Thacker & Ors, R. v

Factual and Procedural Background

On 28 March 2017, the Home Office chartered a Boeing 767 to deport approximately 60 individuals to West Africa. That evening, fifteen appellants breached the security perimeter fence at London Stansted Airport and entered the restricted area. They aimed to prevent the flight's departure by erecting makeshift tripods made from scaffolding poles and "locking on" to one another around these structures and the nose of the aircraft, securing the lock-ons with builders' foam. This caused significant disruption, including the closure of the airport's only runway, preventing the flight from leaving.

Following a 41-day trial at the Crown Court at Chelmsford, the appellants were convicted of the offence of intentional disruption of services at an aerodrome contrary to section 1(2)(b) of the Aviation and Maritime Security Act 1990. This offence requires the Attorney General's consent to prosecute. Sentences included suspended imprisonment and community orders, with all appellants subject to a 12-month exclusion from restricted airport zones except for travel or collection purposes.

The appellants advanced five grounds of appeal, with leave granted to appeal on Grounds 1, 3, and 5. Grounds 2 and 4 were refused leave. The court ultimately found no substance in Grounds 3 and 5 but accepted Ground 1, resulting in the quashing of all convictions.

Legal Issues Presented

1. Whether the judge misinterpreted section 1(2)(b) of the Aviation and Maritime Security Act 1990, particularly in light of its international and domestic law context and whether the offence is directed only at serious violent or terrorist conduct.
2. Whether the judge erred in refusing disclosure and whether the Attorney General's consent to prosecute was wrongly granted.
3. Whether the judge should have allowed defences under section 3 of the Criminal Law Act 1967 (prevention of crime) and necessity/duress of circumstances to be presented to the jury.
4. Whether the judge's summing-up was unbalanced by commenting on risks beyond the Crown's evidence.
5. Whether the judge erred in directing the jury to draw adverse inferences from the appellants' no comment interviews.

Arguments of the Parties

Appellants' Arguments

• Section 1(2)(b) of the 1990 Act targets serious violent or terrorist acts, not the comparatively low-level risks posed by the appellants' actions.
• The judge misanalyzed the offence's constituent elements, requiring proof that the device or substance used was inherently dangerous and causative of disruption.
• The appellants intended only to disrupt a single flight and did not foresee or intend wider disruption or likely endangerment to airport safety.
• The judge should have ordered disclosure related to the Attorney General's consent and stayed the prosecution on that basis.
• The defences of necessity, duress, and prevention of crime should have been left to the jury, as the appellants acted out of fear for the safety of deportees.
• The jury should have been directed not to draw adverse inferences from the appellants' silence in police interviews.

Crown's Arguments

• The language of section 1(2)(b) is clear and unambiguous and not limited to violent or terrorist acts.
• "Device or substance" should be given a broad natural meaning without requiring inherent danger.
• The items used by appellants (tripods, scaffold poles, lock-ons, builders' foam) were apprehended by airport safety officials and disrupted airport operations.
• The offence is one of basic intent; it suffices that the disruption was intended regardless of the consequences.
• The disruption need not be limited to a single flight but can extend to the services of the aerodrome as a whole.
• There was no basis to challenge the Attorney General's consent to prosecute.
• The defences of necessity and prevention of crime were not available because the appellants took the law into their own hands, engaging in civil disobedience.
• The judge's summing-up was balanced and appropriate given the evidence.
• No adverse inference direction was required regarding the appellants' no comment interviews since the Crown did not seek such a direction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that the 1990 Act was intended to implement the Montreal Convention and Protocol, which target acts of a violent or terrorist nature that endanger safety at international aerodromes. The court held that the statutory terms "device" and "substance" must be interpreted narrowly to mean inherently dangerous items capable of causing significant damage or endangerment, consistent with the international instruments and the rest of the Act.

The court rejected the Crown's broad interpretation that any device or substance, regardless of inherent danger, sufficed. The tripods and builders' foam used by the appellants were not inherently dangerous items capable of causing the damage envisaged by the statute.

Further, the court analyzed the requirement that disruption be caused "by means of" such a device or substance, concluding that mere presence of these items at the scene is insufficient. There must be a causal link between their use and the disruption. The evidence showed that the runway closure and disruption resulted from the appellants' presence and the perceived security threat, not from the use of the devices themselves.

Regarding the disruption of aerodrome services, the court agreed it must be more than limited interference with a single flight, encompassing core airport services. However, even considering the disruption caused, the court found no proof that the disruption was likely to endanger the safe operation of the aerodrome or safety of persons. The risks identified by the Crown were speculative, low-level, or conjectural, falling short of the composite test of likely endangerment.

On intention, the court held that it was insufficient to prove mere foresight of disruption; the Crown had to prove that each appellant intended the disruption and the likely endangerment to safety as a virtual certainty or very high probability. The evidence showed that only one appellant accepted such wider disruption was foreseen, and others did not appreciate likely endangerment, undermining the Crown's case on intention.

On the defences of necessity, duress, and prevention of crime, the court emphasized the narrow scope of these defences, particularly in cases of civil disobedience. Citing binding authority, the court held that these defences do not extend to acts of protest or self-help that take the law into one’s own hands. The appellants' conduct amounted to direct action against government policy, which cannot justify criminal acts under these defences.

Regarding the jury directions on adverse inferences from silence in police interviews, the court found no unfairness in the judge's approach. The Crown did not seek an adverse inference direction, and the prepared statements did not cover issues relevant to the main question of endangerment. Giving a direction not to draw adverse inferences could have caused confusion.

The court also rejected challenges to the Attorney General's consent to prosecute, noting that errors by prosecutors or Law Officers are properly addressed through trial and appeal processes, and there was no arguable basis to impugn the consent in this case.

Holding and Implications

The court held that the appellants' conduct did not satisfy the elements of the offence under section 1(2)(b) of the Aviation and Maritime Security Act 1990. Specifically, the items used were not inherently dangerous devices or substances as required, and the disruption caused was not by means of such items. Further, the disruption was not likely to endanger the safe operation of the aerodrome or safety of persons to the degree required by the statute, nor did the appellants intend such likely endangerment.

The appeals were allowed on Ground 1, and all appellants' convictions under section 1(2)(b) were quashed.

The direct effect of this decision is the overturning of the appellants' convictions for this serious offence. The court emphasized that this does not preclude prosecution for other summary offences reflecting the gravity of their actions. No new precedent was set beyond clarifying the proper interpretation of section 1(2)(b) in line with international obligations and statutory context.