Court of Appeal Narrows Interpretation of Section 1(2)(b) of the Aviation and Maritime Security Act 1990 in Thacker & Ors, R v ([2021] EWCA Crim 97)

Introduction

The case of Thacker & Ors, R v ([2021] EWCA Crim 97) before the England and Wales Court of Appeal (Criminal Division) addresses critical issues surrounding the interpretation and application of section 1(2)(b) of the Aviation and Maritime Security Act 1990 ("the 1990 Act"). On March 28, 2017, 15 appellants breached the security perimeter at London Stansted Airport with the intent to disrupt a Home Office chartered flight deporting approximately 60 individuals to West Africa. Their actions involved erecting makeshift tripods and securing them with builders' foam, leading to significant disruption, including runway closure.

Convicted in the Crown Court of Chelmsford on December 10, 2018, for "intentional disruption of services at an aerodrome," the appellants were sentenced to varying penalties, including suspended imprisonment and community orders. The appellants lodged appeals on five grounds, challenging the interpretation of the law, procedural aspects of the trial, and the judge's summing-up.

Summary of the Judgment

The Court of Appeal granted leave to appeal on Ground 1, which contended that the judge misinterpreted section 1(2)(b) of the 1990 Act. Upon thorough examination, the court found that the appellants' actions did not satisfy the statutory elements required for the offence under section 1(2)(b). Specifically, the tools and substances used by the appellants—tripods and builders' foam—were not deemed inherently dangerous in the context required by the statute. Additionally, the court determined that the disruption caused did not reach the threshold of likely endangerment to the safe operation of the aerodrome or the safety of persons within it. Consequently, the appeals on Ground 1 succeeded, leading to the quashing of the convictions under the specified offence. Grounds 2 and 4 were dismissed, while Grounds 3 and 5 lacked sufficient substance.

Analysis

Precedents Cited

The judgment extensively referenced several precedents to interpret the scope of section 1(2)(b) of the 1990 Act:

R v Lees [2003] 2 Cr App R (S): Involved a man flying a helicopter directly at an airport control tower, establishing the nature of acts that constitute an offence under similar provisions.
R v Jones (Margaret) [2006] UKHL 16: Clarified that the defence of necessity does not extend to acts of civil disobedience or protest.
McIntosh v HM Advocate [1994] SLT 59: Addressed the interpretation of "likely to endanger" in the context of acts of violence.
Fothergill v Monarch Airlines Ltd [1981] AC 251, ITC v Commerzbank AG [1990] STC 285, and Morris v KLM Royal Dutch Airlines [2002] 2 AC 628: Provided guidance on interpreting international conventions and ensuring harmonious application across jurisdictions.

These precedents collectively influenced the court's interpretation, emphasizing the necessity for actions to be inherently dangerous and likely to cause significant harm or disruption.

Legal Reasoning

The court undertook a meticulous statutory interpretation of section 1(2)(b) of the 1990 Act, contextualizing it within both domestic and international legal frameworks, including the Montreal Convention and Protocol. The key points in the court’s legal reasoning included:

Narrow Interpretation of "Device or Substance": The court held that terms "device" and "substance" must be inherently dangerous within the context of the 1990 Act, aligning with the objectives of the Montreal Protocol to combat serious threats to aviation security.
Requirement of Endangerment: It was emphasized that mere disruption does not suffice; there must be a demonstrated likelihood of endangering the safe operation of the aerodrome or the safety of individuals present.
Causal Link between Actions and Disruption: The appellants needed to prove that their use of devices or substances directly caused the disruption likely to endanger safety. The court found insufficient evidence linking their actions to the runway closure and subsequent safety measures.
Intent: The court examined whether the appellants intended the disruption to endanger safety, concluding that their primary aim was to prevent a single flight rather than to cause widespread harm.

The court ultimately determined that the appellants' actions did not meet the stringent criteria set forth in the statute, particularly regarding the inherent danger and the likelihood of endangerment.

Impact

This judgment significantly narrows the scope of section 1(2)(b) of the 1990 Act, setting a precedent that:

Legislative terms such as "device" and "substance" will be interpreted more restrictively, requiring inherent danger to qualify for prosecution under this section.
Prosecutors must provide compelling evidence that actions not only disrupt but are likely to endanger the safe operation of aerodromes, thus raising the bar for future prosecutions.
The decision reinforces the importance of clear and direct causation between the accused's actions and the requisite endangerment, potentially mitigating overreach in prosecuting lesser disruptions.
It underscores the judiciary's role in ensuring that severe legal provisions are applied appropriately, safeguarding against unjust or disproportionate charges.

Future cases involving disruption of aerodrome services will likely reference this judgment to argue for narrower interpretations of applicable statutory provisions.

Complex Concepts Simplified

Section 1(2)(b) of the Aviation and Maritime Security Act 1990

This section criminalizes the intentional disruption of aerodrome services using any device, substance, or weapon. To secure a conviction, prosecutors must demonstrate that the disruption:

Was carried out by means of a device (anything contrived or invented for a particular purpose), substance (material of a definite chemical composition), or weapon.
Was unlawful and intentional.
Endangered or was likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome.

Montreal Convention and Protocol

International treaties aimed at suppressing unlawful acts against the safety of civil aviation. They establish universal jurisdiction over severe acts that threaten aviation safety, ensuring that perpetrators can be prosecuted regardless of where the act occurred.

Legal Defences: Necessity and Duress

Necessity: A defence whereby the defendant argues that their unlawful action was necessary to prevent a greater harm.

Duress of Circumstances: A defence claiming that the defendant was compelled to act out of necessity due to immediate and unavoidable threats.

Conclusion

The Court of Appeal’s decision in Thacker & Ors, R v ([2021] EWCA Crim 97) marks a pivotal moment in the interpretation of provisions aimed at safeguarding aviation security. By adopting a narrower view of section 1(2)(b) of the 1990 Act, the court ensures that only actions presenting genuine and significant threats to aerodrome safety are criminalized under this statute. This approach balances the enforcement of security measures with the protection of individual rights against overbroad interpretations of the law.

The judgment emphasizes the necessity for prosecutors to establish a clear and direct link between the accused’s actions and the resultant endangerment, thereby preventing the misuse of severe offences against individuals whose actions do not meet the high thresholds of inherent danger and likelihood of causing significant harm. Future legal proceedings will undoubtedly reference this case to advocate for precise and contextually appropriate applications of security-related statutes.