Hazy horizons and evidential dogs: the trial 5 verdicts

April 4, 2014 by combehavendefenders

la fotoOn April 3, nearly sixteen months after the first person was arrested for resisting the Bexhill Hastings Link Road, the final trial concluded, with one defendant found not guilty and the remaining four convicted. The whole process of trying the Link Road resisters had involved nineteen defendants, dozens of witnesses, and a staggering thirty eight court days.

Trial 5 involved five people arrested in the trees at Decoy Camp in late January, and charged with aggravated trespass. All of the defendants had been excused from attending court to hear the verdict, so instead of reading it out, Judge Crabtree announced his findings and then left, with the lawyers given the judgement to pore over at their leisure.

Hazy horizons, mist on the way
In his judgement, Judge Crabtree conceded that there were problems with the warrant which gave Shergroup the authority to remove protesters. There appeared to be two different warrants in existence. The one initially given to the prosecution was undated; the day before the trial started, another warrant – this one dated – was provided by Shergroup. The judge noted that there were ‘ostensible inconsistencies in the chain of possession’ of the warrant, and said he had ‘some concern’ about (head of Shergroup) Claire Sandbrook’s testimony.

The Legal Services Manager at East Sussex County Council ‘contributed some mist to an already arguably hazy horizon’ in his attempts to explain the existence of two warrants (in different fonts, with signatures that were slightly different). Notwithstanding all these issues, the judge concluded that ‘a warrant is not necessary unless entry is actually resisted’, thereby invalidating all the defence submissions about the legality of the warrant.

The dog’s evidence
In discussing the issue of trespass, and whether the defendants had permission to be on the land, Judge Crabtree says, ‘Beyond the very tenuous and hearsay evidence (if I was being invited to consider that the matter stated by the farmer (and his dog)…was that he was the owner or lessee of the property), there is no other direct evidence’ [that the defendants had permission to be there]. This may be the first time that a dog’s evidence has been accepted in court.  When approached, the dog in question said he had no further comment to make.

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Dog. Not the one who gave evidence. Pic: George Hodan

Just like trial 4?

A casual onlooker might have thought this case was almost identical to trial 4, in which all the defendants were acquitted.  Everyone was up a tree, everyone had to be removed, everyone was charged with aggravated trespass.  Under the law of aggravated trespass, the prosecution has to prove not only that you were trespassing, but that you committed some ‘distinct and overt act’ beyond the mere trespass, with the intention of obstructing or disrupting lawful activity.  The ‘distinct and overt act’ can be almost anything, but crucially, it has to be something.

It’s all in the charge

In trial 4, the defendants were charged with ‘occupation of a tree.’  In his judgement on trial 4, Judge Crabtree states of one defendant:

The information pleaded … does not contain any reference to any further distinct and overt act beyond the initial act of trespass – it does not plead, for example, that you were in continuing occupation, refused to descend voluntarily or that you locked on to prevent your removal

Whether by chance or judgement, the wording of the charge for defendants in trial 5 was slightly – and crucially – different; their charge alleged ‘occupation of a tree and refusal to come down when requested to do so’.  In other words, the overt act was refusal to come down.  Simply being up a tree, in and of itself, was not an offence.  So although all the defendants had done more or less the same thing, those in trial 4 had a defence available to them that was not available to those in trial 5.  On that basis, two of those in trial 4 were acquitted (the other four were acquitted on the basis that they were there to raise awareness of the situation, rather than to obstruct work).

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Eviction at Decoy. Photo: Adrian Arbib

All guilty except for the one who wasn’t
In his conclusion, Judge Crabtree concluded that all but one of the defendants were guilty. The only difference in circumstances between the guilty and the acquitted appeared to be that the latter had apparently at some point told the bailiffs that he would like to come down but was unable to, thus the refusal to leave was unproven (anyone finding themselves in similar circumstances in the future might like to bear this point in mind).

All those convicted were given conditional discharges, but were not ordered to pay court costs.

Thirty nine to eleven

Originally the 19 defendants faced a total of 39 charges. By the end of the trials, they had been acquitted of – or had the charges dropped for – 28 of these charges.  Whether it was worth the time, effort and cost of prosecuting people who had been doing nothing other than peacefully protesting, the Crown Prosecution Service has not said.

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