Lindis was found to be nine times in breach of the terms of her permanent injunction at Menwith Hill by Judge Carnwath in the High Court for the unlawful use of the footpath i.e. taking down invalid byelaws signs.

The case was heard on 2/3 April in the High Court. The Judge was critical that the case had been included in his list which was only for cases which would last no longer than two hours. There were many interruptions and several adjournments which meant the case went into a second day. The MOD brought 20 witnesses including 17 Ministry of Defence Police officers from Menwith Hill. Judge Carnwath allowed only three witnesses to be cross examined and he released the rest. He said "I can see no justification for all the witnesses in the case to have been put on notice and brought down to London, at public expense, merely on the off chance that they might be needed for cross-examination." (was it the tax payers expense or American expense?)

Judge Carnwath said, "Before my ruling, I cannot conclude that her stance was wholly untenable." He was referring to the earlier ruling of Judge Crabtree who found that the second set of byelaws at MHS were invalid. He also said, "What cannot be constitutionally acceptable, in my view, is for the Executive to proceed as though it were simply free to disregard a decision of a competent court with which it does not agree ...", he went on to say, "… at the time of the incidents the subject of the present complaint there was no legal justification for the retention of the bye-law notices ….it is an abuse of that power, and therefore unlawful, to put up or maintain notices of bye-laws which are known to be invalid."

Lindis did not go to prison and Judge Carnwath reimposed a six month suspended prison sentence over one year as from that date. He said the public's remedy was not self help but a Court Order. He refused to grant one there and then and the legal remedy suggested is proving to be elusive. Meanwhile the invalid byelaw notices are still displayed round the base. Three notices have been moved well inside the base and just inside the injunction area; apparently to protect the notices! The MDP seem to have forgotten that military land byelaws are intended to inform and protect the public.

The date for the hearing for the 'case stated' appeal of Judge Crabtree's ruling is on 23 July 1998 in the High Court

I have before me two motions to commit the defendant for breaches of a final injunction given by HH Judge Levy QC on 3rd October 1997. There are nine incidents complained of, between 9th February and 11th March of this year. The same incidents are relied on as breaches of the terms on which Lloyd J, on 23rd June 1997, imposed a suspended prison term of 6 months.

The order in question contained a declaration that the defendant was not entitled to enter or cross certain land (described as "the retained part") at RAF Menwith Hill, North Yorkshire. The land was shown edged red on a plan annexed to the order. There were two exclusions. First, certain land was shown edged in dark blue and cross-hatched on the plan (in the south-west corner), referred to as "the tenanted part"; that is not material to the present proceedings. Secondly, there was excluded "the lawful use of two public footpaths which run across the land". Those two footpaths are marked on the plan as "footpath 26" and "diverted footpath 43", respectively. They run respectively across the north-east and north-west corners of the land edged red and are accessible from public highways at each end. The order contained an injunction in the following terms:

"An injunction restraining the defendant whether by herself or by her servants or agents or otherwise howsoever from entering onto or crossing the retained part of the land save for the lawful use of the footpaths."

RAF Menwith Hill is a "secure communication centre". There is a substantial US Department of Defence presence on the site. Within the area edged red on the plan, there is a smaller area (edged blue) known as "the Secure Zone", which encloses the telecommunication centre itself. To the north of the Secure Zone, but within the red-edged area, there are living accommodation and service buildings. The two footpaths run across open land immediately to the east and west of the area of buildings. To the south and east of the Secure Zone, and within the red line, there is a large area of what appears from the plan to be open land, although there are some indications of Radio Masts.

Miss Percy is one of a group of people who have, for a long time campaigned against the activities of the United States Defence Forces in this country. As she says in her affidavit before me, she has since 1979 been deeply committed to opposing the development of weapons of mass destruction, in particular nuclear weapons. More specifically she has been actively campaigning at the Menwith Hill station since 1990. As she says:

"I firmly believe that the role and function of this base, which is occupied and controlled by the American National Security Agency seriously violates its local, national and international laws. I and others believe that this base operates secretly and for American interests, that it is unaccountable to the British Government ....... It is therefore incumbent upon me and others as responsible citizens to work to reveal violations of the law by actively opposing the activities on this base by different means including revealing through the courts unsafe law protecting the said activities ........."

