Final report from the Crown Court – 7th June 2018

You will by now know the verdicts in three of the four cases brought before the High Court in Sheffield this past week. But for the record, I conclude herewith my first-hand account of the trial with this summary of the third and final day of the hearings.

Disclaimer: this day’s proceedings are the most challenging to cover because they depended substantially on intricate legal argument, in which I cannot pretend to be an expert. My handwritten transcript will undoubtedly have oversimplified, skated over or omitted important details from the counsels’ submissions, especially in their references to arcane case law which was not readily accessible to those of us in the public gallery. Nevertheless, I hope to have got across the gist in layman’s terms of at least some of the key issues at stake. Corrections from other observers in the courtroom would be welcome.

Before continuing his final submissions begun on Wednesday, Yaaser Vanderman (acting for Sheffield City Council) raised several preliminary matters, including the possible disclosure to the judge of Facebook posts which he claimed showed that Benoit Compin knew of the injunction before 10 January. Mr Compin accepted that he breached the injunction by entering a safety zone for a total of three and a half minutes on Meersbrook Park Road (MPR) on that day. Counsel for the defence objected that such disclosure might prove unduly prejudicial, but Mr Justice Males stated that he would like to see all relevant materials before sentencing.

In a second incident, on Abbeydale Park Rise (APR) on 5 March, Mr Compin had been within a safety zone from at least 3.02pm to 3.50pm. He had attempted to prevent the removal from the zone of a female protester and had then climbed a tree, where he remained for some time despite the pleas of police officers to come down. He is heard on video evidence saying ‘I’m going to breach the injunction again’. This Mr Vanderman described as ‘a brazen admission of defiance’. The incident took place after Mr Compin had been notified that he had breached the injunction previously and after the sentencing of Calvin Payne and Alastair Wright for contempt.

The defence had argued that the particular tree on APR should not have been marked for felling. But Mr Vanderman said that the defence’s reading of Section 41 of the Highways Act was too narrow. He referred to the previous judgment of Mr Justice Gilbart that the lawful authority (in this case, SCC) has the right to remove trees as it sees fit. The tree was being removed to maintain the highway: ‘We say that’s the end of it.’ Mr Vanderman said that the defence had not submitted evidence that 30mm was not a significant deviation from the kerb line. The question of whether alternative engineering solutions could have been used to retain the tree was irrelevant to the injunction. There was no record of Mr Compin having previously objected to the felling of the tree – the proper approach would have been to approach the council.

Mr Justice Males noted that further growth of the tree potentially disrupting the highway in future was not a concern that had been recorded in the ITP report or the council’s final decisions. There was apparently no significant further growth in 2018 compared to 2016, when the decision to fell had been made. (He remarked that this might not be relevant to his judgment in the trial.)

Mr Vanderman then turned to the case of Paul Brooke, whom he described as a ‘long-time campaigner’ and ‘one of the major protagonists’ in the trees dispute. Mr Brooke was one of those who had signed an undertaking before the granting of the injunction and had later given evidence at the trial of Calvin Payne. His defence is that he entered a safety zone by breaking through a barrier because he believed that a masked woman protester was being assaulted by security staff.

Referring to the video evidence of the forcible removal of a masked female protester from railings on MPR, to which Mr Brooke said he was reacting, Mr Vanderman said that nothing in the clips was especially shocking. He said that Mr Brooke had entered the safety zone in an aggressive and violent manner. As a result of his actions, tree-felling had been suspended for a number of weeks.

Mr Vanderman referred to Section 3 of the Criminal Law Act 1967, which states that ‘A person may use such force as is reasonable in the circumstances in the prevention of crime.’ He said that security staff employed by Amey had been given extensive training and briefing in the use of reasonable force in this context. He argued that the methods and the amount of force used by them were reasonable, as shown by the fact that the removal of the female protester took only 30 seconds. As she was acting as a ‘dead weight’ when being carried away, security staff acted reasonably in rotating her and placing her down on the floor.

Mr Brooke’s defence was also based on Section 3. Mr Vanderman said that there had never been a *civil* case in which Section 3 had been entered or accepted as a defence. He noted there were some ‘novel’ legal points in play but that ‘On all legal authority Mr Brooke’s defence must fail’. There were a number of police officers in close proximity who could have acted if they thought a crime was being committed by the security guards. Their decision not to do so showed that they did not believe an assault was taking place. This, said Mr Vanderman, was ‘fatal’ to Mr Brooke’s defence: ‘There can be no defence of a breach of an injunction if the act was deliberately undertaken. If you do the act, that’s it.’

