CPS (London South) v Just Stop Oil protesters (Joseph Aggarwal & ors) 2024-11-17

Dramatis personae

References

Counsel referred to Blackstone's, and to a skeleton argument which I requested but has not been provided to me.

Cases referred to:

The Blackstone's paragraphs they referred to do not seem to match what I have on hand, which is Blackstone's Criminal Practice 2019. Both are in the section on the offence of fear or provocation of violence, s 4 Public Order Act 1986. B11.49 is "sentencing guidelines (basic offence)"; B11.53 is "the four ways of committing an offence under s. 4".

However, my version has the following clearly related content, which is probably the counterpart of what was cited:

  • In the section "Intentionally causing harassment, alarm or distress" (with reference to s 4A POA)
    • B11.63 Meaning of 'harassment, alarm or distress' etc.

      Harassment, alarm or distress have not been defined, but it is assumed that they are ordinary words of the English language unless and until a definition is provided. The guidance on these words under the POA 1986, s. 5, supports this approach, see B11.77. In R (R) v DPP (2006) 170 JP 661, a prosecution under the POA 1986, s. 4A, the High Court described them as relatively strong words befitting an offence which may carry imprisonment or a substantial fine and held that the word ‘distress’ in this context requires emotional disturbance or upset.

      For the meaning of the phrase ‘threatening, abusive or insulting’, see B11.55. For the meaning of ‘disorderly behaviour’, see B11.73. For the meaning of ‘writing’, see B11.56. For the meaning of ‘display’ in the POA 1986, s. 5, see B11.74

    • B11.65 Mens rea

      This is an offence requiring proof of an intention to cause harassment, alarm or distress (POA 1986, s. 4A(1)). This is the fundamental question and it may be inferred where the accused’s ‘activities are committed in the context of a large crowd there to express disapproval of [the other’s] activities and in the context of fence removal and penetration of the police line’ even though there is no evidence that the accused knew that the other was present at the scene or could directly experience the disorderly behaviour (Rogers v DPP (22 July 1999 unreported)). It may also be inferred from the words used, though it does not necessarily follow that the requisite intention is established by the use of words such as ‘black bastard’ (DPP v Weeks (2000) Independent, 17 July 2000). As to the meaning of ‘intention’, see A2.4. For the effect of voluntary, self-induced intoxication on mens rea, see the discussion in relation to the offence of riot at B11.27.

  • In the section "Harassment, alarm or distress" (with reference to s 5 POA, a different charge)
    • B11.73 Threatening or Abusive Words or Behaviour; Disorderly Behaviour; Writing

      For the meaning of the phrase ‘threatening or abusive’, see B11.55. This element of the offence and that of causing harassment, alarm or distress are separate and different; the two must not be equated. The approach in Brutus v Cozens [1973] AC 854 (i.e. that words should be given their ordinary meaning: see B11.55) should be adopted in considering the meaning of disorderly behaviour. The disorderly behaviour need not be threatening or abusive nor is it necessary to prove any feeling of insecurity in an apprehensive sense (Chambers v DPP [1995] Crim LR 896). The decision in Hammond v DPP (2004) 168 JP 601 that the traditional approach under Brutus v Cozens is to be followed, but also that full account must be taken of the ECHR, Article 10 (freedom of expression) (though the Divisional Court was then concerned with whether words or behaviour were insulting) may now be considered to apply in respect of threatening or abusive words or behaviour: see B11.69. For the meaning of ‘writing’, see B11.56.

    • B11.75 Within the hearing or sight of a person likely to be caused harassment, alarm or distress

      In R (R) v DPP (2006) 170 JP 661, a prosecution under the POA 1986, s. 4A, the High Court described them as relatively strong words befitting an offence which may carry imprisonment or a substantial fine and held that the word ‘distress’ in this context requires emotional disturbance or upset. In Southard v DPP [2006] EWHC 3449 (Admin) it was held that distress, by its very nature, involves an element of emotional disturbance or upset, but harassment does not. However, the harassment must be real as opposed to trivial. ‘Harassment’ does not demand any element of apprehension about personal safety (Chambers v DPP [1995] Crim LR 896).

      …

      In Lodge v DPP (1988) The Times, 26 October 1988, the Divisional Court decided that whether a person was likely to be caused harassment, alarm or distress is a matter of fact to be determined by the magistrates. The Court indicated that it is sufficient if the other person in question, in that case a police officer, feels alarm (or harassment or distress) for someone else, for example a child.

