Buxton & Ors, R. v [2010] EWCA Crim 2923

[2010] EWCA Crim 2923Case No 2010/5150/A7, 2010/5164/A7, 2010/5163/A7, 2010/5161/A7, 2010/5160/A7, 2010/5159/A7, 2010/5158/A7, 2010/5157/A7, 2010/5156/A7, 2010/5155/A7, 2010/5153/A7, 2010/5151/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 1 December 2010
Strand
London, WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE CALVERT-SMITH
MR JUSTICE GRIFFITH WILLIAMS
R E G I N A
v
IVAN BUXTON
EMMA BYRON
DAVID CLEMENTS
AGNES VONGEGERFELT
TREVOR HOUGHTON
CATHERINE LAMBERT
JOSEPH SHORT
EMMA SIMON
ZOE SMITH
NICHOLAS KASSAM
DANIEL QUIGGIN
JAMES ALDRIDGE
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr B Newton appeared on behalf of the Applicants
Miss R Knight appeared on behalf of the Crown
J U D G M E N T
Between
Buxton & OrsDefendantRCrown
[1]MR JUSTICE CALVERT-SMITH: On 8th July 2010 at Merthyr Tydfil Crown Court these 12 applicants pleaded guilty to a count of malicious obstruction of a railway contrary to section 36 of the Malicious Damage Act 1861. A second count brought under section 35 of the same Act in respect of the same facts was not proceeded with. It may be noted that the offence under section 35 with a maximum sentence of life imprisonment is an indictable only offence which meant that the whole case had to be tried at the Crown Court, whereas the section 36 offence (which was eventually the only count to be dealt with and the only count before us) could, and in our judgment should, have been dealt with summarily.[2]On 13th August 2010 all 12 applicants were sentenced in identical terms by the learned judge, His Honour Judge Curran. The sentences were a conditional discharge for two years in all cases and an order that each defendant pay £60 towards the costs of the prosecution. Four of the applicants were ordered to pay compensation to Miller Argent (South Wales Limited), the applicant Buxton £100 and the other three £250. Finally, following an application which the prosecution had been encouraged to make by the judge himself, the judge made restraining orders in respect of all of the applicants under section 5(1) of the Protection from Harassment Act 1997. Save for the names and dates of births of the defendants as they then were, these orders were in identical terms.[3]After reciting the defendants' details and the offence of which they had been convicted and its date, the orders read, under a standard form heading:
"For the purpose of protecting Miller Argent (South Wales Limited) from further conduct which amounts to harassment or will cause fear of violence, the defendant is prohibited from..."
And there then followed six paragraphs which we need not recite in detail in view of the narrow ambit of this appeal, directing the given defendant not to be upon land, roads or railways which concern the site at which this offence had been committed.[4]The application for permission to appeal has been referred to the full court by the Registrar and we grant permission.[5]The single matter which the appellants seek to challenge concerns the restraining order. Albeit that the grounds were drafted in a different order, the first ground of principle advanced by the appellants is that a restraining order may not be imposed in order to protect a limited company. The second ground was that even if such an order may have been imposed it was wrong to do so in this particular case for reasons which Mr Newton has set out.[6]The brief facts of the case are that the appellants are or were then, at least, environmental protesters. They had travelled in convoy from Bristol and other parts of the South West to a single track railway which runs from a coal mine near Merthyr Tydfil to Aberthaw Power Station in Glamorgan. The mine is on derelict land being reclaimed from its former use to extract both coal and iron ore. Part of the reclamation of this land involves open-cast mining. The coal extracted in this way is sold in order to fund the reclamation.[7]At 1.10 on the afternoon of 26th April 2010 the police were called to a crossing on the railway. There they found three of the appellants, two of whom had chained themselves to the railway line. The third had superglued himself to the two who were chained to the line. After some hours they were released by specialist police officers. At six o'clock that evening officers found four more of the appellants with their arms joined together by chains and superglue to metal pipes laid under the track at a different point on the line. Others were standing by and two were providing refreshments. They were all arrested.[8]The company, Miller Argent, lost some £8,000 as a result of the disruption to their operation. A train which had been carrying a full load of coal had to wait for many hours while the protesters were freed from the line before proceeding to its destination.[9]Although the appellants elected not to answer questions when they were arrested, it was conceded by the prosecution that the pleas tendered at the Crown Court would have been tendered at the Magistrates' Court had the matter remained there.[10]In passing sentence the judge dealt first with the substantive sentence (the conditional discharge) and the matter of costs. Although three of the defendants had previous convictions for similar types of offence and one of those was actually in breach of a conditional discharge, he decided not to differentiate between any particular defendant in that regard. In describing the gravity of the offences, he said this:
"I bear in mind that it [meaning the blocking of the line] was done at a time when you knew there was not a train actually running, and that although the line was blocked to prevent the coal train from going down it, this is not one of those cases where any person or individual would have been put at any physical risk of injury. And I accept that the way in which you set about the protest was aimed at achieving that result, and not putting anybody at risk. Nonetheless a significant financial loss was sustained by the company. And while I bear very much in mind the observations of Lord Hoffman, which have been referred to me before, that we live in a democracy and it is important that the right of peaceful protest should be preserved, at the same time one has to bear in mind that companies like Miller Argent are going about their business in a perfectly lawful manner and they are also entitled to the protection of the court against financial loss being occasioned by protest against their activities. Nothing wrong with the protest, but certainly something wrong with occasioning financial loss to a company which is going about its lawful business. All that being said, I bear in mind that I am dealing with people who are first of all intelligent, first of all people who are not criminals, I emphasise, although what they have done does amount to an offence under an Act which creates criminal offences. This is not a case where any question of a sentence of imprisonment is appropriate. And I have to decide in the circumstances of this case what the best way of dealing with the case is."
