On a cold Monday morning earlier this week, the jury at Court 10 of Isleworth Crown Court were shown a short section of a Real Media video. Filmed in a public park a short distance from Heathrow airport a full four and a quarter years ago, it shows two gentle Welsh women (one of whom had cycled and camped all the way across England to be there) flying a pair of toy drones on strings as part of the 2019 Heathrow Pause campaign, designed to bring the nation’s attention to government plans to pursue expansion with a third runway after formally declaring a Climate and Ecological Emergency.
The clip was heavily edited by the court, hiding subtitling and removing the sound. It was only shown after a series of legal arguments, prosecution claims that it was inadmissible, and attempts to merely show a single still image instead.
Monday was the start of a fourth week of trial against three people – Extinction Rebellion co-founder Roger Hallam, London mayoral candidate Valerie Milner-Brown and sustainability researcher and consultant Dr Larch Maxey. All three were accused of conspiring with others to cause public nuisance by unlawfully flying drones within the 5.1 km no-fly restriction zone around Heathrow airport in September 2019. A fourth person, scientist Mike Lynch-White, had pleaded guilty while serving a prison sentence for helping to dismantle a factory supplying parts for weapons used by the Israeli government. Judge HHJ Martin Edmunds KC had already ruled out any defences based on preventing a greater harm (such as necessity or reasonable excuse), leaving very little for the defendants to work with.
Following the short film interlude (which in its entirety would have clearly shown that the police were not taking the threat of drone flights very seriously), the barrister for the Crown Prosecution Service, Mr. James Curtis KC, presented the prosecution summary.
PROSECUTION
Curtis referred to the directions and ‘route to verdict’ given to the jury by the judge, asking whether there was a plan to carry out an action which the defendants believed WOULD achieve the aim of closing the airport.
He said that documents seized in raids (after which Hallam was held on remand for six weeks), along with public announcements and interviews, appeared to set out a plan not to risk the public, but to put substantial pressure on Heathrow to close and to pressure the government to set up a Citizen’s Assembly.
He argued that Mike Lynch-White’s guilty plea suggested there WAS such a plan, and that the defendants’ claim that they only actually planned to break bye-laws, not close the airport, was unbelievable.
He rubbished the proposal that it was all a big lie, a campaigning publicity stunt, told not only to the media but to fellow campaigners Extinction Rebellion and Greenpeace (who decided to keep a distance). He claimed that XR wanted nothing to do with the action, describing it as ‘toxic’. He told the jury that all the evidence showed they fully intended to close down the airport by dangerously flying drones.
Hours of court time had been spent with expert witnesses showing the jury pictures of the damage that could be done to aircraft – smashed windows, compromised engines, damaged helicopter blades – by drones. They included Paul Farmer, Airport Operations Manager at the time, but he also admitted the action in the end was nowhere near enough to cause grounding any flights.
Curtis dismissed defendants’ claims that a main investor pulled out of the infrastructure project and expansion has failed as a result of the stunt, saying it didn’t matter either way, pointing at the fact that the messaging stayed the same even when it became clear to the campaigners that their actions would fall short of closing the airport.
Curtis told the jury that the prosecution had shown a mass of evidence that their actions amounted to public nuisance, and as the judge had already ruled out any defence of necessity or self-defence in law, the only decision they had to make was whether the defendants had entered into an agreement together (conspiracy).
DEFENCE – Roger Hallam
Representing himself in court, in his statement to the jury Roger Hallam began with a biblical quote – “All that doth evil, hateth the light”, and said that their intention had always been to cast light on the terrible consequences of building a third runway. Looking at the particulars of the offence and the judge’s directions to jury, Hallam picked up on the instruction that the case would be proved if they “had agreed to carry out specific drone flying in the belief that so doing would compel the authorities to close the airport even though, in fact, it would have been impossible to achieve the closure of the airport by the specific method that they had agreed to adopt”.
He proffered a simple alternative explanation to all the documents and speeches produced in the prosecution’s case, citing expert advice sought by the group, that head-height small drones would NOT close Heathrow. He said no-one rushed out and bought bigger drones or suggested they should fly higher. After his first arrest, he went out and bought another drone exactly the same. The ‘agreement’ he said was to engage in activities that COULD close Heathrow, not WOULD, but that would engage media and spark a public debate.
He described himself and Dr Maxey as full-time campaigners – if they’d wanted to close Heathrow they’d have assembled a group in secret to break through fences and run on to the runway. Instead, they went on the BBC, and engaged with Heathrow and the police weeks in advance. “Going to the police and saying I want to close Heathrow is not evidence I want to close Heathrow – it’s evidence I was embarking on a publicity campaign using the ‘possibility’ of closing due to a no-fly bye-law”.
As a result, Hallam claimed, he was offered a meeting with the main investor and there is some evidence the campaign contributed to the effective ending of the Heathrow third runway. He told the jury that although there was ‘evidence’ of a plan to shut down the airport, it was not sufficient and there was a perfectly credible alternative explanation.