Transcript

This is mostly near verbatim, from contemporaneous notes (after edits from memory to clean up, fill in gaps, etc, and looking up references).

  • [?] = missed word
  • [???] = missed phrase or sentences

I arrived only on the second half of day 2 of the trial, at the start of defence counsel's submission of no case to answer. I missed a couple minutes of it at the beginning, because the speaker in the fully-sealed public gallery was too quiet to make anything out; I went into the court to ask them to turn it up, and my transcript starts thereafter.

Defence submission 1

DC1 (McFadden): [???]

They were allowed to remain therefore, there wasn't disorderly or threatening behaviour. Was anyone actually caused harassment & distress? It was alleged by Mr Gojkovich. He gave evidence. He used the words 'harassed' and 'distressed' frequently, but it must be seen in context of the approach he had to the protest taking place. He explained he and his daughter found it 'intriguing' when they heard music outside. They took their coats on and went outside. His approach changed when he learned they were climate protesters. Then he told them to go away. He felt confident to tell them to go away with his daughter present.

The change in atmosphere he described was not in relation to reaction from protesters who were present but in fact his approach to the protest existing in his area. He made it clear that he wanted them removed. He made it clear when he engaged with them and told them to leave & they weren't [???] to be there; he made it clear when calling [???] and told police to remove them; he made it clear when he went downstairs and told police to remove them and asked why they hadn't been removed already. We saw footage of him shouting at them later in night when police were still there, shouting 'chickens', 'scum'. In evidence he referred to them like "wild dogs".

In my submission, although he may have used the words 'harassed' and 'distressed', his reactions, the way he approached the situation, the way he gave evidence, the way he gave concerns, why he didn't want them there, undermined the way he used the words 'harassed' and 'distressed'. It was clear he wanted them gone. He said what was necessary to get them gone.

In my submission, the words "I was harassed / distressed" can have very little weight when you consider [???]. Even if those two elements are met, you must consider whether the defendants intended to cause Rishi Sunak harassment & distress. Each of officers was asked "did you have conversation with the protesters", "did you ask if they thought Rishi Sunak was at home". Each said no. It's clear that if Rishi Sunak had been there, there would've been significant security that would've prevented them from getting that far. In my submission, given the Crown's case, he wasn't home, none of his family was home; it's far too remote to say they intended to cause him harassment, alarm, or distress by protesting outside a location nobody thought he was present at.

And so in my submission, on the very basic rights of the offence, even without considering exercise of rights under [ECHR Articles] 10 & 11, which is justification for expressing [???] through speeches, including banging pots and pans where appropriate. In my submission, there isn't enough evidence to convict them. So, taking the evidence at its highest, a court could not properly convict. Therefore we ask [???] case.

Defence submission 2

J: [???]

PC: ???

J: Will hear defendants first.

PC: Sorry, I thought you were talking to me.

DC2 (O'Brien): I won't repeat McFadden's submissions on John Jordan. There should be no [???] between intention, impact of behaviour, behaviour itself. Those are different terms, different [?], different measures, need to be considered separately. The charge is that John went to Rishi Sunak intending to cause harassment, alarm, distress; [???]

The case R & DPP [2006] EWHC 1375 says these are relatively strong words befitting an offence that may carry imprisonment or substantial fine; distress must cause substantial [???]; more than [???] disapproving [???], must be enough [???] to cause criminal sanction. [???] take into consideration when considering no case to answer.

The Crown has to prove that you're sure that conduct was threatening, abusive, [?], or disorderly. It's worth cutting that into different sections.

You've heard various witnesses talk about different stages of the case. The only person who gave evidence to police is Mr Gojkovich — his call was 19 past 8 in the evening, protesters arrive around 8, all the evidence is protesters were sitting in mews sitting mews signing songs. Music attracts his daughter to the mews; at that stage they are 'intrigued'. Nothing on the face of it to suggest they were being threatening, abusive, intrusive, or disorderly; it was 'intriguing'. No evidence to suggest, prior to Mr Gojkovich coming to the mews, that there was anything causing [?threatening], harassment, alarm, or distress. Then on CCTV, you see Mr Gojkovich & his daughter. His daughter is running on ahead of him. You can see that in footage, and he accepts that. There's a period when Mr Gojkovich & his daughter are standing there. He doesn't remonstrate with them at that point. When the female in auburn hair gets up, things change.

