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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
The defendants went on to private land which was being drilled with genetically modified (GM) maize. The crop had been granted a marketing consent and could be grown legally anywhere in the United Kingdom. The defendants attached themselves to tractors engaged in the drilling process which disrupted that activity. The defendants were charged with aggravated trespass contrary to s 68(1) and (3) of the Criminal Justice and Public Order Act 1994.
At trial the defendants submitted that their actions were justified to protect damage to the environment since GM crops could cause damage to surrounding property. The district judge held that the defendants’ actions were reasonable in the circumstances and came within the common law private defence of property. He dismissed the charges.
The prosecution appealed by way of case stated. The question for the opinion of the High Court was whether the finding that the actions of all four defendants was reasonable in the defence of property was a finding properly open to the district judge, judging the issue of reasonableness objectively.
Held – The appeal would be allowed. Where the common law private defence of property was raised the court had first to ask itself whether the defendants were contending that they had used reasonable force in order to defend property from actual or imminent damage, which constituted or would constitute an unlawful or criminal act.
If the answer to that was ‘no’ then the defence was not available. If the answer was ‘yes’ then the court had to go on to consider the facts as the defendants honestly believed them to be and then had to determine objectively whether the force that had been used was reasonable in all the circumstances.
In the instant case, it was clear that the defendants knew quite well that there was nothing unlawful about the drilling of GM maize on the land, even if the seed might be transferred by one means or another to the neighbouring land. They acted as they had because they believed strongly that the seed represented a danger to neighbouring property and they knew that the law would not help them because what was going on was not unlawful or criminal.It followed that the district judge should have directed himself as a matter of law that the private defence of property simply was not available to the defendants on the facts. Accordingly, he had been in error and the case would be remitted.
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