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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Cannon & Ors [2025] EWHC 520 (Admin) (11 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/520.html Cite as: [2025] EWHC 520 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT BRISTOL CIVIL JUSTICE CENTRE

		Bristol Civil Justice Centre Redcliffe Street, Bristol BS1 6GR
		11/03/2025

This judgment was handed down remotely at 10am on Tuesday 11 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. PRESIDENT OF THE KING'S BENCH DIVISION MR JUSTICE SAINI

Dame Victoria Sharp P :

Introduction

1. This is the judgment of the Court on two joined appeals by way of case stated brought by the Director of Public Prosecutions ("the DPP"). The appeals were heard together because they raise the same core legal issue.
2. The first appeal is against the decision of District Judge (MC) Brereton ("the judge"), sitting at North Somerset Magistrates' Court on 29 September 2023, to accede to a defence submission of no case to answer on charges of aggravated trespass, contrary to s. 68(1) of the Criminal Justice and Public Order Act 1994 (the "1994 Act"). We will refer to this as "Trial 1". The charges dismissed in Trial 1 related to the Respondents' participation in a protest on 5 September 2022 at premises ("the premises") occupied by Mu¨ller Wiseman Dairies ("Mu¨ller") in North Petherton. Mu¨ller is the largest supplier and distributor of milk in Great Britain. The purpose of the protest was to highlight Mu¨ller's alleged complicity and contribution to the climate emergency. The protest was under the banner of Animal Rebellion (now known as Animal Rising). Animal Rising is an animal and climate justice movement with the professed aim of compelling government action towards a plant-based food system due to the impact of animal agriculture on climate change, species extinction and ecosystem breakdown.
3. The second appeal is against the decision of the same judge on 19 January 2024, sitting at North Somerset Magistrates' Court, to acquit the Respondents of the offence of aggravated trespass on the basis that the prosecution had failed to prove that they were trespassing on land. We will refer to this as "Trial 2". The charges in Trial 2 concerned a protest on 4 September 2022 on the same Mu¨ller premises in North Petherton as in Trial 1, but carried out by different persons.
4. Mr James Boyd, for the DPP, submits that the judge erred in law and reasoning, and/or arrived at a conclusion of fact which, on the evidence, was irrational, in each of Trial 1 and Trial 2. Mr Tom Wainwright (for Mr Hebbes and Mr Stevens) and Ms Rosalind Comyn (for Ms Cannon, Mr White, Mr Sleigh, Mr Juniper, and Mr Prince) each submit that based on the evidence called by the prosecution in these trials, the judge made no error of law in stopping Trial 1 at half-time and in acquitting the relevant Respondents in Trial 2. They further argue that the judge was entitled, within the reasonable range of decisions open to her, to conclude that the prosecution had not made her sure on the evidence of the element of trespass and permission to enter the premises.
5. As noted above, a number of the Respondents in Trial 1 (White) and Trial 2 (Jackson, Wilkinson and Willshee) were not represented before us. We inquired in open court whether any of them were present before proceedings began. They were not and we proceeded in their absence.
6. We will begin with the facts in Trial 1 and Trial 2, which we take from the Case Stated ("the Case") in each trial. As Mr Wainwright correctly submitted, it is important to keep the evidence in the two cases separate, even though the relevant premises were the same and the nature of the alleged trespass in each case was similar. In particular, additional evidence was provided in Trial 2.

Trial 1: the facts

7. In this trial, the Respondents each faced one charge of aggravated trespass as follows:

"On 5 September 2022 at North Petherton in the County of Somerset, having trespassed on land, namely Mu¨ller Dairy, Market Way, North Petherton, TA6 6DF, and in relation to a lawful activity, namely milk processing and distribution, which persons were engaged in on that land, did an act, namely climb onto Mu¨ller property, which was intended to have the effect of obstructing or disrupting that activity, contrary to section 68(1) and (3) of the Criminal Justice and Public Order Act 1994."

