Does Aggravated Trespass Require Proof of Mens Rea in Relation to the Trespass?

The six respondents had been involved in a protest organised by Animal Rebellion (a group affiliated to Extinction Rebellion) at the site of a dairy in Aylesbury which is the largest in the UK. They had arrived shortly before 5.30 am on the day in question and had locked themselves onto two bamboo structures and a van, thereby blocking entry into the dairy. The protest lasted for nearly 17 hrs and caused considerable disruption to deliveries and departures from the site. Each respondent was charged with the alternative offences of obstructing the highway contrary to s.137 of the Highways Act 1980, and aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act 1994. Since the charges of obstructing the highway were later withdrawn, their subsequent trial related to the s.68(1) offence alone. It provides that an aggravated trespass is committed where a person ‘trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land’, does anything which is intended to have the effect of intimidating the persons so as to deter any of them from engaging in the activity, or obstructing or disrupting the activity.

At their trial, much of the evidence was not in dispute. This included the fact that the dairy was situated in a business park on a private road rather than a public highway, and that at no time prior to their arrest had any of the respondents been aware of this fact. The trial judge proceeded to find that the offence of aggravated trespass requires proof of knowledge or recklessness in relation to the trespass, and accordingly acquitted the respondents. The DPP appealed by way of case stated against his decision. The following question was set out for the opinion of the High Court:

“Was I correct to conclude that in relation to an offence contrary to section 68 of the Criminal Justice and Public Order Act 1994, the Crown must prove that a defendant either knew or was reckless as to whether he or she is a trespasser?”

Held, allowing the appeal, that the trial judge had erred in the approach taken. Whilst the elements of the s.68 offence had been identified and considered in a number of cases, it had never been suggested that the prosecution was required to prove an intention to trespass on the part of a defendant in order to secure a conviction. On the contrary, an analysis of the offence was consistent with the plain meaning of the statutory words, i.e., that what would otherwise be the civil wrong of trespass had been criminalised where it was accompanied by blameworthy conduct on the part of a defendant which was particularly antisocial or harmful to the owner or occupier of the land. Whilst Parliament's decision to use the word ‘trespass’ when describing the s.68 offence was not conclusive of itself, there was no indication either from the statutory language or the context of the provision that it should be accorded a different and novel meaning from that ascribed to it at common law for centuries. The presumption that a criminal offence does not give rise to strict liability therefore did not apply in relation to the trespass element of the s.68 offence. Accordingly, the case would be remitted to the magistrates’ court for a retrial.

COMMENTARY

Introduction

The offence of aggravated trespass has now been on the statute book for nearly 30 years. When the Bill which became the Criminal Justice and Public Order Act 1994 was progressing through Parliament, the then Home Secretary, Michael Howard MP, explained the rationale for s.68 as follows:

“In recent months, we have seen many examples of disruptive and threatening behaviour – at the Grand National, during country sports and even fishing. Those who dislike such activities have a perfect right to campaign to change the law, but they do not have the right to trespass, threaten or intimidate” (Hansard, HC Vol.235, col.29 (11^th January 1994), quoted in Wasik and Taylor, Blackstone's Guide to the Criminal Justice & Public Order Act 1994 (1995), Blackstone Press Ltd, p.87).

It is clear from this passage that the expectation was that the offence would be most likely to be committed in the context of a protest. Thus, in an alternative contemporaneous commentary it was suggested that s.68 was aimed at ‘anti-hunt saboteurs’, ‘animal rights protestors’ as well as ‘protestors who demonstrate on land to prevent contractors carrying out work on a new motorway’: see Card and Ward, The Criminal Justice and Public Order Act 1994 (1994), Jordan Publishing, para.3.35 (p.50). Whilst the facts of Bailey confirm that this remains so, as do those in Peppersharp v DPP [2012] EWHC 474 (Admin) and Bauer and others v DPP [2013] 1 WLR 3617, an aggravated trespass need not take the form of a protest. Thus, in the recent case of The King v Daniel Jarvis (unreported, Croydon Magistrates’ Court, 14 September 2022), for example, the defendant was found guilty of the s.68(1) offence where he had run onto the pitch at The Oval Cricket Ground during the course of play in a Test Match between England and India and had, whilst dressed in Indian cricket team whites, attempted to bowl a ball in the direction of the stumps. The defendant's motivation for entering the field of play was not to protest but to ‘make people happy’, both at the time and by later uploading a video of his antics on YouTube. Nevertheless, in doing so he was trespassing as well as disrupting the undertaking of a lawful activity, i.e., the playing of Test cricket.

