Ayliffe & Ors v Department of Public Prosecutions

For aggravated trespass, an activity is lawful if those conducting it may lawfully engage in it on the land on that occasion. The prosecution need show only that the activity is apparently lawful; the defendant must raise a specific issue that identified persons were committing a specific offence. General or speculative allegations of war crimes do not require disclosure or undermine the prosecution case.

War crimes under the International Criminal Court Act 2001 are justiciable, but crimes of aggression are not domestic offences for these purposes. A defence of reasonable force to prevent crime requires an honest belief in facts which would constitute a crime, not a mistaken view of the criminal law, and there must be a nexus between the force used and the crime allegedly being prevented.

Three appellants appealed by way of case stated from convictions in magistrates’ courts. The appeals arose from peaceful protests at military bases during preparations for, or the conduct of, the Iraq war.

The appellants had been convicted of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994. Two also challenged convictions for criminal damage. They argued that activities at the bases were unlawful because they were connected with an illegal war or possible war crimes, sought further disclosure, and relied on reasonable force to prevent crime. The central issues were the justiciability of those allegations, the sufficiency of the issues raised, and the construction of section 68.

1. Disposition. The convictions were upheld and all three appeals were dismissed.
2. The court was bound by Jones and Milling, Olditch and Prichard and Richards v Gloucestershire CPS [2004] EWCA Crim 1981, which held that crimes of aggression could not constitute offences in domestic law for the purposes of section 3 of the Criminal Law Act 1967. The same reasoning applied to section 68 of the Criminal Justice and Public Order Act 1994.
3. War crimes defined by section 51 of the International Criminal Court Act 2001 were justiciable. The magistrates were wrong to treat that issue as non-justiciable. That error did not affect the outcome because the appellants’ general and speculative assertions did not raise a specific issue that persons conducting activities at the bases were committing identified offences. They therefore generated no entitlement to further disclosure and provided no basis for treating the activities as unlawful.
4. Under section 68(2), the prosecution did not have to rebut every possible illegality. It was sufficient to show that the activity was apparently lawful. If a defendant alleged that an unlawful activity was being disrupted, the prosecution could not avoid the issue by selecting a lawful aspect of what was occurring. The defendant must, however, identify the specified activity which he intended to disrupt.
5. The construction of section 3 adopted in R v Baker and Wilkins (Court of Appeal, unreported, 17 October 1996) applied. An honest but mistaken belief in facts which would constitute a crime may suffice, however unreasonable the belief; a mistaken belief that conduct is criminal does not. Cutting a fence or writing on a tank had no nexus with the speculative possibility of a future war crime and was undertaken as protest, not to prevent crime.
6. In the Percy appeal, attaching an upside-down flag bearing protest words to an internal fence was a distinct act beyond trespass and was not de minimis. The point based on The Director of Public Prosecutions v James Benjamin Barnard and Others (transcript, 15 October 1999) therefore failed.

High Court (Administrative Court): Appeals by way of case stated from convictions and rulings of District Judges sitting in the magistrates’ courts at Southampton, Cirencester and Northampton. The appeals were dismissed and the convictions upheld.