You may feel the engagement of [???] is similar to the engagement of John Jordan, explaining why they're there [???]. Mr Gojkovich says they were there for an hour or so; the footage shows they were an hour; police [???]; they were there 8pm to 9pm. Their demeanour was consistent with the design of protest. It was non-confrontational, non [?], [???]. I will come to the alleged "nasty looks" later. They were filming; when Mr Gojkovich questions that he's being filmed, the camera moves away. So, none of that is high enough to have a court properly [???] [?language] to consider threatening, abusive, [?], disorderly behaviour. There's some unclarity in the Crown's case as to what was offensive about that behaviour. It was non-confrontational [?] behaviour. They were not seeking interaction with the public; the public was seeking interaction with them. You can see that with the man with the dog; they didn't try to engage him, he engaged them.

There was discussion of "nasty looks". Mr Gojkovich's voice was raised, but there was simply no evidence of aggression. You may feel aggression or nasty looks were entirely inconsistent with the demeanour of the protesters while there. You can see that in evidence of [???] with PC Williams, [???] pots and pans, they've given consideration to the rules in relation to decibels. [???] purpose of people with camera, speeches, filming is about statements, not people present in the mews or surrounding streets. At that point Mr Gojkovich goes back to his address. The evidence of Mr Gojkovich is at that point he's been caused [???] felt harassed or distressed. There is evidence in relation to the impact on Mr Gojkovich's daughter being able to go to bed. There's no evidence from his daughter, not even from footage, but you've heard it took some hours to settle her down. You know a few minutes after Mr Gojkovich's packing up & calling to police [???]. You see in the footage officers shouting, managing 20+ officers, trying to manage [???] crowd. It's not until officers arrive and the protesters are kept at scene that the alleged [???] disorderly [???].

It is clear from the of officers on scene at half past 8, it's clear - of course they don't make the determination, Judge, it's you — but it's clear they have no cause to believe it's disruptive or disorderly. In fact, the inspector's evidence was focussed on the period before the arrival of police. That was evidence of officers [???]. What happened before arrival of police. It cannot be that defendants can be convicted because of the excitement caused by policing arriving at scene. It has to be on what happens before police arrive, in the form that the protest at that point was to continue. [???] members are told [???] there's no offences [???] contrary to justice to say what happened [???] before; it has to be before the arrival of police, around 8:30, before Mr Gojkovich came down to call police.

Perhaps the strongest submission for no case to answer is intention. It's not for the defendants to prove that they didn't intend, it's for the prosecution to prove they did. So, on the evidence produced up to this point in the case, no properly directed court could say they intended to cause Rishi Sunak harassment, alarm, or distress. There's no evidence that they thought Rishi Sunak was home. It's clearly evident that he wasn't home, and that would've been clear to those on the scene at the time. This was not a protest directed at property. No damage of property. No [???], no paint, not even any leaflets. Just groups sitting in the mews singing songs, giving speeches, [???] lower level including pots & pans. There's no evidence on which a properly directed court could say they intended to cause Rishi Sunak harassment, alarm, or distress. There's no evidence as to how he could've been aware of their presence, and nothing to say that he was aware. No suggestion of live streaming. Nothing to suggest he was aware of it. News coverage [???] was about news coverage, not to cause harassment, alarm, or distress to Mr Sunak.

On that basis we ask the court to dismiss the case.

Defence submission 3

J: Unrepresented defendants: does anyone want to put forward a case other than what was put forward by represented defendants?

D Macintyre: One more point - I wanted to read from the International Covenant on Civil & Political Rights, ICCPR, which is [???] work of UN on [???]

J: Is it relevant to no case to answer?

D Macintyre: Yes, it's relevant. Even if there was no [???], it was still covered [???] comment [?27] — UN general assembly, direct action can be covered [???] restriction on assemblies can be necessary, assemblies are part of the public right to use public spaces, restriction can [???] must be accommodated unless authorities provide detailed justification for restriction.

Prosecution response

J: Mr McAllister.

PC: First: the test at the end of the prosecution's case is not whether there's enough evidence that you would convict, but is there enough that you could convict. You're not considering whether a defendant is guilty beyond reasonable doubt, only enough that you could convict. There is overwhelmingly evidence that you could convict. The context is that they were gathering outside Rishi Sunak's house. They attended together as part of a planned protest, sat in a circle. You heard evidence that one was found with a document called 'briefing', which was evidence that they were acting together. A lot attended with implements: pots & pans. They intended to encourage each other with speeches and Ms Harris' song. Seen on [???] footage, seen on [???].

