IN THE UXBRIDGE MAGISTRATES COURT SITTING AT WILLESDEN BETWEEN:
THE CROWN PROSECUTION SERVICE
and
ROBERT ANTHONY BASTO
ELLA GILBERT
RICHARD STEVEN HAWKINS
CAMERON JOSEPH KAYE
SHEILA MENON
KARA LAURA MOSES
DANIELLE LOUISE PAFFARD
REBECCA HOLLY SANDERSON
SAM SENDER
MELANIE STRICKLAND
ALISTAIR CRAIG TAMLIT
EDWARD THACKER
GRAHAM EDWARD JONES THOMPSON
REASONS
1. This case concerns an incident on 13th July 2015 when the defendants
entered the northern runway at Heathrow Airport and erected a
structure on the runway. This had the effect of disrupting the use of the
runway and the operations of landing and departing planes for several hours. The defendants were trespassing and it was their intention to
disrupt flights.
2. Each of the defendants faces two charges, namely aggravated trespass
in that they obstructed/disrupted someone engaged in a lawful activity
contrary to section 68(1) and (3) of the Criminal Justice and Public
order Act 1994 and entering a security restricted area of an aerodrome
without permission contrary to section 21C(1)(a) of the Aviation
Security Act 1982 .
Agreed facts.
3. The facts are largely agreed. The agreed facts will form part of my
findings and I will not repeat them later in this judgment.
4. Heathrow Airport consists of an international airport on private land.
It is surrounded by a perimeter fence which separates the airside area
of the airport to which the public do not have access and the landside
area to which the public are permitted to have access. The airport has
its own by-laws. It is a criminal offence to enter the airside part of the
airport without authorisation. The perimeter fence has signs which
clearly state that beyond it is a restricted zone and that it is a criminal
offence to enter without permission.
5. The airport currently has two runways. Generally flights stop at about
11.30pm and the first flights land at about 4.30am and the first flights
take off at about 6am. There are occasions when the airport can extend
the 11.30pm deadline but during night time one runway is closed and
the other remains open in case of emergency. On 13th July 2015 the northern runway was the runway that remained open during the early
hours.
6. On average 200,000 passengers per day pass through Heathrow. That
amounts to 73.4 million passengers per year.
7. On the 1st July the Airports Commission; Final Report (the Davies
Report) was published and it recommended that a third runway be
constructed a Heathrow.
8. In anticipation of the outcome of the report the defendants began to put
in place plans to enter the airport and occupy the runway prior to the
report being published. Once it had been published their plans
crystalised.
9. At about 3.45am on the 13th July 2015 the police received calls to the
effect that the callers had seen suspicious activity around the perimeter
fence. On arrival the police discovered that the perimeter fence had
been breached and a large hole had been cut into the fence. 4-6 pairs of
bolt cutters had been discarded near to the hole in the fence.
10. At least one of the defendants also called the police once they had
entered the runway to let the police know that they were there. They
did this in order to ensure their safety and the safety of others.
11. Shortly afterwards the police discovered the thirteen defendants
engaged in a protest on the eastern end of the northern runway. The
protestors had erected a tripod shaped structure out of scaffolding poles
and one of the protestors, Cameron Kaye, was sitting at the top of the
structure. Mr Kaye was wearing a white jumpsuit and was dressed as a
polar bear. Three of the defendants were inside the tripod structure. The remaining protestors had either secured themselves to the structure
or each other. Those that had secured themselves to each other had
used poles filled with either glue or expanding foam. The purpose of
this was to make it more difficult to remove them from the runway.
12. Some defendants had contacted the media and were talking to news
agencies and tweeting posts. They issued a press release.
13. There were banners fixed to the structure which read “ No ifs, No
buts”, “No third runway”. “Plane Stupid” and “in it for the long haul”.
The first two banners were a reference to the words of David Cameron
when talking about the expansion of Heathrow airport in 2009.
14. The activities of the group were reported by the police to operations
managers at Heathrow. The incident was given a high degree of
priority and was treated as a “gold” incident which is required for the
most serious type of incident.
