“No case to answer” — Stansted 15 convictions quashed by Court of Appeal
29 January 2021
Thacker & Ors v R. [2021] EWCA Crim 97 (29 January 2021), judgment here
The Court of Appeal held today that a group of activists who broke into Stansted Airport in an act of protest should “not have been prosecuted” for an “extremely serious” terror-related offence under s.1(2)(b) of the Aviation and Maritime Security Act 1990 (“AMSA”).
BACKGROUND
The defendants/appellants in this case were a group of activists who have become known as the “Stansted 15”.
On 27 March 2017, the appellants surrounded a Boeing 767 at Stansted Airport which had been chartered by the Home Office for the purpose of deporting 60 individuals to Ghana, Nigeria, and Sierra Leone.
Equipped with makeshift tripods made from scaffolding pipes and some builder’s foam, the appellants cut through the perimeter fence of the airport and used the tripods a to lock themselves together, surrounding a plane and using the foam to secure the locking mechanisms. By ‘locking on’ to each other, the group prevented the use of the plane.
Following this action, the appellants were initially charged with “aggravated trespass” contrary to s.68 Criminal Justice and Public Order Act 1994 (“CJPOA”). Aggravated trespass is a relatively minor public order offence, commonly used to charge activists involved in actions such as picketing at private venues or sabotaging hunts on private land. It is committed where a defendant trespasses for the purposes of intentionally obstructing, disrupting, or intimidating others from carrying out ‘lawful activities’. The maximum penalty for the offence is 3 months imprisonment, or a fine of £2500, or both. First time offenders could generally expect to face a small fine.
Three months following that initial charge, the CPS decided instead to charge the appellants with “endangering safety at an aerodrome”, contrary to s.1(2)(b) ASMA. Under this section,
it is an offence for any person by means of any device, substance or weapon unlawfully and intentionally—
(a) to destroy or seriously to damage—
(i) property used for the provision of any facilities at an aerodrome serving international civil aviation (including any apparatus or equipment so used), or
(ii) any aircraft which is at such an aerodrome but is not in service, or
(b) to disrupt the services of such an aerodrome,
in such a way as to endanger or be likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome.
This is a far more serious offence than the aggravated trespass originally charged. It can carry a maximum sentence of life imprisonment. Section 1 AMSA implements into domestic law the 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Aviation (“Montreal Protocol’), an international counter-terrorism convention, which supplemented the earlier 1971 Convention for the Suppression of Unlawful Acts against the Safety of International Aviation (“Montreal Convention”). The legislation was introduced in the wake of the Lockerbie bombing and is a “Convention offence” for the purposes of the sch.1 Terrorism 2006 (“TA 2006”).
On 10th December 2018, the appellants were convicted of the ASMA offence in the Crown Court at Chelmsford. Two appellants received suspended sentences of imprisonment; the others were sentenced to community orders.
THE COURT OF APPEAL
There were five grounds advanced before the Court of Appeal:
- Ground 1: the judge misinterpreted s.1(2)(b) ASMA in the light of its international and domestic law context. This is an offence which is directed to serious violence often of a terrorist nature, and not the much lower level of risks generated by the actions of the appellants. Further, the judge erred in his analysis of the constituent elements of the offence.
- Ground 2: the judge should have ordered disclosure and should have stayed the prosecution on the basis that the Attorney General’s consent was wrongly given.
- Ground 3: the judge should not have withdrawn defences under section 3 of the Criminal Law Act 1967 (preventing crime) and of necessity/duress of circumstances from the jury.
- Ground 4: the judge’s summing-up lacked balance in that he commented on aspects of risk of harm arising from the appellant’s action that went beyond the arguments advanced or evidence relied on by the Crown.
- Ground 5: the judge ought to have directed the jury not to draw adverse inferences from the appellants’ no comment interviews.
Allowing the appeal on the first ground and quashing the appellants’ convictions, the Court ruled at [113] that
The appellants should not have been prosecuted for the extremely serious offence under section 1(2)(b) of the 1990 Act because their conduct did not satisfy the various elements of the offence. There was, in truth, no case to answer. We recognise that the various summary only offences with which the appellants were originally charged, if proved, might well not reflect the gravity of their actions. That, however, does not allow the use of an offence which aims at conduct of a different nature.
