My Lords, I am grateful to my noble friend Lord Shrewsbury and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for signing my Amendment 150 to Clause 63. Unfortunately, he is unable to be here today because of an unforeseen medical appointment, but has read my speech in draft and has told me that he agrees with it. Whether it comes out as I wrote it is entirely a different matter. In any event, it comes with the usual caveat—the mistakes are mine; the support is his, and I am grateful for it.
The amendment is simple and straightforward. There is no reason in principle or justice why it should not be accepted. That said, I am not so naive as to think that, just because I am arguing for it, it is perfectly drafted or that the Government or the majority of the Committee will agree with me. I will not press it to a Division, but I shall listen carefully to what my noble friend the Minister says in response before deciding whether and how to take the matter forward beyond Committee.
Clause 63 of the Bill amends Section 68 of the Criminal Justice and Public Order Act 1994. I have nothing to say about the policy behind Clause 63 but, since it is there, as I indicated at Second Reading, it gives me an opportunity to right a wrong contained in Section 68 of the 1994 Act. That section defines the offence of aggravated trespass. In so far as it is relevant to my amendment, it provides, first, that:
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, 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.”
Section 68(2) says that:
“Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.”
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As I understand that section, a trespasser who, for example, enters on to another’s land intending to intimidate that person so as to deter, obstruct or disrupt him from doing something lawful, such as a farming activity like cutting hay, is guilty of an offence. Staying with the example of farming, where aggravated trespass becomes more complicated and, I suggest, unfair to the owner or occupier of the land carrying out his farming activities, and unnecessarily complicated for the police or prosecuting authorities, is the way in which the burden of proof in relation to the trespasser’s defence is on the victim of the intimidating trespasser or the prosecutor.
Let us assume that, rather than cutting hay, the farmer is planting genetically modified wheat. Whether, as a matter of public policy and within the wider environmental debate, the law of this country should permit the planting, growing and harvesting of genetically modified crops for human consumption at all is a controversial question. Where the growing of GM crops is permitted only on specified land with safeguards to prevent cross-contamination of other crops on neighbouring land, it is also controversial.
Indoor pig farming, keeping large flocks of laying hens indoors and making arms for the military—both ours and other countries’—are controversial subjects as well, but the trespasser who enters unlawfully on to the land of the GM crop farmer, the indoor pig farmer or the manufacturer of bombs and missiles for use by our Armed Forces on operations abroad intending, through intimidation, to stop or interfere with their activities and who claims he was doing so to stop something unlawful does not have to prove that he was stopping an illegal activity. The trespasser merely has to assert that the activity he is deterring, obstructing or disrupting is illegal. The prosecution then has to take on the burden of satisfying the court that the activity was lawful.
It is plain and obvious that, in some cases, the trespasser asserts that the activity he is disrupting is unlawful, when he really means that he disapproves of it, that it ought to be against the law and that it should be stopped. He believes that growing GM crops should be banned, that keeping animals indoors to produce meat for human consumption is immoral or that making bombs for the Royal Air Force to use in the Iraq war is wrong, both because the use of military force is unacceptable and because the war itself was illegal. These are entirely legitimate opinions. It is important that we maintain, in this country, rigorous laws to
protect free speech, the freedom to hold opinions that others do not share, and the freedom to protest and of assembly and association.
In short, some of the things the Bill seeks to curtail should not be curtailed, and should not, in any event, be constrained by vague and subjective adjectives in a statute or at the discretion of a government Minister. But if the trespasser is intent on interfering with the farmer’s or anyone else’s work and livelihood, he should not simply have to assert that that work is unlawful and leave it to the prosecution to prove that it is lawful; he should take on the burden of proving his positive case.
