You are here:       
Kenya Law / Blog / Case Summary: An activity remains lawful even if an offence is committed, providing that the activity could have been accomplished without the offence.

An activity remains lawful even if an offence is committed, providing that the activity could have been accomplished without the offence.

An activity remains lawful even if an offence is committed, providing that the activity could have been accomplished without the offence.

 

UNITED KINGDOM SUPREME COURT

In the Case of Richardson and another) v Director of Public Prosecutions

On appeal from: [2012] EWHC 1238

Before: Lady Hale (Deputy President), Lord Kerr, Lord Hughes, Lord Toulson and Lord Hodge

 

5 February 2014

 

Reported by Vellah Kedogo

Background

Ahava was a shop in Covent Garden, London, which mainly sold beauty products processed from Dead Sea mineral materials. The products were factory produced by an Israeli company, in an Israeli settlement located in the West Bank and therefore within the Occupied Palestinian Territory (“OPT”). It was said that the factory was staffed by Israeli citizens encouraged by the Government of Israel to settle there. 

The Defendants sought to disrupt the activities of Ahava. On 2 October 2010 they entered the shop, together with other helpers, carrying a concrete tube. They connected their arms through the tube anchored by a chain, secured by a padlock to which they claimed to have no key. They were asked to leave the shop by an Ahava employee, but failed to do so. The employee called the police and, after some time, closed the shop.

 

Tools were used to release the Defendants from the tube. On their release, they were arrested for aggravated trespass contrary to section 68 Criminal Justice and Public Order Act 1994 (“the 1994 Act”). That offence criminalizes the conduct of a person A who (i) trespasses on land, (ii) where there is a person or persons B lawfully on the land who is engaged in or about to engage in a lawful activity, (iii) and A does an act on the land, (iv) intended by A to intimidate all or some B’s from engaging in that activity, or to obstruct or disrupt that activity.

In the magistrates’ court, the Defendants contested the charge on point (ii). They argued that Ahava’s activities were not ‘lawful’ since they involved the commission of one or more of four criminal offences. Firstly, they said that Ahava was guilty of aiding and abetting the transfer by Israeli authorities of Israeli citizens to the OPT, a territory under belligerent occupation. This was argued to be contrary to Article 49 of the Fourth Geneva Convention 1949, which constituted a war crime. Ahava’s actions in aiding and abetting the transfer, if true, would constitute an offence under sections 51-52 of the International Criminal Court Act 200. Secondly, they said that since Ahava was aiding and abetting a war crime, Ahava must know or suspect that the products sold in the shop were the products of that offence. Ahava was therefore, they argued, guilty of the offence of using or possessing criminal property. Thirdly, they argued that the products had been imported into the UK purportedly under the EC-Israeli Association Agreement, which conferred tax or excise advantages.

 

However, since the Court of Justice of the European Union had ruled that products originating in the OPT do not fall under this Agreement, they asserted that Ahava was guilty of the offence of cheating the revenue. Fourthly, they emphasized that the products sold were labeled “Made by Dead Sea Laboratories Ltd, Dead Sea, Israel”. The OPT was not recognized as part of Israel. Therefore, they argued, Ahava was guilty of labeling offences under the Consumer Protection from Unfair Trading Regulations 2008 and the Cosmetic Products (Safety) Regulations 2008.

The district judge in the magistrates’ court convicted the Defendants. They appealed, on the grounds above, to the Divisional Court. The Divisional Court upheld the conviction, but certified as a matter of general public importance the question whether the words ‘lawful activity’ in section 68 of the 1994 Act should be limited to acts or events “integral” to the activities at the premises in question.

 

Issue

Whether the words ‘lawful activity’ in section 68 Criminal Justice and Public Order Act 1994 could be limited to acts or events that were ‘integral’ to the core activities at the premises

 

Criminal Law- tort law- trespass- aggravated trespass- the proper ambit of the offence of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994

Criminal law-tort law-trespass- definition of word phrases-definition of the word  phrase ‘lawful activity’- whether the words ‘lawful activity’ in section 68 Criminal Justice and Public Order Act 1994 could be limited to acts or events that were ‘integral’ to the core activities at the premises- section 68 Criminal Justice and Public Order Act 1994

 

Section 68 of the Criminal Justice and Public Order Act 1994

“(1) 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…

(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…”

 

Article 10 of the European Convention of Human Rights

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

Held

LORD HUGHES, (with whom Lady Hale, Lord Kerr, Lord Toulson and Lord Hodge agree)

