Against the backdrop of prosecutor Fatou Bensouda beginning proceedings at the International Criminal Court in relation the actions of Israel in the West Bank and the Gaza Strip, Mark Pritchard successfully defended protesters who allege that by selling bulldozers to Israel, which are used to destroy Palestinian settlements, that JCB are complicit in the alleged war crimes of the Israeli state.
The protest itself took place on the 7th of March 2019. This case illustrates the difficulty that prosecutors have in attempting to make the actions of protesters fit into established offences and raises real questions about the public interest in proceeding in such legally complex cases which often lack legal foundation.
Initially the protesters were charged with the offence of aggravated trespass, the defence engaged at the earliest opportunity with the case management process and pointed out that as the protest was on public land, the offence could not be made out.
A new charge under s.241 of the Trade Union (Consolidation) Act 1992 was laid. This offence is a particularly complex offence the wording of which is as follows “A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place”.
When this offence is broken down there are 9 essential elements to this offence:
i. with a view to
iii. another person
iv. to abstain from doing or to do any act
v. which that person has a legal right to do
vi. watched or beset
vii. the house or other place where that person resides, works, carries on business or happens to be, or the approach to such house or place
ix. and without legal authority.
One of the key elements that needs to be identified is the “wrongfully” element. It is established in case law that “wrongfully” in the context of this offence means that there must be an independently unlawful act (Thomas v National Union of Mineworkers (South Wales Area)  Ch. 20), which must be tortious in nature (Ineos Upstream Ltd v Persons Unknown  EWHC 2945 (Ch)).
Given the incredible variety in the law of tort, it would be almost impossible to advise a client or prepare a case unless that tort alleged during the protest was identified by the Crown. In this case the Crown initially refused to particularise any of the nine elements of the offence at all. This led to an abuse of process argument where the Crown were placed in a position where they had no option but to particularise the offence.
The wrongful act the Crown chose was that of public nuisance. Public nuisance as the tortious act presented a number of legal difficulties. Firstly, public nuisance is a common law criminal offence as well as an action in tort. Crucially, that offence is an either-way offence meaning that were public nuisance charged, the defendants would have a right to trial by jury. This may not be something that the Crown would desire in a protest scenario.
Given that at the time the Crown were clearly of the view that a public nuisance was made out using it as the “wrongful act” within a summary only offence, it had the effect of deliberately depriving the defendants of a jury trial.
This point led to a further abuse of process argument and yet another change in position on behalf of the Crown. The particulars of the wrongful act was this time changed to a private nuisance.
At that hearing the issue was raised in respect to the duty of the Crown to have regard to the article 10 & 11 rights of the defendants when considering charging decisions. It is certainly questionable that criminal law would be used to enforce the private civil rights of a multinational company. Assurances were given however that element three of the offence “another person” would be limited to workers and visitors of JCB. It was that assurance, and that wording in the particularisation of the charges that would prove fatal to the Crown’s case.
There is a House of Lords case (Hunter v Canary Wharf  1 WLR 434) which expressly states that in order to bring an action in private nuisance there person who is the victim of the tort must have an interest in the land and a license, such as might be given to an employee, will not be sufficient. Furthermore in the same case and subsequent cases (Hiscox Syndicates Ltd v The Pinnacle Ltd  EWHC 1386 (QB)) it is established that as no one can have a proprietary interest in the public highway the right to bring a claim in private nuisance ends once the highway is reached.
In a pre-trial ruling it was held by District Judge Boswell sitting at North Staffordshire Magistrates’ Court that when the Crown’s case is taken at its highest they would not be able to prove private nuisance in this case. The Crown has no choice but to offer no evidence.
This case has been analysed in detail as it is the perfect illustration as to how the Crown exercises bad faith in how protest cases are prosecuted. The starting point in a democratic society must be that protests are allowed to take place without punishment unless a criminal act is committed. What happens instead is that protesters are arrested and the Crown then begins a process of trying to find an offence which they think fits.
We are told that our legal system is the envy of the world. If that is the case, perhaps we can do better than misconceived trial and error prosecutions which are doomed to fail from the start.
Mark Pritchard is able to give advice on any cases where a lay client is being prosecuted for exercising their free speech and protest rights.
Central Chambers has a criminal team with experience in defending a variety of of public order, road traffic, protest, and human rights work.