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CRIMINAL LAW, EVIDENCE AND PROCEDURE - AGGRAVATED TRESPASS – INTERFERENCE WITH LAWFUL ACTIVITY – MEANING OF 'LAWFUL ACTIVITY' – CROP DESTRUCTION – COMMON LAW DEFENCE OF LAWFUL JUSTIFICATION – TEST TO BE APPLIED
Notes
In order to be convicted of aggravated trespass, the prosecution have to show that the defendant was engaged in disrupting a lawful activity. In this case, the defendants used the "common law" defence, that their action was necessary in order to protect property. They argued that it was necessary to destroy the genetically modified crops, in order to protect the surrounding farm land from contamination.
The judge ruled in order for this defence to work, firstly the defendants must have honestly believed that property was in actual or imminent damage, which amounted an unlawful or criminal act. If they lacked such an honest belief, then they would not be able to use this defence. If they really did believe it, then the court would then have to decide whether the force they used to protect the property was reasonable with regard to what they believed. So the second question would be, what would a reasonable person do to protect this property, if they honestly held the belief that it needed to be protected from imminent and unlawful danger.
In the case, the judge decided that the protestors must have known that the farming of genetically modified crops was not an illegal activity and therefore the defence was not available to them.
This case exposes the limitations of using this defence. Say, for example, you are charged with aggravated trespass after an an occupation at animal testing lab Huntingdon Life Sciences or at the Faslane nuclear naval base. There are two possible defences based on the lawfulness of the activity.
1: You could argue that the activity at HLS or Faslane was in fact unlawful, and therefore you were not disrupting a lawful activity. This will often be quite difficult to prove as you would have to show that the activity as a whole was unlawful, and it would not be enough to say that the target had broken the law in the past. See the notes on Hibberd and Nelder for more on the limitations of this defence.
2: You could alternatively use the common law defence, that your action was necessary to protect property. For this to work, you would not need to show that the activity at HLS / Faslane was actually unlawful. You would only have to show that you honestly believed that property was in need of protection from actual or immediate unlawful damage, and that you used reasonable force to prevent this. The trouble here is convincing the magistrate in an aggravated trespass case that you honestly believed that HLS or the Faslane naval base were engaged in unlawful activity. This defence usually only works in more serious cases of criminal damage, where the verdict is returned by a jury rather than a magistrate or a judge.
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