June 2, 2023
On his video updating website, www.crimecast.law, David Walbank KC has reviewed this case which clarifies the scope of the concept of ‘lawful activity’ on land for the purpose of the offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.
This was yet another reported case arising from protests against the HS2 project for the construction of a high-speed rail line between London Euston and the North of England. Several protesters were charged in relation to their occupation of land at Euston Square Gardens. The particulars alleged that they had “disrupted or obstructed HS2 construction” and the case advanced by the prosecution at trial was that by disrupting and obstructing their own eviction, the protesters had disrupted and obstructed the commencement of HS2 construction works at the site. However, at the end of the prosecution case, the District Judge ruled that there was no case to answer on the basis that the construction contractor had not been present at the time of the conduct alleged, the only lawful activity taking place on the site at that point was the eviction itself and the charge of disrupting or obstructing HS2 construction did not encompass the eviction operation. The District Judge took the view that the conduct complained of was, in effect, the frustration of an eviction order made in civil proceedings and that, so the DJ found, was a very far cry from the criminal elements of the offence alleged.
The prosecution then applied for judicial review of the DJ’s decision that there was no case to answer and of the subsequent refusal to state a case for the opinion of the High Court. The King’s Bench Divisional Court held that the lawful enforcement of an eviction made in civil proceedings was a lawful activity, the frustration of which was tantamount to its disruption or obstruction. The words ‘HS2 construction’ were sufficiently broad to cover any works which were part of the overall construction project, including preliminary clearance work such as the eviction of the protestors to enable the contractor to enter the land – that being a necessary first step in the course of construction. Since the substantive challenge to the District Judge’s conclusion that there was no case to answer was well-founded, it followed that the prosecution application to state a case could not have been frivolous and the DJ had not been entitled to refuse to state a case.
For all these reasons, the JR claim was allowed and the Divisional Court exercised its discretion to quash the District Judge’s decision and remit the case to the magistrates’ court for reconsideration.
David Walbank KC specialises in the trial of white-collar crime. His CrimeCast.Law updating website offers nearly 250 video case reviews on recent caselaw and legislation. For free and instant access to all the reviews, visit [CrimeCast.Law]
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David Walbank KC
Call: 1987 | Silk: 2018