Thanks for laying this out so clearly, I can’t verify whether you’re right or not, but hope that if not someone will clarify.

Just one point to add, you say ‘this relatively new and not often used charge’ – in fact this charge has in the last 2 years become almost routinely used against climate change campaigners in many circumstances, most of which have not received wide (or indeed any) coverage outside of independent ‘green’ media.

Be good to see concern about political policing, changes in criminal charges and the application of those charges, etc etc, extend to concern about and greater (wider) interest in the policing of climate change which has been extremely heavy handed and seemingly informed by / a development of the policing of animal rights protests. This is a good intro to the issues: http://www.opendemocracy.net/ourkingdom/tom-griffin/mission-creep-how-acpo-empire-hyped-eco-terrorism

Thanks for your support Paul. It’s been a terrible week.

I have to say I’m not inclined to share your enthusiasm.

Astute analysis – but since the charging decision will have been taken by the CPS in the first place, it’s clear that the anti-democratic attitudes illustrated actually go well beyond just the police. Which is actually terrifying.

…meanwhile the killers of Tomlinson et al go unpunished. Gotta love justice, folks.

Ellie Cumbo,

Can you clarify that please? I didn’t know that the CPS were involved at that stage. I thought it was up to the Police to forward their charges to them and then the CPS decided whether to proceed with a prosecution or not?

Oxfordblo@1: Yes, you;re right. It was little used until fairly recently, and this suggests it is the new ‘vogue’ charge, though there have been issues pursuing th charges (esp around whether what the protestors were seeking to stop was a lawful activity, a precondition set out in a clause of the act I don’t quote above, for their own action being unlawful

Douglas @5: Yes, that’s my understanding (as an ex-magistrate). The police charge first, then the CPS have a certain length of time to prepare the file and decide whether to continue.

There is a caveat in general to this piece, which Sunny has edited slightly (I think) from the original). It is possible the CPS might try to establish that the protestors were given direction to leave even before the senior officer is filmed saying she is sorry they can’t leave, but at that earlier point they refused. This would mean the video evidence becomes irrelevant to the prosecution as the offence would be claimed to have taken place before the point of the video recording.

Again, I suspect this is unlikely given the way in which she apologises to the protestors for the delay in allowing their exit, but it can’t be discounted. More likely, I suspect the charging police officer on the Sunday simply didn’t know what the senior officer had said (and been recorded saying) on the Saturday.

Excellent article.

he [the 'trespasser'] commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months

Three months!!! Hope Adam doesn’t get that long.

Don’t think I could cope with the daily blog……….

@2 Ellie Mae

Hope you are well. Did tweet a message Friday for you and ask Aaron to pass on as you’ve blocked me on Twitter.

@6

Paul, its my understanding if the sections of law you quote that there is a mention that you don’t have to be asked to leave if the intention was to disrupt or prevent lawful activities.

Technically, and if the CPS & Fortnums are really anal about it, it can be argued that access to the store is only permitted by the owner for those carrying out trade or business with the store, otherwise needs permission.

The police were geared up for an occupation by UKUncut. They had officers on hand, transport round the corner to take away those arrested to police stations, each expecting twenty or so non-violent protesters.

Given the level of police preparation, we should also assume that the officer in charge had been thoroughly advised on the laws under which protesters might be arrested. The officer would have been reading from a script.

Paul Cotterill correctly identifies “…leave the land as soon as practicable…” as the significant point. That means the the protesters should shift themselves asap without hinderance by the police. I have not seen evidence either way and have an open mind. I have seen videos, not evidence.

Non-prosecution of the UKUncut protesters should be satisfactory to all. UKUncut caused a nuisance and disrupted the conduct of a business. They generated enough disruption to get arrested, possibly convicted, on a minor charge. To spend hours in custody (bad food, no violence) is the personal cost of non-violent protest.

The question is whether the protesters intended to stay for, say 20 minutes & were stopped from leaving or whether they planned to stay 2 hours & were kept for 4. If they were planning a lengthy stay I dont think that counts as non-violent. Non-violence means a lot more than just not hitting people.

@ 10

You’re really pushing the definition of “violence” if you include lingering with intent.