Mr Justice Males observed that the police officers in attendance were not especially close to the incident of the removal and did not appear to be looking in its direction. Mr Vanderman said that people had been complaining to the police so it could not be said that they were unaware of what was going on; they were close enough to the safety zone. He said that Mr Brooke did not deny that the police officers considered the force reasonable but that he proceeded to enter the safety zone anyway. Mr Brooke did not approach the female protester to ask if she was okay; other people may have been in the way but he did not even try. The judge noted that a security guard had done a ‘good job’ in calming Mr Brooke down and persuading him to leave the safety zone.

Mr Vanderman said that Mr Brooke’s action of lifting up the barrier was not the breach of the injunction, but rather his entering the safety zone. He should have let the police officers present do their job and not take the law into his own hands. Once the incident started he didn’t approach a single police officer; even if their backs were turned to the safety zone, they were still there. There was no sufficient nexus between entering the safety zone and the action of preventing a crime; at the time Mr Brooke entered, the woman had already been removed from the railings and was on the floor.

Mr Justice Males said that video evidence appeared to show that the potential assault to which Mr Brooke said he was reacting was over by the time he entered the zone. Would it be a defence that he had a *mistaken* belief in the possibility of an assault? The judge remarked that it would be ‘a bit harsh’ if the law said that someone had to stand by ‘and watch someone being beaten to a pulp’.

Defence

Opening his submissions for the defence of Simon Crump and Fran Grace, Paul Powlesland said that this case was not just being fought in the courts but in the council chamber and on the streets. Despite the assurance given to the court on Tuesday that SCC took responsibility for bringing the case, outside court it had said otherwise in order to avoid the political consequences. The question of who had authorised the prosecution of four campaigners had been raised in council by Dave Dillner on Wednesday. Mr Powlesland quoted council leader Julie Dore’s response and said that it proved that the decision to proceed was not taken by councillors but by council officers, even if she agreed with that decision.

At this point Mr Justice Males interrupted and asked Mr Powlesland to move on. He was satisfied with the assurance he had been given by the council. Mr Powlesland asked ‘But who is the council?’ The judge responded that if he didn’t know that he should look it up.

Mr Powlesland returned instead to the question of what constitutes a safety zone. The definition contained in the injunction is that it was an area surrounded on all four sides by barriers in order to create a safe working area. This latter part was crucial to the definition: the zone must have been created for this purpose. It could not just be barriers around a tree.

Mr Powlesland noted that Dr Crump had signed an undertaking to the court but Ms Grace had not. He recalled a previous discussion in which it was noted that the definition of a ‘safety zone’ specified in the injunction did not exist when Dr Crump and others had signed their undertaking, because the court order for the injunction had not yet been given. Mr Vanderman had argued that, in the case of those who had signed the undertaking, the ‘natural definition’ of a safety zone, one in which ‘natural barriers’ such as walls and railings counted as one side of the zone, should therefore apply.

Mr Justice Males noted that it would be ‘disorderly’ if two protesters standing side by side were under a different regime and were subject to different conditions because one had signed an undertaking and the other had not. The council was not proceeding against defendants on the basis that they had breached an undertaking but that they had breached the injunction, even though they were not ‘persons unknown’ but rather ‘persons known’.

Mr Powlesland said that on 16 January Dr Crump had been holding onto a railing in the gap between two barriers. The prosecution claimed that he had thereby prevented the erection of a complete safety zone. Mr Powlesland said that if Mr Vanderman’s previous suggestion about the distinction between two definitions of ‘safety zone’ were to be applied, Dr Crump could not be said to have prevented the erection of a safety zone under the definitions of the injunction because he was already in one under the alternative definition. The judge asked incredulously: ‘Are you suggesting that Dr Crump was in breach of his undertaking?’

Mr Powlesland said that it has often been the case that protesters have stood between railings and barriers, and work has still continued. This could have been done on this occasion. Amey workers have shown that they are willing to sacrifice standards to fell trees over the heads of protesters. If it had been anyone but Dr Crump standing beside the railings, they would have done that.

