Richardson and another v Director of Public Prosecutions

For aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, an occupant’s activity is unlawful only where a criminal offence or trespass is integral to the activity’s core. An incidental, collateral, antecedent or remote offence does not make the activity unlawful.

The defendant must identify a specific offence and raise it properly on the evidence. The prosecution must then disprove that offence to the criminal standard. The inquiry concerns the activity actually carried on or contemplated, not an alternative lawful activity or the trespasser’s motive for disrupting it.

The appellants entered a London shop to protest against its links with an Israeli-owned business operating in the Occupied Palestinian Territory. They chained themselves to a concrete tube, refused to leave and caused the shop to cease trading. They were convicted of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.

They argued that retail selling was not a lawful activity because the shop company was allegedly implicated in war crimes, money laundering, cheating the Revenue and product-labelling offences. The magistrates’ court rejected those arguments. The Divisional Court dismissed an appeal by case stated in [2012] EWHC 1238 Admin.

The Supreme Court considered whether an occupant’s activity becomes unlawful for section 68 purposes whenever an offence occurs, or only where the offence is integral to the activity at the premises.

1. Appeal dismissed unanimously. Lord Hughes, with whom Lady Hale, Lord Kerr, Lord Toulson and Lord Hodge agreed, held that the occupants were engaged in the lawful activity of retail selling. The certified question was answered affirmatively: criminality affects the lawfulness of an activity under section 68(2) only where it is integral to the activity’s core.

2. The offence of aggravated trespass has four elements: the defendant must be a trespasser; persons lawfully on the land must be engaged in or about to engage in a lawful activity; the defendant must act on the land; and the act must be intended to intimidate those persons out of the activity or to obstruct or disrupt it. Section 68 adds a criminal sanction where a trespasser interferes with an activity which the occupant is entitled to pursue.

3. The court must examine the activity actually carried on or contemplated. It must not ask whether the occupants could have conducted a different, lawful activity. Nor is the activity defined by the trespasser’s motive or ulterior purpose. An incidental or collateral offence, remote from the core activity, does not supply a defence.

4. A defendant must identify a specific offence and raise it properly on the evidence. Once a relevant offence is fairly raised, the prosecution must disprove it to the criminal standard. If the alleged offence is integral, a magistrates’ court may investigate complex or internationally significant facts, provided that the question is justiciable. A finding that lawfulness has not been proved neither convicts nor binds an absent occupant.

5. The alleged assistance of a war crime was unsupported by sufficient evidence and, in any event, was antecedent and remote from retail selling. The proposed money-laundering and Revenue offences were likewise collateral. The misleading-commercial-practice offence was not established because the evidence did not show that the description of origin would alter the average consumer’s transactional decision. Any possible cosmetic-labelling offence was also collateral.

6. Article 10 of the European Convention on Human Rights did not confer a licence to trespass on another’s property for the purpose of protest. The ordinary law of trespass was a lawful and proportionate limitation on freedom of expression.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed the appellants’ convictions: [2014] UKSC 8.
2. Divisional Court of Queen’s Bench: Dismissed the appeal by case stated from the magistrates’ court: [2012] EWHC 1238 Admin.
3. Magistrates’ court: Convicted the appellants of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.