Aggravated Trespass, s.68. Allows magistrates to convict under s.68 even when no actual disruptive activity was carried out
The references to this case in the law journals (which you are supposed to use in court) are 160 JP 713 and 160 JPN 786, which you would read out respectively as “volume 160, Justice of the Peace, page 713” and “volume 160, Justice of the Peace Reports and Local Government Notes for Cases, page 786.” The case is also reported in the Times for 14 August 1996, and ‘digested’ (very briefly summarised) in [1996] CLY 1535 (“1996, Current Law Yearbook, paragraph 1535”). My transcript is from the Smith-Bernal website.
A group of hunt saboteurs were at a hunt in Essex. They ran after the hunt, with the intention of disrupting it, but were arrested while still running towards or behind the hunt, before being able to do anything specifically disruptive (like spraying citronella or blowing whistles). They were charged under s.68 and convicted by a Magistrates’ Court in London. They then appealed by ‘case stated’ (i.e. on a point of law) to the Divisional Court, which dismissed the appeal and upheld the convictions. This is the judgment of the Divisional Court.
For the purposes of the judgment, the following facts were accepted:
In the circumstances of the present case we must take the relevant findings of fact to be that the appellants had throughout their time as trespassers an intention to disrupt the Hunt and that they were running towards where the Hunt was in order to carry out that intention before the Hunt moved elsewhere. However they had no intention that the running itself should disrupt the Hunt. (Lord Justice Schiemann)
The basis of the defence case was that the defendants’ activity (of running towards the hunt) was not itself disruptive, and that therefore they could not be guilty of a s.68 offence (which requires both trespass and a disruptive activity). This is summarised by the judge as a “narrow” interpretation of the act, and he rejects it.
The running after the Hunt was . . . sufficiently closely connected to the intended disruption as to be, in the words of the Criminal Attempts Act 1981, “more than merely preparatory.” It was intended to get the appellands sufficiently close to the Hunt in a sufficiently short time to enable them there to disrupt it. . . . That conclusion sufficed to justify the conviction. (Schiemann, LJ)
The issue in this case is one of remoteness (the word used by the judge): how close must your activity be to being disruptive in order to be caught by s.68? This is less likely to be the main issue for any TP cases, than the “lawful activity” part of the charge. But if is it the relevant issue, then you will have to distinguish your case from this one, probably with reference to the degree of remoteness of involved.
Note that the “remoteness” argument is often used against us, as a way of dismissing a “lawful excuse” or “prevention of crime” defence when we take action against a Trident facility.[note] You may be able to use the arguments that are usually used against TP activists to defend yourself, if you are charged under s.68 for an activity that is only remotely connected with disruption or obstruction.
Alternatively, you may be able to use this judgment to defend against the “remoteness” claim. Here are two examples that the judge uses in this judgment, which are sufficiently close (in his view) to warrant conviction under s.68. They may prove useful if we are arguing against a claim that nuclear holocaust is too remote from deploying 100-kiloton Trident warheads to allow a defence, or that our actions are too remote from “crime prevention” for our defence to succeed.
Suppose a trespasser on open land says to a third party “go over the brow of that hill and there throw some stink bombs so as to disrupt the lawful activity. . . . Is the trespasser guilty of the s.68 offence, whether or no the third party throws the stink bombs and whether or no the members of the hunt know of the trspasser’s existence? Clearly the act of giving the instruction does not in itself disrupt but it is intended in due course to result in acts which have that effect. We think that such a trespasser is guilty.
The same goes for a trespasser who, wishing to disrupt a lawful activity, but out of sight, picks up a stone with a view to throwing it in the midst of those carrying out the lawful activity. We do not consider that the drafting of the section would require a court to hold that since picking up a stone in itself harmed no-one no offence was committed and that nothing could be done under the act other than giving a direction under s.69 to leave the land. (Schiemann, LJ)
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
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
(See the changelog and authorship page for revision details.)