So, the appeal court has now ruled in our case of obstructing the highway to prevent the DSEI arms fair.
Basically they say that it is too dangerous for people to prevent crime - that is only a function of the police except in very limited circumstances.
here are the judgement and the ruling (very long)
Neutral Citation
Number: [2017] EWHC 1794 (Admin)
Case No: CO/3570/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice, Strand, London, WC2A 2LL
Date: 14/07/2017
Before:
Lord Justice Simon
and
Sir Kenneth Parker
(Sitting as
a Judge of the High Court)
- - - - - - - - - - - - - - - - - - - - -
Between:
|
The
Queen on the application of the Director of Public Prosecutions
|
Claimant
|
|
and
|
|
|
Stratford
Magistrates Court
and
Angela
Ditchfield, Isa Alaali, Thomas Franklin, Lisa Butler, Susannah Mengesha, Bram
Vranken, Luis Torrejon and Javier Neidhart
|
Defendant
Interested
Parties
|
- - - - - - - - - - - - - - - - - - - - -
David
Perry QC and Caoimhe Daly for the Claimant
Edward
Fitzgerald QC and Owen Greenhall (instructed by Kellys solicitors) for Susannah
Mengesha
Adam Payter for Angela Ditchfield
Thomas
Franklin in person
Hearing date: 13 June 2017
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Simon:
Introduction
- In 2015, the biennial Defence and Security Equipment
International (‘DSEI’) exhibition took place at the Excel Centre, London E.16 between
14 and 18 September. Between 9 and 12 September, while the exhibition was being
set up, the Interested Parties obstructed the passage of vehicles making their
way to the exhibition centre. They were arrested and charged with offences of
wilfully obstructing the highway, contrary to s.137 of the Highways Act 1980
(the ‘HA 1980’).
- On 11 April 2016, they were tried before District Judge
Hamilton at Stratford Magistrates Court. Their defence was that they had been
using reasonable force to prevent the commission of crimes at what they
characterised as an ‘arms fair’, within the meaning of s.3(1) of the Criminal
Law Act 1967 (the ‘CLA 1967’). On 15 April 2016, following a 5-day trial,
during which factual and expert evidence was called, they were acquitted of all
charges.
- In the present claim, the Director of Public
Prosecutions (‘the DPP’) seeks an order compelling the Magistrates’ Court to
state a case for the opinion of the High Court, following the District Judge’s
refusal to do so in a ruling made on 5 May 2016, or alternatively, an order
quashing the District Judge’s decision with a direction that the case be
remitted to the Magistrates’ Court for a retrial.
The trial before the District Judge
- In summary, the prosecution case was that the 8
Interested Parties had engaged in protests against the sale of arms and
security equipment at the DSEI by obstructing the highway. In particular,
Angela Ditchfield ‘locked on’ to a vehicle; Isa Alaali and Thomas Franklin lay
in the path of a heavy goods vehicle which was carrying a military vehicle, Lisa
Butler and Susannah Mengesha chained themselves to a temporary gate leading to
the DSEI exhibition; and Bram Vranken, Luis Torrejon and Javier Neidhart lay,
locked together, on the road and in the path of a heavy goods vehicle driving
towards the DSEI exhibition. It is not necessary to elaborate on the form and the
nature of the protests since (at least for present purposes) it was accepted
that the Interested Parties were obstructing the highway, contrary to s.139 of
the Highways Act 1980.
- The defence case at trial was that they had been acting
to prevent crime. Section 3(1) of the CLA 1967 provides:
A person may use such force as is reasonable in the
circumstances in the prevention of crime, or in effecting or assisting the
lawful arrest of offenders or suspected offenders or of persons unlawfully at
large.
- Although their evidence varied as to the crime they
were preventing, it is convenient to proceed on the basis that their intention
was to prevent: (1) the sale or advertising of weapons or equipment that is
illegal by reasons of ss.21 and 25 of the Export Control Order 2008 (S1 2008/3231),
and (2) crimes committed in Yemen, Bahrain, Kurdistan and Turkey, contrary to
ss.52 and 55(1)(a) of the International Criminal Court Act 2001.
- Although some of the Interested Parties gave evidence
as to their belief that such crimes were being committed, they also applied and
were permitted to call evidence of three expert witnesses: Oliver Sprague
(Amnesty International’s UK Programme Director on arms control and policing),
Sayed Alwadaei (Director of Advocacy at the Bahrain Institute for Rights and Democracy);
and Kathryn Hobbs (Local Outreach Coordinator for Campaign Against the Arms
Trade).
- Oliver Sprague provided details of what he said were
historic breaches of UK arms export controls at the DSEI exhibitions in 2005,
2007, 2009, 2011 and 2013. He said that these infractions of the law had not
been identified by compliance teams, but by third party researchers, including
Mr Sprague himself. He had not been permitted to enter the DSEI exhibition in
2015 and was therefore unable to say whether there was any current illegal
activity. He also identified particular countries which were subject to a UN
arms embargo or as to which there were acute concerns about human rights, but
which had nevertheless been invited to attend.
- Sayed Alwadaei’s report focussed on Bahrain and, for
reasons which I will come to, contained evidence that was almost entirely
inadmissible.
