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In his judgement, Judge Baker dismissed the appeal. He found that when the appellants entered the lecture theatre where the conference was being held, they did so as trespassers with intent to disrupt and obstruct a lawful activity, and were therefore guilty of aggravated trespass under section 68 of the 1994 Criminal Justice and Public Order Act.
A lawful activity
The appellants’ argument that the conference itself was not a lawful activity (because the university had failed to comply with section 43 of the Education (II) Act), and that the delegates were therefore trespassing themselves, was rejected. Lancaster University had an up to date Code of Practice on freedom of speech, as required by the Act, and a registrar of meetings, Tony Evans. Evans had checked with the police in his capacity as head of security about security concerns surrounding the presence of Lord Sainsbury. As registrar of meetings, however, he had decided that the conference was not controversial, and so did not refer it to the standing committee on meetings. Since it was clear that commercialisation of research is controversial, and that Lord Sainsbury had been the subject of allegations of conflict of interest, Evans could have decided the conference was controversial: but in fact he decided it was not. This was a genuine decision, and thus the conference was legitimately exempted under paragraph 5.1 of the Code. The organiser, Richard Crawley, did not regard it as controversial either.
The university had a right to allocate the relevant parts of the George Fox building for a private conference. Neither the university nor the registrar of meetings were in breach of the Act. This was a lawful event and the delegates were invitees, not trespassers, who were engaged in a lawful activity when the protesters entered the lecture theatre and began their protest.
Freedom of Speech
The appellants had a qualified right to freedom of speech under Article 10 of the European Convention on Human Rights (reproduced below). The relevant qualification here is “for the protection of the rights of others”. Section 68 (of the Criminal Justice and Public Order Act 1994, as amended by the Anti Social Behaviour Act 2003) strikes a fair balance between the rights of protesters and the rights of others going about their normal business. It is a clear piece of legislation which is compatible with Article 10(2) as it is “necessary in a democratic society for the protection of the rights of others”. To apply it in a way which preserve this compatibility will however require that in considering whether an act falls within section 68 the words “obstruct” and “disrupt” must be narrowly interpreted: the obstruction or disruption in question must be more than trivial.
The protesters were not denied their right to freedom of speech. Firstly they could have demonstrated outside the building, as they later did. Secondly they could have handed out leaflets and unfurled banners in the foyer, up to the point where they were asked to leave (if this occurred). Thirdly they could have asked for permission in advance to address the conference. The protesters, in fact, interfered with the right to free speech of the delegates.
The appellants had known of the conference for 2 or 3 days, but had not applied to either Evans or Crawley to speak at the event. Evans made it clear in his evidence that had they applied to Crawley they might well have been allowed to do so. This had happened in the past and was an accepted part of the university’s culture. However they chose to enter the conference directly, without consultation or negotiation.
Each appellant had asserted that they had an entitlement, an absolute right to enter the George Fox building. This was incorrect: they had only a licence or permission to enter the building, in connection with their studies and for the purposes for which the buildings were designed.
They had no right to enter the building unannounced for the purposes of obstructing or disrupting a lawful activity. Evans and Crawley had said (and the judge accepted) that during the conference only delegates, organisers and university staff had a right to enter the lecture theatre. The absence of signs did not affect this.
In civil law a person can be a trespasser without knowing they are trespassing. For the purposes of criminal law (such as aggravated trespass), however, the prosecution needs to prove that a person knew they were trespassing, or was, at least, reckless about whether or not they were trespassing.
Judge Baker did not accept that the appellants believed they had a right to enter the lecture theatre for the purposes they had in mind. They believed they ought to have had such a right – but this was not the same thing. The judge explicitly stated that he did not believe their evidence that they did not know they had no such right. He also noted that they had made no effort to find out, and suggested that their method of entry – brisk, without stopping to talk to anyone, blowing a whistle, interrupting the speaker on the stage, and immediately unfurling banners – also supported this view. They were not intending to participate or debate. The delegates were given no choice as to whether to listen to them. The protesters had interfered with the delegates’ right to get on with their normal business. This was not Hyde Park Corner or a political hustings, but a private event. Every one of them was a trespasser.
Intent to disrupt and/or obstruct
The judge rejected the appellants’ argument that their actions had constituted an interruption rather than a disruption. An interruption was a disruption. Obstruction and disruption were both terms with clear and commonly accepted meanings.
Their actions were intended both to disrupt and to obstruct the conference. They had all accepted that they had behave don the day in the ways shown on the video and catalogued by Sergeant Nasser.
This applied equally to Anthony Ayre, even though he had only played the role of camera operator. In so doing he had acted in support and encouragement of the others’ actions.
Matthew Wilson, who remained in the foyer even after being asked to leave by Evans, was also a trespasser in the foyer, with an intent to disrupt the conference with the noise from the siren he was letting off. In his case (only) there was a continuation of the offence.
The judge found nothing in the cases cited by the defence incompatible with the approach he had taken. In particular neither section 68 itself nor this prosecution were incompatible with Article 10.
Judge Baker upheld the original sentences of two-year conditional discharges for each appellant, though technically in order to have this effect he gave an 18 month conditional discharge from today (the original trial and sentence was approximately six months ago). He added a further £300 costs to the £300 already to be paid by each appellant, to reflect the extra costs of the appeal.
Article 10, European Convention on Human Rights
1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Section 68, Criminal Justice and Public Order Act 1994 (subsections 1 &2)
(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.
(2) Activity on any occasion on the part of a person or persons on land is "lawful" for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.
NB Section 68.1 was amended by the Anti-Social Behaviour Act 2003 (section 59(ii)) to remove the words “in the open air”. The official explanatory notes to the 2003 act state that
“The amended provisions might be used in respect of activists who invade the building of a targeted company with the intention of conducting an intimidating and disruptive protest.”
( http://www.opsi.gov.uk/acts/en2003/03en38-b.htm )
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