Prosecution under the common law where a statutory offence would also apply may be an abuse of process

13 May 2015

On 11th May 2015, the prosecution of Domenyk Lattlay-Fottfoy for public nuisance for scaling the “Manchester Wheel”, was stayed for abuse of process following a successful application by Clare Ashcroft of Garden Court North Chambers, instructed by Matthew Goode of ABR Solicitors.

There was no dispute that on 6th May 2014, Mr Lattlay-Fottfoy had scaled the “Manchester Wheel” sited at Piccadilly Gardens in Manchester and had remained there for over 6 hours.  The police and other emergency services were engaged in efforts to retrieve Mr Lattlay-Fottfoy safely from the structure.  He was subsequently arrested for aggravated trespass but was prosecuted for public nuisance contrary to common law, the maximum sentence for which is life imprisonment.  His trial was fixed for 11th May 2015 at Manchester Crown Court, Crown Square.

It was submitted on behalf of Mr Lattlay-Fottfoy that it was an abuse of the process of the court to prosecute him for public nuisance contrary to common law when there was a statutory offence of aggravated trespass available, albeit that this was a summary only offence. In Rimmington and Goldstein [2006] 1 AC 459, the House of Lords stated the principle “ good practice and respect for the primacy of statute…require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise”  Their Lordships went on to state “ the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare.”  Consideration of time limits and powers of sentence would not amount to good reason to prefer a charge of public nuisance where an appropriate statutory offence was available.

In Mr Lattlay-Fottfoy’s case, it was successfully argued that the offence of aggravated trespass was the appropriate statutory offence with which to charge him and which ought to have been preferred. A review of the case law in relation to aggravated trespass revealed examples where, through the actions of those who trespassed and demonstrated, the general public had been deterred, disrupted or obstructed in their lawful activities to arguably a greater degree than that caused by Mr Lattlay-Fottfoy’s actions. Further, the overall cost of such examples was far greater than that incurred by Mr Lattlay-Fottfoy’s actions ( Bauer and Others v DPP [2013] EWHC 634 (Admin) – occupation and demonstration by a substantial number of protestors at Fortnum and Mason; Peppersharp v DPP(2012) 176 JP 257 – occupation of Milbank Tower, damage totalling in excess of £170,000).

As a result of the above, HHJ Mansell stayed the prosecution, the Crown now being out of time to prefer a charge of aggravated trespass.

The case has been reported in the Manchester Evening News.