Nero & Anor v Director of Public Prosecutions

For aggravated trespass, “lawful activity” is not confined to activity carried on by natural persons. It may include a company’s activity. The prosecution need show only that the activity is apparently lawful. A defendant who raises illegality must identify facts or events inherent in the activity itself. The defendant cannot require summary proceedings to determine remote political, territorial or corporate controversies. Illegality may qualify where the facts establishing it are inherent in the activity. Under section 69, whether a person leaves land “as soon as practicable” cannot be determined automatically by treating a self-created physical obstruction, made before the police direction, as making the offence inevitable.

Two linked appeals by way of Case Stated arose from convictions at Highbury Corner Magistrates’ Court. Richardson and Wilkinson were convicted of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994. Nero and Osmand were convicted under section 69 for failing to leave the Ahava shop after a police direction.

The appellants had entered the shop, secured themselves in a concrete tube and sought to disrupt its retail activity. They alleged that the company’s trade was unlawful because of matters concerning settlement activity, product labelling, revenue and criminal property. The central issues were the meaning of “lawful activity” under section 68 and the proper construction of “as soon as practicable” under section 69.

1. The section 68 appeal was dismissed. The section 69 appeal was allowed, and the convictions in that appeal were quashed.

2. Under section 68, “person” includes a body corporate under section 5 and Schedule 1 of the Interpretation Act 1978, absent a contrary intention. The statutory language did not confine “persons engaged in lawful activity” to natural persons. A company’s activity could therefore be obstructed or disrupted.

3. The prosecution had to establish that the relevant activity was lawful, but the statutory focus was the quality of the activity being carried on at the land. Following Ayliffe and Others [2006] QB 227, it was sufficient initially to show that the activity was apparently lawful. Any issue raised by the defendants had to relate to facts or events inherent in the activity itself. The defendants could not use an aggravated-trespass prosecution to litigate remote questions concerning the occupation of the Palestinian territories or the alleged criminal responsibility of persons not before the court.

4. The alleged labelling, revenue, proceeds-of-crime and war-crime matters did not establish illegality inherent in the retail activity. The alleged war-crime offences were not categorically excluded, but the facts proving them would have to be inherent in the activity in question.

5. For section 69, the police officer reasonably believed that lawful retail activity was being carried on and was entitled to give the direction. However, the defendants’ inability to leave while they remained secured in the concrete tube did not automatically mean that they failed to leave as soon as practicable. The tube had been created before the direction, and treating the offence as inevitable would confuse sections 68 and 69 and produce an unjust and unreasonable result.

• Highbury Corner Magistrates’ Court: convicted Richardson and Wilkinson under section 68 of the Criminal Justice and Public Order Act 1994, and Nero and Osmand under section 69.
• High Court (Administrative Court): dismissed the section 68 appeal and allowed the section 69 appeal. The section 69 convictions were quashed and the lower court’s decision reversed.