Maxey & Anor v R.

Factual and Procedural Background

On 15 December 2023, in the Crown Court at Isleworth before Judge Edmonds KC, two defendants, referred to here as Appellant 1 and Appellant 2, were convicted of conspiracy to cause a public nuisance. A third defendant pleaded guilty before trial, while a fourth was acquitted. The appellants appealed their convictions, arguing that the trial judge erred in refusing a submission of no case to answer at the close of the prosecution case.

The appellants were activists involved in climate change protests and part of a group opposing the expansion of a major airport ("Heathrow Airport"). They planned a protest involving the flying of drones within the airport's Flight Restriction Zone ("FRZ") to draw attention to the proposed expansion. The protest was intended to begin on 13 September 2019, with potentially hundreds participating. The appellants published a Safety Protocol restricting drone flights to toy drones flown below head height and outside flight paths.

Flying drones within the FRZ was a breach of the Air Navigation Order 2016. Several people were arrested and some convicted for such breaches during the protest period. The appellants were arrested before any drones were flown. The prosecution case was that the appellants planned the protest to compel the closure of the airport, constituting the public nuisance. The limited drone flights ultimately had no impact on airport operations.

The central factual dispute was whether the appellants intended to cause a public nuisance by closing the airport or merely sought publicity through the drone flights. The appellants denied intending to close the airport, asserting their aim was to publicise their campaign.

At trial, expert evidence described the risks posed by drone flights within the FRZ, including the possibility of closure if drones entered critical areas. Evidence also included statements by the appellants and their group indicating an expectation or intention that their actions would lead to airport closure.

Procedurally, the appellants represented themselves at trial but were represented by counsel on appeal. The prosecution was represented by counsel throughout. The appellants challenged the sufficiency of the prosecution case and later the fairness of the trial following a significant change in the judge's directions to the jury.

Legal Issues Presented

1. Whether the judge erred in refusing a submission of no case to answer, specifically whether the prosecution proved a prima facie case that the appellants agreed to a course of conduct that would necessarily amount to causing a public nuisance.
2. Whether the appellants intended to cause a public nuisance, namely the closure of the airport, or merely intended to publicise their campaign.
3. Whether the doctrine of innocent agency applies when a third party exercises independent judgment in closing the airport, breaking the chain of causation.
4. Whether the late change in the judge's directions to the jury after the appellants had addressed the jury caused unfairness affecting their right to a fair trial.

Arguments of the Parties

Appellants' Arguments

• The evidence did not establish an agreement to cause a public nuisance as required by section 1(1)(a) of the Criminal Law Act 1977; the prosecution failed to prove that the conduct would necessarily lead to airport closure.
• The judge conflated the conduct and mental elements of the offence by allowing conviction based on intention alone without proving the conduct's capability to cause the nuisance.
• The airport authorities acted as independent agents exercising judgment in closing the airport, breaking the causal chain and precluding liability under the doctrine of innocent agency.
• The change in the judge's route to verdict after the appellants had addressed the jury caused unfairness, as they had relied on the initial directions that allowed for the possibility that closure was impossible.

Prosecution's Arguments

• The prosecution was not limited to the Safety Protocol and could rely on evidence that the appellants agreed to cause airport closure through drone flights, even if the specific method might have been impossible.
• The case was properly left to the jury with questions focusing on intention and the possibility of causing a public nuisance.
• The doctrine of innocent agency was not necessary to impose liability because the appellants' conduct foreseeably caused the authorities to take steps resulting in public nuisance.
• The judge’s revised route to verdict was appropriate and ensured fairness despite the late change, which was handled carefully to avoid prejudice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the elements of conspiracy under section 1 of the Criminal Law Act 1977, focusing on whether the appellants agreed to pursue a course of conduct which would necessarily involve the commission of the offence of causing public nuisance. The court rejected the appellants’ argument that "necessarily" required the prosecution to prove that the conduct would inevitably lead to airport closure. Instead, the court held that the phrase relates to the legal quality of the intended outcome rather than the inevitability of the outcome.

The court emphasised that the offence of conspiracy is complete upon agreement, and proof of overt acts is not required. The jury must consider the consequences if the conduct is carried out according to the accused’s intentions. The court found that the prosecution presented a case properly left to the jury: that the appellants intended to cause airport closure, and that such closure would constitute a public nuisance.

The court addressed the doctrine of innocent agency, concluding that it was unnecessary to rely on it because the appellants’ conduct foreseeably caused the authorities to take steps resulting in public nuisance. The authorities’ exercise of independent judgment in closing the airport did not break the causal chain.

Regarding the late change in the judge’s directions to the jury, the court acknowledged the difficulty but found that the judge managed the situation appropriately. The appellants were not prejudiced because the essence of their defence—lack of intention to cause closure—remained unaffected. The jury was provided with clear, revised directions, and no request to discharge the jury was made.

Holding and Implications

The court dismissed the appeals and upheld the convictions of the appellants for conspiracy to cause a public nuisance.

The direct effect of this decision is that the convictions stand, affirming that an agreement to pursue conduct intended to cause a public nuisance can be established without proving the inevitability of the outcome. The ruling clarifies the interpretation of "necessarily" in section 1(1)(a) of the Criminal Law Act 1977, emphasizing the focus on the legal character of the intended outcome rather than its inevitability. The court also affirmed that protestors can be held liable for public nuisance when their conduct foreseeably causes authorities to take obstructive action, without breaking the causal chain due to the authorities’ independent judgment. No new precedent beyond the application of existing principles was set, but the decision confirms the application of conspiracy and public nuisance law in the context of protest activities.