Director of Public Prosecutions v Catherine Cannon & Ors

For aggravated trespass, the prosecution must prove trespass upon land, but need not prove legal ownership. It is sufficient to establish that the defendant was on land in another’s possession or occupation without consent, legal authority or other justification.

Evidence from a senior employee of the occupier may establish possession and absence of permission. Ownership documents, precise boundary evidence and proof negativing every possible right of way are unnecessary where those possibilities are unrealistic on the evidence. Inferential evidence may establish trespass. A case should proceed where a properly directed tribunal could reasonably convict. Convention rights do not provide a defence within the trial process in the circumstances identified.

The DPP brought two joined appeals by way of case stated concerning separate protest-related prosecutions for aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.

In Trial 1, the magistrates’ court upheld a submission of no case to answer because the prosecution had not proved ownership, boundaries or authority to grant permission. In Trial 2, the court acquitted the defendants on the same general basis, despite evidence of a fenced industrial site, controlled access, entry by climbing a fence and prolonged occupation of business premises.

The central issues were whether the prosecution had to prove ownership or precise boundaries, whether the evidence was sufficient to establish trespass and absence of permission, and whether the Trial 2 acquittals could be substituted with convictions.

1. Appeals allowed. The questions stated by the magistrates’ court were answered in the negative.
2. For section 68 of the Criminal Justice and Public Order Act 1994, “trespass” retains its common-law meaning. The prosecution need not prove legal ownership. It must show that the defendant was present on land, as defined by the Act, without the consent of the possessor or occupier, authority of law or another legal justification (para [54]).
3. In Trial 1, evidence from a senior Müller employee established a prima facie case that Müller occupied and possessed the land and had not permitted the respondents to enter. The judge was wrong to consider that only the landowner could deal with permission. The evidence was also sufficient under both limbs of Galbraith: a properly directed tribunal could realistically convict (paras [55]-[60]).
4. In Trial 2, the judge misunderstood the CPS Guidance. Evidence of precise boundaries was relevant principally where it was realistically possible that the protest occurred on a highway or land occupied by someone else. There was no need to prove the absence of third-party rights of way where that possibility was fanciful on the evidence. A right of way, in any event, would not authorise entry to disrupt a lawful business (paras [61]-[64]).
5. There is no special rule preventing proof of trespass by inference. Inferences from proved facts can satisfy the tribunal of fact to the criminal standard. The evidence of controlled access, fencing, the respondents’ manner of entry and the occupier’s lack of consent made the case overwhelming in Trial 2 (paras [64]-[67]).
6. Trial 1 was remitted for retrial before a different tribunal. In Trial 2, the acquittals were quashed and substituted with convictions under section 28A of the Senior Courts Act 1981, with the case remitted for amendment of the register and sentencing by a different tribunal (paras [69]-[72]).

• High Court (Administrative Court): allowed the DPP’s two joined appeals by case stated. Trial 1 was remitted for retrial. Trial 2 acquittals were quashed and convictions substituted under section 28A of the Senior Courts Act 1981.
• North Somerset Magistrates’ Court: Trial 1, submission of no case to answer upheld on 29 September 2023. Trial 2, defendants acquitted on 19 January 2024.