She is a nurse by employment, and a practising Quaker. She believes her activities to be a form of "peaceful and non-violent" protest, consistent with the Quaker philosophy. The merits, or otherwise, of those contentions have nothing to with the case before me. She is free to protest, so long as she stays within the law. The question for me is whether she has done so.

She has a long history of involvement with the law, at this base and others. It is unnecessary to go over that history in any detail. It is summarised in the judgment of Lloyd J given on 23rd June 1997. Suffice to say that she has been brought before the Court on a number of occasions for breaches of orders relating to this land. She has received suspended sentences of imprisonment on three occasions, the last being the sentence given by Lloyd J. As yet she has not served an actual prison sentence in relation to this site. However, in January of last year she came before Tucker J on a motion to commit her for breach of an injunction relating to RAF Lakenheath. On that occasion the Judge activated a previous suspended sentence of six months and added a further three months for the instant breach. In the event she served only seven weeks (equivalent to a sentence of 14 weeks, taking account of normal remission), because on 13th March she was discharged by Tucker J on the application of The Official Solicitor. That was because of serious concerns about her health.

The incident with which Lloyd J was concerned occurred on 15th April 1997, when Miss Percy stepped on to land inside the Ministry's ownership to remove a notice giving details of the bye-laws affecting the land. As I understand the judgment of Lloyd J, Miss Percy accepted that she was in breach of the injunction and apologised for it. In imposing the suspended sentence he expressed the hope that -

"this may be some inducement.... to her not incur the risk - I think the virtual certainty, as it would be - of having to go back to prison, by complying with the order for at least the period of suspension."

Bye-laws at Menwith Hill
It is necessary to say something about the Bye-laws, and the litigation concerning their validity, in which again Miss Percy has played a major part. Under section 14 of the Military Lands Act 1892, the Secretary of State has power to make bye-laws for regulating the use of land belonging to him, which is for the time being appropriated for a military purpose. By section 17(2) a person who commits an offence against any bye-law under the Act is liable on conviction before a court of summary jurisdiction to a fine. By section 17(1) the Secretary of State is required to cause the boundaries of the area to which the bye-laws apply to be marked, and the bye-laws to be published in such a manner as appears to him necessary to make them known to all persons in the locality.

Bye-laws relating to Menwith Hill were made in 1986. They included a provision that no person should enter or remain in the protected area. In May 1991 Miss Percy, together with a Mr John Bugg, was charged with a number of breaches of the bye-laws alleged to have taken place between May 1990 and March 1991. As the result of preliminary rulings made by the Magistrate, the prosecution offered no evidence and the charges were dismissed. These cases, along with others relating to R.A.F. Alconbury, came before the Divisional Court on 9th July 1992 (Bugg -v- DPP [1993] QB 473). The court held that the bye-laws were invalid because they did not identify with sufficient clarity the protected areas to which the offences related. They also held that this was a matter which could properly be taken by way of defence in a criminal court, because it related to the substantive validity of the bye-law rather than merely a procedural defect.

Miss Percy, along with a second plaintiff Miss Greaves, then commenced an action for wrongful arrest and false imprisonment against the 66 police constables who had been involved in arresting her during 1990 and 1991. That case came before the Court of Appeal in April 1996. (Percy -v- Hall [1997] QB 924). The Court had to consider preliminary issues as to (1) whether the Divisional Court had been right to hold the bye-laws invalid, and (2) if so, whether they could nonetheless be relied on as having provided lawful Justification for the arrests in the period before they were held invalid. The Court held, contrary to the decision of the Divisional Court in DPP -v- Bugg, that the description of the area to which the bye-laws applied was sufficiently certain and that the bye-laws were valid; and that in any event, even if invalid, they could be relied on by the defendants, if they could show that they had been acting in the reasonable belief that they were valid at the time of the arrests. Miss Percy wished to appeal to the House of Lords, but she was unable to obtain legal aid for that purpose.

In the meantime new bye-laws had been prepared, which came into force on 19th February 1996. They are The RAF Menwith Hill Bye-laws 1996. The "applicable area" is defined by reference to a map which shows an area enclosed by a red line. So far as material for present purposes this follows the red line in the injunction plan. By article 4(2), "No person shall enter the applicable area" (a), or "interfere with the relevant property or its use" (f). "Relevant property" is defined as "property on the applicable area under the care or control of the Ministry".

By article 6(3):

"Nothing in these Bye-laws shall affect the lawful exercise by any person of a public right of way or of a public right".