- Kathryn Hobbs gave evidence about the importance of
DSEI exhibitions in the sale of arms and security equipment. She also described
breaches of domestic law by companies in each of the 2005, 2007, 2009, 2011 and
2013 DSEI exhibitions most of which resulted in the companies being ‘ejected’
from the exhibitions. Thus, for example, a Chinese company was ‘ejected’ from the
DSEI exhibition in 2013 following the discovery of literature advertising leg
cuffs and electric shock batons.
- The experts accepted that there was no evidence of any
illegal arms trading at DSEI 2015, but Mr Sprague and Ms Hobbs regarded it as
reasonable to assume that the level of illegal arms trading was similar to what
had occurred at earlier DSEI exhibitions.
- Mr Fitzgerald QC accepted that most of the lorries that
were obstructed were not transporting anything unlawful (and there were plainly
other vehicles that were obstructed which had nothing to do with the DSEI
exhibition); but he submitted that there was ‘a real likelihood’ that some
people at the exhibition were ‘aiding and abetting war crimes.’
The ruling and the acquittals
- It was common ground that there were two questions which
had to be answered in relation to the defence under s.3(1) CLA 1967. First, did
the defendants honestly (even if mistakenly), believe that they were acting to
prevent a crime? Second, if so, was the force that was used reasonable, in the
circumstances that they believed them to be? It was also common ground that
first question involved a subjective test and that the second question involved
an objective test.
- In reaching his decision to acquit the Interested
Parties, the District Judge concluded that there had been repeated failures by
law enforcement agencies to take action against illegal arms sales at previous
DSEI exhibitions; that each of the Interested Parties had acted with the
intention of preventing unlawful arms sales or the sale of arms for unlawful
purposes against civilian populations by obstructing access to the DSEI
exhibition; that the prosecution had failed to prove that they did not honestly
believe that the force used was necessary for the prevention of crime; and that
it had also failed to prove that the force used was not reasonable in the
circumstances.
The defence under s.3(1) of the CLA 1967
- Although it is not the earliest of the cases to which
we were referred, it is useful to start with the decision of the House of Lords
in R v. Jones (Margaret) and others [2007]
1 AC 136.
- The case involved conjoined appeals in relation to the
prosecution of offences (aggravated trespass and criminal damage) committed by
the appellants in the course of protests against the Iraq war in 2003. The first
issue for determination was whether the defence under s.3(1) of the CLA 1967
was available where force was used in prevention of the international law crime
of aggression. On that issue all members of the House of Lords agreed that the
defence under s.3(1) was confined to offences contrary to domestic criminal
law. However, members of the House of Lords also considered the general ambit
of s.3(1) in the context of protests. Since they are lengthy, I have set out
the relevant passages from the speech of Lord Hoffmann as an appendix rather
than in the body of this judgment.
- These
passages show a clear and focussed review of the issues which arise in this
type of case and arose specifically in the present case. The other members of
the House of Lords (Lord Rodger of Earlsferry, Lord Carswell and Lord Mance)
agreed with the speech of Lord Hoffmann; and, in the case of Lord Mance,
explicitly agreed with the parts of the speech set out in the appendix:
106. I also agree with Lord Hoffmann's remarks in paragraphs 70
to 94 on the limits of self-help in the context of section 3 of the 1967 Act.
- Although it is undesirable to attempt a synthesis of
Lord Hoffmann’s speech and thereby dilute subtle articulations of principle,
certain points are clear. First, ordinary citizens who apprehend a breach of
the law are normally expected to call the police and not take the law into
their own hands. In general, the use of force by individuals in the prevention
of crime must be confined so as to avoid anarchy, see [77] and [78]. Secondly,
the use of force to prevent crime may be legitimate and give rise to the
defence ‘in a moment of emergency, when individual action is necessary to
prevent some imminent crime’, see [81]. Thirdly, the right of a citizen to use
force is even more circumscribed when not in defence of his own person or
property, but deployed to enforce the law in the interest of the community at
large, see [83] and [84]. Fourthly, while the law recognises conscientious
protests and civil disobedience, the honestly held beliefs of protestors as to
the legality of certain activities cannot be allowed to subvert the forensic
process, see [89], [90] and [93]. Fifthly, in the light of these points, a
Court should be prepared to conclude that the defence under s.3(1) is not
available to a defendant and, in such circumstances, the issue of justification
should be withdrawn from a jury, see [94].
- We were also referred to a number of other cases
decided both before and after the decision in R v. Jones (Margaret) and others. The first of these was Birch v. DPP (1999) Divisional Court,
unreported. The facts were similar to those in the present case. The appellant
was one of a number of demonstrators who sat down in the road and prevented
vehicles proceeding along the highway towards a building occupied by a company
which was the object of their disfavour. He was warned by the police that he
was obstructing the highway and was asked to move. He declined to do so, was
arrested, charged and prosecuted. At his trial, he applied to adduce evidence
that the activities of the company, and of those who were trying to enter the
building, were unlawful. The Stipendiary Magistrate refused to admit the
evidence and stated a case which included a question relating his refusal to
allow evidence to be called about the allegedly unlawful activities of the
company. In his judgment, Rose LJ said this:
32. Whether or not preventing crime affords a defence to a
particular charge must depend on the circumstance.
33. There may be circumstances in which preventing an actual,
or imminently apprehended, breach of the peace or other serious offence, on or
near the highway, will afford a lawful excuse for obstructing the passage along
the highway of one or more vehicles.
