Stansted Protesters Successful Appeal
The Court of Appeal quashed the convictions of 15 Stansted protesters whilst at the same time commending the trial judge on the way he handled an extraordinarily difficult trial which bristled with complex legal argument: R v Edward Thacker & Ors [2021] EWCA Crim 97 Lord Burnett LCJ, Jay J and Mrs Justice Whipple.
The protesters had, in March 2017, breached a security fence at London Stansted Airport.
Their intention was to prevent the departure of a Home Office chartered Boeing 767 which was about to deport 60 individuals to West Africa.
They erected makeshift tripods using scaffolding poles and “locking on” to one another around the base of one of the tripods and around the nose of the plane.
Builders’ foam was used to secure the locking mechanisms.
They caused considerable disruption at the airport which included the closure of the single runway for a significant period.
To that end, the appellants succeeded in fulfilling their immediate aims because the flight was unable to leave.
At the subsequent 41-day trial they were convicted of the offence of “intentional disruption of services at an aerodrome” contrary to section 1(2)(b) of the Aviation and Maritime Security Act 1990.
This was an offence which required the consent of the Attorney General to prosecute. Sections 1(1) and 1(2) provide:
“Endangering safety at aerodromes
- It is an offence for any person by means of any device, substance or weapon intentionally to commit at an aerodrome serving international civil aviation any act of violence which –
- causes or is likely to cause death or serious personal injury, and
- endangers or is likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome.
- It is also, subject to subsection (4) below, an offence for any person by means of any device, substance or weapon unlawfully and intentionally –
- to destroy or seriously damage –
- property used for the provision of any facilities at an aerodrome serving international civil aviation (including any apparatus or equipment so used), or
- any aircraft which is at such an aerodrome but is not in service, or
- 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,
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.”
“Device” in the present case was not the scaffolding poles but the tripod made out of them.
The “substance” was the builders’ foam whose chemical properties beyond flammability were not in evidence.
A narrow construction of the words was correct. “Device” or “substance” must be interpreted in a uniform manner throughout the 1990 Act and in section 11(2) it clearly meant something more specific than any device or any substance.
It followed that some qualification of those terms was necessary.
The court concluded that the “device” or “substance” must be intrinsically dangerous in order to be caught by the statutory wording. This may be seen as an implied statutory limitation on the extreme breadth of the relevant terms interpreted in their proper context.
The Montreal Convention and the Protocol flowed in the same direction. The “device” or “substance” must be capable of causing significant damage to the aircraft either on the ground or in flight. It was clear from discussions at the plenary session that the delegates had in mind dangerous items.
The actus reus of the offence under section 1(2)(b) was the disruption to services using a device, substance or weapon. Disruption brought about by other means was not an offence under the provision. The actus reus had to be carried out “unlawfully and intentionally”.
“By means of” was synonymous with “using”. What was required was proof of a causal link between the use of the device or substance and the disruption. Mere presence of the items at the scene was insufficient.
The words “by means of” played a central role in section 1 of the 1990 Act. Taking the Crown’s case at its reasonable pinnacle, the “by means of” aspect of the offence was not satisfied.
The closure of the runway was undoubtedly disruptive and expensive, but there was no evidence that it resulted in likely endangerment to the safety of the aerodrome or of persons there.
Both the Crown’s case and the summing-up collapsed the distinction between risk and likely danger and treated the offence as if it were akin to a health and safety provision.
It was necessary for the Crown to go further than prove disruption to this particular flight.
The judge did not leave to the jury the issue of whether each of the appellants intended (1) to disrupt the services of the aerodrome, and (2) by such disruption, some likely endangerment to the safe operation of Stansted Airport and the safety of persons there.
The jury should have been directed that, given that it was not the appellants’ aim or purpose to cause disruption etc., they had to be satisfied so that they were sure that this consequence was a virtual certainty, or at the very least very highly probable, and that each appellant appreciated that was the case.