@5/6

Not quite, since the introduction of PACE 1984. The police take the initial decision that the “threshold test” is met – ie that there is enough evidence for at least a reasonable suspicion that an offence has been committed. Even this is often done in consultation with the CPS (a Duty Prosecutor stationed there, usually) since they’re the ones who know e.g. what the elements of the offence are.

The next stage is the charging decision, which lies with the Crown Prosecutors and obviously involves a higher test, including the public interest element. It would be fairly inefficient if people could routinely be charged by police and then have the charges dropped the minute the CPS looked at it! This now only happens in the very small number of cases where the police can still charge directly, which are mainly road traffic offences.

Not all protesters were charged under section 69 of CJ&POA and this was clear from the meeting of arrestees yesterday. The majority, including me, were charged under section 68. Under section 68 it needs to be proven that the protesters *intended* to disrupt or obstruct ‘lawful activity’ at Fortnum & Mason.

@6

If you’ve been a magistrate, you may have seen many cases in which the police charged under the transitional arrangements that followed PACE – i.e. in cases where a guilty plea was likely and the cases was suitable for sentencing by the magistrates.

I assume (and hope!) that the UK Uncut protesters are not pleading guilty, so the charge would be a CPS decision anyway.

@10 paul barker: “Non-violence means a lot more than just not hitting people.”

paul barker is a new name to me on LC, so “welcome”. There are other threads on LC where non-violence is assumed to encompass breaking bank windows and ATMs. Which sounds like bollocks to me. You can menace people without hitting them.

But the UKUncut crowd conduct their events without deliberate physical damage or personal threat. Some of their events may be construed as unlawful. I don’t believe UKUncut’s economic arguments but I think that society can afford to allow them to play their games. On the other hand, I think that UKUncut loses that qualification if it chooses to validate violent protest.

@Ellie Cumbo

Do you believe that the arrests were conducted by a recipe? That the police had decided beforehand about how the exercise would be conducted?

Were the protesters appropriately advised beforehand, accepting that arrest was a possibility?

I don’t expect omniscience

@16

No idea about whether they planned the police trap suggested by the video footage, or whether that just seemed like a good idea on the day. I know the law/technical bit, not the police strategy. I’m entirely appalled to see the police officer in the video telling protesters they wouldn’t be arrested, but it’s hard to say what the legal effect of this may be since, as Paul says, this will be the first time something like it has come before a court.

What I do suspect quite strongly is that the police/CPS sat down at some point and made a calculated decision to use the aggravated trespass offence for the UK Uncut occupations, since they would have known about them in advance. Given that this is demonstrably not what the law was intended to be used for, this would be a very worrying indication of the attitudes held by law enforcement towards the legal right to protest

My understanding is you can’t be prosecuted for trespass if you are there for your own safety. The police officer in the mentioned video clearly says that it hasn’t been safe for them to leave. Customers were also stopped from leaving for that reason.

The decision also has to be made by the senior officer ‘at the scene’. Who was the senior officer at the scene? The officer in the video is an inspector, but not gold commander on the day. She has since implied to MP’s that she didn’t knowingly lie to those inside – she didn’t know they were to be arrested. Was there a more senior officer making the decision at the scene or was it actually made by an officer elsewhere?

This legal pondering would be fun if it wasn’t real people being toyed with. We’ve not got all the information needed so we’re left speculating, which isn’t necessarily helpful.

@13 & 18

As protesters targeted fortnums with the specific aim of occupying the store, intent is proven. Even more so given all the blogs and tweets on the subject.

My guess would be along with the intent to disrupt lawful business Fortnums would claim that given the events outside, along with the numbers they asked the police to eject rather than themselves as the groups intentions were unknown.

I’d also have to seriously question if meeting to discuss their arrest as a group, blogging & tweeting about being at fortnums (along with other uncut events) and their arrest will help those facing court next month. I can imagine the following help much either:
http://brightonuncut.wordpress.com/2011/03/31/open-letter-to-solfed-and-uk-uncut/
http://www.telegraph.co.uk/news/uknews/law-and-order/8423532/Captain-Anarchy.-Key-Labour-figures-sons-behind-the-violent-breakaway-cuts-protests..html

Perhaps Paul can comment on this being a magistrate?

Another question I have is why haven’t police arrested protesters on these grounds before, and now after Fortnums they have, will the police and stores be more likely to act this way in future? Personally I’m very surprised they haven’t already?