8. The Respondents did not advance a positive case in relation to trespass. As identified in the Case at [2], the Respondents merely put the prosecution "to proof" (in the Preparation for Effective Trial Form).
9. At the trial it was agreed that the Respondents had entered land upon which Mu¨ller operated a business and that (with the exception of Mr Wiltshire) they, having gained access, climbed on top of milk tankers. Mr Wiltshire remained on the ground within the premises.
10. The trial took place on 29 September 2023. Only Ms Wood was legally represented. The prosecution called Mr Andrew Moule ("Mr Moule"), an employee of Mu¨ller, who had been present on the day of the incident. Mr Moule's job title was the Site Operation Excellence Lead. He explained in evidence that the site was owned by Mu¨ller and that the Respondents did not have permission to be there. He had arrived on the site after the Respondents had gained access, and did not see how, or where, they gained access.
11. The prosecution case additionally rested on formal admissions that: (i) the Respondents had all been represented in interview and had declined to comment; (ii) save for Mr Wiltshire, the Respondents having entered the Mu¨ller site, had climbed on top of tankers located on site; (iii) Mr Wiltshire was stopped by police on site, heading towards the tankers in possession of a ladder; and (iv) PC Locke seized: a Gemstone Fireworks smoke flare on the floor near to a milk tanker on the site; two bottles of superglue on top of the milk tanker upon which Ms Cannon and Mr Sleigh had been sitting; and a Gemstone Fireworks smoke flare from a rucksack belonging to Mr White. PC Bazely seized a bottle of superglue and a smoke flare from Mr Wiltshire. PC Munro seized a pot of superglue from Ms Wood. PC Thomas seized a ladder from Mr Sleigh. Finally, five photographs were adduced in evidence of the Respondents (save for Mr Wiltshire) sitting on the tankers. We have considered these photographs, which were appended to the Case.
12. At the close of the prosecution case, Ms Wood's solicitor made a submission of no case to answer. She argued that the prosecution had failed to prove the trespass element of the charged offences. Ms Wood conceded that Mr Moule gave evidence that the Respondents did not have permission to be on the area of land upon which they were protesting. However, she went on to contend that whilst Mr Moule said the land was controlled by Mu¨ller, he did not confirm it was "private property". It was therefore submitted that there was no case to answer. Mr Sleigh further submitted that as an employee, Mr Moule, (not being within the "legal department" of Mu¨ller) was not in a position to know the legal status of the land.
13. In response, the prosecution submitted that there was no need for it to show that the land was private property. The prosecution said it simply had to establish that the Respondents did not have permission to be there, and that Mr Moule had said the Respondents had no such permission and that the land was owned by Mu¨ller. They relied on the fact that Mr Moule was working for Mu¨ller at the time and was thus in a clear position to give that evidence.

The judge's decision in Trial 1

14. In addressing the half-time submission, the judge reminded herself of the Galbraith [1981] 2 All ER 1060 test and that a case should be dismissed if there is no evidence that the crime alleged against the accused was committed by him. In relation to the submission that there was no evidence of trespass, the judge made a finding that the extent of the prosecution evidence on the issue of trespass was that of Mr Moule, an employee of Mu¨ller who stated that the land was owned by Mu¨ller and that the Respondents did not have permission to be there. The judge stated that she had not been provided with any documentation concerning land ownership, nor a map nor any visual evidence to show the precise location upon which the Respondents had protested. She said she had not been provided with any evidence about the boundaries of the land. The judge observed that whilst the land might be privately owned, she had not been provided with any evidence in respect of any public rights of way, and nor could she speculate about any such rights. She said she was given no explanation as to how Mr Moule had any knowledge as to ownership of the land; nor any explanation as to his knowledge regarding who was entitled to grant permission to be on the land. Nor had she been told how he knew that the Respondents did not have permission to be there on 5 September 2022. Finally, the judge observed that the court would have expected the landowner to provide evidence as only it could deal with permission to be on the land.
15. The judge concluded that, in accordance with limb (i) of Galbraith, no reasonable tribunal could convict upon the evidence she had received. She accordingly dismissed the case against the Respondents.
16. The question posed by the judge for the opinion of the High Court was:

"On the basis of the evidence I received, was I entitled as a matter of law to accede to the defence submission of no case to answer?"

Trial 2: the facts

17. As in Trial 1, the Respondents in this case each faced one charge of aggravated trespass as follows:

"On 4 September 2022 at North Petherton in the County of Somerset, having trespassed on land, namely Mu¨ller Dairy, Market Way, North Petherton, TA6 6DF, and in relation to a lawful activity, namely milk processing and distribution, which persons were engaged in on that land, did an act, namely climb onto Muller property, which was intended to have the effect of obstructing or disrupting that activity contrary to section 68(1) and (3) of the Criminal Justice and Public Order Act 1994."

