NO: CO/3503/01
Neutral Citation Number: [2001] EWHC Admin 821
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION     (CO/969/01)
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Tuesday, 16th October 2001
B e f o r e:

MRS JUSTICE RAFFERTY

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DIRECTOR OF PUBLIC PROSECUTIONS

‑v‑

ROWAN TILLY & OTHERS

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Computer‑Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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MR M PARROY QC, MR T COOMBES AND MS S HOBSON (instructed by Bindman & Partners) appeared on behalf of the Claimant and the Defendant in C0/969/01
MR O DAVIES and MS A LEWIS (instructed by the CPS Dorset) appeared on behalf of the Defendant and the Claimant in C0/969/01

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J U D G M E N T
Tuesday, 16th October 2001
1.	MRS JUSTICE RAFFERTY: This is an appeal by way of case stated by the Director of Public Prosecutions in respect of the acquittal before District Judge Farmer on 12th June 2000 in the Weymouth Magistrates' Court (“the Weymouth case”) of all these respondents. Each had been charged, ultimately, with an offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994. The judge acceded to a submission of no case to answer, voiced upon their behalf by Miss Lewis. The charge read as follows:
“that you together ... and others unknown at Over Compton on the 16th July 2000 having trespassed on land in the open air, namely STARVE ACRE FIELD, and in relation to a lawful activity, namely the growing of crops which persons were engaged in on that land did an act, namely damaged a quantity of maize plants which you intended to have the effect of disrupting that activity.” 
2.	Additionally before me there lies an appeal by Miss Tilly by way of case stated from the decision on 23rd November 2000 of HHJ Jonathan Haworth and justices in the Crown Court sitting at Ely (“the Cambridge case”). That constitution, having accepted an invitation to rule as a preliminary matter upon the construction of this section, had heard her appeal against conviction, also for an offence under section 68, in the Cambridge Magistrates' Court on 15th June 2000 and upheld it. That charge read as follows:
“that you on the 3rd August 2000 at Gt Chishill having trespassed on land in the open air namely Lime Farm and in relation to a lawful activity namely the growing of oil seed rape which persons were engaged in on that land did an act, namely damaging the crop, which you intended to have the effect of disrupting that activity.” 
3.	The question posed in the Weymouth case for this court is:
“Whether engaging in or being about to engage in a lawfully activity on land in the open air requires the physical presence on the land at the time of the alleged offences of a person or persons who is/are engaged in or about to be engaged in a lawful activity on that land.” 
4.	The question in the Cambridge case posed by HHJ Howarth is:
“Whether, for an offence to be committed under s68(1) of the Criminal Justice and Public Order Act 1994, in relation to any lawful activity which persons are engaging in ... on ... land in the open air such persons must be physically present on the land at the time of the trespass and action intended to disrupt that activity.” 
5.	Section 68 reads, where relevant, as follows:
“(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‑
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.” 
6.	I turn first to the facts, none of which is in dispute, of the Weymouth case. A firm known as Aventis Cropscience UK Ltd (“Aventis”) provided seed and herbicide for the growing as part of an audited government trial conducted for it by a farmer, Mr Lock, of genetically modified (“GM”) maize. Approximately 16 acres of a 32.8 acre field, known as Starve Acre and free of rights‑of‑way, was given over to the crop. The balance of the acreage was devoted to unmodified maize. On 16th July 2000 the respondents and others trespassed on the field and damaged a percentage of the GM crop by scything, trampling or snapping off growing heads. Neither Mr Lock, nor any employee of his, nor anyone connected with Aventis or with Adas Consulting, the auditors, was then present.
7.	The submission to which the District Judge acceded was that there was no “engaging” in this lawful activity of growing since people sow, water, feed and reap, but only plants grow, and that the offence is made out only if the person engaging in the activity is present upon the land at the time of the trespass.
8.	In the Cambridge case the appellant on 3rd August, without permission, entered a field on Lime Farm and damaged part of a growing crop of oil seed rape with intent to disrupt its growth. Neither the owner nor any representative of his was present or about to be present. A submission essentially similar to that made to District Judge Farmer was rejected by HHJ Howarth.
9.	The facts of each incident are so similar as to allow this court to draw no distinction between the two cases before it and to reach one conclusion upon both questions.