34. But that is not the present case. An honest and
reasonable belief that the progress of a vehicle may contribute to criminal
activity not amounting to an imminent breach of the peace or other serious
offence is not, in my judgment, capable of affording lawful excuse for
obstructing passage along the highway of that vehicle, still less other
vehicles unconnected with it.
35. A demonstration involving lying down in the road, as it
seems to me, may possibly draw attention to crime but it cannot, in my
judgment, give rise to the prevention of crime within … section 3 of the [CLA
1967].
Smith
J gave a judgment to similar effect.
- The importance of a link between the use of force and
an imminently apprehended crime, and to the lack of any ‘immediate and instant
need to act’ being fatal to the defence under s.3 of the CLA 1967, was also
highlighted in the judgment of Buxton LJ in Hutchinson
v. Newbury Magistrates’ Court (2000) referred to in the speech of Lord
Hoffmann at [91].
- In the present case, the Interested Parties relied on a
ruling, after the decision in R v. Jones
(Margaret) and others, of Flaux J at Leicester Crown Court in R v. Barkshire (unreported, 21 May
2010). The defendants were climate change protestors who were charged with
conspiracy to commit aggravated trespass at a power station. They admitted that
they had acted as the prosecution alleged, but their defence statement
contended that they intended to use reasonable force in prevention of crime
(preventing death caused by carbon dioxide poisoning and various offences under
the Wildlife and Countryside Act 1981). The prosecution submitted that the
Judge should withdraw the defence from the jury on the basis that the defences
were not capable of amounting to a defence in law, relying on what I have
identified as fifth point in the speech of Lord Hoffmann (see above at [18]).
The Judge summarised the basis on which a court could rule that a defence was
not available as a matter of law; and then considered the passages in Lord
Hoffmann’s speech dealing with the limits of self-help. The Judge referred to
the case of R v. Bard and others where such a course had been
adopted by a trial judge in similar circumstances, but concluded that what had
been said by Lord Hoffmann and Lord Mance as to the limits of self-help was not
essential to the decision in the case and was contrary to principle, since
withdrawing the defence usurped the function of the jury.
- In the event the defendants were convicted. Although
the Court of Appeal Criminal Division in R
v. Barkshire and others [2011] EWCA Crim 1885 (Lord Judge LCJ, Treacy and
Calvert-Smith JJ) subsequently quashed the convictions on the grounds of the
prosecution’s failures to disclose material matters, in the course of its
judgment, the Court said this:
8. The Crown did not appeal Flaux J’s ruling. The trial
proceeded on the basis that it was correct, and the judge (His Honour Judge
Teare) rightly directed the jury accordingly. Given the particular and unusual
circumstances in which these appeals are brought, it would not be appropriate
for this court to start an examination into the safety of the convictions by
going behind Flaux J’s ruling. Nevertheless, we entertain reservations about
it. The circumstances in which what would otherwise amount to criminal conduct
may be justified on the basis of honestly held, political beliefs by the
perpetrators, will need consideration in this court on another occasion.
- The point was considered further, and in similar
circumstances, in R v. Bard and others [2014]
EWCA Crim 463 when the Court of Appeal Criminal Division (Lord Thomas of
Cwmgiedd, Simon and Irwin JJ) quashed the convictions for similar reasons to
those on the appeal of R v. Barkshire and
others. As Flaux J had noted in R v.
Barkshire, the trial judge in R v.
Bard had ruled that the defence under s.3(1) of the CLA 1967 was not
available; and the Court of Appeal in R
v. Bard observed shortly:
3. On 7 October 2008 [the defendants] were committed for
trial to the Crown Court. The case was then transferred to Leeds. In their
Defence Statements the applicants accepted that they had occupied the train and
took defences of necessity (an allowed offence) on the basis that they were
trying to prevent a crime being committed. The crime related to the effect of
coal on the climate.
4. Unsurprisingly, an application was made to a judge to
consider whether that amounted to a defence in law. On 1 June 2009, the judge
ruled that no such defence was available and that no evidence relating to the
effect of burning fossil fuels and global warning could be called. Thereafter,
some of the applicants pleaded guilty. The others who did not were convicted on
3 July 2009.
- Neither of these decisions of the Court of Appeal
Criminal Division can be said to support the views of Flaux J expressed in his
ruling in R v. Barkshire.
