Man jailed for Buckingham palace trespass – but is trespass an offence?

Man jailed for Buckingham palace trespass – but is trespass an offence?

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David Belmar, aged 44, from Haringey, London, was sentenced today, 15th January 2014, for breaking into the grounds of Buckingham Palace with a knife.

BBC News reported that Belmar ‘jumped a vehicle barrier on 14 October 2013 in an attempt to see the Queen.’ (The Queen wasn’t present). ‘After police brought Belmar to the ground and searched him, they found a kitchen knife wrapped in a plastic bag in his jacket pocket.’

The offences

Belmar entered guilty pleas in October 2013.

What were the offences? Well that has caused some confusion on Twitter (and no doubt among some of the more alert journalists). Newspaper reports stated that Belmar was sentenced for two offences:

a) Possession of a bladed article

b) Trespass

Bladed article

Possession of a bladed article is an offence under Criminal Justice Act 1988 s 139. For a bit more information see the CPS legal guidance, specifically the section which tells you whether a screwdriver or a butter knife is or is not a bladed article.

The offence is triable either way – i.e. in the Magistrates or the Crown Court.

Trespass?

Those with perhaps more than a rudimentary knowledge of the law will have spotted that trespass isn’t a criminal offence.

It is a tort which gives rise to a cause of action in the civil courts – basically, you can sue someone for it providing you can prove someone owed a duty to act in particular fashion, they breached that duty. Unusually for tort law, it is not necessary to prove that as a result of the breach, you have suffered some loss in order for the cause to be actionable (i.e. for you to be able to sue). Remedies include damages (to compensate for any loss) or an injunction to prevent further trespass.

So if trespass isn’t a criminal offence, did the papers get it wrong (again)?

No. Well, not really.

The offence [I presume] he pleaded guilty to was an offence under Terrorism legislation, which, among other things, protects Crown property, government and parliamentary sites.

Under Serious Organised Crime and Police Act 2005 s 128, it is an offence to trespass on a protected site.

(1)A person commits an offence if he enters, or is on, any designated site in England and Wales or Northern Ireland as a trespasser.

(2)A “designated site” means a site—

(a) specified or described (in any way) in an order made by the Secretary of State, and

(b) designated for the purposes of this section by the order.

(3) The Secretary of State may only designate a site for the purposes of this section if—

(a) it is comprised in Crown land; or

(b) it is comprised in land belonging to Her Majesty in Her private capacity or to the immediate heir to the Throne in his private capacity; or

(c) it appears to the Secretary of State that it is appropriate to designate the site in the interests of national security.

This gives the secretary of state a discretion to, under secondary legislation (a statutory instrument not requiring the full scrutiny of parliament), designate sites where his or her office considers appropriate to do so.

Protected sites

Originally, the sixteen designated sites were as follows:

  • 85 Albert Embankment, London
  • Buckingham Palace, London
  • Ministry of Defence Main Building, Whitehall, London
  • Old War Office Building, Whitehall, London
  • St James’s Palace, Cleveland Row, London
  • Thames House, 11 and 12 Millbank, London
  • The Chequers estate, near Aylesbury, Buckinghamshire
  • 10 – 12 Downing Street site as well as 70 Whitehall
  • Government Communication Headquarters (GCHQ), Harp Hill, Cheltenham
  • GCHQ, Hubble Road, Cheltenham
  • GCHQ, Racecourse Road, Scarborough, North Yorkshire
  • GCHQ, Woodford, Bude, Cornwall
  • Highgrove House, Doughton, Gloucestershire
  • Palace of Westminster and Portcullis House site, London
  • Sandringham House, Norfolk
  • Windsor Castle, Berkshire

Subsequently, MoD nuclear sites were added to the list.

The permission of the Attorney General must be obtained before commencing a prosecution for an offence under this section.

Defence to trespass

Home Office guidance:

Section 128 (4) provides that a person charged with a trespass offence may use as a defence the fact that he did not know, and had no reasonable cause to suspect, that the site to which the offence was alleged to have been committed was a protected site.

It is for the defendant to prove this defence. This is viewed as appropriate because in such a case the facts to be proved would be within the defendant’s own knowledge.

Sentencing regime

The bladed article offence has a maximum sentence of 4 years and/or a fine. The CPS guidance can be seen here. There are no sentencing guidelines for the Crown Court, but the guideline case of R v Povey established some principles:

The effect of Povey is that a court’s primary sentencing principles for this offence are protection of the public, and reduction of these offences by courts passing deterrent sentences. In clear terms this guideline case establishes an obligation on courts to pass severe sentences, for public policy reasons, on those who carry offensive weapons, especially knives, because of the increased prevalence of such offences.

The trespass offence is a summary only offence meaning it can only be tried in the magistrates’ court and that it has a maximum sentence of 6 months and/or a £5,000 fine. However, Belmar was sentenced in the Crown Court because this summary only matter was linked to (i.e. arose out of the same facts as) an offence which can be tried in the Crown Court. Due to the seriousness of the bladed article offence, it is almost certain that the Magistrates’ Court considered that their sentencing powers were insufficient for the bladed article offence and so ‘sent’ both offences up to the Crown Court.

There are no guidelines.

Belmar’s sentence

Belmar received 16 months. We haven’t seen any reports stating the break down of the sentence, but one can presume it would have been either 16 months for the knife, with a concurrent sentence for the trespass, or 12 months for the knife and 4 months for the trespass. Taking account of the guilty pleas, the court would have started at around 24 months.

We don’t know too much detail about the case and so predicting an appeal is rather difficult, however it might be that a custodial sentence of 16 months might enable Belmar to receive some mental health treatment, which the judge said he or she felt was necessary – At a hearing in October the judge said that Belmar was “a danger not just to himself but to others”.

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