Strict Interpretation of 'Device or Substance' under the Aviation and Maritime Security Act 1990: Insights from Thacker & Ors v R (2021)

Introduction

The case of Thacker & Ors v R ([2021] EWCA Crim 97) before the England and Wales Court of Appeal (Criminal Division) marks a significant judicial examination of Section 1(2)(b) of the Aviation and Maritime Security Act 1990 (“the 1990 Act”). This case centers on the convictions of 15 appellants who, in March 2017, unlawfully disrupted airport operations at London Stansted Airport with the intent to halt the deportation flight of approximately 60 individuals to West Africa. The appellants employed makeshift tripods, scaffolding poles, Lock-ons, and builders' foam to impede the aircraft, leading to significant disruption and runway closure.

The primary legal contention revolved around whether the actions of the appellants met the threshold of “intentional disruption of services at an aerodrome” under Section 1(2)(b) of the 1990 Act, which mandates the use of a “device, substance or weapon” capable of endangering the safe operation of an aerodrome or the safety of persons there.

Summary of the Judgment

After a comprehensive trial lasting 41 days, the Crown Court at Chelmsford convicted the appellants of intentionally disrupting airport services under the 1990 Act. Subsequently, the appellants appealed their convictions on five grounds, focusing primarily on the misinterpretation of Section 1(2)(b).

The Court of Appeal granted leave to appeal on Ground 1, which challenged the interpretation of Section 1(2)(b), but denied leave on Grounds 2 and 4. Ultimately, the Court of Appeal overturned the convictions, concluding that the appellants' actions did not satisfy the statutory elements required under Section 1(2)(b).

The core determination was that the “device or substance” used by the appellants was not inherently dangerous as required by the statute, and the disruption caused did not reach the threshold of likely endangerment to the aerodrome’s safe operation or the safety of individuals.

Analysis

Precedents Cited

The judgment extensively referenced several key legal precedents and international protocols:

R v Lees [2003]: Highlighted the significance of actions likely to endanger the safety of an aerodrome.
R v Jones (Margaret) [2006]: Clarified the limitations of the necessity defense in cases of civil disobedience.
R v McGarry [1999] and R v Colin Martin (1989): Addressed the interpretation of “likely to endanger” in the context of statutory offenses.
Montreal Convention and Protocol (1971 & 1988): Provided the international framework underpinning the 1990 Act, emphasizing acts that endanger civil aviation.

These precedents collectively influenced the court’s approach to interpreting statutory language in alignment with both domestic and international legal standards.

Legal Reasoning

The Court of Appeal employed a purposive interpretation of Section 1(2)(b), emphasizing the need for clarity and internal consistency within the 1990 Act. Key points in their reasoning included:

Narrow Interpretation of 'Device or Substance': The court held that “device” and “substance” must be inherently dangerous, aligning with the objectives of the Montreal Protocol. The scaffolding poles and builders' foam were deemed insufficiently dangerous to meet this criteria.
Causation and Unlawfulness: The appellants’ actions did not establish a direct causal link between the use of any device or substance and the resulting disruption. The immediate response to the disruption was attributed to security protocols rather than the appellants' tools.
Endangerment Threshold: The court found that the risk posed by the appellants was speculative and did not reach the necessary level of endangerment as required by the statute.
Intent: The appellants’ intention was narrowly focused on disrupting a single flight rather than causing widespread endangerment, which further disqualified their actions from meeting the statutory definition.

Additionally, the court addressed the defense of necessity, reinforcing its inapplicability in cases of direct action protests, referencing established case law that restricts such defenses in contexts of civil disobedience.

Impact

The judgment has significant implications for future prosecutions under the Aviation and Maritime Security Act 1990:

Clarification of Statutory Interpretation: Establishes a stringent standard for what constitutes a “device or substance” under the 1990 Act, necessitating inherent danger rather than mere presence.
Protection for Peaceful Protesters: By narrowing the scope of the offense, it provides greater protection for individuals engaged in non-violent protest activities, preventing overly broad criminalization.
Judicial Scrutiny on Intent and Causation: Emphasizes the need for clear evidence linking the use of specified devices or substances to actual or likely endangerment, thereby ensuring that prosecutions are based on concrete risks.
Influence on International Jurisprudence: Aligns domestic law interpretation with international standards set by the Montreal Convention and Protocol, promoting uniformity in handling offenses against civil aviation safety.

Overall, the judgment reinforces the importance of precise statutory language and cautions against the expansive application of security-related offenses in ways that may infringe on legitimate protest activities.

Complex Concepts Simplified

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

This section criminalizes the intentional disruption of airport services using any device, substance, or weapon. To secure a conviction, it must be proven that the agent acted unlawfully and intentionally, and used something inherently dangerous that is likely to endanger the aerodrome’s operation or people’s safety.

Purposive Interpretation

A legal approach where courts interpret statutes based on the purpose and spirit of the law, rather than sticking strictly to the literal words, especially when such an interpretation aligns with the broader objectives of related international treaties or protocols.

Necessity Defense

A legal defense where the defendant argues that their unlawful act was necessary to prevent a greater harm. This defense is narrowly applied, particularly excluding cases of civil disobedience or protest.

Endangerment Threshold

The level of risk that must be proven to show that an action is likely to cause harm. In this case, the court requires that the risk be significantly high and not merely speculative.

Conclusion

The Court of Appeal’s decision in Thacker & Ors v R underscores the necessity for precise and narrow interpretations of security-related statutes to prevent the overreach that can stifle legitimate protest actions. By requiring that "device or substance" be inherently dangerous and demonstrating a substantial likelihood of endangerment, the judgment ensures that only actions meeting a high threshold of risk can be criminally prosecuted under the 1990 Act.

This case sets a precedent that reinforces the balance between maintaining airport security and protecting individual rights to peaceful protest. It serves as a critical reference point for future cases involving similar charges, promoting fairness and clarity in the application of aviation security laws.