Mr Powlesland said there was no clear evidence to explain why the safety zone had been enlarged in the incident on 18 December. Arborist Jason Wignell’s evidence had been very confused and had given different explanations for the necessary size of safety zones. Mr Wignell had stated that a risk assessment was done for both the initial zone on MPR and the extended one, but a copy of neither risk assessment had been submitted in evidence. The lead arborist on 18 December, Dom Barrett, has not come forward to give evidence.

The result was that the defendants, Dr Crump and Ms Grace, had been confused. There had been previous occasions when Dr Crump and others had been told they were in breach of the injunction when in fact they were not. It was therefore reasonable for them to question the information they were given and to assume that the safety zone was not being enlarged for bona fide reasons. The bad faith that existed between the parties meant that rather than leave the zone when they were asked, they wanted more information. They wanted to pursue lawful, peaceful protest but this situation was one they had not encountered before.

There was constant flip-flopping from Amey about what constituted a safety zone and what protesters are allowed to do. Very wide powers had been given to a private company to exclude citizens from parts of their own city. People need to know in advance what they are and are not allowed to do, in order to undertake the most effective form of legal protest. Given the high standards of legal proof required, Mr Powlesland submitted that Dr crump and Ms Grace were not in breach of the injunction.

Owen Greenhall, opening his submission for the defence of Paul Brooke, said that his submission was based on Section 3 of the Criminal Law Act 1967, which allowed citizens to use reasonable force to prevent a crime being committed, including the defence of another party. He said that the wording was clear and had to apply to alleged breaches of a court injunction. Mr Greenhall explained that duress should be defined by the urgency to act; ‘urgent action’ is close to the classic definition of self-defence.

Mr Greenhall said that it could be argued that following the use of reasonable force by Mr Brooke in pushing over a safety barrier in the course of defending another, the safety zone itself as defined by the injunction ceased to exist. He said that a belief that an assault was taking place should be both honest and reasonable, but that they were usually run together and that it would be odd to separate them.

At this point, proceedings were interrupted when Mr Greenhall’s mobile phone rang. Mr Justice Males observed drily: ‘There were judges who would say *that* was a contempt of court!’

Continuing, Mr Greenhall said that in criminal law it would be wrong to send someone to prison for using reasonable force so long as that person acted under a reasonable conviction. The sanctions for contempt were likely to be higher than for criminal proceedings.

He said it was not necessary for someone in Mr Brooke’s position to reach a *correct* conclusion about what was happening – two people in the same position might have reached different conclusions – but it was enough to show that he had reached a *reasonable* conclusion in the circumstances. Mr Brooke himself might have done something different on a different occasion. Mr Greenhall said that if the judge did not agree that this was a valid defence in law then he would like to submit it in mitigation.

Moving from legal argument to the facts in Mr Brooke’s case, Mr Greenhall said that it was clear the defendant had a genuine belief that the female protester was under attack – the strongest evidence for this was the video footage, in which Mr Brooke was plainly and manifestly concerned. With the information he had received that day that security guards were manhandling protesters and the video footage he had seen which supported that information, Mr Brooke had formed the opinion that security staff were prepared to cause significant pain to female protesters. What was relevant was not whether the security guards were in fact using reasonable force but what Mr Brooke perceived and the opinion he formed and that it was a genuine and reasonable belief that a woman was being assaulted.

Mr Greenhall said there was no evidence in the video footage to show that security guards made any effort to check that the protester on the ground was okay. It looked to Mr Brooke like she had been assaulted and was about to be assaulted further by a guard standing on her or kicking her. As soon as Mr Brooke realised she was okay, he left the safety zones. He did not join other protesters who formed a ring around the threatened tree.

Mr Greenhall said that Mr Brooke is not someone who advocates direct action, as proven by the fact that he has not acted similarly on other occasions. Nor is he abusive towards security staff – as shown in the video evidence, they know him by name. As to the police, Mr Brooke had been told earlier in the day by officers that they were taking a hands-off approach. It does not follow that because of their failure to act they didn’t think an assault was taking place. It was their inaction that prompted him to act. He conveyed that he was not happy with the situation by his facial expression seen in the video footage and his use of profanities in a manner that was out of character. Mr Justice Males commented: ‘I think he succeeded in conveying that he was not happy.’

