Thread by @zedhas3

Watching the #Stansted15 appeal today, extending solidarity on behalf of @LSWUnited and @blkprotestlegal. @bencsmoke live tweeting the proceedings and I’ll be posting some updates too. Clare Montgomery QC currently setting out the grounds on behalf of the appellants.

https://twitter.com/bencsmoke/status/1331190367392313344

The language of the Act should be interpreted restrictively. The offence is one of the utmost seriousness, carrying a potential life sentence and subject to universal jurisdiction.

Immense concerns raised about the chilling effect these convictions have on legitimate public protest. The ramifications of applying terrorism related legislation in this context could mean those supporting/encouraging the #Stansted15’s actions are also caught in the same web

Looking at the comments on the Montreal Convention, this legislation was clearly not intended to cover non-terrorist acts. Evident that other offences should be left to usual domestic law even if committed at an airport. Something more is needed to justify international crime.

Essentially, the instrument is to be read narrowly so to only catch offences where universal jurisdiction is justified. Relying on Hansard, the intention of the legislation was to punish terrorist activity at airports.

The way the Court + prosecution approached this at trial would open this offence to “the point of absurdity”. The device must be unlawful according to the legislation, but the devices used by #Stansted15 cannot be said to be so, nor could other legitimate devices used in protests

The trial court approached the element of disruption looking at not just what the appellants (then defendants) actually did but also the consequences + acts of third parties. The jury were left with judicial direction that included POTENTIAL disruptive acts, not just ACTUAL ones

We cannot analyse danger to the airport or airfield by reference to what did not happen, have to analyse it in respect of what DID. #stansted15 *also personal footnote - the 👏🏾 only 👏🏾 people 👏🏾 in 👏🏾 danger 👏🏾 were 👏🏾 the 👏🏾 people 👏🏾 ON 👏🏾 the 👏🏾 plane

It’s for the Court to determine which of the elements of the Act need to be construed to create some proper boundaries to this offence. On conduct, one must intend EACH of them. Not just disruption, unlawful use of devices and endangerment too.

Moving onto the Q of necessity - you do not need to be under a duty to act in order to benefit from the defence of necessity.

Trial court found the defence of necessity was not available, that there was no real evidence of the Ds believing there was an imminent or immediate threat of death or injury. But there was - they knew people on the flight were at risk AND this was their last opp to challenge it

References to @bencsmoke’s evidence and clear knowledge of the risks of serious injury and death faced by specific people on the flight, including LGBTQIA+ people and victims of trafficking.

No. of factors to consider re necessity, incl the effect of the #HostileEnvironment on people’s ability to access the courts/alternative ways to challenge deportation. Clear then that the Q of necessity is a jury Q, given Ds reasonable belief of threats to life & limb established

Here #Stansted15 highlighted that people on the flight were denied recourse to protection, and this was their last chance to help them. No clear reasons from the judge as to why this matter was withdrawn from the jury.

Re necessity applying, the trial judge was:
👉🏾Wrong to say it needed to be a domestic crime
👉🏾Wrong to say the threat had to be immediate
👉🏾Wrong to say can’t consider public policy
👉🏾Wrong to say doesn’t apply to bystanders

Post lunch, continuing appellants’ submissions. Of 60 people on the plane, 11 remained in the country and at least 3 qualified for humanitarian protection, incl 1 victim of trafficking. So reasonable belief in the evil the #Stansted15 were trying to challenge is clear from stats

Where threat of serious unlawful injury is imminent then not practical to call for help. There is no basis for uniform assumption about provisions made by state in every circumstance - some areas better couched in protections. Sometimes necessary to take law into our own hands.

Deportation is an example of an area where undocumented migrants are nevertheless being deported in circumstances where they are not able to obtain judicial remedies. Recent @MedicalJustice makes this clear. It’s the structures of the state that create this problem.

The evil avoided was greater than the actions taken. Necessity requires no more than was necessary in the circumstances as they were honestly and reasonably believed to be. The social circumstances are therefore relevant - this is important in a range of protest cases.

