Director of Public Prosecutions v Bayer & Ors

This is an appeal by way of case stated by the Director of Public Prosecutions from the decision of District Judge House sitting in the Sherborne Magistrates’ Court on 7^th March 2003 whereby he adjudged the respondents Olaf Bayer, William Hart, Elizabeth Snook and Richard Whistance to be not guilty of the offence of aggravated trespass. The charge against each of them was in these terms:

“that you, together with …, having trespassed on land in the open air, namely Horselynch Plantation, Weymouth, and in relation to a lawful activity, namely the planting of maize seeds which persons were engaged in on that land, did an act, namely attached yourself to a tractor engaged in lawful activity on that land by means of a strap and metal carabineer clip which you intended to have the effect of disrupting that activity.”

Contrary to section 68(1) and (3) of the Criminal Justice and Public Order Act 1994.

Section 68(1) of that Act provides that:

“(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 –

…

(c)

of disrupting that activity.”

Section 68(3) provides that this offence is triable summarily and prescribes the penalties on conviction.

The findings of fact made by the district judge were on the following lines. On 16^th May 2002 the respondents went onto Horselynch Plantation. This is private land farmed by Michael Ronald Jones. It is a six hectare site. 2.5 hectares were being drilled with genetically modified (“GM”) maize and the remainder with non-GM maize. The GM maize was being grown as part of trials being conducted on behalf of the Government. A company called Aventis provided the seed and herbicide. The release of any GM crops was controlled under EU directive 90/220, which is being implemented in this country by the Department for the Environment, Food and Rural Affairs.

Consents for the release of GM crops are only given after it is established that such a release would not have any detrimental effect on human health or the environment. Under the directive the forage maize crop grown at this site was granted a Part C marketing consent in 1998. It can therefore be grown legally anywhere in the United Kingdom and Europe.

The site bordered a wetland/bird reserve.

The planting of GM modified crops had attracted adverse publicity in the Weymouth area.

The respondents entered Mr Jones’s field. Although people did walk in the fields there were no public footpaths on it. The respondents had no permission from anyone entitled to give it to enter the field. While in the field the respondents attached themselves by various means to tractors engaged in the drilling process.

At the time the trespass took place, Mr Charles Foot (the farm contractor) and other members of his staff were present at the field with tractors. They were attempting to drill the fields. Mr Thomas Foot, who was in charge of the farm staff that day, was an experienced and properly trained farmer. He had been to agricultural college, and followed all the basic guidelines of good farm management.

Each of the respondents was arrested in or near the field, taken to a police station and interviewed. They were then charged with aggravated trespass.

The respondents, whilst entitled to be on the land, became trespassers within the meaning of section 68 of the 1994 Act by carrying out the acts outlined in the charge. They felt, however, that they had no other recourse to prevent the drilling in that the contractors were undertaking a lawful activity, and they could not afford to obtain an injunction. They were of the view that their non-violent and peaceful protest was justified to prevent damage to the environment. Their actions were not effective, and the crops were sown by other tractors.

It was common ground that the respondents were trespassers within the meaning of the 1994 Act. The prosecutor contended that by interrupting the planting of the maize, the respondents were guilty of aggravated trespass.

The respondents’ defence ran along the following lines:

(i)

The planting of GM crops was not a criminal activity, but such crops could cause damage to surrounding property by pollen distribution, animal transfer and soil transfer;

(ii)

The word “property” includes nature, crops and domestic animals, all of which were in close proximity to the site;

(iii)

A proper regulatory system was not in place and the respondents were obliged to take action;

(iv)

The respondents’ knowledge and beliefs were honestly held;

(v)

The test to be applied was: “Were the respondents’ actions reasonable in all the circumstances?

(vi)

They therefore had a defence under common law for the defence of property.

The district judge said that he was of the opinion that the respondents were aggravated trespassers within the meaning of the 1994 Act. He held, however, that:

(i)

They had honestly held and genuine beliefs about the dangers of GM crops;

(ii)

They had genuine fears for surrounding property;

(iii)

They had reasonable grounds for those beliefs and fears given their scientific knowledge concerning GM crops tests and given also their knowledge of the locality;

(iv)

Taking into account those beliefs and fears, they acted with all good intentions and had gone no further than was absolutely necessary to try to prevent the saving of the crops;

(v)

Their actions were therefore reasonable in all the circumstances and came within the defence at common law of defence of property.

For these reasons he dismissed the charges.

