Aggravated Trespass, s.69. The only s.69 case (?): says that a policeman may be wrong in believing that you are about to commit a s.68 offence and asking you to leave, but that it’s still an offence to ignore the police warning!
This case has not been reported in the law journals, only in the Independent for 23/3/1998. You can still use the case in court, but you have to say that it is “unreported” and state that your transcript comes from the Smith-Bernal website. You could also give the reference to the one-paragraph summary at [1998] CLY 982, which you would read out as “year 1998, Current Law Yearbook, paragraph 982.”
Three anti-hunt campaigners were observing a fox hunt in Northumberland. They were arrested for aggravated trespass while standing on the land, near where a fox had gone to ground. Subsequently charged with an offence under s.69 (ignoring a police direction to leave land), they were convicted by Tynedale Magistrates, and appealed to the Crown Court.[note] They were convicted in Newcastle Crown Court and appealed by ‘case stated’ (i.e. on a point of law) to the Divisional Court. They lost the appeal, and this is the judgment of the Divisional Court in rejecting the appeal.
The judgment goes through the events of the hunt in some detail, helped by the video that one of the defendants was taking. This also recorded their conversation with the police (Sgt Clements) immediately before he arrested them. The facts were found to be as follows:
•The protesters were not obstructing, disrupting or intimidating the hunt; they were merely watching and videoing.
•Sgt Clements arrived at the hunt after a while, and spoke to Mrs Aldridge, the Master of the Hunt, who told him that there had been intimidation and disruption.
•He then spoke to the protesters. They told him that they were merely videoing, but he told one of them (in the hearing of the others), “You either leave the land or you’re arrested.” None left, so he arrested them for aggravated trespass (s.68).[note]
The judge ruled that Mrs Aldridge was mistaken in telling Sgt Clements that they were disruptive. But he also ruled that she was a “plausible” woman. Therefore, Sgt Clements was mistaken in believing her, but it was a “reasonable” mistake. So, although the protesters were not in fact committing aggravated trespass, his belief that they were was a reasonable belief, and so his direction to them to leave was valid. Therefore, they committed a s.69 offence by not leaving the land, and they were rightly convicted.
It is quite plain from the findings of the Crown Court that they acquitted all three appellants of the offence of committing aggravated trespass, but the court was quite clear in its finding that the Police Sergeant reasonably believed that they had committed that offence in reliance very largely on what the Master of the Hunt had told him. (Bingham, Lord Chief Justice)
The judge also ruled that Sgt Clements’ words to one protester, in the hearing of the other two, amounted to a direction to leave the land in accordance with s.69, even though he never referred to s.69 and implied from his opening remark to the protesters that he (wrongly) believed that their mere presence could be an offence.
This is a bad case in terms of civil liberties,[note] but not insurmountable in terms of TP cases. The main defence for any s.69 TP cases is likely to be roughly as follows:
a)The activity (making/deploying Trident or whatever) is illegal under International Law, and so not a ‘lawful activity’.[note]
b)Therefore, aggravated trespass was not being committed.
c)Therefore, police were wrong to warn under s.69, and to arrest for ignoring the warning.
If the prosecution uses the Capon case, it may try to argue something like the following:
1)The police reasonably believed that the activity was unlawful (etc).
2)The police warned you under s.69.
3)The police belief may be wrong, but that doesn’t matter: according to Capon v DPP, his s.69 warning would be valid even if you weren’t actually committing a s.68 offence.
4)Therefore, you were wrong to ignore the warning, and are guilty of a s.69 offence.
If this happens, you have to be able to ‘distinguish’ your case from Capon v DPP. You do this by pointing out the following:
•Sgt Clements’ reasonable belief in that case was on a matter of fact (“were the protesters’ actions disruptive?”—he believed that they were on the basis of his conversation with the Master of the Hunt).
•There was no dispute in that case about whether fox hunting was a ‘lawful activity’, or whether it was ‘on land in the open air’.
•In your/my case, the policeman’s belief is on a matter of law. That is for the courts to decide, not the police.
•The Capon case states that a court can still convict under s.69 even if the police are mistaken on a matter of fact. It does not (and a court never would in a free society) state that you can convict even if the police get the law wrong.
© 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.)