England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE TUCKER: This is an appeal by way of case stated from a conviction by the Stipendiary Magistrate for the County of Berkshire, sitting at Newbury.

2. On 24th May 1995 the learned Stipendiary Magistrate had before him an information preferred under section 68(1) and (3) of the Criminal Justice and Public Order Act 1994. The terms of the information were that the Appellant, Paul Jonathan Hibberd, on 12th January 1995 at Newbury in Berkshire, having trespassed on land in open air, namely woodland next to Enbourne Road and in relation to a lawful activity, namely land clearance by highways authority, which persons were about to be engaged in on that land, he did an act, namely refused to leave a tree, which he intended to have the effect of obstructing that activity.

3. The section of the Act referred (section 68(1)) provides as follows:

4. In the present case it is obstructing that is charged.

5. Subsection (2) is an important provision, which provides as follows:

6. Therefore, a lawful activity is defined as being one which is neither an offence or a trespass.

7. The case arose out of protests made against construction of the proposed bypass of Newbury. The facts, as found by the learned Stipendiary Magistrate, were that sometime before 1 pm on 12th January 1995 the Appellant climbed a tree on the site of the proposed bypass. There are a number of findings which are no longer material, and I need not recite them. The reason for that is that before the Magistrate it was argued that the Appellant was not thereby committing a trespass. As to that, the learned Stipendiary was satisfied, so that he was sure, that the Appellant was, in fact, trespassing. That point has now been abandoned; it is no longer being pursued before us, and rightly so, in view of the evidence. Before this court it was accepted that the Appellant was a trespasser on land and, of course, it was in the open air. Throughout all these proceedings the Appellant behaved courteously to those who had to deal with him.

8. The learned Stipendiary Magistrate was satisfied that the protests by the Appellant did, in fact, obstruct the construction of the bypass. It is implicit in the Stipendiary Magistrate's final conclusion that the offence was made out, that he was also satisfied that the Appellant's conduct was intended to have that effect.

9. The important point raised in this appeal concerns one issue alone. It is whether the prosecution proved before the Magistrates' Court, beyond reasonable doubt that the activity was lawful. It is accepted that the burden was upon the prosecution to prove that the activity, which was being carried out and which was obstructed, was a lawful activity.

10. As to that, the learned Stipendiary Magistrate referred to subsection (2) which I have already recited. He considered the submissions contended for by the Appellant which were these. They were based on the fact, as found by the Magistrate, that chain saw operators were felling trees; that a chain saw operator approached the tree in which the Appellant was positioned; that he had to stop his chain saw and cease work; and that one of the chain saw operators was working his chain saw without gloves. The point raised by the Appellant was that this rendered the activity of the chain saw operator unlawful. The learned Stipendiary Magistrate accepted the evidence of the Appellant that the chain saw operator was not wearing gloves and was of the opinion that the Appellant may also be right when he said that the chain saw operator was not wearing a visor and, in his opinion, the trees were being felled too close to the protestors and others. However, the Stipendiary Magistrate said that he did not have sufficient information to make any conclusive finding of fact on those issues. He said:

11. The Magistrate found that the activity referred to in this charge and established by the evidence was the land clearance being conducted by the contractors. He said:

12. He went on to conclude:

13. We have been referred to the provisions of the Health and Safety at Work etc Act 1974 and, in particular, to the provisions of section 2 of that Act which prescribe the general duties of employers to their employees. Subsection (1) provides:

14. Subsection (2) refers "without prejudice to the generality" of that provision to a number of instances of that duty. We were also referred to section 3 of the Act which prescribe "general duties of employers and self-employed to persons other than their employees". Of course, by section 3 of the Act, it is provided that it is an offence for a person to fail to discharge those duties and also to contravene any health and safety regulations.

15. As to the regulations, counsel for the Appellant has referred us to the Management of Health and Safety at Work Regulations 1992, regulation 12 of which refers to "employees' duties":

16. The argument of counsel for the Appellant runs thus. Here, as the Magistrate found, was a chain saw operator working without gloves. There was, in fact, no finding that I can see that gloves had been provided but let us assume that they had been. Therefore according to that finding the work or activity of the operator on that occasion was thereby rendered "unlawful". It was that operator's activity which was obstructed, so runs the submission. That activity being an unlawful activity, it was not caught by the provisions of section 68 of the Criminal Justice and Public Order Act 1994.

17. For my part, I am not persuaded that that argument is correct. In fact, I am wholly satisfied that it is not. In my view the "lawful" activity referred to in section 68, is in this instance the activity of the contractors in clearing land and felling trees for the purpose of the construction of the proposed bypass. That is the activity, and it is not, as I understand it, contended that that activity is not a lawful activity. It was lawful; it had been properly authorised.