The scope of the action that was reasonably appropriate in this case is therefore a JURY Q, once it’s understood what the qualifying threat was & why #Stansted15 couldn’t deal with it in any other way. Decision to withdraw this from jury cannot be justified.

The risks of entry into secure area and consequential danger that followed, referred to in summing up, were all new issues - those risks show how absurdly wide the prosecution case was, as if this was a health and safety case. It was not.

Tim Moloney QC now setting out errors made by the trial judge, including wrongly considering that Arts 10 and 11 were not relevant to the Attorney General’s decision to prosecute. The door should not be shut to consider prosecutorial discretion in such rare cases

These were non-violent protesters being made subject to provisions of terrorism legislation. Legally relevant material Attorney General *should* have taken into account incl statement of UK re purpose of Montreal Protocol and considerations of legislative framework

Two key issues for the appellants:
👉🏾 Whether it was available to prosecute the #Stansted15 under the terrorism-related Act in these circumstances, and/or;
👉🏾 Whether the appellants SHOULD have been prosecuted under this legislation, given the Attorney General’s discretion.

Tim Moloney QC: “In these circumstances, Arts 10 and 11 rights were not fully protected during the trial process.” And a gentle reminder from me that 👏🏾 PROTEST 👏🏾 IS 👏🏾 NOT 👏🏾 A 👏🏾 CRIME 👏🏾

In cases where fundamental rights are engaged and questions of public policy posited, the trial court should have been anxious to see how and why the Attorney General decided to prosecute non-violent protesters under legislation meant for serious violent offences.

Respondent setting out their arguments now, suggesting that the terrorism legislation could properly apply in this case. Going through the construction of the statute - stating the words on their face are plain and unambiguous 👎🏾 they say no need to go further than domestic law

The Respondent’s argument is that there is no need to go beyond the words of the statute- discounting the commentary to the Montreal Protocol + the intention behind the domestic legislation. Appellants’ cogent arguments made clear why this analysis is both relevant & necessary

Proceedings finished for the day. Will resume tomorrow at 2pm. For now...
👏🏾 Support the #Stansted15
👏🏾 end deportations
👏🏾 protect the fundamental right to protest

📢 STOP 2ND DECEMBER MASS DEPORTATION 📢

This campaign needs support - share widely and help if you can. For updates please follow @nobordersmcr, @BARACUK and @followMFJ.

If you’re following the #Stansted15 appeal, please follow this too.

#EndDeportations

https://twitter.com/nobordersmcr/status/1331285015834095618

📢 BACK FOR DAY 2 OF #STANSTED15 APPEAL 📢

Respondent continues to argue that the legislation applies. No clear answer as to definition of ‘device’ in preparatory document and not in statute either. They say it wasn’t dealt with by Parliament because it wasn’t necessary 🧐

Respondent says that ‘device’ ‘substance’ or ‘weapon’ is to be construed widely, except where there is separate description or qualification in the Act. They say the relevant part leaves a wide ambit - LCJ queries utility of document R relies on in making this argument

Respondent argues that the act of disruption had to be unlawful, so in this case Ds were trespassing. Court says there is an intermediate step, which is that the deployment of the device or substance has to be unlawful IN ITSELF. Respondent rejects this reading of the Act.

Court states it is clear from the protocol that there is a connection between unlawful + intentional to the use of devices. Court queries why we cannot look at the protocol. Respondent again suggests that the language in Act is clear enough to not look at the preparatory material

Court states there are two qualifiers to disruption:

👉🏾 use of device or substance
👉🏾 unlawful and intentional action

Respondent’s argument is there is no connection between the two.

Appellants consider there IS.

The Court are pushing Respondent on this point.

Respondent acknowledges in making this submission, this renders the ambit of what could be a device or substance very wide.

Concerning as such an argument has a chilling effect on #protestrights, given how widely the Act could be interpreted

Respondent says jury were not left with *potential* evidence of disruption, as suggested by Appellants, only evidence of what the disruption *actually* was e.g. closure of airport runway, subsequent consequences, and security & armed officers required (😑) to go to aerodrome

Court says aim + purpose of Ds was clearly only in relation to the specific plane & that this is still a subjective test. Respondnt argues some Ds said in XX only intention was to disrupt THAT flight, but others “accepted” it was in their knowledge that disruption would be wider

Court pushing Respondent on construction of the Act - saying the Respondent’s argument suggests anyone doing anything that endangers safe operation of aerodrome would then be caught by this legislation.

