Richardson & Anor v Director of Public Prosecutions [2014] UKSC 8

Protesters trespassed in a London shop selling Israeli Dead Sea products, chaining themselves together to disrupt trading. They were convicted of aggravated trespass under section 68 of the 1994 Act. The Supreme Court held alleged offences must be integral to the occupier's core activity.

Facts

The appellants staged a non-violent but determined protest in a London shop specialising in beauty products derived from Dead Sea minerals, the vast majority of which were produced by an Israeli company at a factory in an Israeli settlement in the Occupied Palestinian Territory (OPT). The appellants entered the shop on a trading day equipped with a heavy concrete tube, connected their arms through it, and secured themselves with a padlock and chain to which they claimed to have no key. They had no intention of buying anything; their intention was to disrupt the shop’s trading. The manager concluded that trading was impossible and closed the shop. Police had to use tools to break through the concrete to release the appellants, who were then arrested and charged with aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994.

Issues

The appellants did not dispute that they were trespassers, that they had committed an act on the land, or that they had intended to disrupt the shop’s activity. The contested issue concerned the second element of the offence: whether the shop’s activity was a ‘lawful activity’ under section 68(2). The certified question was:

Should the words ‘lawful activity’ in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are ‘integral’ to the activities at the premises in question?

The court therefore had to determine what connection is required between an offence allegedly committed by the occupier and the activity said to have been disrupted.

Arguments

Appellants

The appellants contended that the shop’s activity was unlawful for four reasons: (i) the shop company aided and abetted a war crime under sections 51 and 52 of the International Criminal Court Act 2001, namely the transfer of Israeli civilians into the OPT contrary to article 49 of the Fourth Geneva Convention; (ii) the goods were criminal property under section 329 of the Proceeds of Crime Act 2002; (iii) the company cheated the Revenue by importing under the EC-Israeli Association Agreement when such treatment was not available for OPT-origin goods; and (iv) the products were mislabelled contrary to the Consumer Protection from Unfair Trading Regulations 2008 and the Cosmetic Products (Safety) Regulations 2008. Mr Southey QC argued that ‘activity’ should be defined by reference to the particular feature against which the defendant was protesting.

Respondent

The Crown argued that the activity (retail selling) was lawful and that the appellants had intentionally disrupted it. Mr Penny revived the argument considered in Ayliffe that an activity remains lawful even if an offence is committed, provided the activity could have been accomplished without the offence.

Judgment

Lord Hughes (with whom Lady Hale, Lord Kerr, Lord Toulson and Lord Hodge agreed) dismissed the appeal. The Court rejected both extreme constructions. The Crown’s construction was rejected because it would treat as lawful something that was anything but lawful. The appellants’ construction was rejected because it would invert section 68, turning the enquiry from the activity actually being carried out into the defendant’s motive, and giving the defendant a similar unwarranted choice of which activity to focus upon.

The Court held that the additional criminal sanction is removed only when the activity disrupted is in itself unlawful—either because the occupier is trespassing or because the activity is criminal. Not every incidental or collateral criminal offence affects the lawfulness of the activity. An offence will only do so where it is integral to the core activity carried on, not where it is collateral or remote. This approach was consistent with Hibberd v DPP and Nelder v DPP.

Applying these principles: the war crime argument failed because employing settlers is not the same as aiding and abetting unlawful transfer of population, the manufacturing company was distinct from the retailing company, and any such offence was antecedent to and remote from selling. The money laundering argument failed for the same reasons and was in any event collateral. The cheating the Revenue argument concerned an antecedent and collateral matter not affecting the lawfulness of retail selling. The labelling offence under the 2008 Regulations failed because the district judge found that the average consumer would not be misled into a different transactional decision—the source was correctly identified as the Dead Sea. The Cosmetic Products (Safety) Regulations are directed at consumer safety, not disputed territorial questions, and any breach would not be integral to selling.

The Court also clarified that the Divisional Court’s reference to ‘patently unlawful’ activity must be understood as requiring the offence to be integral to the core activity, not as demanding that illegality be obvious on minimal enquiry. Magistrates may, where necessary, consider complex or internationally significant matters, save where the issue is non-justiciable as in R v Jones (Margaret).

Implications

The decision clarifies the proper construction of ‘lawful activity’ under section 68(2) of the 1994 Act. A defendant relying on the lawfulness limb must identify a specific criminal offence allegedly committed by the occupier, properly raised on the evidence; once raised, the Crown must disprove it to the criminal standard. Critically, only an offence integral to the core activity disrupted will render that activity unlawful for the purposes of the section. Incidental, collateral, antecedent or remote offences—however serious in other contexts—will not provide a defence.

The Court emphasised that section 68 is not concerned with the rights of the trespasser. Article 10 ECHR does not confer a licence to trespass on others’ property to express views. The decision is significant for protest cases but applies equally to other trespassers such as business rivals or those involved in personal disputes. It limits the scope for protesters to defeat aggravated trespass charges by raising tangentially connected illegalities concerning the occupier’s wider conduct, while preserving the defence where the occupier’s core activity is itself criminal. The judgment also confirms that section 68 applies to corporate occupiers and that magistrates may, where necessary, examine complex factual matters including those of international import, provided the issue is justiciable.

Verdict: Appeal dismissed. The certified question—whether ‘lawful activity’ in section 68 of the Criminal Justice and Public Order Act 1994 should be limited to acts or events ‘integral’ to the activities at the premises—was answered ‘yes’. The convictions for aggravated trespass were upheld.

Source: Richardson & Anor v Director of Public Prosecutions [2014] UKSC 8