Perhaps uncut targets have asked police not to, knowing that if police did protesters could end up with a criminal record?

@19

Why people haven’t been arrested before? They have, but there is not much of a case unless there is direct defiance against the Police’s request to leave. Before that it is essentially a civil issue between the occupiers and store management.

At every occupation I have been to the Police tend to follow us in, tell the management that if they want us to leave they have to ask for it, management addresses the group asking us to leave, their may be some bartering and then we pack up and go elsewhere. How long the occupation lasts is more to do with tracking down Police/management than us staying there.

Why did the Police charge people this time? Probably to make up numbers as they’d look like utter idiots arresting 60 people after the apparent ‘riots’ in London that evening.

I kind of agree with you that tweeting and bloggin about it isn’t going to be entirely helpful, but all the blogs I have seen on the actual occupation coroberate the video ‘evidence’ so I can’t see it being a disadvantge. It probably helps those affected try to get their heads around what happened to them. Let’s not forget that these actual people, they probably aren’t seasoned activists and most wouldn’t have expected arrest that evening.

I’m not quite sure why you provided that link, it doesn’t seem to have much to do with this, but I agree with @19 when they said we haven’t got all the information and our speculating probably isn’t the most helpful thing at the moment..

It is interesting that the crime of “aggravated trespass” was initially brought in by the Tory Major government, in order to thwart the activities of those seeking “alternative” lifestyles, notably the travelling community after the massive free festival at Castlemorton.

It was a politically motivated law designed, in its essence, as a bulwark against dissenting and radical viewpoints.

That it should be used against direct action protesters should come as no surprise.

21. Mark H: “That it should be used against direct action protesters should come as no surprise.”

Why and what? What is the direction police action?

@Charlieman, I’m unsure what you mean?

My point was that the law of “aggravated trespass” is, in itself, a flawed law and is potentially a catch-all for any unauthorised form of protest, especially that coming under the umbrella of “direct action”, which by definition involves the disruption of the business of its target.

As a law which is particularly easy to use in protests taking place on private ground, it is not a surprise it should be used in such instances.

The original article, however, does make a very good point that in this instance, the possibility that the arrests were “politically motivated” could be laid against the police should the case be dismissed.

Well said ellie combo

@23. Mark H: “Charlieman, I’m unsure what you mean?”

Apologies for incoherence. My intent was that it is unsurprising when laws designed against civil disobedience are used against protesters.

Tenzin @13: Sorry, just back in and missed your important clarification from the meeting.

This does put a different complexion on things. I had picked up that section 69 had been used for the charge, not section 68, but you are clearly closer to the truth so thanks for what is new information my way.

Yes, you’re quite right that sec 68 does not require the direction to leave by the senior officer to make it an offence. In this case, though, I think the vital section may me 68 (2): ‘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.’

It seems to me that to enter into a shop, even in large numbers, is a lawful activity for the purposes of the charge, since it is lawful to enter shops.

@Paul

Would I be correct in saying that the owners of Fortnum and Mason would be in their right to indicate to the protesters that they were not welcome on the premises, at which point the civil offence of trespass would apply, which Fortnum and Mason could then pursue in the civil courts?

If that would then be the case, it would seem a small step to cross before that became “aggravated trespass”.

Paul – what difference does being charged under Section 69 make, you reckon?

@sunny

http://hsa.enviroweb.org/tactics/tactbook/legal.html
Section 68 – Aggravated Trespass

A person commits the offence of aggravated trespass if he/she 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 them to have the effect :

of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity;

of obstructing that activity; or

of disrupting that activity

Section 69 – Powers to Remove a Person Committing Aggravated Trespass

A senior police officer present where people are suspected of participating, about to participate or having participated in an aggravated trespass may direct those people to leave the land. This power also applies where two or more people are trespassing on land with the common purpose of intimidating others so as to deter them from engaging in lawful activity or obstructing or disrupting lawful activity.

Where such a direction has been given and a person knowing that this direction has been given and applies to them either :

fails to leave the land as soon as practicable; or

having left re-enters the land as a trespasser within three months of the day the direction was given,

they commit an offence

CPS guidance:

Section 68(1) CJPOA formerly provided that 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

Section 59 of the Anti-social Behaviour Act 2003 amended section 68 by removing the words “in the open air”.