Now moving onto the Respondent’s arguments on justification and withdrawal of defences. They say the trial judge was considering justification by 15 people which is a v different situation.

Here Ds made a complaint about activities of the Home Office (👏🏾👏🏾👏🏾). Respondent says if there is an issue as to whether protesters justified in acts, facts must be proved or admitted. Argues that if not, such issues can be withdrawn from the jury.

Respondent considers it was important to split the justification defences and consider them individually, because they often have individual features through giving evidence. They say there can be no generalised or collective assertion as to Ds’ state of mind.

Respondent argues that on the one hand this is said to be peaceful protest + no more, & on the other hand asked to leave to the jury a defence which required use of force. They say defence is only available where there is (1) use of force to stop (2) commission of domestic crime

Referring to evidence of @bencsmoke, who outlined why many people subject to deportation do not have adequate #accesstojustice. The #Stansted15 wanted to bring to public knowledge info about those in detention. Respondent saying these were “unspecified + generalised” comments 😑

Evidence of @LyndsayBurtonsh - she was concerned people would die if they didn’t take action. She had found direct evidence of risk. Heard about countless people being shackled on Charter flights. Respondents say could be well-founded concerns but generalised & unspecific 🙅🏾‍♀️

Another D said in evidence, info I had gave me a moral duty to do this. The sole intention was to stop the flight. We had enough information to believe there were people in danger. Respondent says there was not clear evidence of any danger.

A D said in ev: “I don’t think I broke the law, if people are at risk of dying..there is a higher law... I think I had a legal right to do this.” Respondent says it is not available to an individual to reach the conclusion there is a higher law and act in the way they did

Respondent says the fact people remained in this country is irrelevant to what has been advanced (?!). Because Ds did not know particulars of individual cases, did not know who was on the plane, + the court does not know on what basis people have been permitted to remain.

Respondent saying a ‘concern’ or
‘worry’ falls far short of a justification defence. They say an imminent crime was not identified. All I can really say to these assertions is that:
🙌🏾 The #Stansted15 are legends
🙌🏾 Put the Home Office on trial
🙌🏾 End racist deportations

The Respondent posits why alternative action wasn’t pursued, eg via ‘due process’. A reminder from me that there is no such thing as ‘due process’ in a racist, oppressive system 👀

Important 👇🏾👇🏾👇🏾

https://twitter.com/bencsmoke/status/1331627458735566850

Respondent says the defence of necessity is only available in *extreme circumstances*. If stopping a plane to ensure people are not sent to places where they may be at risk of serious harm or even death is not an ‘extreme circumstance’ idk what is 🤷🏾‍♀️ #Stansted15 #EndDeportations

Respondent considers who is to be the judge of necessity and the comparative value of lives. I would say if we’re talking about comparative value of lives, we know that Black and Brown migrant lives are certainly not valued by the British state 🙇🏾‍♀️

Finished for the day. Proceedings will resume at 10.30am tomorrow. Respondent to continue their arguments and then short replies from the Appellants’ reps. Written submissions already before the Court from interveners @libertyhq repped by @judebunting.

Important article from @galdemzine on what you can do to resist the deportation planned for 2nd December #EndDeportations #Jamaica50 #Stansted15

gal-dem.com/christmas-prit…

📢 BACK FOR THE FINAL DAY OF #Stansted15 APPEAL 📢

Respondent finishing their submissions. Relying on authority to argue that duress of circumstances is only available where there is an imminent threat of serious injury to others & Ds were reasonable + proportionate to act.

Should jury be allowed to consider in extreme circumstances Qs of Gov policy? Respondent says limits of defence must be recognised - should be considered by the judge at the threshold stage and evidence in case did not allow for defence.