15. Heathrow Airport staff deployed staff to deal with the incident and
resources such as snow ploughs were put in place to shield the
defendants from planes. The runway re-opened with a shortened
stretch for take off with the first flight taking off at 6.13am. Three
pilots felt unable to use the runway with a shortened length. Heavier
aircraft could not use the northern runway at all. No flights were able
to land on the northern runway until the protestors had been cleared.
16. Throughout the day the southern runway remained open and some
flights were diverted to that runway. In particular incoming flights.
However, Heathrow Airport runs close to capacity nearly all the time
and on this day there were 1300 flights due to take off and land. 17. The defendants were informed by the police that they were engaged in
an unlawful activity and that flights were due to land in approximately
45 minutes. They were informed that they were being arrested for the
criminal damage that had been caused to the perimeter fence. They
were then informed that they would be arrested for criminal trespass.
During the exchange police informed the protestors that aircraft were
due to land in 30-45 minutes and one of the protestors, Graham
Thompson, said “ I suggest that they use the other runway”. During the
time that officers were dealing with the defendants, the police
observed the protestors talking about the proposed third runway and
about climate change. They were also chanting “we don’t want no
runway”. The protestors were asked to leave voluntarily but they
would not.
18. During the protest or action the police made a recording of some of
what was happening and I have received this in evidence. During the
recording Mr Sender referred to the fact that a number of people living
in the vicinity of Heathrow die each year because of the emissions
from the airport.
19. Police commenced an operation to remove the protestors from the
runway but the runway was not fully operational until 10.05am that
day.
20. All defendants were arrested and taken to Heathrow police station
where they were interviewed under caution. All gave no comment
interviews, although Sheila Menon gave a prepared statement in which
she spoke about the need to lower emissions by lowering the number of flights, the targets created by the Climate change Act 2008 which
can not be met and the fact that the Airports Commission
recommended a new runway. Any new runway would mean that the
UK had decided not to tackle climate change.
21. Significant Heathrow Airport Ltd staffing resources were diverted to
dealing with the protestors. Approximately 25 flights had to be
cancelled altogether, 12 incoming and 13 departing.
22. The protest caused significant disruption to flights both incoming and
outgoing. There was damage to the perimeter fence (a hole
approximately 8 feet by 3 feet had been cut) and to the runway caused
by the scaffolding erected and detritus left by the protestors. All of this
had to be cleared before that part of the runway was able to be safely
used.
The offences.
23. The offence of aggravated trespass is set out under section 68 of the
Criminal Justice and Public Order Act 1994. It reads as follows:
68(1) A person commits the offence of aggravated trespass if he
trespasses on land and, in relation to any lawful activity which persons
are engaging in or are about to engage in on that …land does anything
which is intended by him to have the effect –
(a) of intimidating those persons…
(b) of obstructing that activity, or
(c) of disrupting that activity. 24. The offence of unauthorised presence in a security restricted area is set
out in section 21C of the Aviation Security Act 1982. It reads as
follows:
“21C(1) A person shall not –
(a) go with or without a vehicle, onto any part of a [security
restricted area] of (i) an aerodrome……except with the
permission of the manager…or a person acting on behalf of
that manager…….
(2) Subsection(1)(a) above does not apply unless it is proved that,
at the material time, notices stating that the area concerned was a
[security restricted area] were posted so as to be readily seen and
read by persons entering…..
(3) A person who contravenes subsection (1) above without
lawful authority or reasonable excuse shall be guilty of an
offence …….
The issues.
25. The principle issue in this case is necessity. The defendants all
maintain that they felt compelled to do what they did in order to
prevent death or serious injury.
26. All gave evidence that they were concerned about the effects of
aviation on climate change and most also gave evidence that they were
also concerned about the effects of pollution from aircraft on the
residents of the areas surrounding Heathrow. 27. In relation to the offence under section 21C of the Aviation Security
Act 1982 the defendants also say they had a reasonable excuse.
My findings of fact.
28. Most of the defendants are of previous good character. Not just good
character but positive good character and I have given myself the good
character direction in respect of Ella Gilbert, Richard Hawkins,
Cameron Kaye, Sheila Menon, Karen Moses, Rebecca Sanderson, Sam
Sender, Melanie Strickland, Alistair Tamlit, and Edward Thacker.