He posed the following question for the opinion of this court:

“Whether the finding by me that the actions of all four respondents in locking or attaching themselves to the tractors was reasonable in the defence of property was a finding properly open to me, judging the issue of reasonableness objectively.”

This case again highlights the difficulties which face the lower courts and those who appear in those courts because we do not have a readily intelligible criminal code in this country. On the face of it, all the ingredients of the offence of aggravated trespass were present. The case stated shows that the prosecutor had proved:

(i)

That the respondents trespassed on Mr Jones’s land in the open air;

(ii)

That Mr Charles Foot and other members of his staff were engaging in a lawful activity on Mr Jones’s land in the open air with their tractors;

(ii)

That by attaching themselves to the tractors the respondents were doing acts which were intended by them to have the effect of disrupting that activity.

A person will not however commit a crime if he or she was or may have been lawfully justified in acting in the way complained of. Many statutes contain words like “unlawfully” or “without lawful excuse” in order to give a warning about the application of this principle. The principle, however, will be applied even if these words are omitted, because the defendant will lack the necessary mens rea (except in relation to offences of strict liability).

This was made clear by Lawton LJ in Renouf [1986] 2 All ER 449, in which the Court of Appeal ruled that the statutory defence set out in section 3(1) of the Criminal Law Act 1967 (“a person may use such force as is reasonable in the circumstances … in effecting or assisting in the lawful arrest of offenders or suspected offenders”) was available against a charge of reckless driving. In that case the defendant had used his car to chase some people who had assaulted him and had so manoeuvred his car as to prevent their escape. Lawton LJ said:

“This case has to be considered in the light of the evidence which was said to have amounted to reckless driving. This evidence had two facets: one was what the prosecution alleged to be the acts of recklessness; and the other was that these same acts amounted to the use of reasonable force for the purpose of assisting in the lawful arrest of offenders. In our judgment it is only when the evidence has these two facets that s 3(1) of the 1967 Act can apply. This being so, the occasions for relying on that section will be rare, certainly not when the reckless acts were antecedent to the use of force. In our judgment the alleged presence of these two facets in the appellant’s evidence concerning why he did the acts which the prosecution said were reckless was capable of providing him with a defence. It is no answer for the prosecution to submit, as counsel for the Crown did, that the wording of ss 1 and 2 of the Road Traffic Act 1972 shuts out any possibility of such a defence because they contained no words such as ‘lawful excuse’. Nor does s 20 of the Offences Against the Person Act 1861; but s 3(1) has been used to provide a defence to charges under that section.”

It therefore follows that a court in which a defence of lawful justification is put forward must first determine as a matter of law whether the defence is available to the defendants on the facts of the case and must then go on to determine whether the defence, if available, permits the defendant to succeed in rebutting the charge.

One matter needs to be made clear at the outset. In 1967 Parliament reformed and codified that part of the common law that is concerned with the use of force in arresting offenders or suspected offenders (see para 18 above). In 1971 Parliament reformed and codified that part of the common law that identifies the ingredients of a lawful excuse for what would otherwise be an act of criminal damage (Criminal Damage Act 1972 s 5(2)). But Parliament has neither reformed nor codified that part of the common law that is concerned with force used in private defence, so that it is to caselaw alone that we must look when exploring the scope of a defence of lawful justification in a case like this.

It is a principle of the common law that a person may use a proportionate degree of force to defend himself, or others, from attack or the threat of imminent attack, or to defend his property or the property of others in the same circumstances. It is sufficient to refer, without express citation, to Hale, Pleas of the Crown, Vol 1 Chapter 8; Blackstone, Laws of England, Book 3, Chapter 1; Stephen, Digest of the Criminal Law, Article 306; Hanway v Boultbee 1 M and Rob 15; R v Rose (1847) 2 Cox 329. So far as the defence of property is concerned, when Sir James Stephen codified the law he did so in these terms:

“The intentional infliction of … bodily harm is not a crime when it is inflicted by any person in order to defend his property or the property of another from a felony involving the use of force towards such property … provided the person inflicting it inflicts no greater injury than he in good faith believed to be necessary when he inflicts it.”

A hundred years later, in the second edition of his Textbook of Criminal Law (1983) Professor Glanville Williams said pithily at p 501 that “protective force” can be used to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. At p 503 he says of the defence of “private defence” that the act of defence must be immediately necessary (there must be no milder way of achieving the end) and proportional to the harm feared.