Free B.e.a.g.l.e.s.:

Intending something to happen is not the same as wanting it to happen. If the prosecution can show, for example, that you knew that an office occupation would disrupt activity, then this will be enough to show that you intended it, regardless of whether you in fact wanted or desired the disruption.

Unfortunately there is no cite.

@26

Yes permission or licence to enter a shop maybe granted, but the protesters didn’t enter with to shop of do business with Fortnums. As my link above, its aggravated trespass.

If they use section 69, and are successful, then Fortnums may seek to recover their reported £80k losses from the protesters, and the police can be asked for the arrestees details to make that possible.

So its all down to the judge hearing the case, their views and wind direction on the day it seems. If the met are still reviewing cctv and identifying people, then very likely events will drag on further.

@31 / ukcuts:

Come off it. People often enter shops without any intention of ‘doing business’. Since when did browsing become aggravted trespass? Prosecution needs to prove intent to disrupt and/or obstruct. It seems to hinge on the definition of ‘disrupt’, for legal purposes.

If the F&M occupiers were guilty of aggravated trespass, then every previous UK Uncut occupation must also have been illegal, and yet no one has previously been charged with that offence. I always argue that our intention is never to disrupt the activity of the shop, but simply to communicate an important message and generate publicity for that. The fact that customers and staff were able to continue about their business during the occupation supports that claim. Hence, the prosecution case is very weak, motivated purely by political pressure.

Disruption tends to obscure the message and alienate people, which is why we are always careful to avoid or minimise it. The police have always had that understanding with us, until Saturday for some reason. Indeed, we were out in Oxford Street again yesterday, visiting our old tax-avoiding friends, and no one was arrested.

Paul @ 26: I think you’re misunderstanding the laws there. What they refer to as ‘lawful activity’ is the activity of the owner of the land and/or other persons using that land (i.e actual customers). F&M’s activity of a retail business would be deemed lawful (if we’re ignoring the tax avoidance issues of the parent company!), as would the activity of shopping or eating.

I’m mindful of this being a public forum and posting things which may incriminate myself or others but I believe that many people are being diverted by Chief Inspector Clark’s comments. Those that were present at F&M need to realise that they said and did things, which, while not illegal or criminal, may help the CPS prove intent.

Section 68 is the right charge and according to Reply @13, that was the section used. This article talks about Section 69 and therefore missed the point entirely. The “activity” referred to by Section 68(2) refers to the lawful activity of customers (browsing, shopping, taking tea etc) being disrupted or obstructed by the protesters. One of the persons present at the protest Laurie Penny tweeted on Twitter that some customers were worried and/or scared and some were leaving the premises. This could be circumstantial evidence of disruption, obstructing or even intimidation.

Can anyone explain to me why everyone on the TUC march (including me) cannot be charged with aggravated trespass. Normal business in the area was disrupted by the sheer volume of people and disruption of transport.It is clearly obvious this would be the case so could be thought of as intent. I realise the streets are public places but isn’t Fortnum and Mason given the fact entry was not denied either by police or staff.
Also how come some protesters were interviewed in the police station but others were not even though they were charged with the same offence. It is theoretically possible they could have been shopping!

Tenzin,

I’m mindful of this being a public forum and posting things which may incriminate myself or others but I believe that many people are being diverted by Chief Inspector Clark’s comments. Those that were present at F&M need to realise that they said and did things, which, while not illegal or criminal, may help the CPS prove intent.

ISTM they should not say anything unless they have first discussed it with their legal advisers.

@Art Li

As I understand it, the relevant sections of the Criminal Justice and Public Order Act refer to privately owned land. It is the ownership, not the availability of entrance, that counts.

Theoretically, even protest in public places can be limited by this Act (I believe), but the main TUC march was an authorised protest and hence the marchers were within the law.

Apologies, last post meant for chrissie.

chrissie @35

Can anyone explain to me why everyone on the TUC march (including me) cannot be charged with aggravated trespass.

Because you marched on public land (presumably).

Normal business in the area was disrupted by the sheer volume of people and disruption of transport.It is clearly obvious this would be the case so could be thought of as intent. I realise the streets are public places but isn’t Fortnum and Mason given the fact entry was not denied either by police or staff.

Fortnum and Mason is not a public place. During opening hours, we have implied licence to enter the property for the purposes of shopping.