Although I haven’t been invited to give myself the good character
direction in respect of the remaining three defendants, I can’t fail to be
impressed by the character references which have been provided for all
of the defendants. The quality of the references, the people who gave
them and the attestations to the integrity and dedication of the
defendants are all outstanding.
29. Each of the defendants is entitled to have the facts considered
separately against them and I have taken into account the defences
that each of them individually has advanced.
30. The defendants have, for various periods of time, but in all cases for
some years, engaged in activities designed to bring to the attention of
those with the power to effect change, the pressing need to do
something about climate change. Ms Gilbert is a freelance science
journalist and has two degrees on the effects of climate change. She is
interested in the physical influences on climate change and in
particular its effects on the polar regions. Mr Sender moved to Sipson to work on land that has been earmarked for a third runway. He has
campaigned against the building of a third runway at Heathrow. Ms
Strickland works for Medact, a health charity which focuses on climate change. She did a law degree and was nominated for and won prizes for her campaigning on climate change. Mr Basto has a PhD in physics and has been campaigning on issues of climate change for 15 years. His sister-in-law is Marina Basto who lives in Hayes and whose health, Mr Basto believes, is adversely affected by Heathrow Airport.
Mr Thompson works in the press office for Greenpeace. Cameron
Kaye is a community campaigner in the locality of Heathrow. Danielle
Paffard is a professional community campaigner. At the time she was sharing an office with the Aviation Environment Foundation. Mr
Tamlit works as a climbing instructor but he studied geography at university and has had an interest in climate change since a very young age. He has also moved to Sipson to join the campaign against the third runway at Heathrow. Ms Menon is a film maker. She has been involved in campaigning against climate change for many years. Mr
Thacker is a community worker and teaching assistant who has also campaigned against climate change. Ms Moses is an environmental journalist. She has written articles and reported on the effects of climate change. Mr Hawkins is a director of a charity. He has worked for an independent research centre looking at the effects of climate change in the past. He had something of an epiphany listening to a lecture whilst doing a law degree and he told me that it changed his plans for the future. He has been working on lobbying the government to introduce a scaled frequent flyer levy in order to reduce the number
of flights that frequent flyers take. He has prepared evidence for select
committees on this issue. Ms Sanderson works at the same research
centre as Mr Hawkins and has also been working on the frequent flyer
levy. She works professionally as a psychologist analysing behaviour
in relation to its impact on climate change. Ms Sanderson’s father has
worked on the Antarctic and wrote an academic paper about the effects
of climate change on the region. She has been concerned about climate
change for many years and travelled from Wales to participate in this
endeavour. She told me she was proud of what she and the other
defendants had done on the 13th July.
31. All of the defendants have campaigned by attending marches; most
have lobbied politicians; most if not all, have adjusted their own
lifestyles to reduce their carbon footprint.(Although at least two
defendants have taken long haul flights in the last few years). Some are
working either full time or part time in occupations or on projects
designed to tackle the problems of climate change and some work
particularly in the field of trying to reduce carbon emissions from
aviation. Some have moved to the villages surrounding Heathrow and
in particular Sipson to join the campaign against the building of a third
runway at Heathrow.
32. There can be no doubt that the defendants are very committed to
tackling the problems of climate change and that they acted as they did
on the 13th July in what they genuinely believed was in the best interests of the public and society as a whole. They are all principled
people.
33. I am satisfied that Heathrow Airport is situated on private land and
that when the defendants entered onto the runway on 13th July they
were trespassing. They knew that the land was private land and that it
was a restricted zone. It was clearly marked as a security restricted
zone and there were markings along the perimeter fence warning of
this and of the consequences of entering onto the airfield. The signs
were clearly able to be seen and read. Indeed none of the defendants
asserted that they had not seen the signs.
34. Although it hardly needs saying and no point was taken, since Mr
Greenhall makes the point that the Crown are put to strict proof on all
aspects of its case not admitted in section 10 admissions or in respect
of evidence called, I am satisfied that the activity carried out on the
land namely the departure and landing of aircraft is a lawful activity.
35. Again although it hardly needs saying I am satisfied that the
defendants did not have permission to enter the restricted zone.