On 5th September 1997 in the York Crown Court HH Judge Crabtree , sitting with Magistrates, gave his judgment on an appeal by two protesters (Ann Lee and Helen John) against convictions for breaches of the 1996 bye-laws. The only live issue before him was the appellants' contention that the bye-laws were invalid, either because they were made in bad faith or abuse of power, or because section 14 gave no power to make bye-laws for the purpose in question. The Court heard wide-ranging evidence, including evidence from Mr Duncan Campbell and Mr Anthony Wedgwood-Benn. In a careful judgment running to 39 pages of transcript, the Court rejected a number of arguments for the defendants. However, it accepted an argument, taken at a late stage of the hearing (see p34) -

"that the only part of this land that is appropriated for military purposes is the area in the top northeastern part of the applicable area and that well in excess of half of the land in that area is not being used for military purposes at all."

The judge said:

"I have come to the conclusion, as a matter of law, that these bye-laws are only valid if they take as the applicable area that area which can properly be said to have been appropriated for military purposes. The boundary could, of course, be generously drawn so as to include some land not in military use, so long as it can be properly said that it is intended to be a convenient perimeter around the military use area; that, unhappily, cannot be said here. A large area of farmland, that so far as can be seen has no military use, has been added on." (p73).

He concluded that the bye-laws were invalid because they went beyond the powers given by the 1892 Act. The appeals were accordingly allowed. The Crown Prosecution Service has appealed by case stated against that decision, but the appeal has not yet been heard.

Following that ruling, Miss Percy wrote to Chief Inspector Drummond, who is the senior police officer at RAF Menwith Hill, asking him to remove all the 1996 bye-laws signs. No action was taken pursuant to this request, and later Miss Percy received a letter from the Ministry of Defence asserting that they regarded the bye-laws as still valid and enforceable. According to Chief Inspector Drummond, who gave evidence before me, a decision was taken within the Ministry, following legal advice, to retain the bye-laws signs pending an appeal. There were at this time some 12 bye-laws signs around the base. Four signs in particular are relevant to the present case, being the notices at each end of the two footpaths to which I have referred: notices 1 and 2 on footpath 26, and 3 and 4 on footpath 43.

According to the Chief Inspector, since the date of Judge Crabtree's decision -

"those who object to the activities at RAF Menwith Hill have used the judgment to legitimise their actions in removing and/or damaging a large number of the bye-laws signs."

In response to this activity a decision was made to move bye-laws signs 1, 2, 3, and 4 from the edge of the footpath to positions within the land understood to be covered by the injunction. The Chief Inspector describes what was done as follows:

"I went to the locations of bye-laws signs 1 to 4 and with the aid of a spare bye-laws sign and a tape measure I judged the distance which the bye-laws signs could be moved so that they could still be read comfortably with and without the aid of spectacles. I judged that distance to be 3 feet. As the bye-laws signs after they had been moved by that distance would be within the land and within the applicable area under the bye-laws I also thought that such action would deter the protesters from removing and/or damaging the bye-laws signs. In my opinion it would be evident to the protesters who are very familiar with RAF Menwith Hill that the bye-laws signs had been moved from their existing positions and that, in order to touch the bye-laws signs, they would have to enter land in the applicable area under the bye-laws."

Miss Percy had by this time informed police officers that, if the Ministry would not remove the signs, she would take action herself. On 8th September she was arrested for an offence under the bye-laws and bailed to appear at Ripon Magistrates' Court but the hearing was adjourned sine die. She has continued to remove signs on occasions but she says that she has always informed the police of her actions. In January she became aware that signs had been moved with a view to ensuring that they could not be reached without breach of the injunction. The nine incidents with which the present motions are concerned all relate to occasions when she gained access to the Ministry's land on or in the vicinity of the footpaths for the purpose of removing bye-laws notices. She admits that she removed the notices and she admits that her sole purpose in using the footpaths was to do so. That is also confirmed by Miss Rainbow, who gave evidence on behalf of Miss Percy and was also involved in some of the incidents.

