The recently decided case of the Stanstead 15* is of real importance to those concerned with the right to assembly in the UK, not just because it was an important victory for the activists themselves, but because it offers a key insight into how the state tries to deter protest. There are a number of facets to this case and it may prove an important authority for those of us who are interested in the minutia of protest law, but the most important element from this perspective and the subject of this article is the decision to charge the activists with an inappropriate offence.
The Stanstead 15 caused the state a problem. Their action – which amounted to invading a remote area north of the airfield, and using locking themselves to a scaffolding tripod, to stop a deportation flight – was successful. The results inconvenienced passengers at Stanstead Airport, due to the runway being closed for some time, and caused frustration and embarrassment for the government. A lot of protests have similar consequences, but that in itself is no reason to prevent them from taking place. Any right to protest worth having will be messy, and in any case, the state cannot very well make inconveniencing passengers at airports a crime, and has yet to explicitly outlaw frustrating or embarrassing the government, however the law may be applied in practice.
It is worth pointing out that this was not an Article 11 case in itself. The court did not quash the activists’ convictions on the grounds that they have a right to freedom of assembly,** but that they were simply not guilty of the offences they were charged with. Had they been charged with different offences, the outcome too may have been different. It is also important to reflect on the fact that these activists were, as they acknowledged, in a privileged position, supported by journalists, NGOs and politicians. Their acquittal does not in itself prove the legal system is fair and just, or guarantee that those who are less privileged would be treated the same way. Members of the Stanstead 15 themselves have reflected critically upon their experience in an article here.
The case is still relevant to Article 11 rights however because it goes some way towards removing from the state’s arsenal a tool that could be used to deter effective future protests. What tends to happen when a protest is particularly inconvenient to the state, is that it starts looking for crimes that it can prosecute. The trouble it runs into is that, aside from general inconvenience and mess, the actual crimes committed by protesters tend to be either very minor or entirely non-existent. This is not universally the case, and instances of serious crime by protesters are outside the scope of this article, but on the whole, unless violence ensued, the worst the state can usually manage is a charge of aggravated trespass, criminal damage, or other summary offences.
So it was with the Stanstead 15. They could have been charged with both these offences, and initially they were. But from the state’s perspective, these are comparatively minor crimes. Unpleasant though the process and punishment would be for the activists, and severe though the individual consequences of a criminal record can be, the state evidently felt it was not enough. So they ramped up the stakes. Instead of being charged with these run of the mill offences, the 15 became only the second defendants ever to be prosecuted for ‘intentional disruption of services at an aerodrome’ contrary to section 1(2)(b) of the Aviation and Maritime Security Act 1990. The only previous time this law had been invoked was against a pilot who flew his helicopter directly at a control tower.
The crime they were accused of was “using a device, substance or weapon, unlawfully and intentionally to disrupt the services of 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 no laughing matter. Prosecutions for this crime are serious enough to require the permission of the Attorney General. They are crimes of universal jurisdiction, prosecutable anywhere in the world. They are also ‘Convention Offences’ under the Terrorism Act 2006. Even encouraging the commission of a Convention Offence is punishable by 7 years in prison. By prosecuting the activists under this act, the state attempted to equate an act of civil disobedience with terrorism.
The state’s approach only grew more disturbing as the case progressed. Firstly they attempted to argue that the activists’ scaffolding and builders’ foam was the ‘device or substance’ referred to in the law. This was a considerable stretch, and had it been successful would arguably have led to the absurd conclusion that the same protest would not have contravened the law had it been carried out by the activists using just their bodies. In fact the law’s intention was to refer to dangerous devices, such as bombs, that might cause significant damage to an aircraft. In other words, the crime would not so much be in the disruption to service, but the dangerous means used. In claiming scaffolding and builders’ foam are the tools of terrorism, the state lapsed into fantasy.
The state’s attempted departure from reality continued as it attempted to demonstrate the ‘disruption of services … 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 was not a case where the activists intended to shut down the airport. Their intention was limited to preventing a single flight. The protest took place 341 metres from the runway. No-one was hurt and no-one was likely to be hurt. The matters the state raised to support their contention that the activists’ actions were likely to endanger the safe operation of the airport were for the most part trivial – such as the possibility of a police officer falling over – or far fetched – such as the possibility of a foreign object making it all the way to the taxiway.
What the state was trying to do was to imagine all the things that could have gone wrong with the protest and claim that they were likely. The fact remained that the activists’ actual actions were not inherently dangerous and so to prosecute them, the state was relying on events that did not in fact happen. They were not just clutching at straws at this point, they were tilting at windmills.
Ultimately, the defendants were successful and their convictions were quashed. Had the state succeeded, however, this would have furthered a dangerous precedent. Not just in the legal sense of permitting this particular law to be used in similar cases, but more widely for activists generally. The messy nature of protest means that there is often a risk of arrest and prosecution. This is a risk that protesters accept, even if they intend to commit no crimes. To take this risk, to exercise their Article 11 rights, activists need to know that they will not simply have the book thrown at them for inconveniencing or embarrassing the state, and find themselves prosecuted for the highest crime that can possibly be twisted to fit the facts.
In the end, the Court of Appeal held that even if the available charges do not reflect the “gravity of the defendants’ actions”, this does not “allow the use of an offence which aims at conduct of a different nature.”