Britain convicts human rights defenders of terrorism offence

by Chris Bertram on December 10, 2018

In the UK every day is Brexit day, but today more than most because our hapless Prime Minister’s attempts to persuade Parliament to back her “deal” have run into the sand. The wall-to-wall coverage means that there’s every danger that the state’s victimization of human rights defenders will not get the coverage it should. The Stansted 15 are a group who took direct action to prevent a flight deporting people from taking off from Stansted Airport last March. Originally charged with “aggravated trespass”, the prosecutors sought and received permission to accuse them of an obscure terrorism offence involving intentional disruption of services at an aerodrome, a provision of the 1990 Aviation and Maritime Security Act. This was brought in after the Lockerbie bombing of 1988 and carries the possibility of life in prison. The judge in the case instructed the jury to ignore all arguments to the effect that the defendants had prevented a greater evil. It is clear however that they have indeed prevented a great evil, since several of those whose deportation they prevented have now had their cases reassessed and have been granted leave to remain in the UK. I blogged the other day about Candice Delmas’s book A Duty to Resist. At least two of her grounds of justified resistance are plainly at stake in this case: first by preventing the refoulement of people to jurisdictions where they face persecution, the Stansted 15 were acting in accordance with the natural duty of justice to uphold just institutions in a case where states try to subvert or ignore those institutions; second, the Samaritan duty, acting to prevent great harm and human rights violations to individuals, is in play. The most plausible defences of state authority base themselves on the fact that states make justice possible: in this case it is those who have acted against the state and now face prison who have acted in defence of justice.

{ 30 comments }

1

EWI 12.10.18 at 9:53 pm

The British state has had an instinctive turn to coercion throughout its long history (as an Irish person, I suppose that I ought to feel honoured that the makey-uppy offence of ‘treason-felony’ was invented for me and mine by the Mother of Parliaments Etc. in the mid-nineteenth century).

2

Akshay 12.10.18 at 10:31 pm

Gandhi pointed out that while the Law was merely a promise by the State to punish you if you disobeyed some instruction, Morality was something else entirely, which he believed came from God.

Even if so, I can understand why the State would feel a need to uphold laws. But…terrorism?!?!? Where does the British State find these ghouls to act on its behalf?

And this to defend the Home Office, and organisation so corrupted it intentionally destroyed evidence that some Caribbean British citizens were, in fact, British citizens, and then proceeded to deport them. I am not sure if I was more shocked by the sheer evil lawlessness of the Windrush scandal, or by the shambolic nature of British public administration that such a thing is even possible. (Mistreating asylum seekers is possible in every Western democracy, sadly. But deporting your own citizens is…special)

3

Dr. Hilarius 12.10.18 at 11:40 pm

The decision to up the charges to terrorism is disappointing but, sadly, not surprising. Prosecutors routinely punish defendants who chose to go to trial by amending charges to draconian levels. The original crime charged pales compared to the crime of refusing to plead guilty.

4

RobinM 12.11.18 at 2:40 am

It’s surely not just the case that the prosecutors are behaving punitively and vindictively wrt those who don’t plead guilty? Surely it’s that the British state–like other states–is on the path to making relatively trivial acts punishable in ever more grotesque ways. Maybe the imposition of the Black Acts–which E.P. Thompson wrote about–is a parallel to remember.

Meantime, here’s an account by one of those arrested at Stanstead:

https://www.redpepper.org.uk/heres-how-we-stopped-a-brutal-inhumane-and-barely-legal-charter-flight/

5

oldster 12.11.18 at 3:14 am

There is something particularly awful in the escalation of charges, because it seems aimed at undermining the very possibility of civil disobedience.

In its classic form, civil disobedience presupposes that the activists can calibrate their form of disobedience to the anticipated consequences. Rosa Parks sat in the wrong part of the bus; she was handcuffed and arrested. MLK marched; he was confined in the Birmingham jail.

The predictability of the consequences allowed them to consider their course of action, and make it as moderate as was required to bring attention to the injustice.

If Rosa Parks had thought that she would be summarily executed, why should she sit in the wrong place, instead of carrying a bomb onto the bus? Why should MLK practice any sort of non-violence, if it would be met with the same response as the most extreme forms of violence?

