Nicholson, R. v

On 2 February 2006, in the Crown Court at Oxford, before His Honour Judge Corrie, the appellant, Heather Shirley Nicholson, following a ruling by the judge, pleaded guilty to a charge of having breached an Anti-Social Behaviour Order. The judge sentenced her to four months' imprisonment and ordered that 29 days spent on remand should count towards that sentence. Miss Nicholson appeals against conviction on her plea of guilty by leave of the single judge.

The facts giving rise to the charge and her plea of guilty may be stated shortly. She was and is a committed animal rights campaigner, having been involved in campaigns against Huntingdon Life Sciences and companies connected with its work.

On 17 January 2005, the Peterborough Magistrates made her the subject of an Anti-Social Behaviour Order, prohibiting her for a period of not less than two years or until further order from going within 500 metres of a number of premises (five) scheduled to the order. One of them was the premises of a proposed primate testing laboratory at Oxford University -- a project that had no links to or association with Huntingdon Life Sciences. The premises were known, and so named in the schedule to the order, as Halifax House, South Parks Road, Oxford.

On 19 May 2005, Miss Nicholson was present at a demonstration sanctioned by an order of the High Court within 500 metres of Halifax House, thereby breaching the order unless she had "a reasonable excuse" as provided by section 1(10) of the Crime and Disorder Act 1998. It had been Miss Nicholson's intention to plead not guilty. She did plead not guilty at a plea and directions hearing. By the time the matter came before Judge Corrie for trial she had served a defence statement repeating what she had said in a police interview. In that interview she had admitted that she had attended the demonstration and that it had taken place within 500 metres of Halifax House. She admitted, too, that she had not carefully checked the terms of the order, in particular the scheduled inclusion in it of premises named Halifax House. However, she maintained that she had a reasonable excuse for breaching the terms of the order within the statutory provision because she had no recollection of ever having heard before, or at the demonstration, of any reference to Halifax House as the address of the proposed laboratory, and she had mistakenly believed that she was entitled to attend the demonstration as she did.

When the matter came before the judge, counsel for the Crown, Mr Richard Stillwell, sought a preliminary ruling as to whether the proposed defence of Miss Nicholson was capable of being a defence in law to the charged breach of the order, that is capable of constituting, in the words of the statute, a "reasonable excuse".

After hearing submissions from Mr Stillwell and from Miss Danielle Cooper for the defence, and after considering authorities to which we shall come, the judge ruled that it was an offence of "strict liability" and that the qualification of "without reasonable excuse" should be narrowly construed so as to exclude ignorance or forgetfulness and, seemingly, misunderstanding of its clear terms. By implication he indicated that that was how he would direct the jury if Miss Nicholson were to persist with that defence. In the light of that ruling, which if correct left her with no legal escape from a verdict of guilty even if the jury accepted her account, she changed her plea to guilty and the judge sentenced her as we have indicated. Miss Nicholson now seeks to unseat that conviction, notwithstanding her plea of guilty.

Miss Cooper, who appears for Miss Nicholson on the appeal, has ably and succinctly submitted that the judge wrongly ruled that ignorance or forgetfulness, or misunderstanding by the subject of an Anti-Social Behaviour Order of its clear terms is not capable of amounting to a reasonable excuse within section 1(10). She submitted that, whether or not on Miss Nicholson's account she had a reasonable excuse was a matter for a jury, and that it should have been left to them. In her submissions to the court, Miss Cooper has accepted that, subject to the "without reasonable excuse" defence, Miss Nicholson was in breach of the Anti-Social Behaviour Order, and that she had not, before attending the demonstration, properly apprised herself of its terms. However, Miss Cooper submitted that, on the facts that she would have advanced in her defence, if not discouraged by the judge's ruling, a jury could have found that she had a reasonable excuse. In short, she submitted that the words "without reasonable excuse" in this context should be given their ordinary meaning, and that the judge should have left it to the jury to determine whether on the evidence there was such excuse. In so submitting, Miss Cooper commented that the effect of the judge's reasoning was that ignorance or forgetfulness or misunderstanding of the terms of an Anti-Social Behaviour Order could never amount to a reasonable excuse. That proposition, she argued, must be wrong.

