Off balance

Always keen to be seen as tough on crime, this government has subjected us to an onslaught of legislation in the last decade '“ notable among which was the Serious Organised Crime and Police Act 2005. Most prominent were the restrictions on protests in the area around the Palace of Westminster, but there was also (hidden away at section 145) an unthinkably wordy and complex offence which elevated minor offences, and indeed actions that were only otherwise tortious, into a grave offence (with a usual consequence of imprisonment) when directed towards animal research organisations.

The wording of section 145 requires some time to digest, but essentially a person is guilty of an offence if, while intending to harm an animal research organisation, they do, or threaten to do, a criminal or tortious act which is intended, or likely, to interfere with a contractual relation that a third party has with that organisation. In other words, an otherwise non-criminal action such as a simple trespass becomes a serious criminal offence if done to, for example, protest against a pharmaceutical company engaging a company to test make-up on live animals. Furthermore, a minor offence that might otherwise attract a caution or conditional discharge '“ such as a public order offence or aggravated trespass '“ can result in imprisonment for several years if committed in this unique context. What is immediately noticeable about this legislation is that it affords a level of protection to animal research that is over and above that given to any other industry, and makes animal rights protestors liable to far more draconian sentencing than if they were to behave in exactly the same way in any other cause.

The first trial

In January 2008, the first contested trial for this offence began at Birmingham Crown Court. Seven individuals (with limited or no previous convictions) were accused of conspiring over six months to commit the section 145 offence in relation to contractual relations held between Sequani, a vivisection laboratory in Herefordshire, and firms that included its accountants, suppliers and couriers. At the heart of the prosecution case was a website, Stop Sequani Animal Testing, maintained by the first defendant Sean Kirtley. Several of the defendants had not, however, even been known to look at that website, but were vociferous demonstrators and had been captured committing (at worst) low-level public order offences on cctv and hand-held video camera '“ primarily at Sequani itself.

During the course of the four-month trial, it emerged that a small window had been broken on one occasion at Sequani's accountants and that a security guard at Sequani had hurt his thumb closing a gate on a number of protestors. Other than that, the extent of the alleged criminality arose through the language used by some (but by no means all) of the protestors from outside the premises, and the fact that on a small number of occasions a stream of faxes had been sent to coincide with demonstrations, thus removing the particular company's fax capability for a number of hours.

At the conclusion of the trial, the jury acquitted three of the defendants, and not guilty verdicts were subsequently entered for two more after the jury failed to agree. The remaining two defendants were the first and last on the original indictment. Sean Kirtley was the only defendant convicted by the jury of conspiracy, and received a custodial sentence of four and a half years (the maximum being five). David Griffiths had pleaded guilty to two substantive counts before the trial began and received a suspended sentence following a Goodyear indication from the trial judge.

Quashed convictions

On 18 September 2009, the Court of Appeal (Hooper LJ, Cox and Irwin JJ) quashed Sean Kirtley's conviction for conspiracy (R v Kirtley [2009] EWCA Crim 1868) and also quashed one of the two counts that David Griffiths had pleaded guilty to because it had transpired at trial that it related to a wholly lawful protest.

The court considered that Sean Kirtley's conviction could not be considered safe because the jury could only properly have convicted him of conspiring with persons other than David Griffiths and the five acquitted defendants. In reality, the prosecution case had never been put on this basis, and prosecuting counsel was unable to point the court towards any assistance that the judge had given the jury to help them decide if Sean Kirtley could have conspired with anyone else. Furthermore, the trial judge had allowed David Griffiths guilty pleas to be adduced by the prosecution without having told the jury that they could not find him to have been part of a conspiracy. No re-trial will take place, and the only contested trial for the offence contrary to section 145 therefore failed to yield a conviction.

From a strictly academic point of view, this case is illustrative of a number of issues that arise when dealing with the alleged participants in a conspiracy, and practitioners may find it useful in that respect. Perhaps more profound, however, is that four years after the statute this offence has proved to be of very limited use and in hindsight was almost certainly a mistake. Where genuinely serious criminality is alleged against animal rights protestors (for instance in the recent trials at Winchester Crown Court) traditional offences such as blackmail have been more than adequate. When protestors have not crossed the line into genuine criminality, we ought really to question whether they should be branded as criminals at all.