The state must proportion its responses to civil disobedience. Or the activists will have no reason to remain non-violent. This is a recipe for catastrophe, and a huge degradation of democracy.

6

J-D 12.11.18 at 9:34 am

One of the thoughts that passed through my mind on reading about this is that there is presumably some non-zero chance of my finding myself, one day, on a jury in such a case. The same is presumably true of many other people reading this: you might find it worth a moment’s reflection now, well in advance.

7

James Quan-Thomas 12.11.18 at 12:01 pm

This is appalling, Chris, thank you for bringing it to wider attention! Please keep us informed of anything we can do to help.

Dr Hilarius @3

Is what you describe routinely true of the UK? It was my understanding that what you describe was a characteristically American problem, in part an unintended consequence of the high standard of proof required in American courts for conviction, and the subsequent dissatisfaction of prosecutors, who sought out and were not prevented from seeking out further leverage over defendants, as lucidly explained in Langbein’s classic “Torture and Plea Bargaining”. By contrast, when I see a draconian sentence like this applied in the UK, I don’t consider the possibility that it is the result of an attempt by the prosecution to discourage the defendant’s recourse to a trial system considered to require too high a standard of proof. Rather, I consider it an indication that within the UK criminal justice system these sentences are straightforwardly regarded as plausibly proportionate. Which is, in its way, equally frightening, but a quite different thing, to do with Britain’s distinct and unpunctuated history of using its criminal courts as instruments of repression. The UK, remember, is an oligarchical state with various impromptu and frequently superficial ameliorations.

8

Dr. Hilarius 12.11.18 at 6:28 pm

James Quan-Thomas @ 7: You may be entirely right. I posted in haste and my view does reflect US experience. No doubt severe sentences are designed to deter future acts of civil disobedience.

9

Moz of Yarramulla 12.11.18 at 8:01 pm

J-D@6:

chance of my finding myself, one day, on a jury in such a case

I assumed they had chosen terrorism charges because either there’s no jury or the jury has to be vetted by the security agencies. Specifically to avoid the jury refusing to convict.

10

J-D 12.12.18 at 2:12 am

Moz of Yarramulla

I was responding to Chris Bertram’s post:

The judge in the case instructed the jury to ignore all arguments to the effect that the defendants had prevented a greater evil.

11

NomadUK 12.12.18 at 2:19 pm

The state must proportion its responses to civil disobedience. Or the activists will have no reason to remain non-violent. This is a recipe for catastrophe, and a huge degradation of democracy.

It’s almost as if that were, in fact, the idea.

12

Jeff R. 12.13.18 at 4:55 am

There was mention of an instruction to the jury to not consider a necessity defense, so there must have been a jury to receive it and fail in their basic moral duty to ignore such things.

13

J-D 12.15.18 at 6:18 am

I’ve never served on a jury. I was called once, but I was excused and didn’t have to go to court (dull story). If I ever do serve, the chance it will be on a case like this one is exceedingly slim. Still, as I mentioned, I’ve thought about the scenario.

One kind of person, serving on a jury like that, might go into the jury room and at the very beginning of deliberations say something like this to the other jurors: ‘I think you should all know that I am never going to agree to a verdict of “Guilty”.’

Another kind of person might not do that but might say something like this, during the course of deliberations: ‘I understand the instruction the judge gave us. But I also understand that the judge isn’t part of the jury, and it’s our job, on the jury, to decide a verdict, and that’s our only job. If we decide that the instructions the judge gave us are wrong and that we shouldn’t follow them, we don’t have to tell anybody that. All we have to do is give a verdict, and we don’t have to explain anything about how we arrived at it. Maybe, if we followed that instruction, we might end up with a verdict of “Guilty”, but maybe we should not follow that instruction and give a different verdict.’

Yet another kind of person might not do either of those things but might do nothing but listen during deliberations, offering no opinions, and then, as deliberations seemed to be nearing completion, say something like this: ‘Well, I’ve listened carefully to everything that’s been said, and I’ve turned it all over in my mind, and I appreciate the way you’ve all explained your views, but in the end I’m just not satisfied beyond a reasonable doubt that “Guilty” is the correct verdict.’

And having imagined those different scenarios, I wonder what kind of effects they might produce.