- Although it is not possible to set out all-embracing
principles which can be derived from these cases, certain themes emerge. First,
the defence under s.3(1) of the CLA 1967 operates as a justification for the
use of force rather than an excuse to use force, and is linked to the concept
of necessity. There must be an apprehension of a need to use force (or, I would
accept for reasons that I will come to, in an appropriate case something less
than force) to prevent an imminent or immediate crime; or as expressed in Hale,
Pleas of the Crown (1778) volume 1
(p.52) ‘an actual and inevitable danger’. There must be a clear nexus between
the use of force and the prevention of crime; and there is a clear difference
between a protest against what is regarded as objectionable and even illegal
conduct on the one hand, and the use of force to prevent an imminent and
immediate crime on the other. Second, the court should not countenance the
demand for disclosure or the calling of evidence (expert or otherwise) which relates
to what cannot properly be characterised as an imminent or immediate crime. If
the commission of such crimes are not within the direct knowledge of a
defendant, they are unlikely to fall into that category. Third, on an
application to consider the ambit of a defence under s.3(1) of the CLA 1967, a
court should consider whether, on the most favourable view of the facts, such a
defence is available. In doing so, it should keep firmly in mind the points
raised in the speech of Lord Hoffmann in R
v. Jones (Margaret) and others which
I have sought to identify above. If there is no proper evidential basis on which
the defence can be said to be available, it should be withdrawn from
consideration. Fourth, where a case comes before a magistrate, who is both the judge
of the law and the finder of fact, it is particularly important to consider
carefully: (1) the proper ambit of the defence and (2) when making findings,
the questions which need to be posed and how they should be answered. Fifth, I
am very doubtful whether the ruling in the Crown Court in R v. Barkshire provides guidance as to the proper approach either
in the Crown Court or in the Magistrates’ Court. I do not accept that the
speech of Lord Hoffmann in R v. Jones
(Margaret) and others at [73]-[94] can be dismissed as obiter dicta. Whether or not they were strictly speaking necessary
for the decision can be debated. What is plain is that they provide a clear and
cogent exposition of the legal issues that will arise in this type of case,
with which the other members of the House of Lords agreed.
The DPP’s challenge
- On 29 April, the DPP applied to the District Judge to
state a case for the opinion of the High Court. He refused to do so, and the
DPP then sent a Letter before Claim inviting him to reconsider this refusal;
and following his further refusal to state a case on 22 June, the DPP filed the
claim form in the present proceeding on 12 July 2016. On 25 October Jefford J
granted permission to bring the proceedings; but on 23 November 2016 they were
struck out for failure to pay the post-permission continuation fee. On 7
February 2017, the DPP became aware that the claim had been struck out. The fee
was then paid and, on 22 March 2017 the claim was reinstated. The circumstances
in which the claim came to be struck out and reinstated gives rise to an
argument on behalf of the Interested Parties which I address below.
Preliminary matters
- Before addressing the substance of the case, it is
convenient to deal with two preliminary points: first, the procedure that was
adopted, and second the deployment of expert evidence.
(1) Procedure
- As noted above the DPP initially sought to challenge
the decision to acquit the Interested Parties by inviting the District Judge to
state a case.
- Section 111(1) of the Magistrates Court Act 1980
provides for a party aggrieved by a determination to question the proceeding by
an application to state a case on the ground that it is wrong in law or in
excess of jurisdiction. Section 111(5) contains a proviso that a court may
refuse to state a case where it considers the application is ‘frivolous’. It
was on this basis that District Judge Hamilton refused to state a case. The
meaning of s.111(5) was considered in R
v. North West Suffolk (Mildenhall) Magistrates Court [1998] Env.L.R 9 and
it is important to bear in mind what Lord Bingham LCJ, giving the leading
judgment in the Court of Appeal, said about it:
I think it very
unfortunate that the expression ‘frivolous’ ever entered the lexicon of
procedural jargon … what the expression means in this context is, in my
view, that the court considers the application to be futile, misconceived,
hopeless or academic. That is not a conclusion to which justices to whom an
application to state a case is made will often or lightly come. It is not a conclusion
to which they can properly come simply
because they consider their decision to be right or immune from challenge.
Still less is it a conclusion to which they can properly come out of a desire
to obstruct a challenge to their decision or out of a misplaced amour proper.
- The issues that arise in the present case plainly give
rise to issues of law. The District Judge had already ruled that the law as to
the ambit of the defence under s.3(1) was ‘in a state of flux’ and that there
was a serious issue of law to be determined. There was nothing futile,
misconceived, hopeless or academic about the application. In these
circumstances, he should have agreed to state a case.
- In Sunworld Ltd
v. Hammersmith & Fulham London Borough Council [2000] 1 WLR 2102, at
2106F-H, Simon Brown LJ set out the approach that should be adopted where the
Magistrates Court refuses to state a case. Section 111(6) provided that in such
a case the High Court might make an order of mandamus requiring the court to
state a case.
Although it is impossible to lay down principles which will
apply in every case, and this court should retain the flexibility to deal with
unusual situations as they arise, I would suggest the following approach. (1)
Where a court, be it a Magistrate's court or the Crown Court, refuses to state
a case, then the party aggrieved should without delay apply for permission to
bring judicial review, either (a) to mandamus it to state a case and/or (b) to
quash the order sought to be appealed. (2) If the court below has already (a)
given a reasoned judgment containing all the necessary findings of fact and/or
(b) explained its refusal to state a case in terms which clearly raise the true
point of law in issue, then the correct course would be for the single judge,
assuming he thinks the point properly arguable, to grant permission for
judicial review which directly challenges the order complained of, thereby
avoiding the need for a case to be stated at all. (3) If the court below has
stated a case but in respect of some questions only, as here, the better course
may be to apply for the case stated to be amended unless again, as here, there
already exists sufficient material to enable the Divisional Court to deal with
all the properly arguable issues in the case. (4) This court for its part will
adopt whatever course involves the fewest additional steps and the least
expense, delay and duplication of proceedings.
- In the present case, there was little factual dispute
between the parties and the District Judge gave a written ruling containing his
findings of fact. In these circumstances, it was right to proceed with hearing
the claim for judicial review, as all parties agreed.
