Aggravated Trespass, s.68. May be used against you if you try to argue that you were disrupting an activity that was being carried out in an unlawful way and therefore not a “lawful activity” for the purposes of s.68.
This case has not been reported in the law journals. You can still use the case in court, but should say that it is ‘unreported’. My transcript of the case comes from the Smith-Bernal website. You could also give the reference to the ‘digest’ (one paragraph summary) of the case, in [1997] CLY 1251, which you would read out in court as “1997, Current Law Yearbook, paragraph 1251.”
This case arose from the Newbury bypass protests. Hibberd was preventing a tree from being cut down as part of land clearance work for building the bypass. One of the chain-saw operators was working without gloves and therefore (possibly) in breach of Health and Safety (HandS) regulations. Hibberd refused to leave the tree and was arrested.
He was convicted under s.68 at Newbury Magistrates’ Court (by a Stipendiary Magistrate), and appealed by ‘case stated’ (i.e. on a point of law) to the Divisional Court. His appeal was rejected, and his conviction upheld. This is the judgment of the Divisional Court in rejecting his appeal.
The defence case was that, because of the breach of HandS regulations, the particular activity of the chain-saw operator disrupted by Hibberd was unlawful, and therefore not covered by s.68. The judge concluded that this did not render unlawful the “fundamental activity” being obstructed (i.e. the land clearance work for the bypass).
As far as any behaviour or non-compliance on the part of the operator is concerned, that, even if unlawful . . . , does not, in my view, render “unlawful” the fundamental activity which was being engaged upon by the contractors in the construction of the bypass. In any event, it is perfectly plain that it was that activity that the Appellant was seeking to obstruct and which he succeeded in doing. (Mr Justice Tucker)
This is not a friendly case, but it could still be used by the prosecution when not directly relevant, in which case you would have to ‘distinguish’ it from your situation. In particular, note that the magistrate had asked the following question of the Divisional Court:
Did I err in law in finding that Section 68(2) of the Criminal Justice and Public Order Act 1994 makes a distinction between the lawfulness of an activity per se and the lawfulness of the manner in which an activity is being performed or about to be performed? (Magistrate’s Stated Case, quoted by Tucker, J)
The judge refused to answer this question: “it is not a question which this court is required to answer and I do not, for my part, propose to answer it.” The judgment is confined to the particular HandS issue involved in the particular action of Hibberd. It does not conclude in general terms that a “lawful activity conducted in an unlawful way is still a ‘lawful activity’ for the purposes of s.68,” and any attempt by the prosecution to use it in order to argue this should be resistable.
© 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).
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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
(See the changelog and authorship page for revision details.)