18. As in Trial 1, in Trial 2 the Respondents did not advance a positive case in relation to trespass and merely put the prosecution "to proof" in relation to the elements of the offence: Case at [2].
19. The trial took place on 18 and 19 January 2024. We understand that, given her experience with Trial 1, the judge had reserved Trial 2 to herself. The Respondents were not legally represented. It was agreed that before 06:00 on 4 September 2022 the Respondents had entered land upon which Mu¨ller operated a business, and that with the exception of Daniel Juniper ("Mr Juniper"), the Respondents, having gained access, occupied positions of height by climbing on top of milk tankers or buildings.
20. More particularly, Mr Juniper was found on the ground and in possession of wire cutters. Thomas Wilkinson ("Mr Wilkinson") was on a milk tanker. He was arrested and searched and found to be in possession of superglue and a harness. Jesse Prince ("Mr Prince") and Barry Allan Jackson ("Mr Jackson") had climbed onto a tanker. They had chains on their wrists with a mountain carabiner at the end. Benjamin Willshee ("Mr Willshee") and Dominic Hebbes ("Mr Hebbes") had climbed onto a building and constructed a banner. They had chains around their wrists with carabiners, an arm tube and superglue. The Respondents were arrested by attending police officers and were not removed until approximately 16:00 that day (some 10 hours after they had occupied the premises), causing significant disruption to the business of Mu¨ller.
21. The Respondents accepted that they had gained access to the premises by climbing over a fence. They nonetheless contended it was not clear where the boundary to the premises was and the judge received no documentary evidence in this respect.
22. The evidence adduced on behalf of the prosecution included the oral evidence of the same Mr Moule. He was the most senior person on the premises that day. Mr Moule described the premises as being surrounded by a high-level perimeter fence of around 20-30 feet tall, albeit the Respondents contended it was much lower than this. The main access to the premises was through a gatehouse, which comprised a series of automatic barriers for vehicular access, and a swipe-card controlled access for pedestrians. Those without a pass had to contact security to be let in. Mr Moule said he did not give the Respondents permission to enter the premises, but he did not give any evidence as to whether he was entitled to give such permission (nor who as to would provide such permission).
23. Additional evidence was called by the prosecution from Tom Jarvis ("Mr Jarvis"). He was another employee of Mu¨ller, with the title of "Process Team Leader". He referred to a manned gate and pedestrian access by way of presenting a swipe card. He explained that the site was "fenced in". Mr Jarvis also referred to a sign requiring all visitors to report to reception. He gave evidence that he did not have control over who accesses the site. He also gave evidence on the nature and extent of the disruption caused by the Respondents' actions.
24. Each Respondent gave evidence.
25. Mr Juniper said he had attended the premises to protest. He remained on the ground and was arrested shortly after the police arrived. He said he was uncertain whether he was trespassing. He said no one told him he was trespassing, and he was not asked to leave. He did not see any signs, nor a gated entry or a swipe-card access point.
26. Mr Jackson contended that there was no evidence of trespass: no evidence had been produced in respect of deeds, nor any evidence regarding rights of way. He submitted that boundaries can be disputed, and that a member of staff would not know the precise location of the premises' boundaries.
27. Mr Prince said he had no knowledge of the front of the premises, nor the legal status of the premises. He did not know the boundaries of the premises and submitted there could have been rights of way to walk through. He said that no-one had asked him to leave. He also said that the chosen point of entry (i.e. over a fence) did not imply intent to trespass or knowledge of trespass, but merely implied it was the best point of entry to guarantee the success of the protest. He said there may well have been public footpaths going through the site, but that the organisers of the protest (which did not include himself) could still reasonably decide that to climb the fence was the more effective point of entry.
28. Mr Wilkinson said he did not look for the main entrance and did not know where it was. He accepted that he did not seek permission to access the grounds before climbing over the fence.
29. Mr Willshee said that no-one asked him to leave. He conceded he did not make any enquiries as to whether he could enter the Premises. He could not recall seeing the main entrance.
30. Mr Hebbes said he climbed a ladder over a fence, but did not know whether that marked the official boundary of the premises. He said he was not spoken to by any employee whilst on the premises. He was unaware of who owned the land. His understanding was that he had to be asked to leave by the landowner, or authorised representative, which had not happened.

The judge's decision in Trial 2

31. The judge referred to the case of DPP v Bailey [2023] KB 392 ("Bailey"). She said that the prosecution had to prove the following four elements: (1) trespass on land; (2) whether other persons were lawfully on the land and engaged in lawful activity; (3) the doing of some act by the trespassers; and (4) the intention to intimidate, obstruct or disrupt. The judge found that the prosecution had proven the last three elements of the offence.
32. As regards the first element of the offence (trespass), the judge did not, however, find that the prosecution had adduced sufficient evidence to prove that the Respondents had been trespassing on the premises. In reaching this decision, the judge had regard to the CPS Guidance on "Offences during Protests, Demonstrations or Campaigns" (the "CPS Guidance").
33. We will return to the CPS Guidance below but note at this stage that the judge found by reference to this document that (at [24] of the Case):

"In respect of the status of the land, the guidance is, 'evidence should usually comprise:

1. HM Land Registry documents showing the ownership and boundaries of the land upon which the accused was protesting.

2. A witness statement from the relevant landowner providing any additional information.

3. Map from the relevant Highways Authority.

4. Visual evidence (such as photographs and body worn footage) showing the precise location of the area upon which the defendant protested'".

