This case before the Supreme Court will mark the latest development in the law surrounding protest. Following a number of recent, high profile cases (see in particular Bauer & Ors v DPP  EWHC 634 (Admin)), Richardson will further examine the permissibility of obstructive acts within the context of civil action.The appeal turns on the construction of “lawful activity” for the purposes of the Criminal Justice and Public Order Act 1994, s 68, which sets out the offence of aggravated trespass. It requires an individual to have trespassed on land, and to have acted in order to obstruct or disrupt the lawful activity of persons on that land, or to intimidate those persons.
The issue on appeal is whether a person’s activity could be considered “lawful” for the purposes of s 68 because the facts establishing their guilt were not integral to the activity in question.
The appellants, Richardson and Wilkinson, entered Ahava, a shop in Covent Garden. They placed a concrete tube on the floor and locked their arms inside of it, with the intention of preventing the shop from trading. They were charged under s 68 of the 1994 Act.
The appellants maintain that Ahava’s trading was unlawful. The shop is run by the subsidiary of an Israeli company operating out of the West Bank. As the appellants do not consider the West Bank to be a part of Israel, they contend that Ahava’s labelling of products as ‘made in Israel’ breaches consumer protection legislation. They also accuse Ahava of cheating the revenue, possessing and using criminal property, and aiding and abetting war crimes.
In the magistrates’ court, the appellants were convicted on the basis that “lawful activity” could not relate to the activity of a corporate body for the purposes of s 68, and that the shop could not be held to be trading unlawfully unless the company had been prosecuted and its defence arguments tested.
Decision of the Court of Appeal
The Court of Appeal (Nero v DPP  EWHC 1238 (Admin)) held that the magistrates were wrong to relate “lawful activity” only to persons natural – it applies equally to corporate bodies.
However, the Court agreed that the law could not require the issue of Ahava’s complicity in war crimes to be adjudicated by a court of summary jurisdiction, where the company was not present, and where the burden of proof was reversed.
The correct approach, it was held, was to consider the lawfulness of the activity in question with reference only to acts or events that were integral to the activity itself. In this case, it was decided, the facts needed to establish the company’s guilt were not integral to Ahava’s trading.
Appeal to the Supreme Court
The appeal is due to be held on the 12th November 2013 before Lady Hale, Lord Kerr, Lord Hughes, Lord Toulson and Lord Hodge.
Upholding the Court of Appeal’s decision will limit the future availability of the defence that the activity interrupted was unlawful. This is likely to greatly affect the course of future prosecutions of activists under s 68. It will be interesting to see both the outcome of the appeal, and the judges’ consideration of ECHR, arts 10 and 11 that will no doubt form a part of their decision.