Bauer & Ors v The Director of Public Prosecutions

Aggravated trespass requires trespass, a distinct act beyond trespass, and the specified intention to intimidate, obstruct or disrupt lawful activity. Mass entry and continued occupation as part of a demonstration may constitute that distinct act, even without damage. Participants who themselves form part of the mass demonstration are principals, not merely accessories whose liability depends on encouraging others. The ordinary meaning of “intimidate” should be assessed in context as a matter of fact; dictionary synonyms should not replace the statutory word. Articles 10 and 11 of the European Convention on Human Rights reinforce the need to identify the defendant’s own criminal conduct, but add no separate proportionality requirement once an offence under section 68 is proved.

The appellants were convicted at Westminster Magistrates’ Court of aggravated trespass after entering and remaining in Fortnum & Mason during a UK Uncut demonstration. The District Judge found that they trespassed, remained after the store was closed, participated in a mass demonstration and intended to intimidate those inside. Four appellants were not identified as performing particular acts, and the District Judge also considered whether their presence encouraged others as part of a joint enterprise.

The appeal by case stated raised the proper meaning of the distinct-act requirement in section 68(1) of the Criminal Justice and Public Order Act 1994, the relevance of presence and accessory liability, the effect of Articles 10 and 11, the use of an agreed note of evidence, and the legality of the costs orders.

1. Convictions. The appeals against conviction were dismissed. Section 68(1) requires proof of trespass, a further act distinct from trespass, and an intention to intimidate, obstruct or disrupt lawful activity.

2. Distinct act. The demonstration was an act separate from the initial trespass. Continuing occupation in force or mass occupation may itself satisfy the requirement. Damage is unnecessary, although damage may make an intention to intimidate easier to prove. DPP v Barnard 1999 WL 85279 was concerned with pleading and did not establish that mere occupation could never constitute the required further act. The approach was supported by Peppersharp v DPP [2012] EWHC 474 (Admin), although its accessory analysis was regarded as unnecessary.

3. Intimidation. “Intimidate” is a forceful statutory word. Its meaning should be assessed in the context of the statutory contrast with obstructing and disrupting. The ordinary meaning of the word is ordinarily a question of fact, subject to limited review for unreasonableness. The District Judge was entitled to infer the necessary intention from the chaotic mass demonstration and the appellants’ continued participation after closure. This approach reflected Customs & Excise Commissioners v Top Ten Promotions Limited [1969] 1 WLR 1163 and Brutus v Cozens [1973] AC 854.

4. Principal liability. Each participant in the mass demonstration committed the conduct element as a principal. It was therefore unnecessary and misleading to analyse the appellants as accessories who encouraged others by their presence. R v Coney [1882] 8 QBD 534 established only that presence is not conclusive evidence of encouragement; it may, depending on the circumstances, be evidence from which encouragement is inferred.

5. Convention rights. Ezelin v France [1991] 14 EHRR 362 reinforced the importance of peaceful protest. However, once conduct and intention satisfying section 68 were proved, no additional proportionality issue arose under Articles 10 and 11. Dehal v DPP [2005] EWHC 2154 (Admin) was confined accordingly.

6. Procedure and costs. The appeal had to proceed on the facts found by the District Judge; it was impermissible simply to annex notes of evidence under rule 64.1(2) of the Criminal Procedure Rules 2011. The costs orders were upheld except for two appellants whose payment periods were outside a reasonable range. Their appeals on costs were allowed and no costs orders were made against them. R v Oliver and Oliver [1989] 11 Criminal Appeal Reports (Sentencing) 10 was applied.

• High Court (Administrative Court): Convictions upheld. The appeals of Colman and Rodker concerning costs were allowed, with no order as to costs against them.
• Westminster Magistrates’ Court: The appellants were convicted on 17 November 2011 and conditionally discharged, with orders to contribute towards prosecution costs.