He accused the prosecutor and the judge of following the same plot as the Daily Mail, characterising them either as hopeless hippies or as a cold group of sinister people, standard media tropes of ‘nasty’ activists. Hours had been spent on the possible knock-on effects of airport closures, with people missing the last hours with dying loved ones, missing funerals or weddings, lost holidays and so on. If the prosecution couldn’t prove Hallam’s intention – along with others – was to close Heathrow, then all of this other dramatic stuff is irrelevant.
Towards the end of his defence statement Hallam was interrupted several times by Judge Edmunds. First when he began telling the jury about their right to acquit on their conscience, mentioning the Old Bailey plaque which enshrines that right. Then when he suggested that the third runway might itself be a massive public nuisance and this might provide a reasonable excuse for action.
Quoting Bob Dylan’s “If you steal a little they put you in jail – steal a lot and they make you a king.” Hallam commented that “if you fly drones at head-height you can go to prison, but if you build a huge infrastructure project and 10,000 scientists say if we go over 2 degrees there’ll be a billion refugees, you get government assistance… this is the greatest threat that humanity has ever faced, but I’m not allowed to say that.”
At that point Judge Edmunds interrupted again: “That’s right Mr Hallam, because the jury have to decide on the basis of what has been put in front of them.”
Finishing his statement Hallam told the jury that when he did his first police interview he asked the police to investigate the threat that a third runway would pose – so that it would be read in court. He said that all round the world, juries are finding climate activists not guilty – “the real crime is not the flying of drones, it’s sending our children to a future of unimaginable horror.”
The judge issued a firm warning to the next defendant not to deliberately ignore his directions in the way that Hallam had, and said he would “decide how to deal with that in due course“.
DEFENCE – Dr Maxey
Next, it was the turn of Dr Larch Maxey, also representing himself without a barrister.
He began by outlining his commitment to democracy, and especially citizen’s assemblies – mentioning how an Irish assembly broke the decades-old deadlock over abortion, paving the way for progressive policies. He said he trusted a jury in the same way, rather than representatives of the state, and that Mr. Curtis was trying to manipulate them with the idea that the law was a level playing field, when in fact the State and the airport business had far more power, money and influence.
Curtis had spent hours proving that drones were highly dangerous, with his lurid pictures of smashed wings and windows, but on the other hand he also portrayed the campaign as naïve and ineffectual. Dr Maxey said the campaigners were neither violent people nor stupid – his father had taught him to stand up for himself and to believe in compassion and non-harm – and they’d set out to prevent harm and nuisance, not cause it.
He said Curtis had misrepresented the disagreement with XR about the plan, and that their main concern was the military implication of drones (eg they are used to surveil, target and bomb civilians in Gaza). The disagreement was not about the safety of the action but around the perception and association of drones with violence and war.
Maxey claimed that the prosecutor had begun the trial by saying the group was intent on causing harm, and then later contradicted this by saying they were clearly committed to safety but were still naïvely intent on closing Heathrow in their plan. Referring to Valerie Brown’s work in Africa and family history, Hallam’s research, achievements and publications, and his own campaigning history, he asked the jury to judge whether they were really stupid, or violent, or careless.
Describing the prosecution as wanting the jurors to judge the defendants by their words rather than their actions, he talked about the need to attract and sustain media attention. In 2019, Parliament had just declared its climate emergency at the same time as pushing forward with Heathrow expansion. Greta Thunberg’s school strikes and Extinction Rebellion’s gatherings had got people talking about the climate, but Europe’s biggest carbon-contributing scheme was still going forward despite ‘the greatest threat humanity faced’.
Words were powerful – when XR Youth claimed they were going to swarm the airport and close it down, they received massive media attention – but they simply turned up with a banner. When Boris Johnson said he would lie down in front of bulldozers with John McDonnell, his words gained huge attention.
Maxey asked the jury to consider the campaign’s actions – if their intention was to ensure the closure of the airport, they’d have kept quiet about it – the authorities might have actually closed for safety if they hadn’t known the group were only flying toy drones at head height. Plane Stupid had done it properly, with a surprise runway occupation. In the Netherlands, Greenpeace closed a private airport by breaking through fences last year. Heathrow Pause by contrast was all about stimulating a national conversation on the criminality of airport expansion.
Curtis, the doctor claimed, had made up scenarios of dangerous, ever larger drones and had pointed at plans to escalate the campaign, signing up hundreds, but Mr Farmer, the airport manager had said the airport’s planning considered how to deal with up to 400 such flights without closure. Maxey said there was no evidence other than that safety measures were at the heart of their campaign, with no evidence of any plan to abandon them.
In response to the indictment being about their conspiring with the intent to cause public nuisance, Maxey wanted to explain their motives and intentions, saying they didn’t have a ‘cause’ or ‘belief’ – it was simple science telling us that climate is the biggest threat, and that the intention was to get the government to listen to science. By announcing airport expansion at the same time as announcing a climate emergency, the government’s actions had been distinct and separate from their words.