  1. The intention of section 68 was plainly to add the sanction of the criminal law to a trespass where, in addition to the defendant invading the property of someone else where he was not entitled to be, he disrupts an activity which the occupant was entitled to pursue. Section 68(2) therefore must have meant that the additional criminal sanction was removed when the activity which was disrupted was, in itself, unlawful, which may be either because the occupant was himself trespassing, or because his activity was criminal. Not every incidental or collateral criminal offence could properly be said to affect the lawfulness of the activity, nor to render it criminal. It would do so only when the criminal offence was integral to the core activity carried on. It would not do so when there was some incidental or collateral offence, which was remote from the activity.
  2. Section 51 of the International Criminal Court Act 2001 rendered genocide, a war crime and a crime against humanity domestic offences against the criminal law of England and Wales. It applied wherever the offence was committed if the offender was resident in the UK. Section 52 of the same Act did the same for “conduct ancillary” to such a crime, and such conduct included, via section 55, aiding, abetting, counseling or procuring the commission of the principal offence. A “war crime” was defined in article 8(2)(b) of Schedule 8 to the Act to include: “(viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies…”
  3. That offence derived from the Fourth Geneva Convention of August 1949 relating to the protection of civilians in time of war. If therefore a person, including the shopkeeper company, had aided and abetted the transfer of Israeli civilians into the Occupied Palestine Territory, it might have committed an offence against these provisions. There was, however, no evidence beyond that a different company, namely the manufacturing company, had employed Israeli citizens at a factory in the West Bank and that the local community, which held a minority shareholding in that manufacturing company, had advertised its locality to prospective Israeli settlers. It was very doubtful that to employ such people could amount to counseling or procuring or aiding or abetting the Government of Israel in any unlawful transfer of population. Such an employer might be taking advantage of such a transfer, but that was not the same as encouraging or assisting it. Even if that company could have been aiding and abetting such transfer, which cannot amount to an offence by the separate retailing company, whatever the corporate links between the two companies. And even if the companies had been the same, such a crime of assistance was not an integral part of the activity carried on at the shop, which was retail selling. On the contrary, it was antecedent to, and remote from, the selling. The selling was perfectly lawful. The defendants, for their own reasons, elected to trespass and to stage a sit-in which was intended to (and did) stop that lawful activity in its tracks. They thereby committed the offence under section 68.
  4. The supplemental contention that the shopkeeper company was committing a money laundering offence failed for the same reasons. The suggested money laundering was the possession and use (by selling) of the products of the West Bank factory. Those products were said to be criminal property because they were the benefit of the criminal conduct of the factory owning company and thus within section 326(4) of the Proceeds of Crime Act 2002. If, however, there was no aiding and abetting of the unlawful movement of population, the products of the factory could not be property obtained “by or in return for” criminal conduct (section 242 of the Proceeds of Crime Act 2002). Even if there had been aiding and abetting, and assuming that it could properly be said that the shop keeping company suspected this to be the case, the criminal property offence could not be said to be integral to the activity of selling; it was on any view a collateral matter which did not render selling unlawful.
  5. It was clear that even if the shop’s stock had been imported into the UK under favourable terms reserved for goods properly deriving from Israel as distinct from those produced in the OPT, this could not render their subsequent sale in the shop unlawful. At most, it meant that the importer was liable to repay the Revenue any duty which ought to have been paid but was not. This was a classic example of collateral, and in this case an antecedent and remote, offence which did not affect the lawfulness of the core activity of the shop, namely retail selling. On the assumption that it was committed by the shop company, it would provide the defendants with no defence to the offence under section 68.
  6.  Of the postulated offences all were either not demonstrated to have been committed by the occupants of the shop at the time of the defendants’ trespass or were at most collateral to the core activity of selling rather than integral to that activity. The occupants of the shop were, accordingly, engaged in the lawful activity of retail selling at the time and section 68(2) provided no defence to the defendants.
  7. Consumer Protection from Unfair Trading Regulations 2008 criminalized misleading commercial practices, including labeling. However, it was necessary to show that, as a result of the misleading labelling, the average consumer would buy something that he/she otherwise would not have done. A consumer willing to buy Israeli products would be very unlikely not to buy Israeli products because they were produced in the OPT. Therefore, the offence could not have been committed.
  8. The Cosmetic Products (Safety) Regulations 2008 criminalized the supply of cosmetic products which did not state (among other things) the country of origin. The aim of this was clearly to protect consumers, and stating that the products derive from the Dead Sea was sufficient: the Regulation was not aimed to reflect disputed questions of territoriality. Even if an offence had been shown, it would not have been integral to the sale activity.

 

Relevance to the Kenyan Situation

The Trespass Act CAP 1994 of Kenya is the governing law on trespass. In section 5 of the Act it provides for the offence of trespass with intent to commit an offence or to intimidate, insult or annoy.  However it does not infer to the lawfulness of the activities or the offence of aggravated trespass. This case may be invoked to fill the gap.

 

Section 5 of the Trespass Act

Trespass with intent to commit an offence or to intimidate, insult or annoy

(1) Any person who—

(a) Enters into or upon property in the possession or occupation of another with intent to commit an offence or to intimidate, insult or annoy any person lawfully in possession or occupation of such property; or

(b) Having lawfully entered into or upon such property, unlawfully remains there with intent to commit an offence or to intimidate, insult or annoy any such person, shall be guilty of an offence and liable to imprisonment for a term not exceeding six months or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.

(2) If the property in respect of or upon which the offence is committed is used as a human dwelling or as a place of worship or as a place for the custody of property, the offender shall be liable to imprisonment for a term not exceeding one year.

Write a comment:

You must be logged in to post a comment.

© 2013 National Council for Law Reporting (Kenya Law) | Creative Commons | Privacy Policy & Disclaimer