J: First time, [???] see them setting up [???]

PC: [???]

J: The witness came down because he heard singing.

PC: Mr Jordan indicates that before police arrived, they'd sang it once because he said they'd "sung it already".

Regarding my friend [?Bragg's] submissions, the strongest point is that they intended to cause Rishi Sunak harassment, alarm, or distress. You can see it in the stated aims of Just Stop Oil from their press release, "from the horse's mouth" so to speak. A "wide awake" disruption. "Wide awake", Judge.

They gathered outside Rishi Sunak's home and made themselves heard by beating pots & pans. It was clear that it was directed at Rishi Sunak & no-one else. There were numerous references to Rishi Sunak in the footage, including calling him a 'criminal'. You can hear the neighbour say "they're calling him a criminal". You can see in footage, when one of the protesters explains why they're there, she says it's because of Mr Sunak. It was clear that it was because of Mr Sunak. It was clear on the footage in [???] Ms Harris, the singer, said regarding Mr Sunak, she thought he deserved to hear it. Clearly she wanted him to hear it, that's the purpose of singing outside his house.

Apart from harassing Mr Sunak, it's not clear [???] why they would be singing in that location. There's no evidence to the contrary. They were attending what was clearly known as residence of Mr Sunak. There's no evidence that they say whether they knew, they, they knew whether he was there or not, other than evidence from the police. [???] did protestors tell you they knew that Rishi Sunak wasn't there. It was not on footage from police officers or their statements. There's nothing to indicate that they knew he wasn't there. Maybe during the course of the evening, when they were finishing [???], as police arrived around 10 to 9, it became apparent that Mr Sunak wasn't there, but that wasn't the test. The test is whether they intended to cause him harassment, alarm, or distress. [???] they intended to cause him harassment, alarm, or distress. We haven't heard evidence to say they knew he wasn't there. We heard evidence [???] their interview, none said they knew he wasn't there, that they didn't intend to cause him harassment, alarm, or distress. Specifically on the PET form, they didn't say they intended to cause him harassment, alarm, or distress.

McFadden assumed there would be security in relation to the Prime Minister's house. We haven't heard there would be security if he was there. That's not the test, the test is their initial intention.

I refer you to law in relation to that. See the skeleton I submitted - overview - mens rea paragraph 31 - offence requires specific intention to cause harassment, alarm, or distress [???] [?TTP] Blackstone's B11.49 - inferred when committed in the activities of a large crowd, inferred in [???], even though no evidence that defendants knew [???] was at the scene or intended [???], even though [???] they didn't know whether or not they were there.

There's no evidence they weren't there to cause him harassment, alarm, or distress. They were there to do [???]. The evidence from their press representatives was that they clearly had intention to cause him harassment, alarm, or distress.

Further points: McFadden concentrated on whether their behaviour was threatening. It doesn't necessarily need to be threatening per se, that's just one part of the test. It's using threatening, abusive, or insulting words or behaviour or disorderly behaviour. I agree with my friend's submissions, para 26 of my skeleton, Judge. Again, I agree with Ms O'Brien that there's no definition; I called attention to the R & DPP 2006 case, which holds that distress requires emotional disturbance or upset. But the Crown's case is that there was emotional disturbance or distress caused by defendants' actions, which resulted in police being called, then [???] evidence of crimes.

[???] paragraph 30 regarding disorderly behaviour, Blackstone's 11.53 suggests words should be given their ordinary meaning, Chambers v DPP 1999. Disorderly behaviour may not be threatening or abusive, nor is it necessary to cause [???] or security in the apprehensive sense. We're at the half time position. Clearly he was feeling apprehensive at a minimum. The Crown say that the protesters must have known their presence would cause harassment, alarm, or distress. Their behaviour was disorderly. The Crown says that it's not [???] to attend a residence at 8:30pm as they did, make speeches on a loudspeaker, banging pots & pans encouraging each other. They were asked to turn the microphone off, which Mr Jordan — they didn't do subsequently.

J: They turned it down, didn't he?

PC: They were asked to turn it off. The Crown submits that the music got louder. This behaviour after 8pm [???]

J: [???] private road.

PC: Where the mews is, you can see it, it's not an extremely public place. You have to be determined to get to it. There's no footfall at that point.