Mr Stillwell, who appears again for the Crown on the appeal, in equally succinct and helpful arguments to the court, submitted, as he did to the judge, that the offence is one of "strict liability", that it is for the subject of such an order to familiarise himself with its terms and effect, and that if he fails to do so, giving rise to a breach of it, his ignorance of the law is no excuse. He referred to ignorance of the law rather than ignorance of the material facts because he characterised an Anti-Social Behaviour Order as one that extends the law in respect of the individual covered by it. Put another way, his submission was that the order in barring Miss Nicholson from entering areas in the vicinity of Halifax House in Oxford, and of other premises, created legal prohibitions particular to her.

There is clear authority, as Mance LJ (as he then was) recently noted in R v Quayle [2006] 1 All ER 988, at 1000E-H, that if an issue is suggested based on proposed evidence that cannot possibly constitute any defence in law, a trial judge is entitled to rule that he will not leave that issue to the jury. If, however, on the facts advanced or to be advanced by the defence, a jury could find them to support an evidential issue raised by the defence, particularly one involving a value judgment such as that of reasonable excuse, then he should leave it to the jury. If such a proposition requires cited authority, it is to be found in the principle enunciated by the House of Lords in R v Wang [2005] 1 WLR 661, in which their Lordships considered in a wholly different statutory context a statutory defence defined by reference to the defendant's state of mind. Their Lordships held that where the defence raise such an issue, the judge is only entitled to withdraw it from the jury if there is no evidence going to that issue. If there is some evidence, however tenuous or nebulous, the question should be left to the jury, and on no account should there be a direction to convict. The fact that the House of Lords so ruled in a case where the judge gave the ruling in question after the jury had been empanelled does not confine the effect of the ruling to such a circumstance so as to render it inapplicable to a ruling given before empanelment of a jury. So much Mr Stillwell concedes on behalf of the Crown.

However, there are particular dangers for a judge in drawing the line, in ruling on such an issue as to what a jury might or might not accept as a reasonable excuse in advance of the issue being deployed by the defence at trial in evidence.

The court is not aware of any reported authority on the meaning of "without reasonable excuse" in the context of breach of an Anti-Social Behaviour Order. There is authority in the context of having an offensive weapon in a public place, contrary to section 1 of the Prevention of Crime Act 1953 and in the cognate context of possession without "good reason" of having a bladed article in a public place, that forgetfulness could, depending on the circumstances, contribute to a defence of reasonable excuse or a "good reason": see, for example, R v Glidewell (CA) [1999] 163 JP 557; R v Jolie (CA) [2003] EWCA Crim 1543, and R v Bird [2004] EWCA Crim 64.

The reason why the court held back in those cases from holding that forgetfulness of possession of the offending article could on its own amount to a reasonable excuse or a good reason, can only have been because before having to consider that defence, a court in the context of these offences must be sure that a defendant is knowingly in possession. Forgetfulness, when it supervenes, and for its duration, is absence of knowledge -- ignorance -- and it is an all too easy assertion for a defendant to make in an attempt to avoid conviction, particularly where his or her knowledge has to be proved as part of the prosecution case: see R v Cugullere (CCA) 45 Cr App R 108, R v McCella (CA) (1988) 87 Cr App R 373, and R v Felix Densu [1998] 1 Cr App R 400, at 404G, to which we shall return.

Closer to the context of this case is an authority to which Miss Cooper referred the court, a decision of the Court of Appeal in R v Evans (6 December 2004, 2004/03662/B3). It concerned a breach of a restraining order contrary to section 5(5) of the Harassment Act 1997, if -- as that provision provides -- done without "reasonable excuse". In the course of the judgment of the court given by Dyson LJ, he made these remarks at paragraph 21, which are as relevant to the issue here as there:

The fact that the prosecution, in the Anti-Social Behaviour Order context, do not as part of their case have to prove knowing breach of such order means that there is not the same tension between proof by the prosecution of its case triggering consideration of an evidential issue of reasonable excuse (if it is raised) and acceptance of forgetfulness or misunderstanding as such an excuse. If a jury were to accept forgetfulness or misunderstanding in the circumstances as genuine and reasonable, say, because of chronic absent-mindedness or pressing distractions, we do not consider that it is necessary to combine it with another reason or to look for another one "in which forgetfulness plays its part" in the terminology of the court in the different statutory context in Jolie at paragraph 17 and Bird at paragraph 17 respectively.