(2) Expert evidence
- There appears to have been no proper consideration of
the materiality of the expert evidence. CPR Part 19 (expert evidence) requires
that a party wishing to adduce expert evidence must serve a summary of the
conclusions as soon as practicable after the defendant whom it affects pleads
not guilty. One of the Court’s tasks is then to decide whether it is relevant
evidence. If it is not relevant, it is inadmissible. As I have already
indicated, the evidence of Mr Sayed Alwadaei was largely if not entirely
irrelevant.
- CPR Part 19.2 sets out the expert’s duty to the court.
In the present case the witness statement of Oliver Sprague stated that he
understood his duties to the court as contained in CPR Part 19. In my view the
better practice is to set out (at least in summary) an express acknowledgment
of the witness’s duty to the court and the important obligation to provide
objective and unbiased evidence: not least because the failure to do so invites
a line of cross-examination.
- Mr Sprague’s witness statement also contained
assertions that particular conduct, which he deduced would be taking place at
the DSEI exhibition, constituted a criminal offence. However, while he was
entitled to give evidence of past events and the defence was entitled to invite
the court to draw the conclusion that what had happened in the past was likely
to be repeated, whether or not the conduct constituted a criminal offence was a
matter for the court and not expert evidence.
- Finally, where the defence wishes to adduce
evidence of this sort in this type of case, it is important for the court to
have in mind the observations of Lord Hoffmann in R v. Jones (Margaret) and others at [94] to the effect that expert
evidence to support the opinions of
the protesters as to the legality of the acts in question is irrelevant and
inadmissible. As I have already noted, if evidence of the crime, which force is
used to prevent, does not come from the defendant, the defence under s.3(1)
will be unlikely to succeed.
Discussion
- The first question is whether the District Judge was
right to conclude that the defence under s.3(1) of the CLA 1967 was available
to the defendants. In my view, he was wrong in his conclusion.
- As set out above there is clear authority that this
defence should not be left to the jury in circumstances where the use of force
is not directed to the prevention of an imminent or immediate crime. No crime
could be said to have been committed on the highway. If any crimes were being
committed at all, they were being committed at the DSEI exhibition.
- Following the acquittal on 5 April 2016, the District
Judge delivered a written judgment on 18 April 2016.
- Having considered that the s.3(1) defence was open to
the defendants, the District Judge addressed the second question identified in
[13] above: in the circumstances that they believed them to be, was the force
used by the defendants reasonable (judging this question according to an
objective standard)?
… I have taken into account in particular, the nature and
duration of the actions taken by the defendants. As I have already indicated,
their acts were non-violent, targeted (in the sense that the defendants sought
to target either a vehicle clearly destined for the DSEI fair or the immediate
access to the Excel site) and limited in duration (although arguably duration
was more a function of the police decision-making rather than anything the
defendants did). The actions taken by the defendants were relatively minimal
without being ineffective. As the preceding paragraphs indicate I believe that
the defendants were perfectly sincere in their conclusions first that the unlawful
sale of arms would almost certainly be occurring at DSEI and, secondly, that
their intervention was necessary [to seek] to prevent this.
It follows that I cannot be sure that the force used by any
of these defendants was not reasonable in the circumstances as they believed
them to be.
- There are two unsatisfactory features in these reasons.
First, there is no finding that an apprehended crime was imminent and
immediate, and no proper basis in the evidence for such a finding.
- There was also a lack of clarity as to what crime was
being committed and how force (to the extent that it was used) was preventing
it. It was effectively common ground that the DSEI exhibition was large and
that most of the trade was entirely legal. Importantly in this context, there
was no evidence that the vehicles that were being obstructed were involved in
anything other than lawful business.
- Generalised and unspecified criminal activity was
presumed to be committed by unidentified parties at unidentified times; and the
reasons given for the obstruction of the highway were not uniform. As the
District Judge noted, some defendants were specific in relation to the crimes
they believed they were acting to prevent, some were objecting to arms sales in
general, some to the participation of particular states, while others said they
were acting to ‘draw attention’ to wider issues of concern. There was nothing
to link the obstruction of the highway with an imminent or immediate crime. It
was not being said, for example, that the lorries making their way to the
exhibition were carrying prohibited weapons or substances.
- The District Judge had found earlier that the
Interested Parties’ actions were reasonable in the light of the ‘democratic
deficit’. Although it is unnecessary to express a concluded view about the
issue, I am doubtful whether this finding properly reflected what Lord Hoffmann
had in mind when he used this phrase. The reasonableness of the actions in
obstructing the highway has to be examined in the context of a democratic society
and the rule of law. This was plainly not a case in which the Interested
Parties were driven inexorably to obstruct the highway as the only means to
achieve the end of preventing what they believed to be the commission of crime.
- The second unsatisfactory feature of this part of the
ruling was the reference to the sincerity of the defendants’ beliefs. Although
it may have been a justified finding on the facts, it was irrelevant to the
second question and introduced a confusing subjective element.
- In my view this part of the ruling, which was crucial
to the decision to acquit, demonstrated a material error of law.
- A further question arose in the course of argument as
to whether the conduct of the Interested Parties could be said to constitute
the use of force for the purposes of s.3(1). Since this does not arise in the
light of the above, I can express myself shortly.