This was a large group. They remained for a significant length of time. They targeted a private home, rather than 10 Downing Street or the Houses of Parliament. They must've known neighbours would be there.

They must've known, heard someone shout to turn it off. They attended with the intent to make noise, as much as possible. [???] pot seized by PC Copper, PC Masters said that they had "speakers with microphone", PC Watson [???] not a normal speaker, it was one designed to make a lot of noise.

We've heard that the protest started at approximately 8 o'clock. Officers deployed because of calls at 8:15. It was clear that the noise caused by the protesters must've caused a reaction, [???] calls, officers don't attend until approximately 8:30. We have heard it suggested that because they were on the scene they didn't think something was wrong. They heard one rendition.

J: Didn't we see that on the footage?

PC: About the song?

J: The footage came from protesters filming, setting up the amplifier, [???] song, attracted [???], he came out of his house because he was hearing singing.

PC: It's unclear when he initially came out. He said 10 past 8. Police arrive at 29 min past on the body-worn, have a conversation with Mr Jordan, who's the designated safety chap - can't remember terminology.

J: Yes.

PC: He says "we've already had our song".

J: Yes.

PC: So they've had it once.

J: Yes.

PC: There's discussion about turning it down.

J: The footage we saw was of the first rendition. That's what attracted the witness with his daughter. Dunno what they thought, [???] Halloween [???], dunno what's going on, that's when they came down. Then he realised it wasn't entertainment, it was a protest. Then he came inside and rang police, rang 999. He came down. During the footage of the safety officer, the witness says "don't sing it again".

PC: Yes.

J: So they sang it twice.

PC: Singing is disorderly [???] other half described by Mr Gojkovich. The Crown say he was clearly emotionally distressed.

I will move on to that, Judge [???] crucially we've heard evidence of Mr Gojkovich, he felt harassment, alarm, or distress on behalf of his daughter. Turn again to my skeleton, Judge. In terms of definitions, I've set it out: distress requires emotional disturbance or upset. Lodge & DPP, noted in Blackstone's, it's sufficient if someone feels harassment, alarm, or distress for someone else — for example, a child. Judge, [???] say [???] examined at length [???] said [???] gave clear accounts of distress that he felt.

Again, Judge, at this stage in relation to all of the elements, it's not necessary for the Crown to prove you would convict, just that you could, and the Crown submits there's clearly a case to answer.

Defence reply

J: (to defence counsel) Did you want to put back anything?

DC: In relation to the case cited about not needing to know someone was there, there's a big difference between masses of people, two groups [???] case refers to [?] directed at another group of people. This was in relation to a staged, clearly considered protest. Contained speeches, contained song, with speeches, "very peaceful" as officers described it, is different from two crowds which [???] not contained but in relation to two crowds, very different from the case here. The fact that Rishi Sunak was a feature of the protest is not in dispute. All that was relevant — that was the point, that was the symbolism — but that doesn't equate to intending to cause harassment, alarm, or distress. Those are strong words which cary imprisonment. Being noticed is not sufficient to cause harassment, alarm, or distress.

J: I shall [???]

[judge left room to consider submissions]

Judgment

[16:06: judge has returned, allowed me to stay in court room to hear better]

PC: Judge, [???], have you written down your reasons in this case?

J: [???], will do tomorrow.

LA: [???] has gotten email regarding Watson on 24 Oct of production — reason for [???]

[defendants enter]

J: Considering the submission of no case to answer on the charge of harassment, with intent to cause Rishi Sunak harassment, alarm, or distress on 29 Nov last year. The principles of Galbraith are well known. There's no evidence [???] some evidence but of tenuous character, with inherent vagueness because of other evidence. I'm considering other evidence of threats, abuse, insulting words [???], intention as separate things.

As to behaviour: the evidence showed over 45 minutes of protest, footage of protestors on cross examination [???] local officers [???] PC Williams attended, [???] evidence showed protestors seating quietly. They sung a song on one of two occasions. No shouting, some applause, no threats to be heard on [???], some banging of pots in presence of [?]. But no threats, no [???] criminal violence, no abusive language, no insulting words recorded.

The issue of disorderly behaviour is more nuanced. There's no need for it to have a disorderly or insulting character, nor an element of violence. Elements of disorder for [???] prosecution are some evidence of [???] through windows — shining lights — capable of being disorderly.

