27/11/2015 | Tim Walker
I recently acted for a number of clients who were charged with aggravated trespass. They were accused of disrupting the lawful activity of the Waveney Harriers who traditionally hunted live quarry and who now hunt a false scent laid by a human. It was the prosecution case that the defendants (for some unspecified reason) chose to disrupt this entirely lawful activity and spoil the fun of a group of people who were simply riding around the countryside for fun.
My clients denied this. It was their case that they were present to prevent the hunt from unlawfully pursuing live quarry. They did nothing to disrupt the hunt until they became aware that they were indeed pursuing live quarry: in this case a fox. As they were interfering with an unlawful activity they could not be guilty of the offence of aggravated trespass.
This raised a real problem for the prosecution. My clients were seen on video complaining to the police that the hounds were chasing a fox. The police in evidence said that as they had not seen the fox they did nothing further to enquire whether the hunt was acting unlawfully.
The law on aggravated trespass has recently been clarified by the Supreme Court in the case of Richardson. That case states that when a defendant properly raises the issue of the legality of the act he or she is said to have interfered with, then the burden falls on the prosecution to prove beyond reasonable doubt that the act was lawful.
In my case the prosecution did not call any evidence to prove that the hunt was acting lawfully. Police failed to see the fox that the hunt monitors claimed to have seen, and one of the Masters of the Hunt said he was unaware the hounds were chasing a fox. These facts were insufficient for the prosecution to discharge the necessary burden and as a result the charge was dismissed at the end of the prosecution case.
The hunt monitors succeeded where the Appellants in Richardson failed because they were able to demonstrate that the unlawful activity complained of was 'integral' to the activity with which they had interfered, and because the unlawful activity complained of was 'fairly raised by evidence' because they had made complaint at the time.
The prosecution sought to argue that we had launched an ambush in our submissions but the Court was quick to point out that throughout proceedings (and indeed at the scene) the issue had been raised and was therefore well known to all parties.