34. The judge's reasons for dismissing the charges were recorded at [25]-[26] of the Case:

"I took account of the evidence that the site is surrounded by fences and that there was a gated main entrance with security who allowed vehicular access. I made reference to the swipe-card access for staff access and that all other personnel needed to be granted permission to enter by those on the gates. I acknowledged that a sign required all visitors to report to reception and that the respondents had gained access by climbing over a fence and that their presence required police attendance and their arrest and removal from the site. However, there was no evidence before the court as to the status of the land including ownership, where the boundaries were, where the respondents were in respect of those boundaries and whether there are any third-party rights of way over the land. I considered the inferences that could be drawn from the restricted access to the site; the reason for the respondent's presence but concluded that, as is established in other areas of the law, inferences can only give weight to a prosecution's case; they cannot of themselves prove guilt or prove a case beyond reasonable doubt. I concluded that the element of trespass on land had not been proved beyond reasonable doubt and in giving the benefit of doubt to the respondents, I acquitted them."

35. The question posed by the judge for the opinion of the High Court is:

"On the basis of the evidence I received, was I right in law to find that the [prosecution] had not proved the element of trespass on land beyond reasonable doubt?"

The legal framework

36. There was no dispute as to the relevant legal framework or the governing principles concerning the law of trespass at common law. Trespass in the law of tort is established by any unjustifiable intrusion by a person upon land in the possession of another. Possession means generally the occupation or physical control of land: §18-13 of Clerk & Lindsell on Torts, 23rd Ed ("Clerk & Lindsell"). It was common ground that trespass is actionable at the suit of the person in possession of land: §18-10 of Clerk & Lindsell. This explains why a tenant in occupation can sue, but not a landlord. Similarly, a person in possession can sue although he is neither the owner nor derives title from the owner, and indeed may be in possession adverse to the owner.
37. An entry is not a trespass if it is justifiable. Justification of the entry may be afforded either by operation of law, by an act of the party in possession of the land, or under a licence, or where the entry is made under a right of way or easement: §18-31 of Clerk & Lindsell. If land is subject to a public or private right of way or any similar right over land, a person who unlawfully uses the land for any purpose other than that of exercising the right to which it is subject is a trespasser, and can be sued by the person in possession of the land: Halsbury's Laws of England, Tort Volume 97A (2021) ("Halsbury"), §165. For a licence to be a defence to a claim of trespass, the defendant must not have exceeded that which the licence allows: See Halsbury §180.
38. Although trespass to land is not, of itself, a criminal offence, certain specific forms of trespass attract criminal liability. One such form is the offence of aggravated trespass. Section 68 of the 1994 Act appears under the heading "Disruptive Trespassers". As amended, Section 68 provides in part as follows:

"68. Offence of aggravated trespass.

(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.

...

(2) Activity on any occasion on the part of a person or persons on land is "lawful" for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

...

(5) In this section "land" does not include—

(a) a highway unless it is a footpath, bridleway or byway open to all traffic within the meaning of Part 3 of the Wildlife and Countryside Act 1981, is a restricted byway within the meaning of Part 2 of the Countryside and Rights of Way Act 2000 or is a cycle track under the Highways Act 1980 or the Cycle Tracks Act 1984

…". 

39. As regards the meaning of "land" above, section 66(1) of the Wildlife and Countryside Act 1981 defines a "footpath" as "a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road". So trespass on a highway, including a footpath running alongside the carriageway of a highway, cannot give rise to an offence under section 68 of the 1994 Act. But trespass on a footpath elsewhere may do so.
40. The offence of aggravated trespass was introduced as part of a suite of offences in Part V of the 1994 Act which have been described as "trespassing plus": Bailey at [36]. These offences criminalised what would otherwise be a civil trespass where the trespass was accompanied by what Parliament decided was blameworthy conduct on the part of the defendant, that is, conduct that was particularly antisocial or harmful to the owner or occupier of the land: Richardson and Another v DPP [2014] UKSC 8; [2014] AC 635 at [3], and Bailey at [36]-[37]. As also explained in Bailey, in relation Parliament's decision to use the word "trespass" when describing the new offence, the term was not to be given a different and novel meaning from the meaning it has had at common law for many centuries.
41. The CPS Guidance on the offence of aggravated trespass, when committed during the course of a protest, provides:

"In the context of protests, the two commonly contested issues on a trial for the offence under section 68 ... are:

1) whether the area upon which the defendant was protesting is "land" as opposed to a "highway"; and

2) whether a prosecution amounts to a proportionate interference with the accused's convention rights.

Land

In a prosecution under section 68 CJPOA, one ingredient of the offence that the prosecution must prove is that the accused trespassed on "land". The statute excludes a "highway" from falling within the definition of land. Accordingly, the prosecution cannot discharge its legal burden if a tribunal of fact could not be satisfied that the area on which the accused trespassed was land and because it was realistically possible that it was a highway.