Having dealt with the fact that he was not proposing to differentiate between particular defendants, he said this:
"The effect of that order [namely the conditional discharge he proposed to impose] has important consequences from the point of view of the Rehabilitation of Offenders Act, as counsel will no doubt explain to the defendants. And I have come to that conclusion because I am satisfied that although they have been convicted of an offence, having indeed pleaded guilty to it, it is not in the circumstances of this particular case to order any punishment by way of a criminal penalty."
Mr Newton has reminded the court that that indeed is the effect of a conditional discharge, which is not treated as punishment and only remains on the record for the length of the purposes of the Rehabilitation of Offenders Act 1974 the discharge. He then dealt with the question of costs and turned at page 4C of the transcript to the question of a restraining order. He said:
"I have been invited by counsel not to make a Restraining Order in this case. But I have come to the conclusion that it is appropriate. I take that view because I bear in mind very much that I am dealing with people who feel very strongly indeed about the Environment and about the potential effects of climate change. Everybody is concerned about that, but I am view of the view in this case that the company and those directly involved, its employees, both the employees of Miller Argent, of Network Rail and those employed at the Aberthaw Power Station, are entitled to an Order restraining the defendants from going back to the premises, and I will give an indication of the nature of restriction, to prevent them being subjected to any further harassment."
Pausing there, the order itself, which we have already recited, refers to further harassment. It is worth observing, as we will do later, that the section under which this order is made does not require further harassment. The word "further" has in fact been deleted from the section by schedule 10 paragraph 43 of the Domestic Violence, Crime and Victims Act 2004.[11]He repeated those opinions in his next paragraph focusing, as Mr Newton has rightly submitted, on the question of harassment and in particular harassment in the future of employees of any of the three companies or concerns he had named. He concluded, having set out the terms of the restraining order, at 5G:
"It seems to me proportionate, reasonable and necessary to make that restraint, which in no way interferes with the individual liberty of any of the defendants concerned, limited as it is to those particular premises and areas."
As we have already indicated, none of these defendants, as they then were, came from the area having travelled from Bristol or further afield in order to make their protest.[12]The legal framework is contained within section 5(1) the Protection from Harassment Act as amended. Section 5 under the heading "restraining orders" reads:
"(1)A court sentencing or otherwise dealing with a person ('the defendant') convicted of an offence may (as well as sentencing him or dealing with him in any other way) make an order under this section. (2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from conduct which— (a) amounts to harassment, or (b) will cause a fear of violence, Prohibit the defendant from doing anything described in the order. (3)The order may have effect for a specified period or until further order."
