BDS Movement Shoots Itself in the Foot Once More

This is a guest post by Julian Hunt

The Supreme Court has upheld a decision by the Divisional Court that should be noted by all those involved in the battle against the BDS movement. In the case of Richardson v DPP Matthew Richardson and Gwendoline Wilkinson (also known as Jessica Nero), two well-known pro-Palestinian activists, placed their hands into concrete tubes before blocking the entrance to the Ahava cosmetics shop in Covent Garden. The police came and eventually the activists were freed after tools were used to break the concrete. The shop’s trading had been interrupted whilst this demonstration was taking place. Although the demonstration itself was peaceful it was agreed that the shop had been unable to function during this BDS escapade.

Richardson and Wilkinson/Nero were both charged with aggravated trespass. For this offence to be committed, in short a lawful activity has to be interrupted. Reported examples in the past in which lawful activities have been interrupted and protesters charged include attempting to disrupt hunts, trespassing onto military bases and protesters trying to stop workers from chopping down trees to clear the way for a by-pass. The defence contention on appeal was that the activities of Ahava were unlawful. The company, the defendants argued, were guilty of (a) aiding and abetting war crimes though the illegal transfer of populations, (b) offences under the Proceeds of Crime Act, (c) cheating the Revenue, and (d) the misleading labelling of goods said to be made in Israel when in fact they were made in Judea and Samaria. As its activities were unlawful a central ingredient in the offence hadn’t been made out. The Crown’s contention and the view of Law LJ in the Divisional Court, an eminent public law jurist, was that the focus for the courts in interpreting the phrase “lawful activity” had to be whether what was integral or core to the activity in question was unlawful. In the case of Ahava in Covent Garden its integral activity was retail trade. This is a perfectly legal and proper thing to do. There must be some sort of remoteness test.

Laws LJ decried attempts to turn magistrates’ courts into forums for international legal disputes. He also spoke of the unfairness of a company without representation being on trial and of the need for properly constituted forums for the adjudication of complex disputes. The issues aired by the appellants were far removed from the qualities integral to the shop’s activities. He held:

“As it seems to me, if the appellants are right it means – and Mr Bunting accepted this in terms – that the issue of Ahava’s complicity in war crimes committed, presumably, on behalf of the state of Israel, would fall to be adjudicated in summary proceedings to which neither Ahava nor any Israeli authority is a party and in which the burden of proof would be reversed. The prosecution would have to disprove guilt in order to establish that the shop’s activity was lawful. Such a state of affairs would be so impractical and unjust as to undermine the rule of law; and, I think, it would do no service to the cause of civil disobedience, on which the appellants rightly set such store. I do not believe it was in the legislature’s contemplation when section 68 was enacted.”

The Appellants obtained leave to appeal to the Supreme Court to argue the same point, namely that “lawful activities” should be given this wide, open-ended meaning allowing a consideration of what the Divisional Court held were irrelevant issues.

Lord Hughes, giving judgement on behalf of the whole court, found that none of the arguments put forward by the protesters’ lawyers had merit. In particular, references to article 10 arguments about Freedom of Expression were “misplaced”. The “perfectly lawful” activity of a retail outlet selling goods was too remote from any allegations (of another company in Israel) aiding and abetting some sort of war crimes. The charge of money laundering under the Proceeds of Crime Act was also dismissed. It was a “collateral matter”; as was the dismissed charge of cheating the revenue”, which was described as “a classic example of a collateral, and in this case an antecedent and remote, offence which does not affect the lawfulness of the core activity of the shop, namely retail selling”. In relation to the argument that the goods in the shop breached labelling regulations Lord Hughes held that although this came closest to being linked to the core activity of the shop there was “no basis” for arguing that the average consumer would be misled into buying goods labelled as being made in Israel when they were actually made in the “OPT”. A final argument that the goods breached the Cosmetic Products (Safety) Regulations 2008 in the context of their labelling was also found to be with no real merit.

One concession made by the appellants was that a shop would not be engaging in an unlawful activity under aggravated trespass legislation if one of its employees was not paid the national minimum wage. As stated by Lord Hughes and sensibly conceded, not every “incidental” or “collateral” offence makes an ostensibly legal activity unlawful. In the example of workers cutting down trees to make space for a by-pass, the mere fact that health and safety legislation might be breached by their not using protective gloves would not make the actual activity illegal. I pause here as we remember that throughout this case the business and political dimensions of a separate company located abroad were seriously contended by the appellants as being integral and not collateral to its key activity of retail trade in Covent Garden.

The BDS movement have blundered in appealing this case to the Supreme Court. This epic tactical failure means the lower courts will be far more confident in refusing to hear complex international law arguments in cases where boycotters try and justify what are on the face of it simple criminal acts (smashing up factories in Brighton in the EDO case for instance). The case also illustrates the lengths the boycotters will go to in order to try and justify their actions – throwing spurious, illconceived arguments, devoid of any basis in reality, onto the bonfire and hoping something will catch fire. They will attempt to find anything that can or might “stick” in their quest to ruin
businesses that are licensed, pay taxes and rates, serve communities, employ people in these tough times and operate “perfectly lawfully”. It also shows how feeble and convoluted some of their arguments are when they face the harsh glare of forensic analysis, as their overly expansive interpretations of terms never within the contemplation of the legislature fail to impress.

If this really is the best the boycotters can do at the moment, roll on their next lawfare disaster.