Introduction

In the landmark case Thacker & Ors v R ([2021] EWCA Crim 97), the England and Wales Court of Appeal (Criminal Division) addressed critical issues pertaining to the interpretation of the Aviation and Maritime Security Act 1990 ("1990 Act"). The appellants, comprising 15 individuals, orchestrated a breach of the security perimeter at London Stansted Airport with the intent to disrupt a deportation flight to West Africa. Convicted under section 1(2)(b) of the 1990 Act for "intentional disruption of services at an aerodrome," the appellants challenged their convictions on several grounds, ultimately leading to a significant judicial commentary on the statutory interpretation and application of the 1990 Act in the context of protest actions.

Summary of the Judgment

The appellants were initially convicted in the Crown Court at Chelmsford for intentionally disrupting services at an aerodrome, contrary to section 1(2)(b) of the 1990 Act, which criminalizes actions that endanger the safe operation of an aerodrome. The Court of Appeal, upon thorough examination, concluded that the appellants' conduct did not satisfy the legal requirements stipulated under the 1990 Act. Specifically, the court found that the devices and substances used by the appellants—scaffolding poles, builders' foam, and makeshift tripods—did not constitute inherently dangerous items as required by the statute. Consequently, the convictions under section 1(2)(b) were quashed, establishing a precedent for more restrictive interpretations of what constitutes a "device, substance or weapon" in the context of aerodrome security.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to elucidate the interpretation of statutory language related to violent offenses and security provisions. Notably:

• R v Lees [2003]: Involved intentional disruption of an airport control tower using a helicopter.
• R v Jones (Margaret) [2006]: Clarified that the defense of necessity does not extend to acts of civil disobedience or protest.
• R v McGarry [1999] and R v Jama [2008]: Addressed the appropriate directions regarding adverse inferences from defendants' silence during police interviews.
• R v Moloney [1985], R v Nedrick [1986], and R v Woollin [1999]: Explored the necessity defense and the concept of foresight in criminal intent.

These cases collectively underscored the judiciary's stance on the narrow application of defenses like necessity and the stringent interpretation of what constitutes an offense under security-related statutes.

Legal Reasoning

The Court of Appeal meticulously dissected the wording of section 1(2)(b) of the 1990 Act, emphasizing a restrictive interpretation of "device, substance or weapon." The primary legal reasoning encompassed:

• Interpretation of "Device, Substance or Weapon": The court concluded that these terms must denote items inherently dangerous, capable of causing significant harm or disruption. The scaffolding poles and builders' foam used by the appellants were deemed innocuous compared to the statutory intention.
• Requirement of Dangerousness: Consistent with international conventions like the Montreal Protocol, the court held that only devices or substances posing an inherent danger fall within the scope of the 1990 Act's provisions.
• Intentional Disruption: The appellants' intent to disrupt a specific flight did not extend to endangering the aerodrome's safe operation at large, failing to meet the "likely to endanger" criterion.
• Disruption Scope: The disruption caused—closure of a single runway—was insufficiently broad to satisfy the statutory definition, which necessitates a more substantial interference with aerodrome services.

Furthermore, the court addressed the appellants' defenses under the Criminal Law Act 1967 and the principles outlined in R v Jones, reaffirming that private individuals cannot circumvent law through direct action protests.

Impact

The decision in Thacker & Ors v R has profound implications for future cases involving security breaches at aerodromes and related venues. Key impacts include:

• Clarified Legal Standards: Establishes a higher threshold for what constitutes a device or substance under the 1990 Act, limiting prosecutions to genuinely dangerous actions.
• Restrictive Interpretation: Encourages courts to adopt a more stringent interpretation of statutory language, aligning domestic law with international conventions.
• Defense Limitations: Reinforces the judiciary's position on restricting defenses like necessity in cases of civil disobedience, maintaining the integrity of law enforcement at secure facilities.
• Protest Activity: Provides clearer boundaries for lawful protest, potentially influencing how activists plan and execute direct actions involving secure areas.

Overall, the judgment underscores the judiciary's role in ensuring that legislative provisions are applied in a manner consistent with their intended purpose, promoting both security and legal precision.

Complex Concepts Simplified

Statutory Interpretation

Statutory interpretation involves judges determining the meaning of legislation. In this case, the Court of Appeal carefully analyzed the language of the 1990 Act to ensure its application aligned with legislative intent and international standards.

"Device, Substance or Weapon"

These terms are critical in determining what actions are criminalized under the 1990 Act. The court interpreted them narrowly to include only items inherently dangerous, such as explosives or toxic chemicals, rather than everyday objects like scaffolding poles or builders' foam.

"Likely to Endanger"

This phrase sets the standard for what level of risk justifies criminalization. It requires that actions not only disrupt services but also pose a probable risk to safety. The court concluded that the appellants' actions did not meet this high threshold.

Defense of Necessity

The necessity defense allows individuals to justify actions taken to prevent a greater harm. However, the court limited its application, particularly in cases of civil disobedience or protest, affirming that such acts cannot override established legal processes.

Conclusion

The judgment in Thacker & Ors v R marks a pivotal moment in the interpretation of the Aviation and Maritime Security Act 1990. By adopting a restrictive view of what constitutes a "device, substance or weapon," the Court of Appeal ensured that only genuinely dangerous actions would fall under criminal offenses aimed at protecting aerodrome security. This decision not only provides clarity for future prosecutions but also balances the enforcement of security measures with the protection of civil liberties. Additionally, by limiting the availability of defenses like necessity in cases of direct action protests, the court reinforced the principle that legal mechanisms exist to address grievances, thereby discouraging individuals from taking the law into their own hands.

Moving forward, legal practitioners and activists alike must heed this precedent, recognizing the stringent criteria required to prosecute under the 1990 Act and the limited scope of defenses available. This ensures that the judiciary remains a guardian of both security and justice, applying the law with precision and fairness.