[13]... (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. (6) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both." As we have already noted, the section now reads differently to the way it read when originally enacted. Originally the words, "under section 2 or 4" were inserted within subsection (1) after the word "offence", and the word "further" was inserted after the word "from" in subsection (2), so that for an order to be made until the passage of the Domestic Violence, Crime Victims Act 2004 there had to have been a conviction for harassment under sections 2 or 4 and the order was available to protect the victim of that offence or any other person mentioned in the order from further such conduct.[14]Is it lawful to make a restraining order under the Prevention from Harassment Act for the protection of a company? In the alternative, because Mr Newton realistically accepted that this might be an alternative way of phrasing such an order, is it lawful to make such an order in respect of a group of persons such as the unnamed employees of a company?[15]Two cases were cited in support of his contention that the answer to both questions should be no. Both cases were decided before, as he concedes, the ambit of section 5 was extended in the way we have described. They can therefore, in our judgment, be quite briefly summarised and effectively dismissed. The first is the case of Mann which we have in transcript form only 99/7589/X5. This appellant had been convicted of an offence of harassment and an order made against him under section 5 of the Act. The order failed to mention the person or persons whom it was intended the order should protect. The Court of Appeal amended the order on appeal so as to name two particular persons against whom the harassment had been directed.[16]The second is the case of Dziurzynski [2002] EWHC 1380. In this case the defendant was an animal rights protester who had been convicted under section 2(2) of the Protection from Harassment Act 1997 of engaging in a course of conduct amounting to harassment of the employees of a company. The District Judge hearing the case made a restraining order against him. The court rejected the appellant's primary ground (the appellant being the Director of Public Prosecutions in that case) that the District Judge should have allowed the case to proceed beyond the close of the prosecution case. Having disposed of the appeal that was perhaps all the court needed to do but because the points had been made it went on to discuss other grounds, in particular the grounds which Mr Newton has relied on. It found that the Act, as then drafted, was indeed aimed at the protection solely of individuals and that therefore corporate persons could not be the victims of harassment and be granted the person protected by a restraining order. At paragraph 32 of his judgment he said:
"I accept of course that the word 'person', unless the contrary intention is shown, is, as Mr Hatton on behalf of the Crown submits, to be understood, by virtue of the Interpretation Act 1978, as including a body of persons corporate or incorporate. But that said, it seems to me that the legislative history to which, in my view, reference can properly be made when construing what is meant by the word 'person' in section 1 of the Act, points against person here meaning a corporation. It is to my mind also significant that in section 4(1) the word 'him' is used, and in section 5(2) the word 'victim' is used."
He also went on to deal with the question of identification - the subsidiary question here as to whether an order might have been made for the protection of the employees for instance of the limited companies in question. In that case the order had been made in respect of employees of a particular company and the question, again referring back to the way in which the Act then stood with the requirement of a conviction under section 2 in respect of named victims and of course a course of conduct, that unless the order could be aimed at what had been described in earlier cases as "members of a close-knit definable group" then such an order could not be made under section 5. Mr Newton concedes that the change in the law means that that question cannot be decided purely by reference to a case decided under the old section 5. As Rose LJ in Dziurzynski indicated the Interpretation Act 1978 is perfectly clear. In a schedule to the Act persons are described as "person includes a body of persons corporate or unincorporate".[17]We have considered the submission that a company cannot be the subject of an order and have been assisted by a much more recent judgment in the case of Smithkline Beecham PLC and others [2009] EWHC 1488 (QB) in which Smithkline Beecham and the other corporate claimants had sought an injunction under section 3 of the Act and the question therefore whether a company could come within the terms of the Act was discussed. At paragraph 43 of his judgment, Jack J said this: "By section 5 and schedule 1 of the Interpretation Act 1978, in a statute, unless a contrary intention appears, 'person' includes a body of persons corporate or unincorporated. That is the context in which section 7(5) is to be understood. Section 7(5) is necessary because otherwise there is the possibility that the sections of the Act including the new section 1(1A) could be read as covering companies who are harassed. Section 7(5) makes it clear that this is not so. By making that clear it also makes clear that it is only the victims of harassment who are so limited. So 'person' in section 1(1A)(c) is not limited to individuals and may be a body corporate. Thus a company may apply for an injunction pursuant to section 3A where the company falls within section 1(A)(c). The White Paper which preceded the Act made this intention very clear, but, there being no ambiguity, there is no need to refer to it. It was suggested that this construction gave rise to difficulties with section 5 and 5A. I do not think that this is so. I conclude that the corporate claimants are entitled here to claim relief under section 1(1A) of the Act." ][18]Mr Newton rightly submits in respect of section 5 at least that remark we have just quoted is obiter. However, we have heard nothing from him to persuade us that as the Act now stands an order under section 5 cannot go against a company in a given case. It may well be that the sorts of case in which such an order is appropriate will be rare because it will no doubt usually be possible to identify individual persons or groups of persons by reference to their status as people rather than by referring to the limited company which employs them, but in principle we see no objection at all in law to the imposition of a restraining order which names a limited company as the protected person.