As Maxey tried to critique the government’s actions re Net Zero and the 1.5˚ limit, he suffered several interruptions from Judge Edmunds. Maxey protested that he wanted to explain how Heathrow expansion would actually cause enormous public nuisance, but the judge told him to stick to explaining to the jury what he was DOING, not what he BELIEVED.
Given the problems of noise, pollution and climate change, Maxey asked, was it wrong to create the illusion of wanting to shut down Heathrow. Fighting the goverment’s huge budget and easy access to media, they were finding a way to get the truth out through that illusion. If that’s a crime then what about the advertising industry, or the police using media to portray them as dangerous criminals when the jury had seen the clip of harmless grannies.
It was possible that flights would be cancelled, but not definite – Mr Farmer had told the court himself that there was no risk but the team was fully prepared in case.
The prosecution had referred to Mike Lynch-White’s guilty plea and asked why he would have admitted to conspiring if there was no-one to conspire with. Maxey pointed out that Lynch-White had been in prison for some time for trying to stop actual drones being sent to Israel and we don’t know what pressure he was under when pleading. It also neatly resonates with XR’s concerns over the military implications of ‘drones’.
Maxey challenged the prosecution’s contention that Heathrow Pause intended to hold a gun to the head of government and abandon 1000 years of democracy. He said he had met and written to his MP many times and was passionate about democracy, even being a Parish Councillor for a while, and pushing for deliberative democracy and citizen’s assemblies. When government and business deceive the public, actions open up a way to get good information to the public – the lifeblood of democracy. He had campaigned with direct action on issues such as fracking, and HS2, shining a light on the truth. The anti-democrats were the ones lying to the public – he was upholding democracy, not threatening it. And the fact is that by shining a light on Heathrow, a major investor pulled the plug – years later it’s still not happening – without Heathrow Pause’s playful action the delay and uncertainty of the project may not have been achieved.
MOVING LEGAL GOALPOSTS
The three long submissions took up the court’s time for the day on Monday, and the planned schedule was that Valerie Milner-Brown’s barrister, Michael Goold, would present her defence on Tuesday morning and then the jury would retire to consider verdicts, but then EVERYTHING CHANGED and Tuesday ended up being a series of legal arguments followed by the judge actually rewriting parts of his directions and ‘route to verdict’ for the jury, presented on Wednesday morning.
In jury trials, the judge is responsible for outlining the law and the legal considerations a jury must take to arrive at their verdict. This often includes a document known as the ‘route to verdict’ which generally poses a set of questions the jury must ask themselves, with each step offering the possibility of acquittal or leading to the next question for consideration.
A simple example of a first question might be, has the prosecution proved without doubt that the defendant was at the scene at the time of the offence. If not, you must acquit, if so, move on to the next question – and so on.
As shown above, the original document asked the jury to consider whether the protesters believed their actions WOULD lead to the closure of the airport (even if later it turned out that was impossible). On Wednesday the judge’s reversal of his own ruling of the law effectively undermined both Hallam and Maxey’s defence submissions, because it now instructed the jury that the prosecution only had to prove that the action COULD have led to the closure of the airport.
Hallam and Maxey’s submissions had effectively been undermined, even to the extent of actually supporting this new interpretation and indicating their guilt.
Milner-Brown’s legal representative, Michael Goold, demanded time to rework their submission prior to addressing the jury. The judge allowed him just 45 minutes.
Hallam and Maxey in turn asked for an extra opportunity to address the jury, but the judge denied them this, apparently because they had earlier defied his instructions and tried to introduce what he had ruled was inadmissible evidence about climate science.
THE VERDICT
The jury couldn’t reach a unanimous verdict throughout Thursday and the judge gave them the option of reaching an 11-1 majority. On Friday, just before lunch, they announced they were ready.
Milner-Brown, whose legal representation had had time to adapt to the new rules, was acquitted.
Hallam and Maxey, who had defended themselves under a different ruling, were found guilty, and are due to be sentenced, “with all options open”, on the 16th February.
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The offence of conspiracy is part of the Criminal Law Act 1977, and forms the basis of the judge’s original ruling, that the prosecution had to prove the defendants had intended to close down the airport even it had been actually impossible by the method they chose. By reversing his ruling, Maxey and Hallam’s submissions suddenly helped rather than hindered the prosecution’s case.
Tim Crosland, the Director of Climate Justice charity Plan B (which together with Friends of the Earth mounted legal challenges to Heathrow expansion) said that “This is the first time I have witnessed a judge changing the legal goalposts after the defendants have given both their evidence and closing speeches. It is the first time I have ever heard of anything like this taking place. It is obviously a gross violation of natural justice and the right to a fair trial. It comes amid mounting evidence that, following a pattern of jury acquittals, some judges are manipulating the court process to engineer guilty verdicts for those exposing the government’s climate lies and hypocrisy.”
CROWDFUNDER
A crowdfunder has already been set up to support the costs of lodging an appeal against the verdict within 28 days.
