Director of Public Prosecutions v Peter Bailey & Ors

Section 68 of the Criminal Justice and Public Order Act 1994 does not require the prosecution to prove that the defendant knew or was reckless as to whether he or she was trespassing. The statutory offence builds upon the civil tort of trespass, which has no mental element, and Parliament did not give the word a different meaning.

The presumption of mens rea is displaced by the statutory language, context and purpose. Liability nevertheless requires a blameworthy intention to intimidate, obstruct or disrupt a lawful activity. Articles 10 and 11 of the Convention do not require a separate proportionality assessment in each prosecution.

The Director of Public Prosecutions appealed by way of case stated against the respondents’ acquittals at High Wycombe Magistrates’ Court. The respondents had taken part in a protest at an Arla Foods dairy and were charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.

The District Judge found that the respondents had trespassed on Arla’s private land, but none knew or was reckless as to that fact. The stated question was whether the prosecution had to prove knowledge or recklessness as to the trespass element of the offence.

1. Appeal allowed. The District Judge’s answer was wrong. The case was remitted to High Wycombe Magistrates’ Court for a retrial.
2. Section 68 contains four elements: the defendant must be a trespasser on land; persons must be lawfully engaging, or about to engage, in an activity on the land; the defendant must do an act there; and that act must be intended to intimidate, obstruct or disrupt the activity. This analysis is consistent with DPP v Barnard, Bauer and Richardson.
3. The word trespass has a settled meaning in the law of tort and requires no mental element. Section 68 was intended to add criminal sanctions to civil trespass accompanied by blameworthy conduct. The statutory context supplies no indication that trespass has a different meaning for this offence.
4. The presumption that Parliament does not create offences of strict liability is displaced by necessary implication. The detailed mens rea requirement for the aggravated conduct, the protective purpose of section 68, and Parliament’s express refinement of trespass in section 68(1A) support that conclusion. It would be impermissible for the court to invent an intention or recklessness requirement where Parliament has not provided one.
5. Collins and Smith (David) did not govern the issue. Their conclusions depended on the language, history and purpose of the particular offences concerned. The meaning of trespass is not required to be uniform across criminal statutes.
6. The offence is not one of general strict liability because the prosecution must prove the defendant’s intention to intimidate, obstruct or disrupt lawful activity. Articles 10 and 11 do not confer a freedom to protest on private land. Following Richardson and Cuciurean, the statutory terms themselves strike the necessary proportionality balance; no separate proportionality test is required.

• High Court (Administrative Court): On an appeal by way of case stated, the court allowed the DPP’s appeal and remitted the case to High Wycombe Magistrates’ Court for a retrial.
• High Wycombe Magistrates’ Court: On 4 April 2022 the District Judge acquitted the respondents, holding that knowledge or recklessness as to trespass was required.