Nero & Anor v Director of Public Prosecutions

Factual and Procedural Background

These appeals arise from convictions of two groups of appellants at a Magistrates' Court concerning offences under the Criminal Justice and Public Order Act 1994 linked to protests at a retail shop in a central London location. The shop, owned by a UK-registered company which is a subsidiary of an Israeli parent company, sells health and beauty products primarily sourced from the Dead Sea area, including products manufactured in an Israeli settlement in occupied Palestinian Territory (OPT).

In the first appeal ("section 68 appeal"), two appellants were convicted of aggravated trespass after entering the shop and physically obstructing its trading activities by locking themselves together with a concrete tube and padlock, intending to prevent the shop's lawful trading. The shop employee attempted to expel them and called the police, who eventually removed and arrested the appellants.

In the second appeal ("section 69 appeal"), two other appellants were convicted of failing to leave the premises after a police direction, having similarly obstructed the shop's activities by locking themselves together with a concrete tube. They were eventually removed by police and arrested.

The appellants challenged the convictions on grounds relating to the lawfulness of the shop's activities, arguing that the company was engaged in unlawful conduct, including allegations of aiding and abetting war crimes, misleading product labelling, cheating the revenue, and possession of criminal property. The appeals focus on legal questions arising from these convictions and the interpretation of sections 68 and 69 of the 1994 Act.

Legal Issues Presented

1. In the section 68 appeal:
   1. Whether the phrase "persons engaged in a lawful activity" refers only to the individual employee present or also includes the company owning the shop;
   2. Whether only natural persons liable to prosecution can be considered as "committing an offence" under section 68(2);
   3. Whether the District Judge was correct in accepting that the shop was trading lawfully pending prosecution of the company and testing of defence arguments.
2. In the section 69 appeal:
   1. Whether the senior police officer had a reasonable belief entitling him to give a valid direction under section 69;
   2. Whether the appellants were entitled to claim that they had left the premises "as soon as practicable" when physically restrained by their own actions.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that the lawful activity being carried on at the shop was unlawful due to the company's alleged involvement in war crimes, misleading labelling, cheating the revenue, and possession of criminal property.
• They argued that the prosecution must disprove these allegations to the criminal standard to establish lawfulness under section 68.
• The appellants asserted their right to peaceful protest and free expression under Article 10 of the European Convention on Human Rights, contending that aggravated trespass charges interfere with these rights and should be strictly construed.
• They challenged the District Judge's acceptance of the shop's lawful trading without addressing their detailed allegations.
• In relation to section 69, they argued that they could not leave the premises "as soon as practicable" due to being physically restrained by their own chaining, and that the defence of reasonable excuse under section 69(4)(b) was irrelevant to this issue.

Respondent's Arguments

• The respondent maintained that the lawful activity was that of the employee present, not the company, and that only individuals personally liable to prosecution fall within section 68's scope.
• It was submitted that the police officer had reasonable grounds to believe the shop's activities were lawful and was entitled to give directions under section 69.
• The respondent argued that the appellants' chaining together was an unlawful act under section 68 and that their failure to leave promptly after the direction was a breach of section 69.
• The District Judge's conclusion that appellants could not claim to have left "as soon as practicable" while physically restrained by their own actions was supported as necessary to prevent abuse of the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ayliffe and Others [2006] QB 227	Prosecution need only show activity is apparently lawful; defendants must raise specific issue of illegality.	The court applied this principle to hold that the prosecution was not required to disprove all alleged illegality extraneous to the activity itself.
R v Jones [2005] QB 259	Crimes of peace or aggression are not justiciable in criminal courts.	Supported the view that certain allegations of illegality (e.g., war crimes) are inappropriate for determination in summary proceedings under section 68.
Steel v United Kingdom (1999) 28 EHRR 603	Right to freedom of expression in context of breach of the peace.	The court acknowledged the engagement of Article 10 rights but found no disproportionate interference by section 68.
Jones and Others [2007] 1 AC 136	Limits on citizen enforcement of law and use of force; prohibition on vigilante actions.	Supported the court's conclusion that appellants could not rely on self-help to justify their actions and resist prosecution.
Southwark London Borough Council v Williams [1971] Ch 734-735	Law's suspicion of self-help remedies except in special circumstances.	Reinforced the principle that self-help is limited and subject to strict legal control.
R v Commissioner of Police of the Metropolis ex parte Blackburn [1968] 2 QB 118	Requirement to use democratic methods rather than vigilante action to enforce law.	Supported the court's view discouraging private enforcement of law in these circumstances.
Brita GmbH v Hauptzollamt Hamburg-Hafen (case C-386/08)	Interpretation of EC-Israel Association agreements affecting import preferences.	Referenced in appellants' submissions regarding labelling and import status of products.
Tilly [2001] EWHC Admin 821	Section 68 contemplates physical presence of a person on land where activity is carried out.	The court distinguished this precedent as not excluding company activities from section 68's scope.

Court's Reasoning and Analysis

The court examined the statutory language of section 68 and concluded that the term "persons engaged in lawful activity" includes both natural persons and bodies corporate, such as companies, unless a contrary intention appears. The District Judge erred in limiting lawful activity to the individual employee present.

The court emphasized that the prosecution must prove that the activity being carried on at the premises is lawful. However, the prosecution is not required to disprove every possible illegality raised by the appellants, particularly when such allegations concern extraneous matters remote from the nature of the activity itself. The court held that the legality for section 68 purposes is determined by the inherent qualities of the activity—in this case, the retail trade of the shop—and not by broader political or international law allegations.

The court rejected the appellants' argument that the prosecution must disprove allegations of war crimes or other offences involving the company to establish lawfulness. Such matters must be litigated in properly constituted proceedings involving the relevant parties, not in summary aggravated trespass proceedings.

Regarding section 69, the court held that the police officer had reasonable grounds to believe the shop's activity was lawful and was entitled to direct the appellants to leave. However, the court found the District Judge erred in concluding that the appellants failed to leave "as soon as practicable" while physically restrained by their own chaining. It was unreasonable to penalize them for a delay caused by their own prior actions, and thus the appeal against the section 69 conviction was allowed.

Holding and Implications

In the section 68 appeal, the court DISMISSED the appeal, affirming that the shop's retail activity was lawful for the purposes of the offence of aggravated trespass. The court clarified that allegations extraneous to the inherent nature of the activity do not negate lawfulness in these proceedings.

In the section 69 appeal, the court ALLOWED the appeal and directed that the convictions be quashed, holding that appellants could not be faulted for failing to leave "as soon as practicable" when physically restrained by their own prior unlawful conduct.

The decision confirms the scope of lawful activity under section 68 includes corporate activities and reinforces the limits on self-help enforcement of law by private citizens. It also clarifies the application of the "as soon as practicable" standard under section 69 in cases involving physical restraint. No new precedent was set beyond the interpretation of statutory provisions in the context presented.