The evidence of Mr Gojkovich was somewhat equivocal in what he said. Originally [???] so there were two people close to house, then he said they were looking at the house, then he said maybe they were seeing things there. On cross examination, he went on how [???], "think I saw one or two behind cars". My judgment is that the way he said it was an attitude of considerable suspicion and equivocal — and, in my judgment, unreliable. In that respect, in relation to [???], no one could be certain what he saw. In my judgement, it was clear he was very suspicious, [???] something his daughter might [???] part of. Similarly, regarding lights from phones and light in windows, there was no evidence there were lights in windows, and there was evidence to the contrary. The evidence was that the lights were just part of sitting around and listening to music.

The other issue capable of being disorderly is noise. That's a question of degree, obviously. There were pots & pans some protesters had, and were visible, but the film shows little use of them. There was evidence from Mr Jordan's [???] that there was a decision not to use them. After PC Williams arrives, it was clear that, because of nature of the mews, they would cause noise to be amplified — and they made the decision not to do that. In any case, noise was not what bothered Mr Gojkovich. He came down and said "[n]o more songs, I don't mind if they talk quietly. I don't know if there was pots. I don't know if they used pots. I don't know if there was music afterwards." The evidence is such that the level was such as to be satisfactory to him. My judgment is that the evidence is unreliable, and not such as to be reliable for a jury if it were to go forward.

In relation to the song, singing a song twice in a peaceful protest is not behaviour capable of being criminal, provided it's part of a peaceful protest. There was some talking, which was in an area that does not normally receive much footfall. But it's important that it was in the [?morning] in November — the protest was quarter to 8 to quarter to 9 [pm].

So: my conclusion regarding the behaviour of actual protestors. In relation to their intention to cause harassment, the prosecution says intent can be inferred because the protesters went to an address associated with Rishi Sunak, and the fact that he wasn't there wasn't relevant, because he was there a lot. [???] If he had been there, they'd be guilty under s 42A, which they were arrested for, but they were not charged with that.

I need to consider if there's anything to make a jury sure that they intended to cause harassment, alarm, or distress, and whether they had that intention.

In my judgment, the evidence was not sufficient to prove whether they had such intention to cause harassment, alarm, or distress. The nature of the protest was a sit-down protest, a symbolic act, directed at his house as a location, not staged so as to be broadcast. But I also notice that, regarding the protesters' intention, they were asked to modify their behaviour when spoken to by police. They turned the amplifier down. They had researched the applicable noise law before they went there, to be within the requirements in terms of decibels etc. They had a time limit — when they told the police they'd not go past 9, in fact they finished by quarter to 9. Also [???] to police officers to say nothing, but Mr Jordan was forthcoming with their intentions, how long, what they intended to do and intended not to do, what they had with them. While in a confined space of a mews, the noise would've been allowed there. There was no evidence that they intended to turn up the noise again. There was no evidence that anyone specifically intended to turn the song up again. So all evidence points to passive protest.

For that reason, it's not possible to conclude for any [?duratively] [?long] [???] consistent with evidence that the protesters intended to cause harassment, alarm, or distress — certainly not to residents.

There's evidence from the second set of officers who came that some residents were supportive.

The witness went down to investigate with his daughter. She was very excited, expecting sort of event put on like Halloween or Christmas pageants, but he saw it was not that. After talking with the protesters, his perception changed, especially after he saw they were filming — though I note they were willing not to film his daughter, and that's alright. His main focus was on the noise, and his [???] children [???] his second conversation with the police, he said to them [???] "don't [???], just no more singing, I'm OK with quiet talking." He gave evidence that he got aggressive looks, evil looks and stares, but there's no evidence on film of that. And I accept defendants' submissions of that, his irritation and disapproval of protests of this kind influenced his interpretation of glances of this kind from protestors. But in my judgment, there's not evidence of any hostility directed towards him.

As far as his daughter's concerned, undoubtedly she'd go from excited to disappointed because there was nothing exciting to see. She was influenced by the negative attitude of her father, especially [???] evening. In my judgment, it would've been the second visit of the police, from about 8:25, when some police officers arrive with vans and a cordon. It would've been extremely alien to the experience of the witness, and likely to cause her alarm and distress. But it's not responsible to the defendants, who finished by 8:45 and were trying to leave the location when they were stopped by police officers.

So, in my judgment, there's nothing available to cause harassment, alarm, or distress.

Therefore I accept the submission of no case to answer.