36. When the defendants entered the runway on the 13th July it was their
intention to obstruct the lawful activity that was about to take place and
it was their plainly stated intention to disrupt that activity. They wanted
to stop flights from taking off and landing on the northern runway for
as long as possible.
37. I received witness statements from Bryan Tomlinson, Marina Basto
and Philip Rumsey who live close to the airport and have various health conditions which they believe is related to the fact that they live
close to Heathrow.
38. Some, if not all of the defendants are convinced that the pollutants
from aviation near Heathrow are responsible for a number of deaths
annually. I have been told by some of the defendants that 31 people
die each year within a 32 kilometre radius of Heathrow because of
the emissions generated by aircraft using the airport. I received no
expert evidence in this respect and I make it clear that I do not find that
this assertion is true, but I accept that the defendants believe that it is.
39. All of the defendants are passionately committed to raising the issue of
climate change and bringing it to the attention of not just the public,
but those who are in a position to do something about it. Each of them
believes that:
a) Climate change is caused by pollution.
b) Climate change is already causing deaths around the world as a
result of storms, droughts, floods and other catastrophic weather
related events.
c) Unless something is done to reduce carbon emissions climate
change that is likely to be catastrophic to mankind will occur. The
need to change is urgent. Some defendants spoke of us reaching a
“tipping point”.
d) Climate change has a disproportionate effect on the global south,
i.e. on poorer communities which are least responsible for causing
pollution and are in a weaker position to deal with its effects. e) Aviation is particularly hazardous in relation to polluting the
atmosphere because of the altitude at which emissions occur.
f) Heathrow is responsible for 6 % of the UK’s carbon emissions
but because of the altitude issue it is more akin to 12-13%.
g) Heathrow is in breach of EU regulations regarding emissions as it
currently operates and that this would be made worse by the
opening and use of a third runway.
h) That they have done everything possible to raise the issue and
persuade politicians of the need to change. They are exacerbated by
the lack of response an all felt that they had done everything else
possible to highlight the issue but to no avail.
40. The defendants are all well informed on the issue of climate change.
They variously told me that the UK is responsible for 2% of the
world’s carbon emissions, that Heathrow is responsible for 6% of those
and that it is responsible for 48% of the UK’s aviation emissions.
Heathrow, they say, is responsible for the second largest mount of
carbon emissions each year in the UK. The defendants say was told
that it is responsible for the largest single source of aviation emissions
in the world. The defendants are aware that there are an average of
about 1200 flights per day into and out of the airport.
41. The defendants were passionately committed to opposing the building
of a third runway at Heathrow. They were bitterly disappointed
although not surprised by the conclusions of The Davies Report when
it was published on the 1st July 2015 and they then decided to put into
place their plans to take direct action by invading the runway at Heathrow. The recommendation of a third runway at Heathrow in the
report was the trigger for the events of the 13th of July.
42. Had the report reached a different conclusion the defendants had no
plans to take alternative action elsewhere.
43. The plans that were made were highly organised and considered. The
defendants agreed on a date, no doubt one that they could all meet. At
least one of the defendants booked leave from his job in order to
participate in this protest. They took equipment with them, took
precautions to ensure their safety by calling the police. Their planning
included safety issues and calling the event off if they felt it was unsafe
to proceed. Had the defendants seen an emergency landing taking
place they would not have proceeded.
44. I accepted that the tripod erected by the defendants was symbolic of a
polar ice cap and that they were alluding to the damage that is caused
by climate change in so doing. I accepted that the protestors were very
concerned about the impact of a third runway on the environment and
they wanted to highlight the impact on climate change.
45. The principle aim of the protest or direct action, as the defendants
would prefer to call it, was to protest against the proposals to build a
third runway at Heathrow. I find that this is the case because:
a) The action took place in the immediate aftermath of the
publication of the Davies Report. All of the defendants gave
evidence that they had been concerned about climate change for a
number of years and yet they felt no compulsion to take direct
action before the publication of the Davies Report. b) The planning of the action started before the Davies Report was
published and was to take place in the event that the Davies
Report recommended a third runway at Heathrow. Airport.
