Defining lawful and unlawful activities
Mark Banham considers the effect of a recent decision of the Supreme Court on unlawful activities and how this might have wider implications, in particular in lease covenants.
What is a lawful activity? We might think that it would be pretty clear whether what someone is doing on their own land is against the law or not. The trouble is that often what is alleged to be unlawful is only a by-product or stepping-stone along the way, and in Richardson v Director of Public Prosecutions it has taken an appeal all the way up to the Supreme Court to work out the answer.
Richardson’s case involved a protest group who chained themselves up in a shop that sold beauty products. The protesters (who were very polite and co-operative – other than in relation to unchaining themselves) were charged by the police with aggravated trespass. Unlike “ordinary” trespass, which is a private matter between the landowner and the trespasser, aggravated trespass is a criminal offence committed when someone goes onto land without permission in order to obstruct, disrupt or intimidate people carrying on lawful activities on the property.
The focus of this particular shop was selling treatments derived from Dead Sea minerals. These came, in the main, from a factory owned and allegedly largely staffed by Israelis in the Occupied Palestinian Territories. The protestors claimed that the factory owners were aiding and abetting war crimes by the Israeli authorities (contrary to article 49 of the Fourth Geneva Convention of August 1949), that the products themselves were therefore criminal property and thus that the shop was money-laundering, that the products had been imported under a false tax-designation applicable only to products from Israel itself and were therefore a fraud on HMRC, and finally that the products were mislabelled as being products of Israel and therefore there were product-labelling offences being committed. For all these reasons, the protestors argued that they were not disrupting lawful activities, only unlawful ones.
The Supreme Court patiently heard all these arguments but their judgment makes it clear that they were having no truck with them – they do not say as much but if they had allowed this defence it would have given carte blanche for every protest group with an axe to grind to stage a sit-in and turn the subsequent criminal case into a show-trial putting the target of the protest in the dock for whatever controversial activity was going on. The justices of the Supreme Court have made it clear that what are termed “collateral” offences, i.e. possible criminal offences committed alongside the main purpose of the shop, did not make that main purpose, the retail sale of those various beauty treatments, inherently unlawful.
By way of example:
- if a restaurateur employs illegal immigrants as waiters, it does not make the restaurant business itself illegal or unlawful;
- on the other hand, a house being used as a transit base by an illegal immigration ring would be being used for an unlawful activity.
It all comes down to what the primary function and purpose is.
So what might be the wider implications of this decision? The phrase unlawful activity (or similar) is used in many other contexts as well. For example, lease provisions often include a covenant by the tenant not to carry out unlawful activities on the property. Could, therefore, a landlord try to get possession of a long lease of commercial premises on the basis that the owners pay some of their staff less than minimum wage? What about cases of domestic violence – assaulting your spouse is clearly against the law, but is it also a breach of leasehold covenant that puts the family home at risk?
As any lawyer will tell you, in such cases everything turns on the specific wording of the lease clause. It is difficult to imagine a court forcing a battered wife out on the streets in the case of the second example above (but imagine if the landlord were intending to end the abuser’s lease in order to immediately grant a replacement lease to the victim?). It is perhaps less of a leap to foresee a business being evicted in the case of the first example (although the court may well give the tenant a final chance to rectify the position, by increasing the staff wages, before having to give back the unit).
If the Richardson decision is imported into civil cases, the issues may be more muddied than clarified, but to the extent that this allows courts the ability to overlook illegal actions that have no bearing on the main event perhaps that is no bad thing.