Many of the prosecutions for aggravated trespass concern protests that occur at the junction between a private access road serving the targeted premises and a vehicular highway, often bounded by a public pavement. The status of the road upon which the defendant is protesting is frequently a contentious issue at trial. Prosecutors should be alive to obtaining sufficient evidence to disprove any assertion that the road upon which the defendant protested was a highway and, therefore, not land for the purposes of the offence-creating provision. This evidence should usually comprise:

- HM Land Registry documents showing the ownership and boundaries of the land upon which the accused was protesting - where a protest has occurred close to the boundary line with a highway, this type of evidence is accompanied by the usual caveat that due to the possibility of distortions in scale it can only be relied upon to show the general position and not the exact line of the boundary;

- a witness statement from the relevant landowner providing any additional information as regards the road upon which the protest occurred, such as that it is responsible for its maintenance and repair;

- a map from the relevant Highways Authority (the identity of the Highway Authority depends on the nature of the road) showing the extent of the area adopted by the relevant authority as a highway (which will often correspond closely with the boundary line depicted by the HM Land Registry documents), and confirming that it is responsible for its maintenance and repair;

- visual evidence (such as photographs and BWV footage) showing the precise location of the area upon which the defendant protested."

The DPP's submissions

42. In relation to Trial 1, Ground 1, Mr Boyd submitted that it is clear from the judge's reasoning at [12] of the Case, that she concluded that the evidence of the prosecution was in law insufficient to prove that the defendants had "trespassed" on land. He argued that the judge did so on the basis that the prosecution had not adduced any evidence proving "legal ownership". Mr Boyd submitted that the judge erred in law in this regard. He relied upon the principle that trespass is concerned with the interference with possession of land, not ownership. As we have noted above, that principle is not disputed by the Respondents. It is well-established in the law of tort and applies to the statutory offence.
43. As to Ground 2 concerning Trial 1, Mr Boyd submitted that on the evidence at the "half-way" point of the case, a reasonable tribunal would have concluded that the evidence was more than sufficient to demonstrate that the possessor of the land had not given permission to the Respondents to enter it; and by their intentional actions obstruct the lawful activities of its business carried out on that land. He relied on the submissions of the prosecution below summarised in the Case at [9] where the judge recorded:

"On behalf of [the prosecution], it was contended that there was no need to evidence that it is private property given that it is owned by a company and further it cannot be public land if it is owned by a company. The [prosecution] stated it had established that the respondents did not have permission to be there. It was argued that to show it is not public land is entirely unnecessary. The [prosecution] submitted it was there on the face of Mr Moule's evidence who had said the respondents had no permission to be there and that the land was owned by the company. Mr Moule was working for Muller at the time and was thus in a clear position to give that evidence".

44. In relation to Trial 2, Mr Boyd under his Ground 1, made the same submission to the effect that the judge was in error in requiring evidence of some form of ownership, as opposed to possession. As to Ground 2, he submitted that the judge's conclusion that the evidence adduced was insufficient to prove, to the criminal standard, that the Respondents did not have a legal right to be present on the premises was a conclusion that no reasonable tribunal, properly directing itself on the law, could have arrived at.