Since its enactment s.68 has generated a not inconsiderable body of case law. In Richardson and another v DPP [2014] AC 635, where the aggravated trespass involved a non-violent protest in a shop, Lord Hughes observed:

“By definition, trespass is unlawful independently of the 1994 Act. It is a tort and committing it exposes the trespasser to a civil action for an injunction and/or damages. The trespasser has no right to be where he is. Section 68 is not concerned with the rights of the trespasser, whether protester or otherwise” (at [3]).

Later in the same judgment, Lord Hughes further remarked:

“The intention of the section is plainly to add the sanction of the criminal law to a trespass where, in addition to the defendant invading the property of someone else where he is not entitled to be, he there disrupts an activity which the occupant is entitled to pursue” (at [13]).

Presumptions of Mens Rea

There is, of course, a long-established common law presumption that mens rea is an ingredient of an offence. Thus, in what the President of the King's Bench Division (Dame Victoria Sharp) referred to as “the seminal case” of Sweet v Parsley [1970] AC 132, Lord Reid observed:

“… there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea” (at 148).

Whilst the presumption is “of great importance in the approach to the construction of criminal statutes” (per Lord Hughes in R v Lane [2018] 1 WLR 3647 at [9]), it is nevertheless capable of being rebutted either by express words or by necessary implication. Thus, in Pwr v DPP [2022] 1 WLR 789, for example, the Supreme Court held that the presumption was rebutted in relation to an offence contrary to s.13(1)(b) of the Terrorism Act 2000. In Bailey, the Divisional Court was of the view that the underlying rationale for the presumption, as identified by Lord Reid in the passage quoted above, did not apply in relation to the s.68 offence. This was on the basis that, “liability can only arise where the relevant conduct (the trespass) is done with a blameworthy intention viz. intimidating, disrupting or obstructing lawful activities” ([2022] EWHC 3302 (Admin) at [38]).

Did R v Collins [1973] QB 100 Apply?

In one of the guides to the 1994 Act published shortly after it received Royal Assent, the authors suggested that whilst s.68 is silent as to the need for mens rea in relation to the trespass element of the offence, an analogy could be drawn with the offence of burglary such that the mental element “would consist of actual knowledge or subjective recklessness in this respect”: see Card and Ward, The Criminal Justice and Public Order Act 1994 (1994), Jordan Publishing, para.3.49 (p.54). Their reasoning was based on the earlier decision in R v Collins [1973] QB 100, the facts of which are, as noted in Bailey, “familiar to generations of law students” (at [47]). Indeed, in Collins itself, Edmund Davies LJ commented that had the facts “been put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and as verging at times on farce” (at 101).

It will be recalled that in Collins, it was held by the Court of Appeal that for the purposes of the offence of burglary contrary to s.9 of the Theft Act 1968, a person who entered a building was not a trespasser if they entered without knowing that they were trespassing, or if they had not been reckless as to whether they were entering unlawfully. Not unreasonably, counsel for the protestors in Bailey sought to rely on this earlier decision in support of the argument that mens rea therefore applied in relation to the trespass element of the s.68 offence. However, the Divisional Court rejected this submission for two reasons. The first concerned the fact that as Dame Victoria Sharp explained, ‘there is no general rule of legal interpretation that trespass must have the same meaning in relation to all criminal offences of which it forms an ingredient’ (at [48]). In other words, whilst the word ‘trespass’ appears in a number of statutory offences, e.g., s.20(1) of the Firearms Act 1968 and ss.8 and 9 of the Criminal Law Act 1977, it does not follow that its meaning is common in what may be rather different contexts. Thus, as was noted in Bailey, ‘burglary and aggravated trespass are, self-evidently, different offences enacted to deal with different legal wrongs’ (Ibid.). In Collins, whilst it was held that the trespass did require proof of a mental element in the context of the burglary offence, the Court of Appeal's judgement was confined to s.9 of the Theft Act 1968; there was no suggestion that its interpretation of ‘trespass’ was equally applicable in relation to other criminal statutes.

