SEBASTIAN ROBLYN v THE DIRECTOR OF PUBLIC PROSECUTIONS

For an offence under section 241(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the prosecution must prove that the relevant work was lawful and that the workman had a lawful right to perform it.

Parliamentary approval of a major construction scheme does not confer immunity from wildlife legislation. Where the evidence shows that proposed works may involve wildlife offences, the prosecution has not established that the work is lawful merely by proving that the scheme itself was authorised. A conviction under section 241(1)(c) cannot stand in those circumstances.

The appellant was convicted by a district judge at High Wycombe Magistrates’ Court on 16 March 2021 of an offence under section 241(1)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992. He had climbed an alder tree at Denham Country Park to prevent contractors engaged by HS2 Ltd from felling it.

Expert evidence called for the appellant indicated that the proposed works might constitute offences under the Wildlife and Countryside Act 1981 and the Conservation of Species and Habitats Regulations 2017. The district judge nevertheless concluded that the contractors had a legal right to fell the tree because the HS2 construction scheme had been approved by Parliament and government.

On an appeal by way of case stated, the Divisional Court considered whether the felling was lawful and whether conviction was open to the district judge.

1. Appeal allowed. Both questions in the stated case were answered in the negative. The district judge was wrong to conclude that the contractors had a legal right to fell the tree, and it was not open to him to convict the appellant.
2. An essential element of the offence under section 241(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 was that HS2 Ltd and its contractors were acting lawfully and had a lawful right to fell the tree. The prosecution had to prove that activity was lawful, applying the principle identified in Richardson v DPP [2014] UKSC 8; [2014] AC 635.
3. The district judge had found that felling the tree might lead to wildlife offences. That finding meant that the prosecution had failed to establish the lawfulness of the activity. The possibility of relevant offences was not displaced by the fact that HS2 was a construction project approved by central and local government.
4. The High Speed Rail (London – West Midlands) Act 2017 did not relieve the nominated undertaker or its contractors from complying with applicable wildlife protections. The court relied on Packham v Secretary of State for Transport [2020] EWHC 828 (Admin), which confirmed that the HS2 Act did not remove the duty to comply with Parts 3 and 4 of the Conservation of Species and Habitats Regulations 2017. The Environmental Minimum Requirements and Code of Construction Practice reinforced that conclusion.
5. Accordingly, it was legally possible for HS2 contractors to commit wildlife offences. The project’s statutory authorisation did not provide immunity from prosecution and did not establish a lawful right to carry out works that might themselves constitute offences.

• High Wycombe Magistrates’ Court: On 16 March 2021, the district judge convicted the appellant under section 241(1)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992.
• High Court, Queen’s Bench Division, Divisional Court: The appeal by way of case stated was allowed. Both questions were answered in the negative.