The Respondents' submissions

45. On behalf of the specific Respondents in Trial 1 and Trial 2 that they represent, Mr Wainwright and Ms Comyn made joint submissions in writing and the main oral submissions were made by Mr Wainwright, and adopted by Ms Comyn. Their submissions in relation to Ground 1 in each of Trial 1 and Trial 2 overlapped, but where distinct points were made about the specific trials, we have sought to summarise their main points below.
46. They argued, in relation to Ground 1 in both Trial 1 and Trial 2, that the judge did not fall into error by noting that no evidence had been adduced by the prosecution which proved ownership. They relied upon a consideration of the judge's remarks in full, in support of their submission that the judge was recording that the prosecution had sought to prove possession of the precise location (where the Respondents were situated) by proving ownership of the land. They drew our attention to the fact in Trial 1 and in Trial 2 the question of ownership was one amongst a number of matters the judge considered. They argued that the real issue in each trial was an evidential matter and not an issue of law. That is, whether the prosecution had adduced sufficient evidence to reach the required threshold and establish a sufficiently strong prima facie case (Trial 1), or so that the judge could be sure (Trial 2), that the Respondents were trespassing.
47. Mr Wainwright in his oral submissions emphasised that Mu¨ller Dairies' entitlement to possess the land was advanced, and only advanced, on the basis that they "owned" the site (he submitted that was the position in both Trial 1 and Trial 2). The distinction between owner and possessor was therefore one without a difference on the facts of this case. It was argued that references in the Judge's decisions to 'ownership' of the land in each of Trial 1 and Trial 2 are accordingly readily explicable by the fact that it was the prosecution's case that the land in question was owned by Mu¨ller.
48. Mr Wainwright and Ms Comyn also referred to the fact that in Trial 1 the prosecution submitted, in response to the half-time submission, that the area where the Respondents were positioned was 'owned by a company'. They said that this shorthand also accords the CPS Guidance, considered in Trial 2, which suggests that the status of the land should be evidenced in the context of a prosecution pursuant to section 68 of the 1964 Act. Overall, Mr Wainwright and Ms Comyn argued that the references to landowner as opposed to possessor in the cases stated do not therefore vitiate the judge's decisions.
49. As to Ground 2 in Trial 1, Mr Wainwright and Ms Comyn submitted that the question is not, as set out in Mr Boyd's skeleton argument, whether a reasonable tribunal could have reached the contrary conclusion, but rather whether no reasonable tribunal properly directed on the law could have reached the conclusion to which the judge came. They argued that in Trial 1, the only evidence on trespass was Mr Moule's "bare assertions" to the effect that the site was owned by Mu¨ller and the Respondents did not have permission to be there. Mr Wainwright underlined at the hearing that the prosecution could have but did not adduce evidence from for example security guards in relation to the issue of permission. In those circumstances, they submitted that the judge was entitled to conclude, when assessing the sufficiency of the evidence before her, that the evidence of Mr Moule – who was not, in fact, the person in possession of the land – was tenuous and/or he did not have sufficient knowledge of the relevant issues. They argued that the judge was also entitled to take into account that Land Registry documentation or similar would have been simple enough for the prosecution to obtain and draw inferences from their failure to do so.
50. As to Ground 2 in Trial 2, Mr Wainwright and Ms Comyn referred to the fact that there was further evidence (not adduced in Trial 1) on the question as to whether the Respondents were on land occupied by Mu¨ller. This evidence was to the effect that: there was a gatehouse which provided one main point of access; access for pedestrians was controlled by swipe card or by security granting access; there were fences surrounding the site; a sign requested all visitors to report to reception. They argued that it could not be assumed, as suggested by the DPP, that the possessor of the land would never have permitted entry for a peaceful protest to take place. Nor, they say, is it the case that protesting would obviously exceed any legal right of way over the land. Overall, Mr Wainwright and Ms Comyn submitted that the DPP has failed to satisfy the high threshold of establishing irrationality.

Analysis and conclusions

51. In our judgment, Mr Boyd's submissions are to be preferred. We conclude that the judge erred on the basis set out in Ground 1 and Ground 2 in both Trial 1 and Trial 2. We will take each of Trial 1 and Trial 2 in turn, but the error of law as to what needs to be proved for trespass was common to both.