Thanks for the explanation, what about the interview question?

chrissie, unfortunately I don’t know the answer to that question.

@Art Li – Laurie Penny also tweeted that customers continued to take tea. Sarah Morrison reported in The Independent that one customer described the protest as “the perfect accompaniment to my tea and scones”. A video by G&BC (the one that showed Chief Inspector Clark) also showed customers continuing to browse. Could this be circumstantial evidence of no disruption, obstructing or intimidation?

@Chrissie – Based on my experience and a limited understanding of others involved, the police did not perform ‘normal’ interviews. My interview amounted to speaking with my solicitor over the phone (at the custody desk in the presence of the custody sergeant and two detectives) before being cautioned and then being asked a single question (do I have a legitimate excuse for being at F&M?). Other people were even discouraged from having their choice of solicitor, often being advised to take the duty solicitor. Either way, I don’t believe an arrestee has a right to be interviewed.

@ukliberty – Indeed, lawyers need to be consulted on anything and everything.

Chris Whitrow,

Come off it. People often enter shops without any intention of ‘doing business’. Since when did browsing become aggravted trespass?

Browsing isn’t aggravated trespass. Who said it is?

Prosecution needs to prove intent to disrupt and/or obstruct. It seems to hinge on the definition of ‘disrupt’, for legal purposes.

Section 68(1) CJPOA provides 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

So, IIUC, there are two elements:

1. is he trespassing?

2. does he have intent to intimidate, obstruct, or disrupt?

If the F&M occupiers were guilty of aggravated trespass, then every previous UK Uncut occupation must also have been illegal, and yet no one has previously been charged with that offence.

It’s quite possible that the previous occupations could have been found illegal. Perhaps they did not cross a threshold for charges. Perhaps it was felt that it was not in the public interest to charge before now. Perhaps it was felt that occupiers had been indulged enough. Who knows? (and see comment about videos below)

I always argue that our intention is never to disrupt the activity of the shop, but simply to communicate an important message and generate publicity for that. The fact that customers and staff were able to continue about their business during the occupation supports that claim. Hence, the prosecution case is very weak, motivated purely by political pressure.

I don’t want to comment on the Fortnum and Mason action in this context, but videos and pictures of previous occupations (of Topshop, Barclays, Vodafone and so on) suggest that those occupiers don’t seem to have the same view as you about not disrupting the activity of the shops. What do you think “occupation” means? What does it mean to “create alternative spaces inside banks, we turn banks into libraries”?

I thought before last week that occupiers were seeing how far they could ‘push’ the law and/or were prepared to face charges. With all the expressions of shock and the complaints about charges of aggravated trespass, I’m beginning to think some occupiers were rather naive.

Those thinking about ‘occupying’* property must be made aware that they potentially face a charge of aggravated trespass.

I hope that,

(a) (if it is true) that the Fortnum and Mason occupiers were not asked to leave and
(b) that the police prevented the occupiers from leaving Fortnum and Mason

this sufficiently complicates things to prevent this from going further.

And I wish the charged all the best.

(* it would probably help if you used a different word.)

Details of charges and whether they’ll stick are beside the point.
At big demonstrations police will happily make arrests without being sure of a conviction. They’ll drag out the process through as many court appearances as they can, using the bail conditions, expense and stress as a means to gather guilty pleas and discourage people from getting out of line.
The arrest is the punishment.

Sunny and other lefties have suggested that we support the police over the cuts in the police budget.

I say no way. This was just another example of where their true loyalty lies. The police have made themselves the private army of the corporations.

@Tenzin – don’t forget the police have probably taken statements from staff and/or customers which tended to show there was disruption, obstruction or even intimidation. The video may show no disruption etc, but that was only during the duration of the video, not the entire occupation unless the whole thing was filmed from multiple angles throughout the incident. IMHO, it only takes one or two witnesses to say they were disrupted, obstructed or intimidated to prove that part of the offence.

@Art Li – If it only takes one or two witnesses to prove disruption does it not also take only one or two witnesses to prove they were not disrupted? Maybe they’ll pick these two?

http://www.ameliasmagazine.com/wp-content/uploads/2011/03/March-26-2011-866.jpg

I am not clear whether the protestors who occupied Fortnum and Mason prevented
members of the public and the staff from leaving the building. If they did so, then they were clearly in breach of the law.