The incidents in question occurred on the following occasions (with the times at which observations were made):-

First notice of motion

1.	09.02.98	16.46
2.	09.02.98	17.34
3.	17.02.98	17.30
4.	17.02.98	18.02
5.	18.02.98	20.57

Second notice of motion

6.	09.03.98	17.30
7.	10.03.98	18.30
8.	11.03.98	17.15
9.	11.03.98	17.46

In contrast to her position before Lloyd J last year, Miss Percy does not accept that her actions on these occasions constituted breaches of the injunction. As I understand it, she makes two points by way of defence:-

1. that the boundaries of the footpaths are not sufficiently well defined for the plaintiffs to be able to establish that the signs, in the positions to which they were moved by Chief Inspector Drummond, were in fact outside the line of the footpaths.
2. that in any event her actions were justified, since she was merely remedying the illegality, which the Ministry were perpetrating by maintaining unlawful notices.

I will consider these points in turn: (1) extent of footpath: (2) invalidity of bye-laws.

(1) Extent of footpath
As to the positions of the signs relative to the footpath, I heard evidence from Constable Jessiman, who along with one of the American personnel, was responsible for marking the new positions of the posts pursuant to the Chief Inspector's instruction. With reference to footpath 26 he estimated the boundary of the footpath by reference to the yellow way-markers placed on the gate and in the ground across the field. With respect to footpath 43, there is an apparent edge to the footpath marked by a change in the levels of grass.

However, there is no evidence to establish that these physical indications can be taken as the legal limits of the public right of way. There is no presumption that a public right of way across open land has any defined lateral limits on the ground, the test often being simply what is a "strip of reasonable width" (see Halsbury Vol 21 para 117). Way-markings of the kind used for footpath 26 may be no more than an indication of the line of the footpath, rather than its width. Thus, if it were critical to establish that the bye-law signs were outside the line of the footpath, I would not regard the evidence before me as sufficient, certainly not to the high standard of proof required in contempt proceedings.

Furthermore, regard must be had to the purpose of these signs. These are put up pursuant to a statutory requirement to give public notice of the bye-laws. They are placed adjacent to the footpath for the purpose of notifying persons using the footpath. Whether or not they are strictly within the boundaries of the footpath, the Ministry must, I should have thought, have given an implied licence to members of the public to approach them for the purpose of inspection.

However, these considerations would only become relevant if there were any suggestion that Miss Percy was seeking to use the footpath for the lawful purpose of passing and re-passing or was approaching the notices for the purpose of inspection. It was a misconception to think that, so long as she remained within the footpath when removing the signs, that somehow kept her outside the scope of the injunction. The footpaths are within the Ministry's land. Any use of that land other than for purposes of passing and repassing was a trespass. The position in law is perfectly clear:

"The right of the public in respect of a highway is limited to the use of it for the purpose of passing and re-passing and for such other reasonable purposes as it is usual to use the highway; if a member of the public uses it for any other purpose than that for passing and repassing he will be a trespasser." (Clark and Lindsell, Torts para 1741).

As I have said, Miss Percy readily admits that her only purpose in going on to the footpath was for the purpose of removing the bye-laws signs. Even if the bye-laws signs were within the boundary of the footpath, such a use cannot be justified as a lawful use of a public right of way. Subject to the second point, therefore, she was trespassing on the Ministry's land and in breach of the injunction.

(2) Invalidity of bye-laws
Two questions arise under this head: (1) were the Ministry entitled in law to retain the bye-laws signs in spite of Judge Crabtree's ruling ? (2) if not, does that consideration legitimise or mitigate Miss Percy's actions?

The first question raises a difficult issue of public law. Co-incidentally, on the day of the hearing before me, the House of Lords gave its decision in the case of Boddington v British Transport Police [1998] 2 All ER 203, which is now the leading authority on the jurisdiction of the Criminal Courts to rule on the validity of bye-laws, where relevant as a defence to criminal charges before them. It is now clear that a defendant in criminal proceedings has an unfettered right to challenge the validity of the bye-laws or regulations on which the prosecution is based. In particular, the House rejected the suggested distinction, in DPP -v- Bugg, between challenges to substantive and procedural validity. Accordingly, there is now no doubt that Judge Crabtree was correct, once the issue had been raised by the defendants in the proceedings before him, to rule on the validity of the bye-laws. The House did not however have to deal directly with the issue which arises in the present case, that is, what is the effect of such a ruling of a Criminal Court as respects the public in general.

The nature of the problem is apparent from the classic statement of the applicable principles by Lord Diplock in F. Hoffman La Roche & Co AG v Secretary of State [1975] AC 295, 365 (cited and followed in Boddington at p 211). He said:

"Under our legal system, however, the courts as the judicial arm of Government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes, either brought by one party, to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lessor consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf. Ridge v. Baldwin [19641 A.C. 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare." (emphasis added).

