Akhurst & Anor v Director of Public Prosecutions [2009] EWHC 806 (Admin)

Case No CO/811/2008[2009] EWHC 806 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 12 March 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE GOLDRING
MR JUSTICE SWEENEY
Between
AKHURSTAppellantAKHURSTAppellantvDIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ross Cohen appeared for AppellantsMr Obi Mgbokwere appeared for Respondent
J U D G M E N T

LORD JUSTICE GOLDRING:

[1]This is an appeal by way of case stated from the decision of the Enfield Magistrates' Court of 6 August 2007. The appellants were convicted of four offences of being found in enclosed premises, contrary to the Vagrancy Act 1824. By Section 4 of that Act, a person is guilty of an offence in these circumstances - "Every person being found in or upon any dwelling house, warehouse, coach house, stable or outhouse or in any enclosed yard, garden or area for any unlawful purpose ..... "[2]The informations are all related to areas of campuses of Middlesex University. The four informations concerned Queensway Campus in Enfield, Cat Hill Campus in Barnet, Queensway Campus in Enfield and Trent Park Campus in Enfield. The dates of the alleged offences were respectively 28 March 2007, 13 April 2007 (offences 2 and 3) and 24 April 2007. There is some indication from the Ordinance Survey plans, which we have seen, of the size of those different campuses. They are in the order of 400 x 300 metres or 200 x 300 metres or larger; in other words, substantial areas.[3]In their case stated the magistrates found the following facts: that the university had an open access policy at all the sites; staff and students were permitted to enter the university site without having notifying security staff; visitors were directed to a reception area to sign in and to be issued with a badge which they should display; there were CCTV cameras around the university and they showed the appellants in different locations at the different sites; on 28 March they entered various buildings at the Queensway site; on 13 April they did so in respect of the Cat Hill site; and subsequently again at the Queensway site; on 24 April they entered the Trent Park site, and the younger of the two on that day entered empty-handed and was seen leaving carrying a shoulder bag; they were both of bad character, having previously been convicted of a significant number of offences of dishonesty.[4]It was contended on the appellants' behalf, as the magistrates recount, that there was no case to answer. In short, it was submitted that the highest it could be put against the appellants was that they were trespassing on the university property. There was no evidence of unlawful purpose. As material to the present appeal, the university grounds and buildings did not consist of an enclosed area within Section 4 of the Vagrancy Act.[5]Reference was made to Talbot v Director of Public Prosecutions CO/1829/1999.[6]The appellants did not give evidence.[7]It was submitted on behalf of the respondent that the areas did amount to an enclosed area. A distinction was drawn between Talbot and the present case. It was submitted that Talbot was concerned with a single room within a university. These appellants were concerned with various parts of several campuses within the university.[8]The justices were of the opinion, and I summarise, that what they saw on the CCTV footage placed the behaviour of the defendants as "questionable". They had not given any reason as to why they were present on the university. They expressed the view that they were present with a view to committing offences. As to the issue of the enclosed area, they accepted the Crown's submissions. They referred to Knott v Blackburn and Another [1944] 1 all ER 116. The justices said that the judgment of Viscount Caldecote LCJ in that case left open for consideration as to whether the enclosure not connected with a house might constitute an enclosed area. There was a distinction, they decided, between Talbot and the present case. In the present case they accepted the Crown's submission to which I earlier referred. They referred to the university campuses as being enclosed, having seen the CCTV footage. The question posed is:
"Were we correct in our finding that university grounds and buildings are an enclosed area within the meaning of Section 4, Vagrancy Act 1824?"
[9]The argument before this court was essentially that before the magistrates on the issue of an enclosed area. Mr Cohen, on behalf of the appellants, submitted that the university grounds and buildings did not constitute such an area within Section 4. He relies upon what was said by Viscount Caldecote LCJ in Knott. The issue in that case was whether some buildings through which a railway line went amounted to an area.[10]Mr Cohen also relies upon what was said in Talbot. I shall shortly come to what was said by Mr Justice Gage (as he then was) in that case.[11]Mr Cohen submits that there is no evidence the university campuses were enclosed such as to amount to an enclosed area within the terms of the section. The boundaries, as suggested by the maps, he submitted, were punctuated by roads and paths. He further submits that these are much larger areas than was contemplated by this Act in 1824.[12]Mr Mgbokwere, who helpfully provided the court with a skeleton argument today, submitted that the magistrates were right. Essentially his submission amounts to this; that the words within Section 4 should be regarded disjunctively. The references to "stable", "outhouse", "enclosed yard", "garden" should not in any way restrict the meaning to be given to "area". He submitted that although the Act was passed in 1824, it must evolve to take account of changes in the times. He, too, relies upon certain observations made in Knott. He submitted that the area was defined by the CCTV cameras which were present. There was a reception to which visitors should have gone and that there is a distinction between the facts of the present case and those in Talbot.[13]It is necessary to have regard to the authorities. It seems to me that we cannot simply ignore the approach to this section that obtained when it was passed and was referred to in Knott. As Viscount Caldecote said (page 117 of the report which I have):
"It appears to me that the word 'area' would not in 1824 be used, in this context, to describe the large spaces which at that time were frequently to be found all over the country enclosed by ring fences."
A little further:
"Having regard to the use of the word 'yard' and the use of the word 'garden', immediately followed by the word in question here, 'area', and bearing in mind that this is a penal section, I think the word 'area' should be construed in the sense in which the magistrates have construed it. As is stated in the special case, the use of the word 'area' to denote that part of the basement of a house which is open to the air was very familiar, and, indeed, is familiar to most people today."

