Thacker & Ors, R. v

Section 1(2)(b) of the Aviation and Maritime Security Act 1990 implements the Montreal aviation-security regime and must be construed in that setting. A device or substance within the provision must be intrinsically dangerous. Its use must cause the disruption; mere possession or presence at the aerodrome does not suffice.

The disruption must affect the services of the aerodrome, rather than only one flight, and must be likely to create a sufficiently probable and serious peril to safety. Low-level, conjectural risks are inadequate. Where broader disruption is not the accused's purpose, the prosecution must prove that likely endangerment was a virtual certainty, or at least very highly probable, and was appreciated by each accused.

Fifteen appellants entered the restricted area of London Stansted Airport, constructed tripods and attached themselves around a charter aircraft in order to prevent a deportation flight from leaving. The runway was closed while safety measures were taken. They were convicted at Chelmsford Crown Court of intentionally disrupting aerodrome services contrary to section 1(2)(b) of the Aviation and Maritime Security Act 1990.

They appealed their convictions and sentences. Their principal contention was that their conduct did not satisfy the statutory offence. They also challenged the withdrawal of necessity and related defences, the Attorney General's consent, the summing-up, and the absence of a direction concerning their no-comment interviews.

The central issue was whether the protest, its effects and the risks it created fell within the exceptionally serious aviation-security offence created by section 1(2)(b).

1. The appeals were allowed and the convictions quashed. The appellants' conduct did not satisfy section 1(2)(b) of the Aviation and Maritime Security Act 1990.

2. Section 1 gave domestic effect to the Montreal Convention and Montreal Protocol. Read in that international context, a “device” or “substance” in section 1(2)(b) must be intrinsically dangerous. The tripods and builders' foam did not meet that description on the evidence. The statutory words “by means of” require a causal link between use of the item and disruption. The runway was closed because people were reported near the aircraft, before the items were used; their mere presence was insufficient.

3. “Disrupt the services of such an aerodrome” generally requires more than disruption to one aircraft or flight, although it is not confined to take-off and landing because ancillary airport activities are included. The qualifying disruption must cause actual or likely endangerment. Likely endangerment is a composite requirement of sufficient probability and a peril of sufficient seriousness. The alleged risks were low-level, speculative, or unsupported by evidence and did not satisfy that test.

4. It was also necessary to prove that each appellant intended disruption of aerodrome services together with likely jeopardy to safety. Intention to stop the particular flight was insufficient. Since wider disruption was not their aim or purpose, the jury should have been directed that the relevant consequence was virtually certain, or at least very highly probable, and appreciated by each appellant.

5. The judge was nevertheless right to withdraw necessity, prevention of crime and duress of circumstances. Following R v Jones (Margaret) [2006] UKHL 16, direct action cannot be justified by an asserted belief that government policy or individual decisions are unlawful where legal and democratic mechanisms are available. Grounds concerning no-comment interviews also failed: no unfairness arose from omitting a direction against adverse inferences. Leave was refused on the remaining grounds.

• Court of Appeal (Criminal Division): Allowed the appeals under [2021] EWCA Crim 97 and quashed all convictions.
• Chelmsford Crown Court: The appellants were convicted after trial of the section 1(2)(b) offence and were sentenced on 6 February 2019.