Four material points may be extracted from that passage:-

1. The jurisdiction of the Court to determine the validity of a Statutory Instrument may arise either in proceedings to enforce the law declared by the instrument, or in proceedings by a party with a sufficient interest to obtain a declaration as to the validity or invalidity. (The proceedings before Judge Crabtree were of the former kind).
2. Unless and until such a challenge has been upheld by a judgment of the Court, the validity of the instrument is presumed.
3. Once the "judgment of a court in proceedings properly constituted" has determined that the instrument was ultra vires, that has the effect of rendering the instrument "incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings".
4. That decision is directly binding only as between the parties, but the doctrine of precedent may enable it to be relied upon by other parties affected by the instrument.

It is important to note that Lord Diplock does not there attach any weight to the level of the Judicial hierarchy at which the decision is taken. The principle as stated applies to the decision of any court before whom proceedings had been "properly constituted". The Crown Court was in that sense "properly constituted" for the purpose of the criminal proceedings before it.

The judicial hierarchy does of course become relevant when one is considering the questions of precedent. Under those principles decisions of higher courts in the judicial hierarchy are generally treated as binding on lower courts on questions of law (see Halsbury Laws Vol. 26 Judgments para 573ff). Decisions of courts at the same level in the hierarchy are treated as persuasive or authoritative (ibid para 580). On the other hand, decisions on questions of fact are binding only as between the parties, and do not give rise to any generally applicable precedent (Ibid para 575).

It can be seen immediately that the doctrine of precedent is an incomplete solution to the problem in the present case. Judge Crabtree's decision may well be followed by other Crown Courts and Magistrates' Courts so far as he was deciding questions of law. But it is liable to be upset by the High Court, either on appeal against that decision, or in other proceedings where the same issue arises. Furthermore, insofar as this decision turned on questions of fact, such as the extent to which the land was used for military purposes, it was based on the evidence before him and gives rise to no precedent binding on other courts in proceedings affecting other parties.

This raises the possibility of inconsistent decisions. Some of the speeches in Boddington touch on this problem. Lord Irvine referred to arguments based on "the dangers of inconsistent decisions, both between different benches of magistrates and between magistrates and the Divisional Court". But he thought that these difficulties were "probably exaggerated" (p214 h-j). Lord Slynn also noted the problem but said:

"if a decision by a court of criminal jurisdiction that a bye-law or administrative act pursuant to it is ultra vires, is of importance to a prosecution authority the latter can always challenge it" (p 219d)

Lord Steyn similarly said:

"In any event, although a criminal court cannot quash bye-laws the Divisional Court can on appeal on a case stated from a decision of magistrates give a ruling which will in practice be followed by other Magistrates Courts." (p224 c).

As to the problem that the party with an interest in upholding the bye-laws might not be before the Court, he said:

"In a criminal case the prosecution, backed by the resources of the state will usually put forward the case for upholding the bye-laws." (Ibid).

Both Lord Slynn (p 219 e) and Lord Steyn (p 229 f) suggested that there might be a case for legislation providing for a discretionary transfer from the Criminal Court to the Divisional Court. However, that is not possible under the law as it stands.

In the present context, I should also mention the "policy considerations" put forward by one the defendants in an earlier case concerning bye-laws at Greenham Common (ex parte Hutchinson [1988] QB 384, 392), which "Impressed" Lord Steyn:

"Coming to London to the High Court is inconvenient and expensive. Bye-laws are generally local laws which have been made for local people to deal with local concerns. Magistrates Courts are local courts and there is one in every town of any size in England. The costs of proceedings in any Magistrates Court are far less than in the High Court. I believe this egalitarian aspect of seeking recourse to the law in a Magistrates Court to be an important sign of the availability of Justice for all". (p 228 f-g).

Against that background, I come back to the difficult issue which arises in the present case, that is what was the effect of Judge Crabtree's decision as respects members of the public, such as Miss Percy, who were not parties to that particular prosecution.

