The Police, Crime, Sentencing and Courts Bill is an opportunity to make the law of aggravated trespass work in favour of those whose lawful activities are disrupted by protesters on private land. During the Second Reading general debate on the Bill in the House of Lords yesterday, the former Solicitor General, Lord Garnier QC, said that “I would like to alter the law on aggravated trespass so that those who disrupt a lawful activity should have the burden of proving, as opposed merely to asserting, that the activity they would like to disrupt, or have already disrupted, is unlawful”. He has identified a weakness in the existing law, which means that aggravated trespass is not working to protect people from disruptive protest as it should.
As the law stands a person accused of aggravated trespass can assert that the activity they disrupted was not lawful and the prosecution then has to demonstrate that it was. Increasingly this is being exploited by animal rights extremists, environmental activists and other direct-action groups targeting shoots, farmers and other businesses and activities. While respecting the right to protest, aggravated trespass is the direct, and often violent, disruption of an activity and causes huge damage because more often than not once an activity has been disrupted the damage that has been done, cannot be undone - such as a shoot that cannot take place or lost trade for businesses.
There should be a presumption that an activity is lawful, all the more so where the police are present, and people who decide to engage in aggravated trespass have the opportunity to make the allegation of unlawfulness to the police at the time. Clarifying the law in this area would give the police greater confidence in using the offence of aggravated trespass and in doing so, assist those who are the victims of the growing threat to those engaged in lawful activity. The law should make clear that where a person is prosecuted for aggravated trespass they cannot simply assert that the activity they were disrupting was unlawful, leaving the prosecution having to prove that it was.
We will be taking up this issue as the Bill progresses.