Peppersharp v Director of Public Prosecutions

Aggravated trespass requires more than the initial trespass. The prosecution must prove a distinct and overt act, together with the requisite intention to obstruct or disrupt lawful activity. Mere presence at a scene of criminal activity does not ordinarily create liability. However, presence may amount to encouragement where a person voluntarily goes to, or remains at, a place knowing or believing that criminal activity is taking place, provided the necessary intention and consequences are proved. Whether conduct crosses that threshold is fact-specific. In a case stated appeal, the court must confine itself to the facts stated but may draw reasonable inferences from those facts.

The appellant was convicted in the City of Westminster Magistrates’ Court of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994. He had been arrested inside Millbank Tower after a large protest involving extensive damage, fires and disruption to those working in the building.

The District Judge found that the appellant had trespassed, had been present when the disorder occurred, and had encouraged conduct intended to obstruct and disrupt lawful activity. On appeal by way of case stated, the central issue was whether the District Judge was entitled to infer that the appellant had been present during the earlier disorder and had accompanied the group causing the damage.

1. Appeal dismissed. The conviction for aggravated trespass was upheld.
2. Section 68 requires proof of three elements: trespass on land; a distinct and overt act beyond the trespass itself; and an intention that the second act should obstruct or disrupt lawful activity. The requirement of a separate act prevents criminal liability for mere presence. The act must be sufficiently particularised in a proper prosecution, as explained in Director of Public Prosecutions v Barnard [2000] Crim LR 371.
3. The court was confined to the facts stated. It was nevertheless entitled to read the District Judge’s conclusions together and to understand the reference to no evidence of the appellant’s earlier presence as meaning no direct evidence.
4. The necessary inferences were open. The appellant had been arrested inside the building, there was no evidence that the police had brought him inside, and he was wearing a black hat and hooded jacket while carrying a banner. Those facts excluded an innocent explanation, supported the inference that he had been present earlier and had accompanied the group, and justified the conclusion that his presence encouraged the disorder with the requisite intention.
5. The court stressed that the broader boundary between presence and encouragement was not being decided. Courts must take care before treating presence as encouragement, so as to avoid criminalising bystanders. On the facts found, however, the appellant’s conduct went beyond mere trespass.

• High Court (Administrative Court): On 10 February 2012, the appeal by way of case stated was dismissed and the magistrates’ court conviction was upheld.
• City of Westminster Magistrates’ Court: District Judge Snow convicted the appellant on 13 October 2011 of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.