Aggravated Trespass, s.68. The act of trespass is not sufficient to convict under s.68: you have to have done something else disruptive as well.
The references to the law journal reports for this case (which you are supposed to use in court) are 96(42) LSG 40 (under the name “CPS v Barnard”) and 143 SJLB 256, which you read out respectively as “volume 96, number 42, Law Society Gazette, page 40” and “volume 143, Solicitors Journal Law Brief, page 256.” The case is also reported in the Times for 9 November 1999, and is digested (very briefly summarised) in [1999] CLY 964 (“1999, Current Law Yearbook, paragraph 964”). My transcript comes from the Smith-Bernal website.
The defendants were arrested and charged under s.68 after a protest at Doe Hill quarry in Derbyshire. There were acquitted by Chesterfield Magistrates’ Court (by a Stipendiary Magistrate), because the charge against them did not say what they had done (other than trespassed). This charge stated that the defendants had “trespassed on land in the open air . . . and in relation to a lawful activity, . . . did an act, namely unlawfully entered on that land, which he/she intended to have the effect of intimidating. . . .”
The prosecution had also applied to the Magistrate for permission to alter the charge so that it read, “. . . did an act, namely unlawfully occupied the site. . . .” The Magistrate did not allow the amendment (because it still did not add a distinct act, beyond the trespass).
The prosecution (DPP) therefore appealed, by way of ‘case stated’ (i.e. on a matter of law), to the Divisional Court. The prosecution lost the appeal, and this is the judgment of the Divisional Court.
The prosecution case was basically that you only had to (a) trespass and (b) intend to disrupt, obstruct or intimidate a lawful activity [on land in the open air], in order to be guilty of aggravated trespass. The judge disagreed:
I am in no doubt that the Stipendiary Magistrate was correct to rule that the original informations were defective. it is entirely clear that the statute requires proof of three elements: (i) trespass on land in the open air; (ii) the doing of some act—that must be some distinct and overt act beyond the trespass itself; and (iii) the intention by this second act to intimidate, obstruct or disrupt as provided by (a) to (c) in section 68(1). In these original informations there was no allegation of any second distinct act. (Lord Justice Laws)
On the proposed amendment by the prosecution (rejected by the magistrate), the judge says two things. First, he doubts whether it would ever normally be OK to allow such an amendment:[note]
I entertain some doubt whether it would be right for a Magistrate to allow an amendment to an information in circumstances where the information as originally drawn disclosed no offence at all, unless it were a case of a mere typographical error or something of that kind. An amendment which, for example, alters the factual particulars of what is already a perfectly properly constituted information seems to me to be different in kind from an amendment which creates a viable case where before there was none at all. (Laws, LJ)
Secondly, he rejects this particular amendment because it does not allege a sufficiently distinct and overt action, separately from the original trespass:
The starting point is that the second act required by the statute must, in my judgment, be distinct and overt. Occupation may, in reality, in some cases amount to no more than the initial trespass. (Laws, LJ)
However, the judge does suggest that occupation could in some cases amount to the required separate action, if the information had pleaded that the defendants were “remaining on the land in force and thus intimidating those lawfully engaged there,” so it’s not quite as cut and dried as it may seem.
The main point of the case is clear enough from the judge’s comment, and should limit the use of s.68 charges. But note also the general point (not conclusive, but still forceful) about not allowing amendments to an information where the original information does not, in law, constitute an offence at all.
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
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I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
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