These concepts are reflected in the modern authorities. In Evans v Hughes [1972] 3 All ER 412 the Divisional Court considered that for a defendant to justify his possession of a metal bar on a public highway he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried. In Taylor v Mucklow [1973] Crim LR 750 the same court upheld a decision of magistrates who considered that a building owner was deploying an unreasonable use of force in equipping himself with a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid. In Attorney-General’s Reference No 2 of 1983 [1984] 1 All ER 988 the Court of Appeal held that a defendant could set up the statutory defence of showing that he possessed an explosive substance “for a lawful purpose” if he could establish on the balance of probabilities that his purpose was to protect himself or his family or property by way of self-defence against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.

This line of authority is concerned with the defence of “private defence” or “protective force” when unlawful force is used or imminently threatened against a person who may use proportionate force to defend persons or property. It is to be distinguished from the line of authority which is concerned with a similar defence against trespassers. In the Law Commission's most recent attempt, following very widespread consultation, to articulate the relevant principles of law in a simple codified form (see Offences Against the Person and General Principles (1993) Law Com No 218, pp 106-110), these defences are set out (so far as they relate to defence of property) in the following terms:

“27(i) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he believes them to be, does not constitute an offence –

(c)

to protect his property … from trespass;

(d)

to protect property belonging to another from … damage caused by a criminal act or (with the authority of the other) from trespass …

“29(i) For the purposes of section … 27 …

(a)

a person uses force in relation to … property not only where he applies force to, but also where he causes an impact on, … that property;”

Although no authority directly in point was quoted to us, we are prepared to assume for the purposes of this judgment that when the respondents tied themselves to the tractors in Horselynch Plantation they were using force within the meaning of this line of authority. If in the circumstances as they believed them to be they thought that unlawful damage was being inflicted or was about to be inflicted on the property of another, then it is hard to understand why the defence should not be available if they prevented the damage by tying themselves to the tractors rather than by attacking the tractor drivers.

However, it has always been a requisite ingredient of this element of the common law defence that what is being experienced or feared is an unlawful or criminal act, and this is not a topic the district judge addressed at all. In the present case it is clear that the respondents knew quite well (see para 13(i) above) that there was nothing unlawful about the drilling of GM maize seed on Mr Jones’s land, even if the seed might blow about or be transferred by one means or another to neighbouring land. They acted as they did because they believed so strongly that the seed represented a danger to neighbouring property and they knew that the law would not help them because what was going on was not unlawful or criminal. This is a far cry from the reasoning behind the need for the common law defence which was identified by Hale (op cit) when he referred to the need for “an imminent and inevitable danger for [a man’s] own life; for the law hath provided … recourse to the civil magistrate for protection”.

In our judgment, the district judge ought to have directed himself as a matter of law that the defence of private defence or protective force simply was not available to the respondents on these facts. He moved directly to considering their subjective beliefs and fears without first considering the ingredients of the defence. The answer to the question he posed is therefore: “No, because the defence of ‘defence of property’ was not available to the respondents on the facts set out in the case stated”. The case must therefore be remitted to him with a direction to convict, since all the ingredients of the offence were established and no defence of lawful excuse is available to the defendants.

It may be that the district judge was led into error because of the way the statutory defence contained in section 5(2)(b) of the Criminal Damage Act is drafted. In that statutory scheme a person who commits what would otherwise be regarded as criminal damage is given a statutory defence of “lawful excuse”

“if he damaged … the property in question. … in order to protect property belonging to … another … and at the time of the … acts alleged to constitute the offence he believed –

(i)

that the property … was in immediate need of protection;

(ii)

that the means of protection adopted … were … reasonable having regard to all the circumstances.”

The common law defence of “defence of property” has different ingredients. We note that in its 1993 report the Law Commission recommended (at para 37.6) that the ingredients of these two defences should be brought into line when any statutory restatement of the law was undertaken.

If the common law defence is raised in circumstances similar to those that arose in this case a court should first ask itself:

“Are the defendants contending that they used reasonable force in order to defend property from actual or imminent damage which constituted or would constitute an unlawful or criminal act?”

If the answer to this question is “no”, as in the present case, the defence is not available. If the answer is “yes”, then the court must go on to consider the facts as the defendants honestly believed them to be, and should then determine objectively whether the force they used was no more than was reasonable in all the circumstances, given their beliefs.

It appears to us that the appropriate order for costs would be that the respondents should pay the Director his costs in this court, and that the disposition of costs in the court below should be a matter for the district judge. There may, however, be matters of which we are not at present aware that may affect this position, and if the parties are not able to agree an order, they will have an opportunity to make submissions as to costs when this judgment is handed down.