10.	Dispensing, first of all, with the submission in the Weymouth case, that there was no engaging in a lawful activity since only plants grow, I see, with no surprise, that it is not one which counsel now appearing seeks to advance.
11.	Each lower court was addressed upon the basis that physical presence or impending physical presence of what I shall call an aggrieved is a prerequisite for the proof of the offence. In Weymouth the District Judge was referred to Pepper v Hart (1993) AC page 593, to Hansard, House of Lords 24th May 1994, and to an extract from “Public Order Law” by Prof Richard Card. The Cambridge and Ely courts were referred neither to authority nor to publication.
12.	Before me, Mr Owen Davies QC for the appellant in the Cambridge case and the respondent in the Weymouth case concedes that there is no statutory ambiguity and, thus, does not seek to take me to Pepper v Hart or beyond. If, however, I were by that route to have reviewed Hansard, he does no more than remark that I should have found only support for his position.
13.	His principal submission is that the meaning of “activity”, clear and unambiguous as it is, must be the same for each application of the section, and that contextual use is important. He contends that activity must be engaged in by “persons” and, that being so, must be amenable to a description (though I have taken him to mean definition) requiring human activity, or activity of a human kind. Putting it another way, it cannot equate to an undertaking or enterprise, too wide as those nouns would make the statutory construction. The narrow construction for which he contends would exclude as an activity, for example, cultivation of a crop, farming, or the carrying on of a business.
14.	He invites me to interpret as tripartite the way in which the offence may be committed. He takes me back to section 68 which, where relevant, reads:
“[Someone] commits the offence ... if he ... does ... anything which is intended by him to have the effect‑
(a) of intimidating those persons ... so as to deter them ...,
(b) of obstructing that activity, or
(c) of disrupting that activity.”
15.	He does not align himself to the argument advanced by Mr Parroy QC that those subsections must in their entirety be disjunctive, notwithstanding that the conjunction “or” appears only after subsection (b). Rather, Mr Davies submits that “activity” must be capable of subjection to intimidation, obstruction and disruption. He deduces from that position that, if disruption is operative, the activity must be being carried out and if intimidation and obstruction lie, it (the activity) must be one in which someone is about to engage or is engaging. He arrives at the rhetorical question: how, therefore, can cultivation, absent a human being present, be an activity susceptible to intimidation or obstruction?
16.	Because the subsection reads:
“... any lawful activity which persons are engaging in or are about to engage in...” 
	he contends that the qualifying conditions connote the immediate or the imminently contemplated. They do not connote what would accurately be described by the phrase “carrying on”. Although the following analogies are mine not his, I am certain he would adopt them. A farmer carries on his occupation of farming. A seedsman carries on his of seed growing. Each will engage in an activity when the one comes, for example, to plough, and the other, for example, to thin out. The situation until then has not temporally achieved activity. Putting it another way, the state of affairs begins in the general until it is advanced to the particular. This section catches only the particular.
17.	Were I to need further support for this construction, Mr Davies takes me to section 68(2) which reads, where relevant:
“Activity on any occasion ... is 'lawful' if ... he ... may engage in the activity
... on that occasion without committing an offence... 
The reference to “occasion” here must be to that of the activity not that of the disruption, he contends.
18.	Mr Parroy agrees that the statute is unambiguous, but argues for the entirely disjunctive construction of subsections (a), (b) and (c), which disjunction is made clear by reference to section 69. That section gives the police powers to remove and reads, where relevant:
““If the ... police officer ... believes that two or more persons are trespassing
... and are present ... with the common purpose of intimidating persons ... or of obstructing them ... or disrupting a lawful activity...” 
19.	I need read no further. Though I agree that the omission in section 68(1) of an “or” after (a) is likely to be a drafting infelicity, as is apparent from the reading of section 69, I am not much helped by that conclusion. Even if it be right that “activity” need not encompass any more than one of those three alternatives, as in my judgment is the case, and even if a wider construction than that for which Mr Davies argued were correct, still I am brought back to the central question: what does “activity” mean in this context?