Turning to the case of Benoit Compin, Mr Greenhall said that he would concentrate on the legal argument for the incident on APR as Mr Compin had admitted breaching the injunction on MPR. He argued that in the case of the particular tree Mr Compin was defending, Section 41 of the Highways Act (concerning the council’s duty to maintain the highways) was not engaged. Contrary to SCC’s reasons for choosing to fell the tree, the engineering solutions needed to retain it were covered in the PFI contract. A deviation from the kerb line of approximately an inch was not significant – Mr Greenhall said there must be hundreds or thousands of instances of kerbstones with similar deviations around the city where trees are not marked for felling.

Mr Greenhall said there was no evidence of any sustained examination of the rate of change of the tree growth. There was a question therefore of whether the works around this tree should be included within the injunction. In a criminal case a defendant had the right to query an administrative mistake that had led him to court; this principle should apply to a civil case as well.

Responding to Mr Greenhall’s submissions, Yaaser Vanderman said that the key issue with Paul Brooke was his state of mind. Mr Brooke accepted that he was far away from the incident with the female protester and could not see the detail of events, but Mr Vanderman said that contrary to his evidence his state of mind was one of ‘blind indifference’ to what was happening to the woman. Mr Vanderman described the notion that all four police officers on duty turned their backs to the incident as ‘unreal’: the whole purpose of their being there was to observe.

Judgment

Mr Justice Males said, in his characteristically understated manner, that he found the cases against Dr Crump, Ms Grace and Mr Compin to be proved. He reserved judgment on Mr Brooke until a later date because there were points of law that he needed to consider.

Mr Vanderman read out Facebook posts from Mr Compin, referring to posts from Calvin Payne and Alastair Wright, which demonstrated his knowledge of the injunction and willingness to break it. He also showed the judge a photo of Mr Compin sticking up two fingers, indicating his attitude of defiance.

The defence moved to pleas in mitigation. Mr Powlesland said of Ms Grace that there was no evidence of any other breaches of the injunction, or of attempted breaches. She had attempted lawful peaceful protest on other occasions. This breach was not deliberate or planned – she came prepared to stand outside of a safety zone as she had previously done. She remained within the safety zone for between three and ten minutes – a very short time indeed. This had little to no impact on delaying a felling or the tree-felling programme. She was acting on the advice of Dr Crump and was clearly not a ringleader or organiser. Whether she was aware of being in breach should have an impact on sentencing. She was an honest and genuine witness – she was evidently confused in the video footage, was asking for clarity and got none. This put her at the low end of the spectrum of seriousness.

Mr Powlesland said that much the same applied to Dr Crump. He did not plan to breach the injunction by entering a safety zone but found a zone built around him. In the second incident, Dr Crump aimed to delay a felling without breaching the injunction. He believed ‘geckoing’ to be a lawful, generally accepted way of protesting without breaching the injunction. With reference to Dr Crump’s Facebook post, the wording and punctuation were crucial – on previous occasions he had been correct in not being in breach of the injunction when told that he was. If the judge was minded to give a custodial sentence then a suspended sentence would be appropriate – Dr Crump was a man of previous good character.

Mr Greenhall submitted that any sentence for Benoit Compin should also be suspended. In the first incident he was inside a safety zone for a total of three and a half minutes and caused minimal or no delay to felling. Mr Compin accepted that he was aware of the injunction though not of its specific terms. He had been in France at the time he made his first Facebook post in October. Mr Greenhall noted that people on Facebook communicated with like-minded others and sometimes made statements which went beyond their actual intentions.

In the second incident, Mr Compin believed he was standing up for people in general. It was not a pre-planned incident – what prompted his actions was concern for an elderly female protester with multiple sclerosis. Nothing in the judgment should take into account Mr Compin’s actions towards security guards, which are the subject of a separate legal hearing. In the wake of this he was upset and used language he was not proud of. Mr Compin was aware of how his actions had brought him to the court and he would not do anything to bring him there again.

There was then a short recess of around 20 minutes before the judge returned to pass sentence on the three defendants found guilty of contempt. The full judgment has been posted on this page so there is no need to report it in detail here. In summary, Simon Crump and Benoit Compin were each sentenced to two months’ imprisonment, suspended for one year. In Fran Grace’s case, the fact of being found in contempt was held to be sufficient punishment. All three were persons of good character. Mr Justice Males concluded by thanking those in the public gallery for their quiet and respectful attention to the proceedings.

After the judge rose and left the courtroom, observers in the public gallery stood up to applaud the defendants down below. Outside the courtroom in the waiting area and again outside the court building, other supporters applauded and hugged them as they emerged.

Technically, the three defendants had lost. Morally, it felt like a victory.

 

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