harm to the environment."
As Miss Bochel pointed out, the absence of any evidence that these organisms were capable of causing harm hardly justified the sheriff in making findings that they were incapable of causing harm or did not cause harm to the environment. The advocate depute accepted the validity of this criticism and we also accept its validity. Questions 3 and 4 in each Stated Case raise the matter of whether the sheriff was entitled to make these findings and we shall accordingly answer these questions in the negative. For the rest, we will answer questions 1 and 2 in the negative and question 5 in the affirmative. The overall result is that all four appeals are refused.