This is not a suitable hearing in which to attempt a thorough review or definitive conclusion on this issue. The implications of the Boddington decision have not yet been worked out, and they are potentially wide-ranging. Mr Tam has provided me with a helpful analysis of the speeches, but that is no substitute for full and considered argument on both sides. Miss Percy, as a litigant-in-person, cannot be expected to fill that gap. On the other hand, in proceedings which threaten her freedom, I must not allow her to be unfairly disadvantaged by that inability. It seems to me that in considering her defence, I should give her the benefit of such doubts as there may be on this legal issue without purporting to decide the matter finally.

As I have said, the conventional principles of Judicial precedent do not provide a solution. In my view, the likely solution will be found in the principles of public law applicable to the position of the Ministry, as the authority responsible for the promulgation of the bye-laws. Those principles include principles of legal certainty and equality before the law (see De Smith Judicial Review para 13 - 005). Although the Ministry was not directly a party to the criminal prosecution, its statutory powers under the Military Lands Act, like those of the Crown Prosecution Service, are powers exercised on behalf of the Crown. Once a decision has been made, in proceedings brought by the Crown as prosecuting authority, that the bye-laws are invalid as respects certain members of the public, the Ministry is bound to have regard to that decision in its activities as respects other members of the public, and to accord fair and equal treatment to them. What cannot be constitutionally acceptable, in my view, is for the Executive to proceed as though it were simply free to disregard a decision of a competent court with which it does not agree (cf per Nolan LJ M -v- Home Office [1992] QB 270, 314H).

For the reasons already explained, I have not invited detailed argument. However, in case the matter goes further, parallels may be found in the cases to which I referred recently in R -v- Cardiff CC ex parte Sears Group (13th March 1998, unreported). For example, in R -v- Secretary of State for Home Department ex parte Danaei (12th November 1997, CA unreported), it was held to be unreasonable (in the Wednesbury sense) for the Secretary of State in a decision within his own jurisdiction, to seek to re-open issues of fact which had been determined by the Immigration Appeal Tribunal in related proceedings.

By resting the decision on Wednesbury reasonableness, rather than binding precedent or issue estoppel, the Court left sufficient flexibility to allow for special cases. Such flexibility could be important in the present context. If for example, there were serious doubts about the correctness of the Criminal Court's decision as to the invalidity of the bye-laws, and there were serious reasons of public safety or security which required the retention of the bye-laws pending an appeal, a case might be made for retaining them, provided the appeal was pursued with expedition, or other means were found urgently to establish their validity in a court. That might be done by the authority itself seeking an injunction in the High Court asserting the validity of the bye-laws. On an application for an interim injunction the Court would be able to determine whether the balance of convenience required the bye-laws to be treated as valid, notwithstanding the Criminal Court's decision, pending a final decision of the Civil Court.

In the present case, I have no material on which I could judge that the decision of the Crown Court was manifestly unfounded on the evidence before it. Nor is there evidence of any steps being taken to expedite the appeal or otherwise obtain an urgent decision of the High Court. In the meantime, I have no evidence that maintaining the bye-law notices pending the appeal was considered to be of special importance for reasons of public safety or security. It is clear, from the evidence of the Chief Inspector, that the ups and downs of the Court's decisions on the validity of the bye-laws have added enormously to the practical problems of every day law enforcement. However, there is no evidence that the security of the base has been at risk. As I understand it, there were no bye-laws in operation, and no bye-law notices, for a substantial period between the decision in DPP -v- Bugg and the coming into force of the new bye-laws at the beginning of 1996. During that period, I assume, the security of the base was regarded as sufficiently protected by the private law property rights of the Ministry.

In these circumstances, it seems to me that I must approach Miss Percy's case on the basis that the bye-laws have been ruled to be invalid by a competent court, and that at the time of the incidents the subject of the present complaint there was no legal justification for the retention of the bye-law notices.

The next question is whether that conclusion makes any difference to the case against her. Mr Tam says it does not. Whether the bye-laws were valid or invalid, the notices, and the posts on which they were displayed, were Ministry property within Ministry land subject to the injunction, and Miss Percy breached the injunction by going on to the Ministry's land to remove them. He says the Ministry's position is no different in principle from that of a landowner who chooses to put up a notice saying "trespassers will be prosecuted". Such a notice may be wrong in law (because trespass is not a prosecutable offence), but the notice remains private property, and any person who removes it commits a civil trespass against the owner.