Expansion elsewhere in London would have increased air traffic
elsewhere and therefore increased overall emissions and yet there
were no plans to take action elsewhere.
c) Some of the defendants had moved to Sipson or the Heathrow
area in order to campaign against the building of a third runway
the at Heathrow. They were passionately committed to opposing
its construction. This was their main focus.
d) The defendants had placed banners around the tripod which
specifically related to the group “ plane stupid”, and referenced
airport expansion at Heathrow – “ no ifs, no buts” and “ no third
runway”.
e) The protestors were chanting “ we don’t want no runway”. And
“no no no way”.
f) In evidence Graham Thompson said he would not have taken
direct action had the Davies Report not recommended a third
runway at Heathrow. Ms Paffard said that she took action
because the report broke her faith. Most of the defendants
conceded that the publication of the report was the last straw or
the trigger that led to the action that they took.
46. I found the defendants claims that they were acting under a compulsion
to be disingenuous. I haven’t taken lightly the fact that they are people
of integrity. This does not mean that they are incapable of being untruthful. They made a choice designed to highlight their grievances,
namely the decision to recommend a third runway at Heathrow, the
dangers of climate change being secondary on that day. (Although I
accept that their motivation for opposing the third runway was about
pollution and climate change.) I have no doubt that the date chosen
was convenient to them, there being nothing otherwise remarkable
about the 13th July.
47. I did not accept that the defendants believed that their actions were
necessary to prevent death or serious injury for the following
reasons:
a) As a proportion of the whole, if what they believed is true, [ UK’s
emissions are 2% of global emissions, aviation is responsible for
6% of that total in the UK, or 12-13% if allowances for greater
impact at altitude are taken into account, Heathrow is responsible
for 48% of that and every day 1200 planes take off and land from
that airport, only a small proportion of which were likely to be
disrupted given that Heathrow has a southern runway which was
always going to be fully operational], the impact that their actions
was and was always going to be small.
b) Many of the defendants spoke of the fact that they saved a large
quantity of co2 emissions because 25 planes had to be cancelled. I
am sure that such a well informed group would have been aware
that any savings would have been offset, at least in part, by any
additional emissions created by e.g. aircraft stacking, additional
taxi-ing of planes or additional flights that might have had to be arranged to compensate for cancelled flights. However, at the time
the defendants went onto the runway all were aware that their
protest would be relatively short. Only Karen Moses suggested it
would last any longer than a few hours. I did not believe her. I am
sure all knew that they would be removed as quickly as possible,
certainly within a few hours at most. Indeed in his evidence Mr
Thacker said that he did not expect to be there for long or to stop
many planes. He acknowledged that there would be little effect on
the southern runway or other airports. This was a well planned
activity and the defendants would have discussed what the impact
of their actions might be which this leads me to the conclusion that
what most said, namely that they expected to be removed within a
few hours, was true. Prompt removal would inevitably reduce
emissions saved. c) None of the defendants knew of anyone who was at immediate or
even impending risk of death at that point, either locally or
worldwide. When asked, as they all were about what or who they
believed to be at imminent risk of death or serious injury on the
13th July 2015, no-one named anybody in particular. d) Apart from the generic risk of death from the effects of climate
change globally and pollution locally, which the defendants believe
is created by emissions, there was nothing to suggest that there was
any particular risk that day. e) The defendants did not know whether any flights would be
cancelled and if so how many. f) The defendants called the police in order to let them know that they
were there. This would have accelerated the operation to remove
them and reduced the impact of their actions in terms of the length
of time that they were on the runway.
g) The defendants called the media and highlighted the fact that they
were protesting against the third runway and I did not accept that
this was because they felt the press would be more interested if
they made it about the runway rather than saving life. It is
inconceivable that the press would not have covered the incident
whatever the reason.
h) If there had been an incoming plane making an emergency landing
the action would have been aborted.
i) Many of the defendants have conceded that they were aware of the
risk to human life from climate change long before July 2013. they
had not felt compelled to take the action that they did before that
time.
48. I found the defendants’ actions were symbolic and designed to make a
point, not to save lives.