14

Orange Watch 12.15.18 at 5:10 pm

J-D@13:

You’re talking about jury nullification. In general, courts will try to eliminate potential jurors who are familiar with the concept in favor of those who obediently follow judicial instructions, but the recourse of a court that realizes their jury has been “corrupted” will vary by nation. It’s more or less the point of having trial by jury, though. I have mixed feelings on it personally, as it represents both a check on state tyranny and a “check” on equal application of the rule of law.

15

Stephen 12.15.18 at 8:02 pm

J-D: If I were also on the jury, I think my responses might be:

1) Sod you, mate, you don’t give a damn what I think, I don’t give a damn what you think. Did anyone ever tell you about majority verdicts?

2) Now, that’s a rational argument. Let’s argue about what we do in fact think; maybe, or maybe not guilty.

3) Look, we’ve been through all of this at great length. If you’re not satisfied that guilty is the right verdict, why on earth didn’t you say so earlier when that was what we were discussing, and respond to what we were saying? Your last-minute statement doesn’t impress me. Did anyone ever tell you …

16

J-D 12.15.18 at 8:31 pm

Orange Watch

In general, courts will try to eliminate potential jurors who are familiar with the concept in favor of those who obediently follow judicial instructions

Not in general. You may be unaware that I am a Foreignanian, but this discussion began with the Stansted 15, who were tried in a Foreignanian court.

17

J-D 12.16.18 at 5:42 am

Stephen

Thank you, that’s a response which may be helpful to me if I am ever on a jury; also, it prompted me to check and discover that there is a limited provision for majority verdicts in New South Wales (which is where I am) but also that one of the limits is that they are not available for Commonwealth charges.

I was also interested, but not surprised, to find that the statutory amendment which made majority verdicts possible was made after a Law Reform Commission inquiry which did not recommend majority verdicts but rather recommended the maintenance of the unanimity requirement and that: ‘Empirical studies should be conducted into the adequacy, and possible improvement, of strategies designed to assist the process of jury comprehension and deliberation.’

18

Orange Watch 12.16.18 at 12:04 pm

J-D@16:

And here I thought you were speaking about general principles once you started speculating about the potential to be “on a case like this one”.

And not to put too fine a point on your cutesy “Foreignanian” nonsense, IIRC we’re both non-UK but in countries whose legal systems derive from common law, correct? And to my knowledge, there aren’t any such countries whose states are terribly welcoming of jury nullification. So when you have someone not in the country discussed in the OP making speculative statements about hypothetical cases in no specific country, it makes more sense to talk about “in general” than strictly observing that in this case the judge sought to tamp down any inclination towards nullification, especially since that had already been observed.

19

J-D 12.16.18 at 7:56 pm

Orange Watch

The practice of the judge, at the conclusion of the case (not the beginning), giving instructions to the jury about what the law is–that practice is not unique to the US, but is also found in the jurisdiction where I am (New South Wales), the jurisdiction where the Stansted 15 were tried (England and Wales), and others. The purpose of this exercise is not to make sure that the jury doesn’t try to defy the law, but only to make sure that the jury knows what the law is. The judge will explain, for example, what the legal definition is of the particular crime with which the defendant is charged, because it is not assumed that the jury will have this legal knowledge; similarly, the judge will explain other legal principles relevant to the case. However, neither the judge nor anybody else will question the jurors at this point, or at any other, in an attempt to confirm that they are ready to follow the judge’s instructions. They are instructions not in the sense of commands but in the sense of education.

In the US, an integral part of the jury selection process is an extended questioning of the potential jurors by both prosecution and defence which can result in some of them being dismissed from the trial on the basis of the answers they give: for example, it is extremely likely that any potential jurors who express an attachment to the doctrine of jury nullification will be dismissed. But this practice is, as far as I can tell, unique to the US: it is certainly not found in New South Wales or in England and Wales. A US court has a way of seeking out nullificationists and removing them from the jury; elsewhere not so.

20

Moz of Yarramulla 12.17.18 at 7:54 pm

to make sure that the jury knows what the law is

That’s amusing in this context, because another universal feature of legal systems is the notion that “ignorance of the law is no excuse”. Which we have seen in action in Australia very recently as a bunch of parliamentarians successively said “oops, I didn’t know that” and either “I will fight to the death to keep that to which I am not entitled” or “sorry, I resign”, depending on their personal ethics.

