Aggravated Trespass, s.68. May be used against you if you try to argue that, at the particular time while you were causing some disruption, the activity disrupted was not itself lawful.
This case has not been reported in the law journals, only in the Times for 11 June 1998, and the Independent for 8 June 1998. When referring to the case in court, you should say that it is ‘unreported’ and give those references, plus the reference to the one paragraph summary (‘digest’) in [1998] CLY 1039, which you read out as “1998, Current Law Yearbook, paragraph 1039.” My transcript of this case comes from the Smith-Bernal website.
The defendants were a group of hunt saboteurs in Northhamptonshire, who had disrupted a hunt. They had begun the disruption while the hounds and hunt servants were themselves trespassing (on a railway embankment), and then they continued their disruption until they were arrested.
They were convicted in the Magistrates’ Court (by a Stipendiary Magistrate), and appealed by ‘case stated’ (i.e. on a point of law) to the Divisional Court. This is the judgment of the Divisional Court in rejecting their appeal.
The first part of the judgment deals with a legal technicality. The defence had argued taht, because the wording of the charge against them referred to all possible s.68 offences,[note] and because they were not intimidating in any way, the charge was defective. The judge dismissed this argument, because he thought the charge, though “ineptly drawn,” was clear enough.
The second part of the judgment relates to the other part of the defence case, viz that the disruption began while the hunt was trespassing on a railway embankment and therefore unlawful. The judge dismissed this defence, partly because the activity of the hunt as a whole was lawful, and partly because the protest/disruption continued after the hunt had left the railway embankment (and therefore become, again, a lawful activity).
The main defence against a s.68 charge for any TP activity is likely to be that the whole activity being disrupted (e.g. making or deploying nuclear weapons) is not a “lawful activity.” For such a defence, this case is unlikely to be relevant to either side. But it could prove relevant if, in addition to the general unlawfulness of Trident, some aprticular activity that was disrupted was also unlawful on a technicality, at some particular time or place.[note] In such a case, the prosecution might attempt to use the Nelder case to argue that, so long as the general work at Aldermaston were lawful, any disruption could be caught by s.68.
If that happens, the judge’s final comments in the defence case are relevant:
Clearly, if the hunt’s central objective had been, for example, to hunt land over which they had no permission to go or upon which hunting was banned, then the mere fact that they proposed also to engage in some lawful hunting in the vicinity would not make their activity, as a whole, lawful. That, however, was not this case. Equally, had the protesters confined their protest to the period whilst a significant part of the hunt was trespassing, then too no offence here could properly be found established. That, too, however, was not the case. (Lord Justice Simon Brown)
I.E. If the only activity that is disrupted is the unlawful part of the activity, or if the central part of the activity as a whole is itself unlawful, then you still have a defence to a s.68 charge.
Note also that one part of the magistrate’s original conclusions seems not to have been accepted by the judge. Because not every person involved in the fox hunt was on the railway embankment (the Master and horse riders did not trespass), the magistrate had said:
the Hunt comprised all the legitimate participants that is to say the riders and horses, hunt servants and hounds, quite apart from the foot followers. . . . Although the actions upon which the prosecution relied were aimed at the hounds, that was simply one part of the Hunt, but it was the whole activity that was disrupted. (Magistrate, quoted by Simon Brown, LJ)
The implication seems to be that, according to the magistrate, even if the disruption had been confined to the unlawful activity on the railway embankment, it would have affected the whole hunt, and therefore have been an offence under s.68. But this reasoning appears to be explicitly ruled out by the judge’s comments, quoted above.
© 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.)