- In Swales v. Cox
[1981] 1 QB 849 the Divisional Court (Donaldson LJ and Hodgson J) held that
force used to gain entry, within the meaning of s.2(6) of the CLA 1967,
consisted of the application of energy to the obstacle with a view to removing
it. In R v. Renouf [1986] 1 WLR 522, the defendant used his car
to force another car off the road, the occupants of which had committed an
offence. His conviction for reckless driving was set aside. The Court of Appeal
Criminal Division held (at p.525B) that the s.3(1) defence should have been
left to the jury and that ‘force’ was word of ordinary usage in English and did
not require judicial interpretation.
- In R v. Jones
(Margaret) and others (see above)
Lord Bingham at [25] expressed doubt as to whether s.3 was ever intended to
apply to conduct ‘which, although causing damage to property in some cases, was
entirely peaceable and involved no violence of any kind to any person.’ He
referred to Swales v. Cox and R v. Renouf but observed that since the
matter had not been fully investigated, he would treat s.3 of the CLA 1967 as
applying to what the defendants in that case had done. Lord Hoffmann at [71]
was willing to assume that chaining oneself to railings or putting sugar in the
petrol tanks of lorries involved the use of force, although he said that there
was ‘much to be said’ for the view that force in s.3 ‘means force against
persons committing crimes or escaping arrest’.
- In the light of these authorities I have concluded that
the defence applies to the direct application of force, although the force
would not necessarily have to be applied directly against a person. It would
apply for example to a defendant who attached him or herself to a lorry which
was believed to be carrying chemical weapons, see in a different context DPP v. Bayer [2004] 1 WLR 2856
(Divisional Court; Brooke LJ and Silber J) at [25] where the court found it
hard to understand why the relevant defence should not apply in a case where
the defendants tied themselves to tractors rather than attacking the tractor
drivers. In contrast, the defence would not be available to those who lie down
in the road in front of lorries making their way to their way to a place where
crimes are believed to be taking place or who block access by chaining
themselves to gates, see Birch v. DPP
(above).
- Mr Fitzgerald QC and Mr Payter pointed to the anomaly
that force may be relied as a statutory defence but that something less than
force does not come within this defence. I would accept that submission, at
least to this extent: something short of the application of force may give rise
to a defence to a criminal offence, but that, as in the case of the statutory
defence, there must be a nexus between the conduct and the criminality.
Determination
- For the reasons set out above, I have concluded that
the District Judge should not have permitted the Interested Parties to rely on
the defence under s.3 of the CLA 1967 and, having done so, misdirected himself
in law as to the availability of the defence. In these circumstances, Mr Perry QC
submitted that this court should quash the acquittals and remit the case so
that it can be decided according to the law.
- This would normally be the appropriate course. However,
the Interested Parties submit that there are special circumstances that make
this course inappropriate. First, this is not a case in which this court can
direct the Magistrates Court to convict in the light of the judgment, since the
Interested Parties had further arguments, for example in the case of Susannah
Mengesha and Lisa Butler whether the place where their protests took place was
a public highway, which (despite the case taking 5 days) had not been
determined. Secondly, it is said that the Interested Parties will suffer
difficulties in presenting their evidence on a retrial in view of the delay.
Thirdly, there is reliance on the delays in progressing the judicial review
proceedings, which involved the claim being struck out for failure to pay fees.
At least some of the Interested Parties were informed by the Administrative
Court office in December 2016 that the case was ‘closed’. Our attention was
also drawn to the contents of witness statements lodged in response to the
DPP’s application to reinstate the claim as a result of the protracted nature
of the proceedings. Finally, counsel submit that their clients are of previous
good character and that the offence is only triable summarily with a fine as
the maximum penalty.
- None of these, taken individually, would justify
departing from the usual practice of remitting the case. However, taken
together, it is my view that they militate in favour of a different course. The
matters of principle have been resolved and the overall interests of justice do
not, in my judgment, call for the prosecution to continue.
- For these reasons, and subject to hearing any further
submissions as to its precise wording, I would make an order declaring that the
District Judge made material errors of law in his ruling; but in the unusual
circumstances I would not order the case to be remitted for a retrial.
Sir Kenneth Parker
Appendix
(Extracts from
the speech of Lord Hoffmann in R v. Jones (Margaret and others) [2007] 1 AC
136)
The limits of self-help
73.
… I am willing to assume that, in judging whether the defendant acted
reasonably, it must be assumed that the facts were as he honestly believed them
to be. But the question remains as to whether in such circumstances his use of
force would be reasonable. And that is an objective question. The position may
be different under section 5 of the 1971 Act but section 3 of the 1967 Act does
not excuse a defendant if he uses such force as he himself thinks to be reasonable.
It must actually have been reasonable.
74.
The crucial question, in my opinion, is whether one judges the reasonableness
of the defendant’s actions as if he was the sheriff in a Western, the only law
man in town, or whether it should be judged in its actual social setting, in a
democratic society with its own appointed agents for the enforcement of the
law. I take, by way of example only, the statement by Margaret Jones and Paul
Milling appended to their printed case, which states their beliefs when they
entered RAF Fairford:
By disrupting the loading of bombs onto
aeroplanes and by interfering with the ability of the base to refuel the
aircraft they were acting lawfully, reasonably and proportionately in order to
(i) prevent armed aircraft from operating from RAF Fairford and (ii) in order
to prevent domestic and international criminal offences from being committed.
