In August last year Fathers For Justice campaigner Martin Matthews climbed onto the roof of Justice Secretary Chris Grayling’s house and unveiled banners in a protest against the family justice system.
He had with him a screwdriver and some screws which he used to screw fixings for his banners into Mr Grayling’s bitumen.
The police were called and Mr Matthews was arrested.
There was, however, a problem. What crime, if any, had been committed?
Surprisingly, it is not a criminal offence to climb onto somebody’s roof, even that of a very considerable somebody such as Mr Grayling the Lord High Chancellor of England who, in official order of precedence ranks only just below the Sovereign’s cousins and the Archbishop of Canterbury and above the Archbishop of York and the Prime Minister.
Contrary to popular belief trespass, in itself, is not a criminal offence. As first year law students are often told, signs saying “Trespassers will be prosecuted” are legally meaningless; even more so than those signs one sometimes sees saying “Tescos [or whoever] will press for shoplifters to be prosecuted and given the heaviest possible sentences.”
So the police were reduced, as it turns out almost literally, to scratching around for something with which to charge Mr Matthews.
The first offence which probably sprung to mind was “aggravated trespass” under S.68 of the Criminal Justice and Public Order Act 1994. It was a provision aimed mainly, and with the benefit of hindsight rather unsuccessfully, at hunt saboteurs. But aggravated trespass requires an intention to intimidate, obstruct or disrupt some lawful activity – ideally, of course, a hunt – going on either on Mr Grayling’s land or neighbouring land. I suppose if Mr Grayling had been at home one might have inferred at least an attempt to “disrupt” him from using his house or garden but I can see that proof of this offence would not have been easy.
Rather mysteriously the Epsom Guardian reports that “Mr Grayling’s gardener” was present at court, although he was not called as a witness. There is no hint of any trespass to the garden and we can only speculate as to what evidence, if any, he was planning to give. Perhaps he was preparing to give evidence of some activity in the garden which Mr Matthews might have disrupted by heckling from the roof. Who knows? Whatever his evidence would have been, it was never tested; and the Judge would have known better than to speculate about evidence which was not called. Possibly he was just at court to watch justice being done, or to represent his employer who is on the whole an unwelcome visitor in the Magistrates or any other courts.
Another offence which must have been considered would have been under one of my all time favourite statutes, the Vagrancy Act 1824, S.4 of which in addition to cracking down on “every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive … any of his Majesty’s subjects,” also makes a criminal of:
“every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose….”
On the face of it this could have been written with Mr Grayling’s unwelcome rooftop visitor in mind. Unlike the law of burglary, which would require an entry into the house, the Vagrancy Act explicitly, and with apparent prescience, forbids going onto the roof.
Unfortunately despite its eerie prescience, the Vagrancy Act has been mutilated almost beyond recognition since 1824. The rot had in fact already started in the eighteenth century: its predecessor, the Vagrancy Act 1744, required that not just wandering palmists, but also “jugglers and minstrels” be whipped, gaoled and sent back to the place where they were born. (I would have thought that wandering jugglers were far more of a nuisance than wandering palmists but that was obviously not the view of Parliament in 1824). Sadly, in 1989 the law was watered down still further and since then even palmists have been free to ply their subtle craft wherever they will.
None of that need have mattered since Mr Matthews was neither a juggler nor a palmist. Unfortunately clever lawyers, the sort of people that Mr Grayling particularly hates, have scratched away at the Achilles heel of the Act: the need to prove presence for an “unlawful purpose.” This means that the prosecution would have to prove that he was on the roof to commit a criminal offence of some sort. Since his purpose was to hang a banner, and hanging a banner is not necessarily criminal, the Vagrancy Act offence could not be used.
Prior to June 2013 Mr Matthews could theoretically have been charged with Scandalising the judiciary, a splendid common law offence punishable by life imprisonment. It was committed by anyone making statements derogatory of the judiciary: that is, either of individual judges or courts or of the judiciary in general. Even though Mr Grayling is not himself a judge, his position as nominal head of the court and judicial system might have been sufficient to mean that any scandalous statement about his role was criminal. The case against Mr Matthews could have been strengthened immeasurably had the prosecution succeeded in adducing bad character evidence against him which could have thrown light upon his true intention. Such evidence was, in fact, readily available. Mr Matthews once suggested that judges should be “wedgied.” Wedgying, he explained, is:
“when you pull people’s pants over their heads.”
If that was what he planned to do, whilst wedgying the Lord Chancellor would have delighted some left-wing lawyers and the Howard League for Penal Reform, it would still have been the very archetype of a scandalous act.
Since 2013, however, although wedgying Mr Grayling would still constitute an assault, and would be viewed with some seriousness by the courts, it would not amount to scandalising the judicial system. Ironically enough Mr Grayling himself was instrumental in passing the Crime and Courts Act 2013, S.33 (1) of which abolished the offence (albeit using strangely ambiguous wording to do so).
The upshot was that there was nothing left to charge Mr Matthews with except criminal damage to Mr Grayling’s roof, a feeble and insipid charge if ever there was one.
It all boiled down, as more and more cases tend to these days, to the question of penetration: Had Mr Matthews’s screws penetrated Mr Grayling’s felt (in which case damage had been done), or had they merely pierced his bitumen, which would have left Matthews in the clear?
The police investigator, Shane Higgins, climbed onto the roof and looked very, very closely at it. He produced what was meant to be the key evidence: photographs of the holes. In the event, either Mr Higgins was a very bad photographer, or the holes were very small because they couldn’t actually be seen on the photographs produced in court. Nevertheless, the District Judge hearing the case accepted Higgins’s evidence that the felt had been penetrated “albeit to a minor degree” and that was enough to condemn Mr Matthews, who was fined £100 with a £20 “victim surcharge”.
Mr Matthews, somewhat self-servingly called the incident “trivial” and criticised the decision to charge him.
Shortly after he was first elected to Parliament, Mr Grayling – who describes himself as “a Thatcherite right wing Conservative” – started to claim £625 per month in public money under an “unusual arrangement” whereby the mortgage on his “imposing house with a sweeping drive,” and his flat in Pimlico were partially paid out of his parliamentary expenses.
It seems strangely inconsistent, to use the politest word I can think of, for a Thatcherite right-wing Conservative to have had his snout so deeply in the trough of public money. And bearing in mind the thousands of pounds of public money used to pay for Mr Grayling’s house in the first place, it does seem rather unfortunate that yet more was expended on deciding that Mr Matthews had made the tiniest of tiny, in fact possibly invisible, holes in its roofing felt.
There is normally a presumption in cases of this sort that the court will order the convicted defendant to pay compensation to the victim (the “victims surcharge” does not go to the victim but to the Government). Indeed, courts are required by S.130 (3) of the Powers of Criminal Courts (Sentencing) Act to give reasons when they do not make a compensation order.
We don’t know what reasons the judge gave for not awarding compensation; perhaps he felt that the roof had already earned the Lord Chancellor enough money.
Despite that, it still somehow feels like good public money was thrown after bad.