The second reason for not feeling bound by the reasoning in Collins related to the genesis of the burglary and aggravated trespass offences. Burglary is, as Dame Victoria Sharp noted, ‘an offence that is very different in kind to aggravated trespass’ and unlike the latter, it ‘did not therefore “build” on or “grow out of” the tort of trespass in the way that aggravated trespass did and was designed to do’ (at [49]).

The ECHR Arguments

Counsel for the protesters in Bailey raised an argument to the effect that a conviction for aggravated trespass in the absence of a mens rea requirement for the trespass would infringe article 10 (freedom of expression) and article 11 (freedom of assembly and association) of the ECHR. It was also submitted that any conviction would not be in accordance with the law as the offence of aggravated trespass lacks certainty as to its ingredients, contrary to article 7 (no punishment without law) of the ECHR.

The Divisional Court felt able to dispose of the article 7 argument ‘briefly’ on the basis that ‘the meaning of trespass is well-established’ (at [56]). In fact, it is so well-established that none of the leading authorities on the meaning of ‘trespass’ were referred to in the judgement in Bailey. Had it wished to do so, the Court may have cited Bocardo SA v Star Energy UK Onshore Ltd [2011] AC 380 where, in reliance on Blackstone's Commentaries on the Laws of England and Clerk & Lindsell on Torts, Lord Hope remarked: ‘It is common ground that a trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another’ (at [6]).

The article 10 and 11 arguments were also relatively easily dismissed on the basis of the authorities: see Richardson and another v DPP [2014] AC 635; DPP v Cuciurean [2022] EWHC 736 (Admin); and Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32. Thus, in the former, Lord Hughes observed:

“But the ordinary civil law of trespass constitutes a limitation on the exercise of this right which is according to law and unchallengeably proportionate. Put shortly, article 10 does not confer a licence to trespass on other people's property in order to give voice to one's views” (at [3]).

Similarly, in Cuciurean, Lord Burnett CJ remarked:

“It would be fallacious to suggest that, unless a person is free to enter upon private land to stop or impede the carrying on of a lawful activity on that land by the landowner or occupier, the essence of the freedoms of expression and assembly would be destroyed. Legitimate protest can take many other forms” (at [46]).

Conclusion

The decision in Bailey serves as a useful reminder that when a particular word is used in a penal statute, it does not necessarily follow that it bares the same meaning as it does in other enactments. Thus, in contrast to the meaning of ‘trespass’ in the burglary offence contrary to s.9 of the Theft Act 1968, where the same word appears in s.68 of the Criminal Justice and Public Order Act 1994, it does not require proof of mens rea. Rather, it has the same meaning as it does at common law. According a word in a statute its common law meaning is not without precedent. Thus, for example, it has been held in the context of the statutory nuisance regime under Part III of the Environmental Protection Act 1990 (and its statutory predecessors), that in the case of the ‘nuisance’ limb of a statutory nuisance (the other limb being that which is ‘prejudicial to health’), the word has its common law meaning: see Salford City Council v McNally [1976] AC 379, and National Coal Board v Neath BC [1976] 2 All ER 478.

At the time of writing, the controversial Public Order Bill is before Parliament. Amongst other things, it provides for a group of offences which will be committed in the context of a protest. One of them, the offence of ‘locking on’ (clause 1), would be committed where, for example, a person attaches themselves to an object or to land, and their act causes or is capable of causing serious disruption to two or more persons or to an organisation, in a place other than a dwelling, and the offender either intends their act to have such a consequence or they are reckless as to whether this will be so. Recalling the facts of Bailey, it would seem that the respondents’ behaviour falls squarely within this ‘new’ offence. Since an aggravated trespass contrary to s.68 is a summary offence punishable by a maximum of three months’ imprisonment, a fine not exceeding level 4 on the standard scale (£2500), or both, it is likely that protestors in the future who act like those in Bailey will be charged, if it becomes law, with the ‘locking on’ offence given that it may be punished by imprisonment for the maximum term for summary offences, i.e., six months’ or 51 weeks (once s.281(5) of the Criminal Justice Act 2003 enters into force).

Neil Parpworth