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The Supreme Court upheld the conviction of two protestors, Richardson and Wilkinson, for aggravated trespass. They had obstructed the trading activity of Ahava, a shop in Covent Garden, but were attempting to rely on the defence that the trading activity was itself unlawful.
The Court’s dismissal of the appeal carries a clear significance for activists as it severely limits the defence of ‘unlawful activity’ in cases of aggravated trespass. It will remain to be seen how the Courts will follow the ratio of the judgment, but it may be that further clarification of the defence will be required.
Facts and Issues
Richardson and Wilkinson objected to the fact that Ahava sold goods produced by an Israeli company that was located in the West Bank and staffed by Israelis who had been encouraged to settle in the Occupied Palestinian Territory by the Israeli government. In peaceful protest, they entered the shop in Covent Garden and locked their arms inside a concrete tube on the floor, with the intention of preventing trade. They were subsequently convicted of aggravated trespass under the Criminal Justice and Public Order Act 1994, s 68 on the basis that they had trespassed in the shop and obstructed its lawful trading activity.
The appellants contested this conviction on the grounds that Ahava’s trading activity was unlawful in four respects: 1) they were guilty of aiding and abetting a war crime – the illegal occupation of the West Bank; 2) they were knowingly laundering the proceeds of that crime by selling its products; 3) their importer company had cheated the Revenue by incorrectly importing the goods as if they were covered by an EU-Israeli Association Agreement; and 4) the products were labelled as ‘made in Israel’, which was either false or misleading.
One of the issues for the Supreme Court to consider was whether any of these four allegations could be substantiated and attributed to Ahava. The crucial question, however, was whether the allegations, if made out, were sufficiently closely related to the trading activity obstructed by the appellants on the day, such that the trading could be deemed unlawful and the appellant found not guilty of aggravated trespass. More broadly, the question was whether the lawfulness of the obstructed activity in s 68 cases could be considered only with reference to acts that were integral to that activity, or whether incidental, collateral or remote acts would equally render the activity unlawful.
Judgment
The Supreme Court unanimously dismissed the appeal in a judgment given by Lord Hughes.
On the key question, the Court found that the unlawful act(s) committed by the occupier must be integral to the obstructed activity in question in order to render it unlawful for the purposes of s 68. Incidental, collateral or remote acts would not provide a defence under the Act (paras. 9-16).
On the secondary issue of the four alleged unlawful acts of Ahava, the Court found as follows:
(1) The factory company employing Israeli citizens and advertising its locality to prospective Israeli settlers did not necessarily constitute aiding and abetting war crimes; even if it did, this could not be used to show that Ahava was guilty of aiding and abetting, whatever the links between the two companies. In any event, such a crime, even if committed by Ahava, would not be integral to their sale of goods. The selling itself was lawful (para. 17).
(2) As the aiding and abetting could not be made out, Ahava’s possession and sale of the goods in the shop did not make them guilty of laundering the proceeds of crime. In any event, again, this would not be integral to the act of selling goods (para. 18).
(3) It was accepted that if Ahava had imported the goods under the wrong umbrella, they would be liable to repay the Revenue. However, this offence would be collateral, antecedent and remote from the sale of goods in the retail outlet (para. 19).
(4) The mislabelling offence, if made out, would come closest to being integral to the act of selling. However, there was nothing to show that the ‘Made in Israel’ labelling would mislead the average consumer into buying the product when she otherwise would not have done, or prevent customers from contacting the manufacturers (paras. 20-23).
Overall, the Court found that the offences could either not be made out, not be attributed to Ahava, or were antecedent, remote and/or tangential to the activity of Ahava selling their goods. The appellants therefore did not have a defence, and their appeal was dismissed.
Commentary
The Supreme Court’s narrowing of the ‘unlawful activity’ defence afforded under s 68 has a clear impact on the parameters of lawful protest. Activists opposed to the actions of large, international corporations or government bodies, for example, are likely to find it difficult to obstruct the specific unlawful acts to which they are opposed; and their ability to lawfully protest by obstructing the more accessible acts of those bodies has now been restricted.
The Court made clear, however, that the effect of the judgment on protestors’ freedom of expression was not a live issue, as the prohibition of trespass is an accepted proportionate limitation on ECHR, art 10 rights (para. 3).
Taking art 10 out of consideration, it would seem to be correct that there should be some limitation on the scope of the ‘unlawful activity’ defence. Allowing any criminal offence to suffice would widen the defence beyond its original purpose and open it up to abuse (cf Hibberd v DPP (referenced by Lord Hughes).
It seems likely, however, that we have not seen the end of s 68 cases in the higher Courts. One issue might be the potential lack of clarity inherent in the words “integral” and “obstructed activity”.
In Richardson, the approach of the Court to determining the obstructed activity was to consider only the very literal act being obstructed – the sale of goods – without any reference to their purpose or context. Had they considered the purpose, the obstructed activity might have been something more like running a business that imports and sells goods from the Occupied Palestinian Territory.
By changing the definition of the “obstructed activity”, different acts can be considered integral. In Richardson, aiding and abetting the occupation of the OPT may not be integral to the lawfulness of the sale of goods. However, if made out, it could have been considered integral to the lawfulness of Ahava running a business that imports and sells goods from the OPT.
It will simply have to be seen whether the Courts have any such trouble interpreting and applying the judgement from Richardson, and whether further clarification will be required as to the meaning of ‘lawful activity’ for the purposes of s 68.
Catherine is a paralegal at David Phillips & Partners, working in criminal defence. After studying Politics and Philosophy at the University of Sheffield, she completed a Graduate Diploma in Law, and is working towards a career at the Criminal Bar. She is currently gaining her police station accreditation, and regularly volunteering as a Legal Observer on demonstrations.