I do not wholly accept the analogy. A person who puts up a notice saying trespassers will be prosecuted commits no legal wrong; he is not acting pursuant to statutory authority. The bye-law notices, on the other hand, were put up pursuant to statutory power. It is an abuse of that power, and therefore unlawful, to put up or maintain notices of bye-laws which are known to be invalid. However, I agree with Mr Tam that the invalidity of the bye-laws does not provide a defence in private law. The notices are the property of the Ministry on land owned by the Ministry. There is no legal principle which entitles a member of the public to go on to private land to remove such signs, even if they are there unlawfully. Similarly, there is no principle that the public's rights to the use of a footpath are extended to include law enforcement. The public's remedy is simply to ignore the notices, or, if that is not good enough, to seek a Court Order.

It follows that Miss Percy had no legal Justification for going on to the Ministry's land to remove the notices and she was therefore in breach of the injunctions against her. It follows also that she is in breach of the terms on which Lloyds J's sentence was suspended. I have therefore to consider both whether it is appropriate to activate that sentence, and what, if any, further punishment should be imposed in respect of the present breaches.

I have not found this an easy task. The range of penalties available for contempt of court by someone in Miss Percy's position is very limited. Perhaps the most suitable form of penalty would be a Community Service Order, but there is no power to impose such a penalty for a civil contempt. If there had been no extenuating factors, I would have felt bound to activate the suspended sentence of six months. Miss Percy has been fully aware since that Order that she was subject to that risk. The Order was made with full knowledge of the unfortunate consequences of the previous sentence of imprisonment, because the Court saw no alternative if obedience to the Court Order was to be secured.

However, it does seem to me that there are extenuating circumstances. Even though the invalidity of the bye-laws provides no legal Justification for Miss Percy's actions, it is in my view relevant by way of mitigation. It is impossible to ignore the fact that her sole motivation has been directed to removing these notices. There was no suggestion that she caused any other damage to the Ministry's properly, or otherwise interfered with the use of the land or the security of the base. The Ministry has chosen to pursue a civil remedy for trespass on land, rather than criminal or civil proceedings specifically directed to the removal of the bye-law notices, in which proceedings the validity of the notices would have been directly in issue. I have to assess the seriousness of these breaches in the context of the Ministry's private law rights, but set against the background that they are enforcing those rights purely for the purpose of protecting notices which (on Judge Crabtree's ruling ) should not lawfully have been there, I have held that Miss Percy breached the injunction. However, I accept that Miss Percy genuinely believed that her actions were a justifiable response to the refusal of the Ministry to remove the notices.. Before my ruling, I cannot conclude that her stance was wholly untenable.

The position is therefore different from that which faced Lloyd J. In these circumstances, I do not think it would be Just simply to activate the suspended sentence, or otherwise to impose an immediate custodial sentence. In view of Miss Percy's limited means I do not see any purpose in imposing a fine, although there will no doubt be an application for at least some part of the costs in respect of these proceedings. What I propose to do is to extend the period of the suspended sentence, so that the 12 months will run from the date of this judgment, and the suspended sentence will remain at six months.

These proceedings have I hope helped to clarify the legal position, particularly in the light of the House of Lords' decision in Boddington. Whatever action the authorities decide to take in respect of the notices following this judgmnent, Miss Percy now knows that it is a breach of the injunction to go on to the Ministry's land, or the footpath, for any purpose other than the lawful use of the footpath for passing and re-passing; and that lawful use does not include removing the notices whether valid or invalid. Whatever her views as to the legality of the Ministry's actions self-help is not a remedy open to her if she wishes to avoid imprisonment.

In that context I should mention one other point. Miss Percy says that no-one has been able to define to her with precision the area to which the injunction relates, or indeed the precise boundaries of the footpath. I do not accept that is a practical problem. If Miss Percy has any lawful reason for using the highways adjoining the site, or the public footpaths crossing the land, there is unlikely to be any problem. On the other hand if she persists in going on to the land for purposes for which she has no right to be there, then she risks imprisonment. If that is not sufficient guidance for her, she would do better to stay away altogether.

Finally, I should mention one further argument of Miss Percy based on section 57 of the National Parks and Access to the Countryside Act 1949. This makes it an offence for a person to maintain on or near a designated public footpath a notice "containing any false or misleading statement likely to deter the public from using the way". She suggested that the Ministry was guilty of an offence under this section by maintaining the bye-law notices. This adds nothing to her case. The bye-law notices, as I have indicated, contain a clear statement that they do not in any way detract from the public's right to use the footpaths. It cannot therefore be said that they are "likely to deter the public" from using them.