Even if your
own legislature hasn’t replicated s 68
of the Criminal Justice and Public Order Act 1994 [UK], an offence of
aggravated trespass, it is worth reading the judgment in Richardson v DPP [2014] UKSC 8 (5
February 2014).
That is so
because the reasoning illustrates how hypotheticals are used in judicial
interpretation of criminal legislation. Correct identification of the focus of
the provision [12], reflecting the legislative intent [13], highlights the central
concept (here, “activity” and then whether it is “lawful activity”), and its
limits are analysed by reference to hypothethicals (here, to exclude incidental
or collateral or remote matters).
So, in this
particular legislative and factual context, the activity was the selling of
soap, and this was a lawful activity for the relevant shop, which would not
have been made an unlawful activity if - all these are hypotheticals - an
employee had been paid below the minimum wage [12], or if taxes had deliberately
not been paid [19], or if the shop had been involved in money laundering in the
way suggested by the appellant [18], or even if the selling activity had taken
advantage of a war crime committed by another person (taking advantage of a
crime is not the same as encouraging or assisting its commission [17]). Wrong
labelling of goods sold could make the selling unlawful, but here there was no
offence of selling goods wrongly labelled, and anyhow regulations required that
there be proof that a purchaser would not have bought the goods if he had known
of the error. These are all context-dependent and not general propositions.
