The offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 does not require the Crown to prove that a defendant either knew or was reckless as to whether they were a trespasser, the Administrative Court has ruled in Director of Public Prosecutions v Bailey and others [2022] EWHC 3302 (Admin).
The respondents were involved in a protest at the largest dairy in the UK, the site owned by Arla Foods Ltd in Aylesbury, Buckinghamshire. The protest was organised by Animal Rebellion, a protest group associated with Extinction Rebellion.
The respondents were each charged with aggravated trespass. The judge found as a fact that the respondents had locked themselves to structures on private land, that none of them had known the location was on private land and that they had not been reckless as to that fact. He found that the offence of aggravated trespass requires knowledge or recklessness in respect of the trespass, and having regard to the findings of fact acquitted the respondents.
Under section 68 of the 1994 Act, a person commits the offence of aggravated trespass if they trespass on land and do anything which is intended to: i) intimidate persons engaging in lawful activity on the land so as to deter them from engaging in that activity; ii) obstruct that activity; or iii) disrupt that activity. There is no requirement for the mental element of intention for the trespass element of the offence.
The real issue between the parties was whether the presumption that parliament does not intend to create offences of strict liability – even if there is silence as to the mental element – applied or was displaced in relation to the trespass element. None of the authorities suggested that an intention to trespass must be proved to found a conviction for aggravated trespass. On the contrary, the analysis of the offence is consistent with the plain meaning of the words, namely that the civil wrong of trespass is criminalised by the aggravated element of the offence.
Proof of the civil wrong of trespass requires no mental element and the language of section 68 of the 1994 Act provides no indication that it should be given any different or novel meaning. Trespass in the context of other offences such as burglary under section 9 of the Theft Act 1968 requires an intention to trespass, but there is no rule of legal interpretation that trespass must have the same meaning in relation to all criminal offences of which it forms an ingredient.
The court did not consider that the absence of a requirement for intention or recklessness in relation to trespass would lead to harsh and unfair consequences. Aggravated trespass was not an offence of strict liability: the presence of an intention requirement for the aggravated element of the office mitigated any potential unfairness. Equally, the absence of a mental element requirement did not infringe the European Convention on Human Rights. The civil law of trespass constitutes a limitation on rights of protest and is entirely proportionate. The case was remitted for a retrial.
Louise Clark is a property law consultant and mediator
