Director of Public Prosecutions v Highbury Corner Magistrates' Court

For aggravated trespass, a lawful activity may include preliminary works forming part of a wider construction project. In the appropriate context, clearing land and evicting trespassers to enable construction may constitute such activity. The persons undertaking the activity need not necessarily be physically present on the land, although that issue was not necessary to decide. A technical defect or ambiguity in a charge should ordinarily be cured by amendment, with an adjournment if fairness requires, rather than by dismissing the charge. A case-stated application raising a properly arguable legal issue is not frivolous.

Protestors were charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 after occupying land intended for an HS2 construction project. The District Judge held that there was no case to answer because no construction contractor was on site and the charge’s reference to HS2 construction did not include the eviction and clearance operation. She also refused to state a case, considering the application frivolous. The Director of Public Prosecutions sought judicial review on irrationality, procedural impropriety and refusal to state a case.

1. The claim for judicial review succeeded on all three grounds. The case was remitted to Highbury Corner Magistrates’ Court for retrial before a different judge.
2. Section 68 of the Criminal Justice and Public Order Act 1994 requires trespass, persons lawfully engaged or about to engage in lawful activity, an act by the defendant, and the requisite intention to intimidate, obstruct or disrupt that activity. Lawful enforcement of an eviction may constitute lawful activity. Obstructing or frustrating it is capable of amounting to obstruction or disruption for the purposes of the offence.
3. The phrase “HS2 construction”, construed in its factual context, was sufficiently broad to include preliminary clearance works required to enable the construction project to proceed. It could include securing and preparing the land, removing structures and trespassers, and facilitating the contractor’s entry. The District Judge’s contrary conclusion was wrong.
4. The question whether persons about to undertake lawful activity must be physically present on the land did not arise on the facts. The court nevertheless indicated that section 68 contains no such express requirement, particularly where the activity is anticipated rather than already taking place.
5. Even if the charge had been ambiguous or defective, dismissal at the close of the prosecution case was inappropriate where the defect did not affect the substance of the case and could be cured by amendment without unfairness. The overriding objective and section 123 of the Magistrates’ Courts Act 1980 required consideration of amendment and, if necessary, an adjournment.
6. The application to state a case raised contestable questions of law and was therefore not frivolous. Remittal for retrial remained appropriate despite delay, given the continuing public interest and the strength of the documentary, video and admission evidence.

Highbury Corner Magistrates’ Court: the District Judge upheld a submission of no case to answer and refused to state a case.

High Court (King’s Bench Division), Divisional Court: judicial review succeeded on all grounds. The matter was remitted for retrial before a different judge.