18. As far as any behaviour or non-compliance on the part of the operator is concerned, that, even if unlawful in the sense that he was not wearing equipment that had been provided for him, does not, in my view, render "unlawful" the fundamental activity which was being engaged upon by the contractors in the construction of this bypass. In any event, it is perfectly plain that it was that activity that the Appellant was seeking to obstruct and which he succeeded in doing. He, according to the findings of the Magistrate, has some experience of chain saw operating in his own professional life. Of course, we accept that finding. No doubt, it is advisable for chain saw operators to wear the safety equipment which is available to them. There may, as the Magistrate found, be circumstances in which an operator's failure to avail himself of equipment can put him in breach of the regulations and may render his own activity unlawful. However, as I would say, that is far from concluding that the activity of his employers, in this instance land clearance, was unlawful. It was not.

19. Accordingly, I consider the Magistrate's questions as

20. I do not quite understand that question and I see no necessity to answer it. It was not a question of which the Magistrate was required to answer. In my opinion, it is not a question which this court is required to answer and I do not, for my part, propose to answer it. The same goes for the other questions which are posed for our consideration. In my opinion those questions, if they needed to be asked, have been sufficiently answered in the judgment I have endeavoured to express, and it is sufficient to say that the Magistrate came to a proper decision. He was right in finding that the activity referred to in the charge was the land clearance being conducted, that that activity was lawful, and that it fell within the provisions of section 68. He was also right in finding that the fact that a breach of the regulations may have occurred does not render the work, or activity, as a whole, unlawful.

21. Accordingly, in my view the conviction was correct and it should be upheld. I would dismiss the appeal.

22. LORD JUSTICE STAUGHTON: I agree. I am inclined to think that one should define the activity as the task to be carried out and not the way it is to be done. In the course of the argument we have considered examples where imminent danger might be caused to members of the public who are not trespassers and are acting lawfully, by the way an activity is carried out. An example might be felling trees so that they were going to land on the motorway and cause serious accidents. It may be that in those circumstances even a trespasser would be justified in disrupting the activity if it was to be carried out in that way. Alternatively, it may be that the offence would still be committed and that it should be met with an absolute discharge.

23. We do not need to decide that today in this particular case. I am satisfied that the activity was lawful for the reasons that Tucker J has stated. Like him, I would uphold this conviction.

24. MR SYFRET: My Lords, I am instructed to apply for the Respondent's costs.

25. LORD JUSTICE STAUGHTON: What about that, Mr Walters?

26. MR WALTERS: My Lord, in relation to costs I would submit as follows: in accordance with my skeleton argument it is clear that there were a large number of cases involving arguments about health and safety in relation to this particular protest. This was one of a large number. It is the case that this was a first case in which one of the Stipendiary Magistrates, who was drafted to deal with these cases, made a clear ruling about this point. There are a number of other cases waiting to be heard in relation to this point and some on appeal to the Crown Court, I understand, in Winchester. In my submission, the decision in this case has effectively dealt with this point.

27. MR JUSTICE TUCKER: Are they all contributing to the costs? Has a fighting fund been established?

28. MR WALTERS: My Lord, I understand that the Appellant in this case is a man of very limited means ----

29. MR JUSTICE TUCKER: I have no idea what his means are. I am just asking if he is supported by the other protestors.

30. MR WALTERS: He is supported, as I understand it, by Friends of the Earth.

31. LORD JUSTICE STAUGHTON: He seems to have been treated rather leniently, in my view, by the Magistrate. I suppose it is possible to take two views on that. Some might say that a conditional discharge with £100 costs was quite a serious penalty for this man.

32. MR WALTERS: My Lord, I would consider so. He is a man of good character with no previous convictions. He conducted himself politely, as stated in the case stated. He is here today and has taken interest this case. We narrowed down the issues as much as possible in the court below, by way of section 10 admissions on both sides, and it was a case that was dealt with in a proper fashion.

33. In my submission, this particular Appellant should not be penalised, given that this was a case brought, as it were, in connection with a large number of other cases which will effectively be dealt with, as I understand it, by this decision. Therefore, as an assent, one could say, that the Appellant has provided some kind of public service by appealing. Perhaps I was putting it too high. I would not put it that high, but I would ask that in this kind of case it would not able proper to award costs and ----

34. LORD JUSTICE STAUGHTON: I am afraid we think that we ought to make an Order for costs, Mr Walters.

35. MR SYFRET: My Lords, in the sum £400.

36. LORD JUSTICE STAUGHTON: Do we have to fix an amount?

37. THE ASSOCIATE: No, my Lord. This is straight costs to be taxed.

38. LORD JUSTICE STAUGHTON: Yes, to be taxed.