Carl Spender examines the details of the Stansted 15 judgement and – with his usual dourness – finds a lot to be disappointed about.
As readers of Freedom are no doubt aware: earlier this week, activists who blocked a deportation flight at Stansted Airport in 2017 had their convictions for “intentional disruption of services at an aerodrome” quashed by the Court of Appeal. It goes without saying that this is a fantastic result for the brave, inspiring individuals involved and a real slap in the face for the cops, the Home Office and the CPS.
However, for those of us who were hoping the Court of Appeal would strengthen the legal position of those taking direct action, the substance of the court’s judgement was deeply disappointing.
If you’d prefer to avoid the arid legal details, skip to the concluding section, where I set out some of the key take-home points for those involved in direct action and civil disobedience.
Grounds for Appeal:
In their application to appeal, lawyers for the 15 advanced 5 grounds of appeal:
(1) The presiding judge – HHJ Morgan – misinterpreted the law: the defendants should not have been prosecuted for breaching section 1(2)(b) of the Aviation and Maritime Security Act 1990, 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 activists.
(2) The offence is such that, in order to prosecute, the CPS must get consent from the Attorney General. As the activists shouldn’t have been prosecuted under s1(2) (b), it follows that the AG was wrong to consent and, consequently, the prosecution should have been stayed.
(3) The judge did not allow the defence to present to the jury defences under section 3 of the Criminal Law Act 1967 (preventing crime) and of necessity/duress of circumstances.
(4) The judge’s summing-up was biased 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.
(5) The judge ought to have directed the jury not to draw adverse inferences from the appellants’ no comment interviews.
The Court of Appeal, presided over by the Lord Chief Justice himself, considered at all 5 grounds and accepted only ground 1, concluding: “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”.
While this is wonderful news for the activists involved, it was the (potential) success of the other grounds (particularly 3 and 5) that would have had far reaching positive consequences for the wider movement.
Grounds 2 and 4:
Only the most cursory review of grounds 2 and 4 took place. With respect to ground 2: while the Court of Appeal accepted that section 1(2)(b) of the 1990 Act was “inapt in the circumstances”, they did not think this entailed that the consent of the Attorney General was unlawfully given. “From time to time”, the judgement says, “prosecutors make errors of law and so too, with utmost respect, do Law Officers”. Judges in the court of appeal are often less (willfully) naive than their counterparts in the lower courts. In this case, however, the LCJ & co were only too happy to conclude that the legally flawed prosecution (and conviction) of activists for a very serious offence was merely an innocent mistake by those whose job is to prevent and punish dissent.
As to the judge lending a hand to the prosecution in his summing up: “…we do not think that there is substance in the complaint that the summing up was unfair…Whilst we have disagreed with the judge on the interpretation of section 1(2)(b), finding the Crown’s contentions on its reach unpersuasive, we commend the judge on the way he handled the trial.”
One might wonder how exactly the CoA could ‘commend’ a trial judge who not only gave, in the words of one defence barrister, “the worst, most one-sided” summing up they’d ever witnessed but also ordered the CPS to begin a criminal investigation into jury tampering when the defendants were seen *drum roll* writing notes in court! But who are we to question the wisdom of Burnett LCJ eh?
The third ground of appeal turned on Judge Morgan’s decision to withdraw three defences from the jury. Those three defences were: (i) section 3 of the Criminal Law Act 1967 which permits a person to use such force as is reasonable in the circumstances in the prevention of crime; (ii) duress, specifically duress of circumstances, on the basis that the appellants had been impelled to act to prevent imminent death or serious personal injury to the deportees; and (iii) necessity, on the basis that their actions were justified as necessary in order to avoid that greater evil.
The appeal challenged the judge’s ruling in relation to all three, but both the appellants and the judgement focused on the third of these, the oft-tried – and rarely successful – ‘necessity’ defence (because if this defence did not succeed neither would (i) or (ii)).
The big hope here was that the Court of Appeal would establish a precedent that made it easier to use necessity defences in court. Alas it was not to be.
(One of) the key issues with activists attempting to mount a necessity defence is that, in the eyes of the law, such defences can only ever arise in extreme cases. R v Colin Martin (1989) established that for a necessity defence to succeed, it needs to be the case that:
(a) the defendant (reasonably) believed it was necessary to commit the offence in question;
(b) in order to prevent death or serious injury;
(c) to themselves or another; and
(d) the commission of the offence was reasonable in the circumstances.
The barristers representing the End Deportations activists argued that the defence presented evidence of the presence of beliefs that met conditions (a) – (c) (in the form of statements given in the interviews etc), and assessment of that belief and whether – in line with (d) – the offence was reasonable in the circumstances should have been decided on by the jury (not the judge). Sadly, the Court of Appeal did not agree.