[19]Having found as we do, it should be clear that we see no objection either, on the basis that was originally set out in Dziurzynski, to groups of persons, provided those groups are sufficiently clearly defined for them to know who they are and for the person against whom the order is made to know who they are, so that everybody will be clear what persons are included in the order and what persons are not.[20]The principal ground, which Mr Newton put as his first ground, was as to whether in this particular case such an order was appropriate. We must record, if we may, our gratitude both to him and to Miss Knight for the clear way in which they have argued both grounds. This ground in particular was extremely well argued on both sides and we have not found it easy to decide.[21]The appellant submits that no one at the site of this offence was in fact harassed in any reasonable sense of the word and that His Honour Judge Curran made that clear, as we have said, in his sentencing remarks. Second, Mr Newton submits that there was no reason in this case to apprehend that even if the defendants were to breach the terms of a conditional discharge or, following its expiry, to commit a similar offence either at this coal mine or elsewhere, that anybody would actually be harassed or put in fear of violence in the future. There was therefore, he submits, nothing upon which this order could really bite. In addition, he submits that because of the way in which, as we have set out, the learned judge rightly categorised these offences and these offenders, it was inappropriate for a potentially draconian order to be made in respect of such offending. He points out, albeit without any evidence to justify this, that it is perhaps less likely that anybody seeking employment who had to declare that they were subject not only of a conditional discharge but of a restraining order would get the job they had applied for, so there is potentially a real consequence, he submits, for defendants who have been characterised as peaceful and otherwise wholly law-abiding citizens who are, as he would put it, punished by such an order.[22]Against that Miss Knight has pointed out that there is at least a degree if not of harassment in this case of more than mere inconvenience involved. In a given case, albeit not this one, the sight to an employee train driver of people chained to a track in front of him might induce considerable anxiety, if not worse. Further, she submits that there is a broader mischief of demonstrations of this kind, and whole sections of the population who are entitled to think that they can go to work in peace every day are not able to do so if their work places are effectively prevented from operating by such demonstrations.[23]There are a number of practical reasons why the making of such an order seems sensible: no necessity to go to another court to seek a civil injunction in an attempt to ban these defendants and perhaps others from further disruptive visits to the company's site; the possibility that a restraining order in respect of one set of defendants might conceivably discourage other persons from coming behind them to commit similar offences without the risk of breaching a conditional discharge or a restraining order, so that a message might be sent out to people in the future.[24]There are powers in the criminal courts to other powers to restrain offenders. There is the power to bind-over to be of good behaviour. That power cannot, as we understand it, and it is not suggested otherwise, be used to exclude persons from particular places. There was once, at least it was exercised in some criminal courts, a power to bind-over to come up for judgment, the power not to be exercised if the person concerned for instance left the jurisdiction within a certain time. But again, if it still exists, this is not a practicable remedy in a case like this. It is not submitted by the prosecution or by Mr Newton that this degree of offending would ever justify the imposition of an anti-social behaviour order which can prohibit persons from going to particular places.[25]As we have said, we have not found this easy. Against the practical sense of the imposition of the order has to be set the findings of the judge in this particular case and the lack of any evidence brought forward by the Crown, who had not intended originally to apply for such an order, that there was indeed any actual harassment or anything close to it or any perceived danger from anything said or done by any particular defendant to put anybody in fear of violence.[26]In those circumstances, with some hesitation, we have come to the conclusion that it was not appropriate in this case for a restraining order to be made in the terms that it was, for the reasons we have given. However, we would wish to say this. Any future case, whether it is at this particular mine or anywhere else, where this sort of behaviour takes place, may well justify the making of such an order, in particular of course if there were evidence of the kind to which we have just referred to indicate that there was a real fear of actual harassment or violence in the future and we hope that this judgment at least makes clear that such an order could be made in appropriate circumstances either to protect a limited company or its employees. To that extent, therefore, this appeal is allowed.[27]MR NEWTON: My Lord, if I could briefly raise the matter of Steven Jones, who was the thirteenth defendant. I do not speak for him any more, he withdrew his appeal two weeks ago, but I just raise for your Lordship's consideration whether there is an anomaly there which the court wishes to consider in that the restraining order continues to exist in his regard.

THE LORD CHIEF JUSTICE: You are not instructed and he is not here.

[29]MR NEWTON: Exactly, my Lord. I simply raise it my Lord. I do not make any submissions on his behalf.

THE LORD CHIEF JUSTICE: We understand you doing so, but there is nothing we can do for him.

[31]MR NEWTON: So be it.

Cited in 1 later judgment