JR: Judge’s Refusal to State a Case
16 December 2022
A District Judge acceded to a submission of no case to answer arising out of offences of aggravated trespass by protesters against the construction of the HS2 railway, and thereafter refused the DPP’s application to state a case because she considered the application was frivolous: Director of Public Prosecutions v Highbury Corner Magistrates’ Court [2022] EWHC 3207 (Admin) Dame Victoria Sharp P, Johnson J
Because the constructor was not on site at the time, the District Judge found that the only lawful activity that was taking place on site was the eviction of the protestors, but the charge of disrupting or obstructing “HS2 construction” did not, in her judgment, encompass the eviction operation.
On an application for judicial review by the DPP it was accepted that the deliberate obstruction of enforcement officers who were seeking to evict the Interested Parties so that construction work could commence could in certain cases amount to the offence of aggravated trespass. The court agreed. It followed that if the words “HS2 construction (lawful eviction)” had been used in place of “HS2 construction” then there would not have been any basis for the submission of no case to answer.
The judge appeared to have considered that the offence of aggravated trespass may not be committed by disrupting or obstructing a lawful eviction. This was not a correct statement of the law. The ingredients of the offence of aggravated trespass under section 68(1)(b) or 68(1)(c) Criminal Justice and Public Order Act 1994 required that a lawful activity was disrupted or obstructed. The lawful enforcement “of an eviction made in civil proceedings” was a lawful activity and its frustration was tantamount to its disruption or obstruction.
The submission of no case was upheld because the charge referred to “HS2 construction” and the judge did not consider this phrase encompassed the eviction of protestors so as to enable the main contractor to move onto the site. The court disagreed. The words “HS2 construction” in their natural meaning were sufficiently broad to encompass works that were part of the overall construction project. No sensible distinction could be drawn between the clearance of property and the clearance of protestors (in a wholly different context, it was emphasised, to evictions which took place for example in the ordinary housing context). It was quite clear that in the particular context, the Crown’s case encompassed clearance works and the wording of the charge therefore fell to be interpreted in that context.
The judge was wrong to hold that the charge as worded was not capable of covering the facts alleged by the prosecution.
The overriding objective was that criminal cases should be dealt with justly which meant acquitting the innocent, convicting the guilty and dealing with the prosecution and defence fairly. Dismissing a charge because of a technical defect in the particulars of the offence which had no impact on the substance of the case and which could be amended without causing any delay or injustice to the parties, was unlikely to be compatible with the overriding objective.
Under section 111(5) of the Magistrates’ Court 1980 Act a judge may refuse to state a case if she was of the opinion that the application was frivolous. The DPP’s substantive challenge to the judge’s conclusion that there was no case to answer was well-founded. It followed that the application to state a case was not frivolous; it raised a contestable legal issue underlying the decision to uphold the submission of no case to answer. The judge was not entitled to refuse to state a case. As the court had now separately determined the challenge by the DPP to the judge’s substantive decision, there would be no purpose in remitting the matter to the judge in order for her to state a case.
The DPP’s claim for judicial review succeeded on each ground: (1) irrationality; (2) procedural impropriety; (3) refusal to state a case.
There remained a strong public interest in the trial running its proper course. There remained extant issues to be determined at trial including whether the Interested Parties (or any of them) had the requisite mens rea for the offence. Accordingly, the case was remitted to the Magistrates’ Court for a retrial before a different judge.