The CoA accepted the Crown’s submission that there no legitimate purpose is served by allowing a defence that no “reasonable jury properly directed as to the law” would ever find proved (i.e. there is no point allowing an argument that has no chance of suceeding). The necessity defence offered by the Stansted 15 was, in the Court of Appeal’s opinion, one that a reasonable jury could only ever find disproved. Why could it not succeed? Because – according to the court – the activists’ ‘real reason’ for halting the flight was not to prevent foreseen death or serious injury to specific people on the flight but because they are opposed to all deportations. Thus, in blocking the flight, the Stansted 15 were “seeking to take the law into their own hands”. Quoting approvingly from Lord Hoffman’s judgement in R v Jones (Margaret) , the Court of Appeal stated that necessity could not be used as a defence for direct action/civil disobedience in a society with “a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process”.
In other words: necessity defences are not available to those carrying out civil disobedience because if you disagree with a law and think it is unjust or harmful, you must seek to change it through the limited channels afforded by our so-called democracy (lobbying MPs etc), not by breaking the law.
In many ways, this judgement merely reiterates the precedent already set in R v Jones. However, in ruling that Lord Hoffman’s judgement is of general application – and doesn’t just apply to the section 3 defence at issue in R v Jones – the Court of Appeal has made it even harder to run necessity defences in cases relating to civil disobedience or direct action.
The fifth ground for appeal also received attention from the Court of Appeal and was concerned with the trial judge’s directions to the dury.
When a number of the defendants opted not to testify at the trial, HHJ Morgan gave a standard adverse inference direction under section 35 of the Criminal Justice and Public Order Act 1994, informing the jury that they are could draw such inferences as seem ‘proper’ from the defendant’s silence (i.e. “feel free to conclude from this that they have something to hide and/or are guilty-as-sin!”).
However, in relation to the failure to answer questions at police interview – the defendants gave prepared statements and refused to answer any other questions – the judge said nothing. In their submissions, the defendants’ legal reps argued that the judge ought to have directed the jury not to draw adverse inferences from the appellants’ no comment interviews (i.e. he should have explicitly said – “just because they didn’t answer the cops’ questions doesn’t mean you, the jury, can conclude they did the crime”). HHJ Morgan failed to give such a direction.
Once again, the Court of Appeal sided with Morgan. There is guidance from the Judicial College stating that if the judge has decided that no adverse inference should be drawn from a defendant’s failure to mention something in interview, the jury ought to be specifically directed not to draw such an inference. However, there are exceptions to this rule and this case – the Court of Appeal concluded – presented one of those. Indeed, in the view of Burnett & friends, the judge’s failure to give the direction did not in-and-of-itself create any unfairness for the defendants.
This seems to be a case of (willfully) constricted vision on the Court of Appeal’s part. Whether or not this decision itself created significant unfairness in the trial, when placed in the context of the HHJ Morgan’s conduct throughout the proceedings, it is difficult not to see his failure to issue a direction as part and parcel of a systematic bias against the defendants.
Indeed, throughout the judgement one finds the LCJ & co analysing each aspect of Morgan’s conduct in isolation, with little to no desire to look at the pattern of the whole. Viewed in its totality, it seems blatantly obvious that this was a judge who was out to convict and punish the defendants and wouldn’t let niceties like the law or the requirements of a fair trial get in the way.
There is some concern that this makes ‘no comment’ interviews more risky, as juries will now be more likely to draw adverse inferece from them. While this cannot be refuted with certainty (as jury research is illegal), it is unlikely that this ruling on what is, in truth, a rather technical point of judicial procedure will change anything too dramatically. In other words, giving a “no comment” – unless specifically advised against it by an experienced protest solicitor – remains a principle whose significant benefits outweigh its (minimal) risks. Nevertheless, we are currently in discussion with our friends in the legal profession about the full ramifications of this judgement and will report back in due course.
So: while the quashing of these outrageous convictions is – obviously – something to be celebrated, the Court of Appeal’s judgement disappoints in several key respects:
(1) While finding fault with Judge Morgan’s interpretation of the law, the Court of Appeal commended him for how he handled the trial (including his directions on adverse inference), despite what many people – including seasoned barristers – saw as evidence of obvious bias against the defendants.
(2) Despite ruling that the activists should not have been prosecuted for the offence, the court refused to impugn the Attorney General’s decision to consent to the prosecution.
(3) The judgement will make it harder for activists to run necessity defences in cases of direct action/civil disobedience.
This should serve as yet another reminder that while the courts may afford us occasional respite from the swingeing violence of the executive, the law, and those whose uphold it, are not on our side. Yes, we struggle in and through the courts, but we do this as a matter of necessity, because we are forced to, not because judges and their laws hold the promise of a better world.
Photo via End Deportations.