People intending to trespass should, before entering on to the land, be sufficiently clear in their own minds that the activity that they want to stop or disrupt is not just one of which they disapprove but is also presently unlawful. Unquestionably, if the user of the land was known to be carrying out an unlawful activity in breach of a regulation or law, the relevant authorities should step in and stop it, but the police find it difficult to anticipate an aggravated trespass designed to disrupt a lawful but controversial activity or whether it will later be asserted that the trespass was carried out to prevent a possible future war crime or environmental mishap. Post-event action by the police, although necessary, does not prevent the disruption and consequential economic damage.
If the police or the Environment Agency, for example, were provided with evidence at or before a trespass that the activity on the land was unlawful, they could go in and stop it themselves, but they should not be asked to guess whether a group of demonstrators against arms manufacturing or GM crops will later assert that they were preventing war crimes or breaches of environmental law, simply because they were chanting slogans and holding up anti-war or anti-GM crop banners. It cannot be good enough to argue that an offence might be committed at some point; what matters is what was happening when the activity was being disrupted.
It may be said that placing the burden on the trespasser as a defendant to a charge of aggravated trespass is contrary to the principle that it is for the prosecution to prove its case. That is generally but not always true, and there are several examples of statutory offences or regulatory breaches that impose some burden on the defendant to prove, to the civil standard, a positive defence.
Noble Lords will be happy to hear that I will not trouble them with a detailed discussion of legal, persuasive and evidential burdens, not least because the noble and learned Lord, Lord Hope, is in his place and he has forgotten more about this aspect of the law than I ever knew. However, in essence, I suggest that my amendment offends neither English law nor Article 6(2) of the European Convention on Human Rights. This change in the law of aggravated trespass is justified, necessary and proportionate.
I make no extravagant claims for my drafting, and can see that proposed new subsection (3A)(a) in my amendment could be construed as placing the burden on the defendant to disprove the trespass, which the prosecution already, and rightly, has to prove. But concentrate on proposed new subsection (3A)(b); the prosecution would still have to prove the essential
elements of the offence—namely, the defendant’s trespass and intention to intimidate so as to deter, obstruct or disrupt another’s ostensibly lawful activity, before the burden of proving that the activity was not lawful shifts to the defendant. The burden on the prosecution is not a mere formality, but would there be difficulties facing the defendant in satisfying the legal burden placed on him? For example, are the facts within the knowledge of the defendant? Presumably they are, otherwise he would not be there seeking to disrupt the activity in question.
In considering whether the shift in the burden is proportionate, does the public interest to protect the legitimate economic activity of the farmer or commercial employer not weigh more heavily in the balance than the individual’s right to express disapproval of their activities by interfering with them—something he can do without intimidating the farmer and stopping him working? Does the greater threat to society not lie in people taking the law into their own hands and turning what is a private view, if sincerely held and widely shared with others, into authority to stop others from earning a living? If Parliament disapproves of GM crops, indoor pig farming or the manufacture of weapons, it can legislate accordingly. Each case will be fact-specific, but this amendment does not present insurmountable problems for the defendant.
I accept that aggravated trespass is, under the 1994 Act, an offence that carries with it a limited fine and a maximum sentence of three months’ custody. It is, though, a less serious offence than some drugs and knife offences, which place the burden of proving lawful possession of the knife or drugs on the defendant, and is more serious than a breach of some administrative regulation. But the amendment will not, I suggest, lead to disproportionate injury to the trespasser’s reputation or rights, certainly not when compared with the economic damage that could flow from the turning of disapproval into permission to destroy.
This amendment would give the police greater clarity about whether an offence of aggravated trespass had been or was about to be committed and assist those who are about to be or already have been subjected to the commercially damaging consequences of aggravated trespass. It does not outlaw protest; it does not make the holding of opinions about controversial matters of public debate against the law. It does not prevent anyone campaigning vigorously and noisily in favour of their own cause or against those to which they object. But, if a person wants to come on to the land of another to stop him doing what he objects to, he must be prepared to establish with credible evidence, and not just assert when prosecuted for aggravated trespass, that what he was deterring, obstructing or disrupting was against the law. If he is not prepared to show that the activity was unlawful, he should campaign to change the law through Parliament and demonstrate in the public space.