Respondent says there must be some evidence for jury to properly conclude on issue of necessity. When defences considered in proper context, they say evidence was not available. BUT 🤦🏾‍♀️ IT 🤦🏾‍♀️ WAS 🤦🏾‍♀️

Respondent considers prism judge looking through. Trial judge concerned that the 15 Ds had differing parts of their evidence, considered defence not available to them in those circumstances. Says this case is distinguished from authorities as not ‘extreme circumstance’.

Respondent says background has no relevance to issues in this case, including:
👉🏾immigration policy
👉🏾fitness of the Home Office
👉🏾views of ministers
👉🏾CPS charging decision
Urgh... state impunity at its finest #EndDeportations #Stansted15

Respondent suggests defence accepted disruption was by means of the device or substance. Court questions whether this was indeed accepted. R says this was accepted by Ds in evidence - they say Ds admit they acted unlawfully, but do say they had lawful excuse... (sorry what 🤔)

Respondent onto the point of the Attorney General’s consent to charge the #Stansted15 under terror-related legislation. Trial judge considered right decision was made in light of material before AG 🙇🏾‍♀️ How how how this was a reasonable decision is beyond me ...

Now onto whether trial judge included new issues in the summing up. Respondent says judge rightly referred to matters which were in evidence by way of agreement. Says summing up of the evidence was balanced

Respondent arguing that by the time jury came to deliberations, real Q for them was whether there was sufficient evidence to make them sure that the Ds actions caused a risk to the safe operations and safety of persons at the aerodrome.

Now for Appellants’ REPLY 🔥
First, considering construction of the Act. Says that it’s clear that context, background and purpose of legislation is important to statutory interpretation - relying on relevant authority. Cannot just look at the face of the Act to deduce meaning.

The language of the Act is NOT plain. Refers back to what the Respondent says was clear and explains why it definitely is not. Also device or substance cannot be anything - term has a clearer meaning in s.11 of the Act, has to be something inherently dangerous

The trial judge and prosecution failed to understand the seriousness of the offence and the ingredients having proper regard to that. Trial judge in summing up made it clear that so far as he was concerned, the offence was committed as soon as individuals made their way airside..

The conduct here was simply presence of people - not use of unlawful device. Consequences Respondent talked about stem simply from this, not a consequence of disruptive act by Ds or use of device or substance. This is important - because Respondent’s argument construes Act v wide

Respondent said yesterday Ds had foreseen runway closure etc, Appellants’ reps have given a note to the Court to correct the position - none of the Ds conceded they foresaw any other reaction. They only wanted to stop THAT PLANE ✋🏾 #Stansted15

On necessity: There is VERY specific detail from Ds why no other action was possible. Each D identified 2-3 human beings who they considered were at risk of death or serious injury. Document handed to the Court clarifying this point - laying out specific concerns of Ds 💃🏾

Also lays out alternative measures Ds pursued, including legal, political and other direct actions. Enough evidence there for the defence to bite. This is about real injury or real death to real people. Arguably even more immediate risk of harm than climate change, fracking etc.

Appellants make clear if should have been for the jury to determine. Of course actions had to be reasonable and proportionate - fact Ds motives may have included a desire to bring attention to issue of mass deportations, this does not disqualify them from relying on this defence.

Where trial judge falls into legal error, the Court is required to look at it afresh. The judge was clearly wrong to withdraw defence from jury. Cogency + strength irrelevant, the point is the evidence was PRESENT. Urge the Court to ignore much of what Respondent said on this 🔥

There was v clear evidence Ds believed there was risk of very serious injury or death -for the jury to determine the reality of their actions. It is wrong to threaten this will open the floodgates for direct action protesters - fairly & squarely falls in ordinary ambit of defence

Appellants concisely and precisely end their submissions. Court reserves judgment - says they have a lot of material to get through and a lot to think about. Thanks all instructed Counsel.

And it’s done. Probably a while until the judgement but sending so much solidarity to #Stansted15 whilst they wait. What they did that day was right, important and effective. When the system fails us or is built against us, justice needs to be sought by any means necessary

The fight is definitely not over, in the courts or on the streets:
👉🏾 Follow @BARACUK & help stop the mass deportation planned for 2nd Dec;
👉🏾Follow @blkprotestlegal and help us defend the right to protest in a racist system;
👉🏾Support the #Stansted15 & others to #EndDeportations