49. Because of the very limited impact that the defendants’ actions would
have had on climate change globally or on harmful polluting emissions
in the surrounding areas of the airport, I did not accept that that they
believed that there was any prospect that what they did could have
saved lives or prevented serious injury. 50. It goes without saying that I am not satisfied, therefore, that the
defendants did believe that their actions were necessary to save life or
prevent serious injury full stop, let alone in the very exceptional
circumstances that would afford them a defence of necessity or duress
of circumstances. The defence must therefore fail.
51. Further, and although I am not required to make any findings in view
of the fact I have found as I have, I am entirely satisfied that from an
objective standpoint, for the reasons that I have set out in paragraph 47,
the defendants were not acting reasonably and proportionately in order
to avoid death or serious injury. Their actions were not necessary.
52. It is therefore unnecessary for me to review the many authorities which
have been put in front of me. However, even if I had found for the
defendants in relation to their own beliefs, I am quite certain that given
the fact that the defence is available in only exceptional
circumstances, the defence could not possibly apply in the
circumstances of this case as a matter of law.
53. I do not find that the defendants have available to them the defence of
necessity in relation to the offence of aggravated trespass and I am
sure beyond reasonable doubt that they are all guilty of that offence.
54. Like wise for all of the reasons set out above I do not find that the
defendants had the defence of necessity available or either lawful
authority or reasonable excuse for their unauthorised presence in a
security restricted area and I find all of them guilty of the offence
under section 21C of the Aviation Security Act 1982. 55. I am satisfied that the defendants had very little regard to the disruption
that their actions caused.
56. I accepted the evidence of Mr Oxby that the flow rate for take off and
landings was reduced throughout the day as a direct result of the
protest. This affected punctuality and throughout the day 41,000
departing passengers and 51,000 arriving passengers were affected by
the delays that day. I accept that some of those delays were contributed
to after 1pm by adverse weather conditions but I find that a significant
proportion was due to the actions of the defendants.
57. I accepted Mr Oxby’s evidence that the figures above take no account
of the knock on impact on the timeliness of flights from other airports
or on cancellations that were caused.
58. I accepted that the evidence of Mr Oxby that the delays may have had
an effect on those passengers making connecting flights elsewhere.
59. I do not have any statements from the passengers who were adversely
affected that day but I have heard from Heathrow Airport Ltd staff.
60. However, I am entitled to make some assumptions as a matter of
common sense. The actions of the defendants caused major
disruption to the flight schedule at Heathrow for that day. 25 planes
were cancelled. That would have caused disruption of some sort to the
thousands of passengers who would have been due to travel on them.
61. I am satisfied that the evidence I heard about the knock on impact that
demonstration had to the flight schedule for that day was significant. I
accept that there were delays due to the weather conditions in the afternoon, but nonetheless thousands of people would have been
adversely affected by this action. These passengers are victims.
62. I am satisfied that significant staffing resources had to be diverted to
dealing with the incident and that there were associated costs to
Heathrow Airport Ltd.
63. I am satisfied that those costs continue as I heard from Mr Oxby that
additional security measures have had to be put in place on an ongoing
basis to try and prevent a similar incident in the future and that this has
had a cost implication to Heathrow Airport Ltd.
64. People make journeys for a wide variety of reasons. Not just for
pleasure or even business. People travel for medical care or to visit
sick or dying relatives, to go to school and so forth. I have no
information about what journeys were being made that day, but then
neither did the defendants. I have no information about what the
financial implications to individuals might have been, or to the impact
that any stress they might have suffered as a result might have been.
But then neither did the defendants. Stress can have adverse effects on
physical health. Mr Sender and Mr Thacker apologised for the
inconvenience caused, but apart from that if the defendants gave any
thought to the impact that they might have had on their many
thousands of victims, they gave little or no indication of it in court.
One defendant spoke of her pride at what she had been involved in on
that day. At worst the defendants considered it but continued anyway.
This action was not just a minor inconvenience where the ends justified the means. We simply don’t know what the cost were to the
individuals who were affected.
65. There have been times when throughout the trial when some
defendants were at pains to make political points. Given that the
defence position was so weak, I sincerely hope that the court process
has not been used as a political platform. In any event the defendants
must expect to bear the full costs of this case between them.