So that is [???] don't really have to consider case of the defendants who are not here for any reason. Their cases are an oversight in my observations. I'm not entirely sure. I heard from Mr Watson he didn't want to come; the reality is maybe he didn't actually know, but the reality is I consider that inferable.

Costs

J: I'll consider defence costs applications? [???]

DC: [???] Yes, we will consider it.

J: Shall we work that out now? Okay, I'll sit outside.

[16:30]

DC: There's a distinction from the Starmer case, because he wasn't home, and his residence is 10 Downing. In that case, it was his home and could've caused harassment, alarm, or distress.

[16:57 judge returns]

J: (to defence counsel) Aggarwal?

DC1 (McFadden): Aggarwal: £92.60 - comes from previous hearing

J: OK, thanks.

DC: Clement: £42.98 total

J: Yes.

DC: Ms Good is £42

J: Yes.

DC: Robinson is 30

J: Right.

DC: Morris-Macintyre £401

J: Because he come from Norway

DC: Yes.

J: O'Brien, do you want to make some application [???] Jordan?

DC2 (O'Brien): Jordan came remotely, he hasn't attended in person.

J: Right.

DC: Same for Watson & Johnson.

J: OK. That's all the information. (to defendants) You're free to leave. End of case.

[ 15:39 ]

My summary & comments

I entered after 1½ days of trial, on the second half of day 2, at the beginning of defence counsel's submission of no case to answer.

The argument seemed to rest primarily on challenging two statutory points:

  1. that there was no evidence presented about defendants' intent under s 42A(1)(c) CJPA 2001, and in any event defendants could not have had the requisite intent because Rishi Sunak did not live at his house during the incident (Nov 2023) but rather at 10 Downing St, so he was not present to be the target of the alleged harassment, and
  2. that the evidence presented did not sustain the claim that Rishi Sunak's neighbour was in fact harassed, alarmed, or distressed, because his testimony and behaviour was in fact that he was 'intrigued' by their singing, perhaps thought it was Halloween or Christmas related, merely asked for them to keep the sound down and not sing again (which they did on both points), and was hostile to their message rather than their volume or other objective behaviour.

The prosecution countered that they'd come outside of Rishi Sunak's house to protest, brought a microphone and speaker, brought pots & pans to encourage the speaker/singer, were targeting Rishi Sunak's home, did this in a technically public but fairly isolated mews, and that there wasn't any evidence that they didn't intend to cause him harassment, alarm, or distress.

The defence won full acquittal on no case to answer.

To my view, assuming that counsel and the court accurately portrayed the evidence presented (which I did not witness), as well as the elevated standard discussed by them as to the level of distress required for this charge (which I do not know as a point of law), this seems to have been the correct decision on both points.

I do not know what the judge meant when she said that that the defendants had been arrested on s 42A but not charged with it. As far as I could tell, that was in fact the charge.

I question whether the prosecution was allowed to make an argument fundamentally premised — indeed, vocally emphasised by prosecution counsel — on the lack of evidence that defendants didn't intend to harass Rishi Sunak. This is a point of law which I do not know as to the standard at the end of the prosecution's case, but my understanding is that the prosecution has the entire initial burden of proof, and if there isn't affirmative proof beyond a reasonable doubt that the defendants did have the requisite intent, they must be presumed innocent, i.e. to not have had it — without being required to put on any evidence at all of their affirmative innocence. If this is true as a matter of law, which I do not know, it seems to me rather improper for the prosecution to argue in effect that the defendants were obliged to prove their innocence rather than that the prosecution was obliged to prove their guilt, let alone to make it a point of emphasis.

I note that one issue that did not seem squarely addressed was the statutory element of s 42A(1)(a) 'dwelling', as defined by (7) and thus s 8 Public Order Act 1986, requiring that the place of the incident be outside the "structure … occupied as a person’s home or as other living accommodation". It seems to me that in fact Rishi Sunak was likely not occupying his house in Nov 2023, but rather that his dwelling was 10 Downing Street. I did not witness the first two days, nor any pre-trial phases, so it's possible that this question was raised and rebutted. If not, this seems like a question that could be answered as a matter of law from public record. If in fact his erstwhile house was not "occupied as [his] home" at the time of the incident, then the charge would have to fail (as that is a mandatory element), and the court could have avoided the expense and burden of trial on more difficult evidentiary determinations of the protesters' intent and the neighbour's (& his daughter's) subjective perceptions.