There is on the other hand no material distinction between the two statutory contexts to be derived from Mr Stillwell's characterisation of Miss Nicholson's claimed ignorance or misunderstanding of the order as an impermissible plea of ignorance of the law. It seems to us artificial to characterise a claim of reasonable excuse based on ignorance, whether by reason of forgetfulness or misunderstanding of the terms of an Anti-Social Behaviour Order, as an impermissible reliance on an error of law because the order imposes particular legal restrictions on its subject. It is the fact of such ignorance, whether because of forgetfulness or misunderstanding as to the application of the particular terms of the order, combined with appreciation or lack of it as to where the subject was at the material time, and also a value judgment as to its reasonableness in the circumstances, which are in play, not the subject's knowledge or memory at the material time of the law. Such matters, depending on the reasons advanced in support of a defence of reasonable excuse, may be capable of constituting such a defence. Where that is so, the issue of fact, if any, and the value judgment as to reasonableness of the excuse, are ones for a jury, not for the judge.

In our view (and without expressing any view as to the proper outcome), the circumstances here were such, coupled with the fact that the defence had not been articulated with precision in evidence, that the judge should have left the matter to a jury -- certainly at that stage. He should not have deprived Miss Nicholson of her entitlement to present her defence of ignorance by reason of forgetfulness or misunderstanding of the terms of the order.

In so concluding we have not disregarded Mr Stillwell's important reminder to the court of the policy consideration touched on by the court in Densu as to the ease with which defendants claiming ignorance or forgetfulness might seek to frustrate the effective application and enforcement of the law as to Anti-Social Behaviour Orders. But the fact is, as the court indicated in Quayle, in Wang and also in Evans, there is a line to be drawn in the particular circumstances of any case. The issue raised is often likely to be highly fact-sensitive -- one which it is eminently desirable should be resolved by a jury where it is the fact-finder. Of course there may be cases which are so clear, where, whether before or in the course of trial, the judge can so rule. But, as we have indicated, we do not consider this to be one of them.

Accordingly, we allow the appeal and we quash the conviction.

Before parting with the case, we take the opportunity to say that we do not consider it helpful to an analysis of the sort of problem raised by this appeal to characterise an offence as one of "an offence of strict liability" where the prosecution does not have to prove any sort of mens rea, but where there is a statutory provision for a defence or an evidential issue to be raised based on the presence or absence of some state of mind on the part of the defendant. Whether or not it is an appropriate description of such an offence, it is of no help, it seems to us, in considering whether and how much defence may be deployed in individual cases, as the rationale of the House of Lords' treatment in Wang clearly indicates.

We are very grateful to you, Miss Cooper, and you, Mr Stillwell, for your able assistance in this matter.

Mr Stillwell, I think you indicated that the Crown would wish time to consider whether to seek a retrial.

MR STILLWELL: My Lord, I would ask for seven days.

LORD JUSTICE AULD: In the meantime, what is to happen to Miss Nicholson?

MISS COOPER: She is currently remanded in custody in relation to another matter at Kingston Crown Court. I make no application.

LORD JUSTICE AULD: Thank you. You will have to come back to the court, Mr Stillwell, if you are to seek a retrial, as you know.

MR STILLWELL: Yes, my Lord.

LORD JUSTICE AULD: It would be good if that could be done sooner rather than later because this constitution will change if not at the end of this week, certainly by the end of next week.

MR STILLWELL: My Lord, I will try and take instructions this afternoon.

LORD JUSTICE AULD: Thank you.