20.	The dictionary definitions add little to the sum of understanding but, for what it is worth, I recite from the 10th Edition of the Concise Oxford Dictionary, to which I was taken, that part which reads:
“Activity: n. 1. a condition in which things are happening or being done. 2. an action taken in pursuit of an objective.” 
21.	The 7th Edition, cited to District Judge Farmer in the Weymouth case, reads:
“n. Exertion of energy; state or quality of being active; diligence, nimbleness; actions occupations;” 
22.	Finally, I was taken to the extract from Prof Card's book, to which I earlier referred. At page 288 paragraph 7.49 he writes:
“The meaning of the reference to 'activity' which persons are engaging in or about to engage in in section 68 is not clear. Does 'engaging/engage' require that something is actively being done or about to be done actively by the persons concerned? If it does not, the aggravated trespass provisions are particularly wide in their scope. Hooligans who trespass in a field and scatter in all directions the sheep grazing there may be said to do an act in relation to the sheep and in relation to the farmer and his shepherd, and do so with intent to disrupt the operation of the farm, but it is submitted they do not do so in relation to an activity in which the farmer and his shepherd are engaging or about to engage in. It would be different if the farmer and the shepherd were engaged in driving the sheep into a pen at the time.” 
23.	Mr Parroy approaches the definition question from another angle: does something properly an activity cease so to be merely because a human being is absent from its site? If a farmer approaches on his tractor as the field is being entered there is committed an offence, but if it is entered as he drives away through the gateway, there is not. How far distant in time may one go in assessing “about to engage”? Is an offence committed or not committed if the field is entered in the morning when the farmer always intended to do something on it that same afternoon?
24.	Of course, urges Mr Parroy, growing can be disrupted. A gate could be made impassable when entry were needed, which would thus disrupt a lawful activity. Is it to be supposed that one can only engage in an activity if one is physically present? That is, he suggests, a nonsense and effectively undermines the submissions of Mr Davies.
25.	In my judgment, whether one can indulge in an activity present or absent is not the point. The point is whether in the context of this section one can, absent from an activity, endure the obstruction or disruption of it, or potentially be intimidated or be intimidated in the performing of it. I have no hesitation in concluding that presence is necessary before an offence under this section can be made out.
26.	The draughtsman could have included the words in the section “there present” had he wished to achieve the position for which Mr Davies argues, submits Mr Parroy. So he could. But, in my view, their omission takes the matter no further. They are unnecessary for the clear and unambiguous interpretation of the section. It contemplates and is designed penally to mark a situation in which people are meant to be intimidated, or cannot get on with what they are entitled to do. Thus, to suffer inconvenience or anxiety they must be present. Alternative and well‑established statutory provisions exist to catch circumstances in which wrong‑doing occurs without the presence or the imminent presence of the aggrieved. It is comforting to reflect that insofar as he does reach a conclusion, Prof Card shares this Court's interpretation.
27.	For the reasons given, the answer to the question posed in the Weymouth and the Cambridge case is in the affirmative.
MISS LEWIS: My Lady?
MRS JUSTICE RAFFERTY: Yes, Miss Lewis.
MISS LEWIS: My Lady, in relation to the Cambridge case, in those circumstances do you reverse the decision of the Crown Court?
MRS JUSTICE RAFFERTY: I do.
MISS LEWIS: My Lady, may I ask for detailed assessment of my costs?
MRS JUSTICE RAFFERTY: Yes. Is there anything you want to say about that, Mr Parroy?
MR PARROY: No. My Lady, one aspect. I would suspect that I would receive instructions to invite your Ladyship to certify a point of public importance for consideration of their Lordships' house. As your Ladyship knows we have power to do that under the Administration of Justice Act 1960 section 1. I know that your Ladyship knows that we have 14 days to formulate a point. If I can take instructions from those behind me, who are not here today, as I think your Ladyship made a note of yesterday, and perhaps my learned junior might appraise your Ladyship if a decision is taken to advance along that route?
MRS JUSTICE RAFFERTY: I shall flag it up mentally, as doubtless you intend me to do, Mr Parroy, and I will wait.
MR PARROY: Thank you very much.
MISS LEWIS: My Lady, sorry to rise, my instructing solicitor has just reminded me that we had legal aid for one junior in this matter. The Crown were represented by Queen's Counsel and two juniors, whether in the circumstances, Mr Davies appeared yesterday, your Ladyship will grant legal aid or public funding for Mr Davies?
MRS JUSTICE RAFFERTY: Certainly, yes.