That the action they took was reasonable to
protect persons and property in Iraq from injury and damage caused by criminal
acts. That their action would at least in part prevent the commission of the
crime of aggression. Their action would at least in part prevent invasion by
armed forces of the aggressor or would at least in part prevent the attack by
the airpower of the aggressor.
…
76.
It is a fundamental characteristic of the state as a social structure that, in
the classic formulation of Max Weber (Politics as a Vocation (Politik als
Beruf), 1918), it
claims the monopoly of the legitimate use of
physical force within a given territory…[T]he right to use physical force is
ascribed to other institutions or to individuals only to the extent to which
the state permits it.
77.
That formulation does not of course answer the questions which arise in these
appeals, because the appellants say that the state, by its legislation, did
indeed permit them to use physical force in the circumstances which existed, or
which they honestly thought to exist. But when Parliament speaks of a person
being entitled to use such force as is reasonable in the circumstances, the
court must, in judging what is reasonable, take into account the reason why the
state claims the monopoly of the legitimate use of physical force. A tight
control of the use of force is necessary to prevent society from sliding into
anarchy …
78. In
principle, therefore, the state entrusts the power to use force only to the
armed forces, the police and other similarly trained and disciplined law
enforcement officers. Ordinary citizens who apprehend breaches of the law,
whether affecting themselves, third parties or the community as a whole, are
normally expected to call in the police and not to take the law into their own
hands. In Southwark London Borough Council v Williams [1971] Ch 734, 745
Edmund Davies LJ said:
the law regards with the deepest suspicion
any remedies of self-help, and permits those remedies to be resorted to only in
very special circumstances.
79.
There are exceptions when the threat of serious unlawful injury is imminent and
it is not practical to call for help. The most obvious example is the right of
self-defence. As Hobbes said (Leviathan, Chapter 27):
No man is supposed at the making of a
Common-wealth, to have abandoned the defence of his life, or limbes, where the
Law cannot arrive time enough for his assistance.
But,
he went on to say:
To kill a man, because from his actions, or
his threatnings, I may argue he will kill me when he can, (seeing I have time,
and means to demand protection, from the Soveraign Power) is a Crime.
80.
In the same spirit as Hobbes, Lord Upjohn said in Burmah Oil Co Ltd v Lord
Advocate [1965] AC 75, 164 –
165:
No doubt in earlier times the individual had
some … rights of self-help or destruction in immediate emergency, whether
caused by enemy action or by fire, and the legal answer was that he could not
in such circumstances be sued for trespass on or destruction of his neighbour’s
property. Those rights of the individual are now at least obsolescent. No man
now, without risking some action against him in the courts, could pull down his
neighbour’s house to prevent the fire spreading to his own; he would be told
that he ought to have dialled 999 and summoned the local fire brigade.
81.
What is true of the use of self-help to protect one’s own interests is a
fortiori true of the use of self-help to protect the interests of third
parties or the community at large. In a moment of emergency, when individual
action is necessary to prevent some imminent crime or to apprehend an escaping
criminal, it may be legitimate, praiseworthy even, for the citizen to use force
on his own initiative. But when law enforcement officers, if called upon, would
be in a position to do whatever is necessary, the citizen must leave the use of
force to them.
…
83.
The right of the citizen to use force on his own initiative is even more
circumscribed when he is not defending his own person or property but simply
wishes to see the law enforced in the interests of the community at large. The
law will not tolerate vigilantes. If the citizen cannot get the courts to order
the law enforcement authorities to act (compare R v Commissioner of Police
of the Metropolis, Ex p Blackburn [1968] 2 QB 118) then he must use
democratic methods to persuade the government or legislature to intervene.
84.
Often the reason why the sovereign power will not intervene is because it
takes the view that the threatened action is not a crime. In such a case too,
the citizen is not entitled to take the law into his own hands. The rule of law
requires that disputes over whether action is lawful should be resolved by the
courts. If the citizen is dissatisfied with the law as laid down by the courts,
he must campaign for Parliament to change it ….
86. My
Lords, to legitimate the use of force in such cases would be to set a most
dangerous precedent. As Lord Prosser said in Lord Advocate’s Reference No 1
of 2000 2001 JC 143, 160G-H:
What one is apparently talking about are
people who have come to the view that their own opinions should prevail over
those of others…They might of course be persons of otherwise blameless
character and of indubitable intelligence. But they might not. It is not only
the good or the bright or the balanced who for one reason or another may feel
unable to accept the ordinary role of a citizen in a democracy.
87. A
time of war is the extreme example of the dangers. Of course citizens are
entitled, indeed required, to refuse to participate in war crimes. But if they
are allowed to use force against military installations simply to give effect
to their own honestly held view of the legality of what the armed forces of the
Crown are doing, the Statute of Treason would become a dead letter.
88.
In my opinion, therefore, the District
Judges would have been right to convict even if aggression had been a crime in
domestic law. The apprehension, however honest, that such a crime was about to
be committed could not have made it reasonable for the defendants to use force
of any kind to obstruct military activities at Marchwood or Fairford.
Civil disobedience
89. My
Lords, civil disobedience on conscientious grounds has a long and honourable
history in this country. People who break the law to affirm their belief in the
injustice of a law or government action are sometimes vindicated by history.