Trial 1

52. Under limb (i) of the test in Galbraith, a submission of no case to answer at a summary trial should be acceded to if there has been no evidence to prove an essential element of the alleged offence. For example, where an essential prosecution witness has failed to come up to proof, or where, as in the appeals before us, the judge had concluded there was no evidence of an element of the offence charged.
53. It is clear to us from the judge's reasoning at [12] of the Case, that she concluded that the evidence of the prosecution was in law insufficient to prove that the defendants had "trespassed" on land. Her reasons demonstrate that she did so on the basis that the prosecution had not adduced any evidence (such as Title deeds and maps) proving legal ownership and the boundaries of the land upon which the Respondents were protesting and arrested. Absent this evidence, the judge concluded that it was impossible to prove that the Respondents did not have the "landowner's" permission to enter the land upon which they protested and, therefore, no evidence had been adduced that they were trespassing.
54. In our judgment, the judge erred in law in this approach. As submitted by Mr Boyd, trespass, as a concept in civil law, is concerned with the interference with possession of land, not ownership. It is common ground that for the purposes of section 68 of the 1994 Act "trespass" is not intended to be given a different and novel meaning from the meaning it has at common law. Thus, the trespass element of the offence contrary to section 68 of the 1994 Act is by its nature against another's possession of land. It is not legally necessary for the prosecution to establish legal ownership of the land to prove whether a defendant has trespassed upon it. To disclose a case to answer, the prosecution needed only adduce sufficient evidence to prove that the accused was present on land (as defined by the 1994 Act) without legal right; that is to say, otherwise than with the consent of the possessor/occupier, or by authority of law or any other justification in law.
55. In this regard, we consider that the prosecution had, through the oral evidence of Mr Moule, plainly produced a prima facie case that the land was occupied and in the possession of his employer, Mu¨ller, and that the Respondents had not received his employer's permission to enter and protest on the land it occupied. The judge's conclusion that only "the landowner" could "deal with permission to be on the land" was wrong in law. The issue of ownership was a legally irrelevant consideration but we accept she may have been led into this error by the way the prosecution put the case. This error is sufficient to allow the appeal on Ground 1 in relation to Trial 1.
56. For completeness, and although not raised in the question for the High Court, we reject the submission made by Mr Wainwright and Ms Comyn that, on the evidence the judge, had she reached that stage, would have dismissed the case on limb (ii) of Galbraith. In our judgment, this was not the type of case where the weakness of the evidence of possession and permission required the case to be stopped. The case on those issues was in fact strong.
57. As to Ground 2 in Trial 1, in our judgment, that is also well-founded. If the evidential burden on a particular issue is borne by the prosecution, it is discharged by the adducing of sufficient evidence to justify as a possibility a finding, by the tribunal of fact, that the legal burden on that issue has been discharged. In other words, there is evidence at the close of the prosecution case which if left uncontradicted could be accepted by the fact finder as proof of that issue to the required standard. In acceding to the submission of no case to answer, the judge must therefore have concluded that no reasonable and properly directed notional tribunal of fact could have rejected as a realistic possibility either that: (a)  Mu¨ller had consented to the Respondents entering the land it occupied as a business to protest against its lawful activities, and/or (b)  that the Respondents might have had legal authority to enter for that purpose under a right of way or easement over the land. We note that no positive case was being put in relation to these issues by the Respondents.
58. We agree with Mr Boyd that on the evidence before the judge at the half-way point of the case, all reasonable tribunals would have rejected these possibilities as being realistic for the following five reasons. First, a senior employee of Mu¨ller had given evidence on behalf of the company in possession of the land that the Respondents did not have permission to be present on it. Second, there was an absence of any evidence to the contrary. Indeed we note that no such suggestion had been ventured in the Respondents' police interviews, or had been elicited in cross-examination of Mr Moule (or suggested in any earlier case management hearing). Third, the photographs showed the Respondents on the top of tankers situated within a large industrial space enclosed by a high fence. At the risk of stating the obvious, this was plainly not the type of land which could give rise to a question of express or implied permission to enter, or public rights of way. Fourth, in any event, the Respondents had entered land to protest and obstruct the lawful business activities of the possessor/occupier of that land. In our judgment, it would be contrary to common sense for the occupier to have permitted entry for this purpose. The idea that there was or may have been permission could sensibly be rejected from the presence of numerous police officers and the subsequent arrest of the Respondents. Fifth, entering for the purpose of protesting would have obviously exceeded any legal right of way over the land. In concluding (at [11] of the Case) that Mr Moule's evidence constituted, "the extent of his, and thus the applicant's, evidence on the point of trespass", the judge took too narrow an approach to the assessment of the strength of the evidence on this issue.
59. The judge was also wrong in concluding (at [12] of the Case) that there was no "visual evidence" to assist her with her determination. There were other items of evidence – in the form of admissions and photographic evidence - from which a reasonable tribunal could have inferred that the Respondents cannot have realistically received permission to be present on the land, nor have had a right of way over it for the purpose of protesting.
60. Overall, we conclude that the evidence before the judge was more than sufficient to demonstrate that the possessor of the land had not given permission to the Respondents to enter it, and by their intentional actions they had obstructed the lawful activities of its business carried on that land. As explained in Blackstone's Criminal Practice (2025) at [D22.51], if a reasonable tribunal might convict on the evidence so far laid, there is a case to answer. In our judgment, that test was readily met on the evidence before the judge. Ground 2 succeeds.

