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Winder and Others v Director of Public Prosecutions
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
160 JP 713, The Times 14 August 1996, CO/36/96, (Transcript: Smith Bernal)
HEARING-DATES: 17 JULY 1996
17 JULY 1996

AGGRAVATED TRESPASS—INTENTION—INTENTION TO DISRUPT LAWFUL ACTIVITY OF OTHERS

COUNSEL:
C Chesters and A Jeffries for the Appellants; T Tyson and A Dhir for the Respondent
PANEL: SCHIEMANN LJ, BRIAN SMEDLEY J

JUDGMENTBY-1: SCHIEMANN LJ
JUDGMENT-1:

SCHIEMANN LJ (reading the judgment of the court): This is an appeal by way of case stated by a Metropolitan Magistrate but in relation to events in Essex. It relates to alleged hunt saboteurs and their liability to prosecution under s.68 of the Public Order and Criminal Justice Act 1994.

It is appropriate to point out here that the magistrate was not empowered, nor is this court empowered, to express a view as to the desirability of fox-hunting. His task was and our task is to apply an Act of Parliament.

As is well known, the 1994 Act was passed to deal with a variety of what were perceived by Parliament as social evils. These included gangs of persons trespassing on open land and intimidating persons who are engaged there on perfectly lawful occupations. There are differing views in society as to whether fox-hunting should remain a lawful activity. But it is common ground that at present fox-hunting is lawful.

The magistrate was trying many defendants. Four of them appealed by way of case stated. One of these four, Mr Turff, abandoned his appeal before the hearing. The overall background is set out in the case as follows:-

Generally

(a) The Essex Foxhounds arranged a meet at Good Easter for 11am Saturday 19 November 1994
(b) Protesters, numbering between 200 and 400 attended in order to protest en masse against fox-hunting and/or the recently enacted Criminal Justice and Public Order Act 1994.
(c) The protest was well co-ordinated. Protesters came from different locations, there were rendezvous points where protesters met and travelled on in arranged transport. Some were equipped with CB radios which enabled them to communicate with each other as to any sightings of the hunt or the police.
(d) A high proportion of the protesters dressed themselves in similar attire, namely army combat fatigues sometimes with the addition of black full-face balaclavas or some other facial disguise such as a scarf worn to hide as much of the face as possible.
(e) Some protesters had with them sticks or staves, hunting horns, whistles, pepper, antimate', or other such items which could be used to disrupt the hunt.
(f) The police had intelligence that a large number of protesters would be in attendance and a large number of police was therefore present.
(g) Throughout the day attempts were made by the protesters to disrupt the hunt culminating in .... the senior Master present that day prematurely stopping the hunting because he was concerned for people's safety."

The case then goes on to set out the findings of fact which the magistrate made in relation to each of the four original appellants. Although Mr Turff has abandoned his appeal it is necessary to set out the findings of fact in relation to him in order to understand and do justice to the submissions made on behalf of the remaining appellants. The case reads thus:-

(h) Clement Turff

(1) The Appellant was seen, in a field, not very far off from some huntsmen and as soon as PC Matheson approached him he ran off. He was not seen to do anything in the sense of "does there" in the words of s 68(1).

(3) (Mr Turff) gave evidence. He told me that he was one of six protesters walking along a bridle path in a field looking for the hunt. The hunt came into view and he walked up to see what was going on. He thought the huntsmen were trying to get the hounds back and he decided to approach. He admitted it was his intention to disrupt the hunt.

(4) He told me that had he managed to get close enough he would have tried to call the dogs off and in that way disrupt the hunt.

(5) As PC Matheson approached, the Appellant ran off and by his action he did not succeed in actually disrupting the hunt.

(6) Although I found the Appellant a witness of truth and accepted that he did not intend his walking up behind the huntsmen on horseback to disrupt the hunt, I was nevertheless satisfied he would have tried to disrupt the hunt in the way described in (4) above had he got closer, or in any other way had the opportunity presented itself, given his candid admission to me that he intended to disrupt the hunt.

(i) Robert Winder

(1) The Appellant was seen, one of 20 to 30 protesters, running across a field in the direction of the hunt which was crossing the field. He was trespassing. He was arrested in the field by PC Crawley.

(2) The Appellant gave evidence. He told me that he had been in a van with other protesters when they spotted the hunt. The van stopped, he and others got out in order to cross the field to get to the hunt.

(3) He said he had no particular plan as to what he would have done had he been able to get closer, but would probably have wanted to register his protest against fox-hunting by his presence.

(4) I did not accept that evidence of his motives and was satisfied that in running after the hunt he was intending to disrupt the hunt.

(j) Angeline Greenaway

(1) The Appellant was one of 40 or so protesters seen in a field running towards the hunt, which at the time was in view although some hundreds of yards away. She was trespassing. She was arrested in the field by PC Whitehead. Found on her was a whistle and a container of citronella, a strong smelling non-toxic lemon substance, (which could be used to spray on the ground thus making it more difficult for the hounds to follow the scent of the fox).

(2) The Appellant gave evidence; she told me that it was her intention merely to register her protest to fox-hunting by her presence and that she had no intention to disrupt the hunt.

(3) I did not accept that evidence of her motives and given all the circumstances I was satisfied that in running after the hunt it was her intention to disrupt the hunt.

(k) Keith Regan

(1) The Appellant was seen in the same circumstances as the Appellant Miss Greenaway. He was in the same field amongst approximately 40 protesters running behind the hunt chasing and trying to follow. He was a trespasser. He was arrested by PC Smith in field.

(2) The Appellant gave evidence. He told me that he ran after the hunt, but because he was unfit he fell behind the others who had been running with him and he decided to give up. He said had he caught up with the hunt it was his intention merely to register his protest to fox-hunting by his presence and that he had not intention to disrupt the hunt.