The suffragettes are an example which comes immediately to mind. It is the mark
of a civilised community that it can accommodate protests and demonstrations of
this kind. But there are conventions which are generally accepted by the
law-breakers on one side and the law-enforcers on the other. The protesters
behave with a sense of proportion and do not cause excessive damage or
inconvenience. And they vouch the sincerity of their beliefs by accepting the
penalties imposed by the law. The police and prosecutors, on the other hand,
behave with restraint and the magistrates impose sentences which take the
conscientious motives of the protesters into account. The conditional
discharges ordered by the magistrates in the cases which came before them
exemplifies their sensitivity to these conventions.
90.
These appeals and similar cases concerned with controversial activities such as
animal experiments, fox hunting, genetically modified crops, nuclear weapons
and the like, suggest the emergence of a new phenomenon, namely litigation as
the continuation of protest by other means. (See, for examples, R v Hill
(1988) 89 Cr App R 74 (nuclear weapons) Blake v Director of Public
Prosecutions [1993] Crim LR 586 (Gulf War) Morrow, Geach and Thomas v
Director of Public Prosecutions [1994] Crim LR 58 (anti-abortion) Hibberd
v Director of Public Prosecutions (27 November 1996) Divisional Court,
unreported (Newbury by-pass) Hutchinson v Newbury Magistrates' Court
(2000) 122 ILR 499 (Trident missiles) Nelder v Crown Prosecution Service
(3 June 1998) Divisional Court, unreported (fox hunting) Lord Advocate's
Reference No 1 of 2000 2001 JC 143 (Trident missiles) Director of Public
Prosecutions v Tilly [2002] Crim LR 128 (genetically modified crops) Monsanto
v Tilly [2000] Env.L.R 313 (genetically modified crops). The protesters claim
that their honestly held opinion of the legality or dangerous character of the
activities in question justifies trespass, causing damage to property or the
use of force. By this means they invite the court to adjudicate upon the merits
of their opinions and provide themselves with a platform from which to address
the media on the subject. They seek to cause expense and, if possible,
embarrassment to the prosecution by exorbitant demands for disclosure, such as
happened in this case.
91.
In Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499,
where a protester sought to justify causing damage to a fence at Aldermaston on
the ground that she was trying to halt the production of nuclear warheads,
Buxton LJ said:
There was no immediate and instant need to
act as Mrs Hutchinson acted, either [at] the time when she acted nor at all:
taking into account that there are other means available to her of pursuing the
end sought, by drawing attention to the unlawfulness of the activities and if
needs be taking legal action in respect of them. In those circumstances,
self-help, particularly criminal self-help of the sort indulged in by Mrs Hutchinson,
cannot be reasonable.
92. I
respectfully agree. The judge then went on to deal with Mrs Hutchinson's real
motive, which ("on express instructions") her counsel had frankly
avowed. It was to ‘bring the issue of the lawfulness of the government's policy
before a court, preferably a Crown Court.’ Buxton LJ said:
In terms of the reasonableness of Mrs
Hutchinson's acts, this assertion on her part is further fatal to her cause. I
simply do not see how it can be reasonable to commit a crime in order to be
able to pursue in the subsequent prosecution, arguments about the lawfulness or
otherwise of the activities of the victim of that crime.
93. My
Lords, I do not think that it would be inconsistent with our traditional
respect for conscientious civil disobedience for your Lordships to say that
there will seldom if ever be any arguable legal basis upon which these forensic
tactics can be deployed.
94. The practical implications of what I
have been saying for the conduct of the trials of direct action protesters are
clear. If there is an issue as to whether the defendants were justified in
doing acts which would otherwise be criminal, the burden is upon the
prosecution to negative that defence. But the issue must first be raised by
facts proved or admitted, either by the prosecution or the defence, on which a
jury could find that the acts were justified. In a case in which the defence
requires that the acts of the defendant should in all the circumstances have
been reasonable, his acts must be considered in the context of a functioning
state in which legal disputes can be peacefully submitted to the courts and
disputes over what should be law or government policy can be submitted to the
arbitrament of the democratic process. In such circumstances, the apprehension,
however honest or reasonable, of acts which are thought to be unlawful or
contrary to the public interest, cannot justify the commission of criminal acts
and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of
the protesters as to the legality of the acts in question is irrelevant and
inadmissible, disclosure going to this issue should not be ordered and the
services of international lawyers are not required.
ORDER
Upon considering the written submissions of the Claimant and the
Interested Parties
And upon hearing Counsel for the Claimant and Counsel for two of
the Interested Parties, and upon hearing from the Interested Party Mr. Thomas
Franklin
1) IT
IS DECLARED THAT:
a) The
District Judge should not have permitted the Interested Parties to rely on the
defence under s.3 of the CLA 1967 and, having done so, misdirected himself in
law as to the availability of the defence.
2) IT
IS ORDERED THAT:
a) The
Claimant’s application for judicial review is granted.
b) The
acquittals of the Interested Parties, on 15 April 2016, for the offences of
obstructing a highway, contrary to s. 137 of the Highways Act 1980 are quashed.
c)
The case shall not be remitted to Stratford
Magistrates’ Court for a re-trial of the charges for which the Interested
Parties were acquitted.
d)
There be no
inter
partes costs order.
e) There
be a detailed assessment of the publicly funded costs in these proceedings of
Isa Alaali and Susannah Mengesha.
Dated 14 July 2017
