Margo Munro Kerr is studying for her Graduate Diploma in Law, and tweets at @Mangrovehmk
The Stansted 15 stopped the removal of 60 people via charter flight by locking themselves to the plane while in the loading bay and holding up a banner. On the 11th December 2018 they were convicted of “intentional disruption of services at an aerodrome” by means of a “device, substance or weapon” under the Aviation and Maritime Security Act 1990.
This decision is hugely worrying. The judgement is not publicly available, so it remains to be seen what the precise legal arguments were, and whether the decision will be appealed. But the use of this law in a case such as this is an unprecedented development that must be resisted.
The Aviation and Maritime Security Act 1990 was introduced in the wake of the Lockerbie bombings, “to provide another weapon in the fight against international terrorism in the air and at sea”. It carries a maximum life sentence. It has only been used on one previous occasion: when a pilot intentionally flew his plane at a control tower in Coventry Airport soon after 9/11. That was an act of violence. The Stanstead 15 protest, on the other hand, was manifestly peaceful.
Previous similar offences have been charged with aggravated trespass, which carries a maximum of just three months custodial sentence. These have been climate activists protesting the expansion of airports, with examples including Stansted in 2008, Aberdeen Airport in 2009, and Heathrow in 2015. All of these activists were given non-custodial sentences.
The Stansted 15 were initially charged with aggravated trespass in line with those cases, but the Crown Prosecution Service (CPS) later changed the charge to a safety-focused one. It is not clear why this change was made, especially since - and unlike some of the climate activist cases mentioned above - the Stansted 15 were only ever in the loading bay, not near the runway.
Judith Reed, of the Crown Prosecution Service, told the BBC that the activists
“used equipment such as industrial bolt cutters, chains, expanding foam, scaffolding poles and lock box devices to prevent the take-off of a plane. These people placed themselves, the flight crew, airport personnel and police at serious risk of injury or even death due to their actions on the airfield. The CPS worked with the police to build a strong case which reflected the criminality of the defendant's actions, regardless of their motivation.”
Such a focus on safety and airport security belies the fact that it is precisely safety and security which the Home Office strips people of in deportation and removals.
The act refers to a “device, substance, or weapon” – and while, legally, it needed only to be proved that they used devices or substances, Reed’s words disingenuously make it sound as if the bolt cutters and chains used were weaponised.
The activists were trying to protect the people on board the plane, not place them or anyone else in danger. Moreover, while no actual danger was created, the deportations and removals were prevented.
A law to prevent terrorism
As Luke de Noronha and Tanzil Chowdhury have pointed out, the similarities between anti-terrorism and anti-migrant policies and rhetoric are especially clear in the light of the Stansted 15 ruling:
“Both ‘terror suspects’ and ‘migrants’ can be subject to arbitrary detention without charge, and both are constructed as racialised outsiders who should be denied citizenship rights and expelled from the body politic. Indeed, through the increased use of citizenship-stripping, the ‘terror suspect’ is regularly transformed into ‘the migrant’, made foreign, so that they can be denied entry, banished, and/or perhaps killed by drone strike.
Perhaps, then, it is the tens of Nigerian and Ghanaian nationals booked on that charter flight, rather than the activists who grounded it, whose predicament and location in relation to state power more closely resembles that of the ‘terror suspect’. The 15 defendants might not have been demonised and racialised in ways to analogous to ‘terror suspects’, but the migrants they sought to defend were and continue to be.”
Here a law that gives the state sweeping powers in the interests of protection against terrorism was used to ‘protect’ the interests of the Home Office in deporting and removing people.
One has to ask, was the fact that this was a protest against immigration policies and practices a factor in upping the charge?
The directions to the jury
Judge Christopher Morgan directed the jury to find the activists guilty if there had been a “real and material risk” to the airport as a result of their actions. The prosecution had argued that debris might have been left in the loading bay; that diverted police resources would not have been able to respond to any other potential threat; and that the pilot felt afraid. After some three days of deliberation, the jury found that there was such a risk.
When speaking at a demonstration outside the Home Office on the day after the conviction, members of the Stansted 15 emphasized that a major part of the prosecution’s evidence relied on the pilot’s feeling in danger, and asked why there was no consideration as to the danger faced by the people being removed. Why does one person’s perception of danger carry so much more weight than another’s? The answer is plain when you consider the legal position and power of the two parties.
Inherent risk can be found in almost anything. Yet any risk created was miniscule compared to the risk averted. Perhaps the jury should have been asked about the presence of actual danger, not risk of danger. As it was, it seems their hands were tied.
The judge also told the jury to disregard the motives of the activists.
But the law under which they were convicted was designed for people intending to cause harm not to reduce it. Their aim – to stop the removal of those on board- must be taken as part of the context of their peaceful (if drastic) measures.
Half of the Home Office’s asylum refusals are overturned on appeal. The activists had information that there were victims of human trafficking on board, whose removal would be contrary to the Modern Slavery Act, and who had not yet had the opportunity to appeal their decisions. Since their action, two people who were on the plane have secured leave to remain, while a further nine await appeal decisions.
The Stansted 15 were acting to uphold justice, not to contravene it.
The measures were drastic simply because, with charter flights, there is no other way to protest effectively. When people are removed on commercial flights, other passengers can exercise their right to protest. Charter flights are clandestine; under the radar. People are brought straight from detention centres to the plane, with no contact with the outside world. Many of those being removed are given no notice of their removal, save that this will be carried out within a particular time-frame.
Exacerbating the situation are the cuts to legal aid, making it extremely difficult for those due to be removed to access legal representation, since legal aid lawyers may well not be recompensed for the preparation of challenges to removal if the courts refuse permission for that challenge. The same lawyers are also increasingly nervous of being criticised by the courts, despite the extremely limited time-frame, for not having all documentation in order. All this means that there is always a high chance of people on board a charter flight who have not had a fair chance to put forward their case.
The risk of danger created by the activists pales in significance when compared with that created by the Home Office’s inhumane removal policies.
Certainly in the context of what they were stopping, the Stansted 15 were not the real cause of danger.
Some perspective please
Surely, one of the fundamental purposes of the Rule of Law should be the protection of marginalised people against unlawful actions, by citizens and/or the state.
The Stansted 15 are keen to emphasise that the difficulties they are going through as a result of their legal battle are minor compared to the struggles of those facing removal. Nevertheless, in this case, a law designed to prevent attacks on civilian aircraft has been mobilised against those targeted by the hostile environment and against peaceful activists standing in solidarity with them.
This ruling must be overturned, and legislation and policy need to be reformed. The state must not be able to use sweeping powers granted for the so-called fight against international terrorism to aid its agenda elsewhere.
Photo via Flikr-Commons Kevin Dooley