Reposted from Netpol
Name of case: Nero v DPP  EWHC 1238 (Admin)
This ruling on aggravated trespass in the Divisional Court makes it more difficult to defend cases on the basis that activity disrupted by trespassing was not “lawful activity”.
The defendants, Matthew Richardson and Gwen Wilkinson, were arrested having ‘locked-on’ at Ahava, a shop in Covent Garden which sold products from Palestinian territories under Israeli occupation. They had gathered evidence to show that the selling of such products was not lawful, due to alleged breaches of labelling regulations, fraudulent evasion of customs duties, and involvement in war crimes in the Occupied Palestinian Territories.
Matthew Richardson and Gwen Wilkinson were charged with an offence under section 68 Criminal Justice and Public Order Act 1994, which states:
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 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.
2. Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.
In Nero, the issue was the correct construction of “lawful activity” for the purposes of s.68. Laws LJ held that the section provides a defence to aggravated trespass for “the person who obstructs or disrupts an activity which is patently unlawful”. He also suggested that:
“… it is enough for the prosecution to show that the activity in question is apparently lawful. If then the defendant seeks to raise an issue to the contrary within the section 68 proceedings he must, in my judgment, do so by reference to facts or events inherent in the activity itself. He cannot rely on the assertion of extraneous facts whose effective investigation would travel into contexts and controversies which are markedly remote from what is actually being done by way of the activities in question. For the purpose of the section, the activity’s legality is constituted by the activity’s own quality or qualities.”
An appeal was heard at the same time in relation to similar prosecutions brought under s.69 Criminal Justice and Public Order Act 1994, in relation to two defendants who had refused to leave Ahava when directed to do so by the police. This appeal was upheld as the direction to leave was made after the defendants had chained themselves in the shop. They had been physically unable to move until they had been unchained, but the fact that they had left as soon as this was done meant they had left “as soon as was practicable”.
Since the ruling, magistrates hearing other cases have thrown out well-prepared defences relating to the unlawfulness of activity taking place.
The judgment of Laws LJ in relation to s.68 Criminal Justice and Public Order Act 1994 has been granted permission to appeal to the Supreme Court, where it will be known as Richardson v DPP.