Trial 2

61. As to Ground 1, in Trial 2, the judge made the same error as we have identified in Trial 1. In short, she concluded that the prosecution evidence was incapable of proving that the Respondents were trespassing on the premises because there was no evidence as to the legal status of the premises, including "ownership"; there was no evidence as to the precise boundaries of the premises; there was no evidence as to whether any third-party rights of way existed over the premises; and that as a matter of law inferences alone are insufficient to prove whether an accused is a trespasser. We refer to, and will not repeat, our conclusions above on why this was an incorrect approach and vitiated by an error of law. The legally irrelevant issue of ownership was taken into account when the issue was possession of the premises (which could not have been in any doubt).
62. We also agree with Mr Boyd that the judge misunderstood the CPS Guidance. She relied on the section that concerns those cases where a protest takes place at a junction between private land and a highway. This part of the CPS Guidance was intended to address the commonly encountered evidential issues in those types of cases, as illustrated by the underlying facts in cases such as Carter-Brown v Crown Prosecution Service [2017] EWHC 1955 (QB), DPP v Instone [2022] 1 WLR 5358 and Bailey. On the facts in Trial 2, which included the agreed facts that the Respondents had climbed over a fence to obtain access to business premises and subsequently occupied equipment and buildings associated with that business, the precise legal boundary of the premises was an irrelevant consideration in determining whether the Respondents had trespassed on "land" for the purposes of the charged offence. The precise boundaries of the "land" could have only amounted to a relevant factor had it been realistically possible that either the area upon which the Respondents' protested was a highway, or was in the possession of, or "occupied" by, someone other than Mu¨ller. In our judgment, no such possibilities existed on the facts of this case.
63. Further, for the prosecution to prove that the Respondents were trespassing there was no need for evidence to be adduced to prove there were no third-party rights over the premises. No positive case was put by the Respondents. It would be unlikely in the extreme that land occupied by a dairy business, enclosed by a high perimeter fence and subject to security access, would have public rights of way over it. The was no evidence that was sufficient to justify the judge concluding there was a possible right of entry, and consequently there was no obligation on the prosecution to prove the absence of a right of way over the premises. We would add that in any event, any legal right to enter the premises would plainly not extend to permitting members of the public to enter for the purpose of disrupting the occupier's lawful business.
64. Finally, the judge was wrong to conclude that as a matter of law the prosecution could not prove through inferential evidence alone that the Respondents were trespassers. There is no special rule for cases that rely entirely on circumstantial evidence: see R v P [2008] 2 Cr. App. R. 6 at [19]-[23], and contrary to the judge's conclusion of law (at [26] of the Case), inferences alone from proved facts are capable of satisfying a tribunal of fact that an accused is trespassing on land. We also consider it was wrong for the judge to have characterised the prosecution case on the issue of trespass as resting exclusively on circumstantial evidence. With respect to the judge, this ignores the fact that Mr Moule had provided evidence that as the possessor's most senior person on the premises that day he had not given the Respondents permission to enter. In our judgment, that was, of itself, sufficient to prove as a fact, that the Respondents did not have the occupier's consent to be present on the premises. Ground 1 is made out.
65. We will briefly address Ground 2. The judge's conclusion was that the evidence adduced was insufficient to prove, to the criminal standard, that the Respondents did not have a legal right to be present on the Premises. In our judgment, contrary to this, the evidence created an overwhelming case that there were no public rights of way over the land, let alone ones that would extend to permitting members of the public to enter the premises for the purpose of protest.
66. In acquitting the Respondents the judge must have concluded that on the evidence she received it was realistically possible that either: (a) Mu¨ller had consented to the Respondents entering the land it occupied as a business to protest against its lawful activities, and/or (b) that the Respondents might have had legal authority to enter for that purpose under a right of way or easement over the land. In our judgment, these were fanciful conclusions. No reasonable tribunal of fact could accept either possibility as being realistic for the following reasons, which reflect those we have given in relation to Trial 1. In summary, a senior employee of Mu¨ller had given evidence on behalf of the company in possession of the land that the Respondents did not have permission to be present on it; there was a complete absence of evidence to the contrary; the premises comprised a large industrial space enclosed by a high fence with the entrance to it controlled by security staff and procedures; and in any event, the Respondents had entered land to protest and obstruct the lawful business activities of the possessor/occupier of that land. It would be contrary to common sense for the occupier to have permitted entry for this purpose. Finally, in our judgment, the suggestion there was or might have been permission to enter the premises could sensibly be rejected from the presence of numerous police officers and the subsequent arrest of the Respondents.
67. In our judgment, the judge's conclusion that the evidence adduced was insufficient to prove that the Respondents did not have a legal right to be present on the premises was a conclusion that no reasonable tribunal, properly directing itself on the law, could have reached. The evidence that trespass was made out had amply satisfied the criminal standard. Ground 2 succeeds.

Conclusion

68. We answer each question in the negative. The judge was not given the assistance by the prosecution as to the law of trespass which should have been provided.
69. As to further orders, Mr Wainwright and Ms Comyn submitted that it would not be in the interests of justice for the cases to be remitted. They rely on the delay of some years since the alleged offences in September 2022, and argue this was not the responsibility of the Respondents they represent. They refer to the fact that these Respondents were all treated as being of good character at the time of the offence. Reliance is also placed on the fact that the judge was led into error by the approach of the prosecution and lack of assistance provided at court. These are all valid points, but we consider it is in the interests of justice for there to be a remittal in both cases on the terms we set out below.
70. In relation to Trial 1, we allow the appeal and remit the case to the magistrates' court for a re-trial before a different tribunal.
71. Given that in Trial 2, the judge found all the other elements of the charged offence proved ([23] of the Case), the appropriate disposal is quashing the acquittals and substituting verdicts of guilty, under section 28A of the Senior Courts Act 1981. Whilst the judge indicated ([27] of the Case) that she did not consider the merit, or otherwise, of the "defences" advanced pursuant to Articles 10 and 11 of the Convention, and accordingly made no findings in respect of this, there was no scope in law for the judge to have accommodated the operation of Convention rights within the trial process. We refer in this regard to Director of Public Prosecutions v Cuciurean [2022] QB 888 (DC), approved in Attorney General's Reference (No 1 of 2022) [2023] 2 WLR 651 (CA), in Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill 2022 UKSC 32 [2023] AC 505. Mr Wainwright and Ms Comyn fairly accepted that this was the effect of these authorities.
72. In these circumstances, in Trial 2 we will remit the case to the magistrates' court for an amendment to the entry in its register to record the substituted convictions, and for sentencing by a different tribunal.