(3) I did not accept that evidence of his motives and given all the circumstances I was satisfied that in running after the hunt it was his intention to disrupt the hunt."

The Legislation

Under the cross heading "Disruptive Trespassers" the Criminal Justice and Public Order Act 1994 has two sections, namely ss 68 and 69. Section 68 provides:
"(1) A person commits the offence of aggravated trespass if he trespasses on land in the open air and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect -
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.

(4) A constable in uniform who reasonably suspects that a person is committing an offence under this Section may arrest him without a warrant."
"69.(1)If the senior police officer present at the scene reasonably believes -
(a) that a person is committing, has committed or intends to commit the offence of aggravated trespass on land in the open air;
(b) that two or more persons are trespassing on land in the open air and are present there with the common purpose of intimidating persons so as to deter them from engaging in lawful activity or of obstructing or disrupting a lawful activity,
he may direct that person or (as the case may be) those persons (or any of them) to leave the land.

(3) If a person knowing that a direction under sub Section (1) above has been given which applies to him -
(a) fails to leave the land as soon as practicable or
(b) having left, again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given
he commits an offence and is liable on summary conviction to imprisonment for a term ...

(5) A constable in uniform who reasonably suspects that a person is committing an offence under this Section may arrest him without a warrant."
It will be seen that the Statute gives two options in relation to a person reasonably suspected of committing the offence of aggravated trespass. He may be arrested under s.68. Alternatively, he may be directed to leave the land on which he is trespassing and arrested if he fails to do so as soon as is practicable.

Each of the four appellants was charged under s.68 and the information alleged that he or she "having trespassed on land in the open air ... and in relation to a lawful activity, namely fox-hunting, did an act, namely pursued members of the Hunt mounted on horseback, which you intended to have the effect of disrupting that activity."

The Submissions

It is clear from the findings of the Magistrate and the appellants accepted before us that they intended to disrupt the Hunt.

Further, the appellants accept that if the prosecution proved that what they were doing at the time of their arrest was in itself intended to have the effect of disrupting the Hunt then they would have been shown to be guilty of an offence under s.68. They accepted that the very act of running after mounted horses could be intended to have the effect of disrupting the Hunt. Whether or not in any particular case that intention could be inferred was a matter for the tribunal of fact.

At first, looking merely at those parts of the case dealing with the three appellants before us, we were minded to construe the phrase "in running after the Hunt he was intending to disrupt the Hunt" as meaning that the Magistrate found that the appellants intended that the act of running after the Hunt should disrupt it. However, we are persuaded and the prosecution concedes, that this is not what the Magistrate meant. We have been shown the very clear Findings which the Magistrate handed down in writing at the time of his decision. They make his view of the law plain. He said this in relation to the submission of Mr Jefferies who appeared in front of him and us for the appellants:

"What Mr Jefferies submits is that to be guilty of an offence contrary to s.68 it is not enough to prove a defendant
(1) was a trespasser on land in the open air
(2) at that time had a general intent to disrupt the Hunt
(3) was moving towards the Hunt with the intention that when he was within range he would do something e.g. pull a huntsman from his horse, blow a horn or whatever, with the then requisite intent.

I am calling that the "narrow" interpretation of the section and I reject it. In my judgment if the above matters are proved and the court is satisfied that what was done [in the sense of 'does there anything'] evinces the requisite intention then the offence of aggravated trespass is made out. I call that the "wider" interpretation."

Conclusion

The legal problem posed by the present case can be more clearly illustrated by the following example. Suppose a trespasser on open land says to a third party "go over the brow of that hill and there throw some stink bombs so as to disrupt the lawful activity - be it a hunt, be it a concert, be it a birthday celebration for the farmer's daughter - which is going on there. Is the trespasser is guilty of the s.68 offence, whether or no the third party throws the stink bombs and whether or no the members of the hunt know of the trespasser's existence? Clearly the act of giving the instruction does not in itself disrupt but it is intended in due course to result in acts which have that effect. We think that such a trespasser is guilty.

The same goes for a trespasser who, wishing to disrupt a lawful, activity, but out of sight, picks up a stone with a view to throwing it in the midst of those carrying out the lawful activity. We do not consider that the drafting of the section would require a court to hold that since picking up a stone in itself harmed no-one no offence was committed and that nothing could be done under the act other than giving a direction under s.69 to leave the land.

We accept that problems of remoteness can at times bedevil these questions, but it must be remembered that the prosecution can not succeed in a prosecution under s.68 unless they prove [what is admitted in the present cases] that the defendant is trespassing and moreover intends to disrupt a lawful activity and does some act towards that end.

In the circumstances of the present case we must take the relevant findings of fact to be that the appellants had throughout their time as trespassers an intention to disrupt the Hunt and that they were running towards where the Hunt was in order to carry out that intention before the Hunt moved elsewhere. However they had no intention that the running itself should disrupt the Hunt.

The running after the Hunt was, in the undisputed circumstances of the present case, sufficiently closely connected to the intended disruption as to be, in the words of the Criminal Attempts Act 1981, "more than merely preparatory". It was intended to get the appellants sufficiently close to the Hunt in a sufficiently short time to enable them there to disrupt it. That was the conclusion drawn by the Magistrate. The facts amply warranted that conclusion. That conclusion sufficed to justify the conviction.

The question which is posed at the end of the case is "Given my findings of fact was I entitled to find the charges of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994 proved against these appellants?" That question we answer in the affirmative.

DISPOSITION:
Judgment accordingly

SOLICITORS:
Bindman & Partners for the First Appellant; Leathes Prior, Norwich for the Second and Third Appellants; Crown Prosecution Service, Chelmsford for the Respondent