GROUND 1: ELEMENTS OF THE OFFENCE
The first ground was the only successful ground of appeal, but that was all that was necessary to quash the convictions. Giving judgment for the Court the Lord Chief Justice, Lord Burnett of Maldon
- rejected the Crown’s submission that the Montreal Protocol was irrelevant as an aid to construction [58];
- held that the appellants’ actions were “not readily captured by the language and purposes of the Protocol” but that a successful appeal nevertheless required statutory wording that was “unclear, ambiguous, or would lead to manifestly absurd or unreasonable results” [62-63];
- considered that the two potential “keys to unlocking this door” were the words “by means of … unlawfully and intentionally” and “device [or] substance” [64];
- ruled that the words “device or substance” (although literally wide enough to encompass the equipment used by the appellants) were ambiguous and unclear and it was correct to construe them narrowly in this context as meaning “intrinsically dangerous” devices or substances [66-67];
- considered that the tripods and builder’s foam were not inherently dangerous, or at least that there was no evidence before the jury that the devices or substance were capable of causing the kind of damage envisioned [66-67];
- concluded that mere presence at the scene in possession of devices and substances which are not inherently dangerous falls short of being sufficient to meet the statutory criteria [76].
Furthermore, the creation of a risk to safety, however low, was not enough for this offence to be made out [80]. It requires proof of “likely endangerment to safety” and that, according to the Court, introduced two qualifications:
The first is that the chances of the danger arising must transcend a certain degree of likelihood and the second is that it must be of a sufficient nature and degree to amount to endangerment, i.e. to something that may properly be described as a peril. [80]
This composite test was not made out:
The appellants’ actions did not likely endanger the safe operation of this particular aircraft, still less the aerodrome as a whole or the safety of persons present. Secondly, and now viewed in terms of their indirect consequences, insofar as the rapid and prudent actions taken by Stansted airport were causally linked to the appellants’ actions and can therefore be attributed to them in some way, those safety measures did not themselves likely endanger the safe operation of the airport or the safety of persons present. [80]
Both the Crown’s case and the summing-up collapsed the critical distinction between “risk” and “likely danger” and fell into error by treating a serious terror-related offence as if it were “akin to a health and safety provision”. Taking the Crown’s case at its highest, and considering all relevant potential consequences, it could not be established to the criminal standard that the actions of the appellants created disruption to the services of Stansted airport which was likely to endanger its safe operation or the safety of persons there.
GROUND 3: NECESSITY, DURESS AND THE PREVENTION OF CRIME
The Court considered that the trial judge had rightly withdrawn three possible defences from the jury: necessity, duress, and s.3 Criminal Law Act 1967 (which permits the use of reasonable force in the prevention of crime).
The appellants’ acts had to be considered in the context of a functioning state governed by the rule of law [101]. In that context,
the judge was right to characterise the appellants’ conduct as direct action. The appellants’ real reason for halting this flight was that they believe that all removals and deportations are “illegal” in the sense in which they would choose to use the term. Essentially, therefore, this was the appellants seeking to take the law into their own hands.
The defence of necessity was not a proper matter to put before the jury, and it was accepted that the remaining defences failed if that failed [102].
GROUND 5: ADVERSE INFERENCES
Ground 5 also failed. In respect of those appellants who did not testify, the standard adverse inference direction under section 35 CJPOA was given. In relation to the failure to answer questions at police interview, the judge said nothing. The absence of any specific warning to the jury not to draw an adverse inference from the failure to answer police questions at interview would not have assisted and created no unfairness to the appellants [110].
GROUNDS 2 AND 4: THE SUMMING UP AND THE AG’S DECISION
Grounds 2 and 4 were considered and dismissed together. The Court commended the judge on the way he handled the trial, despite the outcome of the appeal. There was also no reason to impugn the decision of the Attorney General to sanction the prosecution [111-112].
COMMENTARY
This case has been controversial, drawing attention both nationally and internationally. Following the initial convictions, a joint letter was sent to the Government by UN experts, including the Working Group on Arbitrary Detention, the Special Rapporteur in the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on human rights defenders, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms when countering terrorism. The UN experts urged the UK government not to use security and terrorism-related legislation to prosecute peaceful protesters.
The failure of the ground relating to necessity, duress and s.3 CLA are unlikely to surprise those with experience of defending protestors in direct action cases. Nevertheless, it is notable that the actions of the appellants did prevent the deportation of five persons on the flight who have consequently been able to establish their legal right to remain in the UK, including three on human rights grounds. One of those has been granted asylum as a victim of human trafficking. In total, of the 60 persons due to be on the deportation flight, eleven reportedly remain in the country.
Amongst the human rights group who have celebrated the ruling are Amnesty UK, who welcomed “a good day for justice” and Liberty, who hailed “a major victory for protest rights” and deprecated the now-quashed convictions, calling them “part of a sustained attack on the right to protest.”
Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March
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