Mr Justice Macnaghten, who was of the same opinion as Viscount Caldecote, said:

"The word 'area' in the Vagrancy Act 1824 used in conjunction with the words 'yard' and 'garden', plainly includes a place that is described as a basement area, a well-known feature of very many houses in London and in the country at that date. I have no doubt that these railway sidings cannot be described as an 'enclosed area'. They were not in fact enclosed. Whether the words 'enclosed area' might apply to an enclosure that is not connected with a house, I should prefer to leave open for consideration."
[15]Mr Justice Tucker, who also agreed, said; "Counsel for the appellant concedes that, in order to succeed he must show that the word 'area' in this section is really equivalent to the word 'space', and that it would include a landowner's large park. I think, having regard to the context in which the word is used in the section, it is impossible to give the word that very wide meaning, and, unless it can be given that very wide meaning, I think it is inapplicable to the facts of this particular case."[16]In Talbot the court was considering a room which was part of the Department of Engineering and Science at the University of Oxford. It was within a teaching department which comprised some three or four floors of offices, laboratories and basement. There were two main entrances for staff and students. There was no reception, the nearest reception desk being some two buildings away. The appellant was found in the enclosed room which was an office.[17]In his judgment Mr

Justice Gage said (paragraph 13):

"13 For my part, approaching this matter without the benefit of the previous decisions, I do not think, as a matter of construction, that an office building comes within the description of an 'enclosed area' as used in this part of the Vagrancy Act. It seems to me that although the words taken on their own might be apt to describe an office, they must be read in the context of the section. 14 In particular, in my judgment, there is force in the argument put forward, on behalf of the appellant, by Mr Daly, that they must be read in the context of the words 'enclosed yard, garden or area'. It seems to me that that connotes an area which is in the open air. In contradistinction are the first words of that part of the section, 'dwelling house, warehouse, coach house, stable or outhouse."
[18]It does not seem to me - considering the section in the way that the authorities make plain the court is bound to do, namely, in context - that those very substantial parts of Middlesex University where these appellants were seen could sensibly be said to amount to an enclosed area for the purposes of Section 4. I agree with Mr Cohen's submissions.[19]I find it difficult to see the distinction which the justices found between Talbot and the present case in terms of the presence of a reception area. It seems to me that once the more restrictive interpretation to the section is applied, as the authorities dictate, the position becomes clear. If the university campuses cannot amount to an area for the purposes of the legislation, however suspicious the actions of the appellants may have been, it cannot bring them within Section 4 of the Vagrancy Act 1824. Moreover it is not open to the court to interpret the section in a different way to that which it has been previously interpreted in order to take account of changes in the times.[20]In the result therefore, as far as the question of the magistrates in paragraph 7 of their case is concerned, I would answer it no.[21]This appeal will therefore be allowed.

MR JUSTICE SWEENEY: I agree.

[23]MR COHEN: Mr Lord, there is an application for costs out of central funds.

LORD JUSTICE GOLDRING: Yes.