I realise the education bit is a pragmatic response to widespread ignorance, but it seems odd to me that on the one hand we accept that juries are unfamiliar with the law, but on the other we expect those accused of breaking it to be intimately familiar with it right down to recent amendments and obscure case law. Or in the case of parliamentarians, have even passing familiarity with the constitution.

21

Stephen 12.17.18 at 8:50 pm

Mom: I thought the reason behind “ignorance of the law is no excuse” in prosecutions is that, if it were an excuse, every cunning defendant would plead it and it would usually be very difficult to prove the defendant was in fact knowledgeable.

22

J-D 12.17.18 at 10:16 pm

Moz of Yarramulla

I realise the education bit is a pragmatic response to widespread ignorance, but it seems odd to me that on the one hand we accept that juries are unfamiliar with the law, but on the other we expect those accused of breaking it to be intimately familiar with it right down to recent amendments and obscure case law.

You’re right, on the face of it it does seem odd, and I’d never thought about that before. But reflect a little further, and it may seem clearer that the principle that ignorance of the law is not a defence doesn’t imply an expectation that everybody should know the law: it simply means that it makes no difference whether you know the law, and it has to be that way or the law wouldn’t work. Consider this example: under common law, it was not a crime for a husband to force his wife to have sex with him. This rule was amended by statute so that a husband forcing his wife to have sex with him counted as the same crime as anybody forcing anybody to have sex. Now, suppose that after that statutory amendment came into effect a husband was prosecuted for raping his wife and pleaded in his defence that he wasn’t aware of the change in the law. If that plea were accepted, the purpose of amending the law would be largely defeated. The case has to proceed on the basis, not that the defendant is assumed to know the law, but that it makes no difference whether the defendant knows the law. How else are you going to make the system work?

23

Salem 12.17.18 at 11:58 pm

We don’t expect the accused to necessarily be familiar with the law, and I don’t know where you get that from. You are bound by the law regardless.

24

Moz of Yarramulla 12.18.18 at 1:52 am

every cunning defendant would plead it

And they do. Whether that’s accepted relies a lot on the “credibility” of the claimant, which is code for a bundle of racist, sexist, and financial prejudices. The bar is very high for “I didn’t know murder is wrong”, lower for “I thought I was allowed to defend myself” right on down to almost non-existent for “I thought banks were allowed to rip off their customers”.

For example, if you knowingly committed fraud to obtain an office of the crown that’s actually quite a serious crime. Now, “ignorance is no excuse” completely rules out the possibility that the “knowingly” part of the offence was not present, and without question those people did actually end up in office. So presumably the prosecution would consist of “I call the right honourable member for {electorate}” followed by “we adjourn until the sentencing hearing. But strangely the actual pattern has been to treat this as a mere administrative matter caused by people who make laws not understanding the law and with no penalty unless you consider loss of the proceeds of crime to be a penalty.

I keep bringing that up because it’s an utterly ridiculous law(1) and we’ve been through more than one wave of court cases over it. And those cases have been in the high court, a court which only exists because other legal experts are ignorant of the law (viz, it exists to rule on the misunderstanding of law by parliament and other courts).

One interesting contrast is between parking offences and drinking ones (at least where I am). You can plead that required signage was missing for a parking offence but not for drinking ones. It’s surely nothing to do with rich people not being prosecuted for the latter.

(1) specifically but not only because it makes parliamentarians subject to foreign law in the interest of ensuring they’re free from foreign influence. Any MP can be de-elected by a foreign country making them eligible for citizenship.

25

Collin Street 12.18.18 at 2:26 am

As I understand it, jury nullification is tied to traditions of community resistance to government… which means that in the US it’s tied to traditions of resistance to the idea of treating black people as rights-possessing beings, &c.

The same act done by different people is a different act, and all.

(as part of a larger framework of running dubious things through legal processes where the existence of juries acts as a cutout for concealing racially-motivated outcomes.)

26

Marc 12.18.18 at 3:23 pm

In the US, jury nullification has also been used to acquit racist murderers by racist jurors. It isn’t just a tool for causes that liberals might favor, and there are sound reasons why the rule of law is a better standard.

27

Orange Watch 12.18.18 at 7:32 pm

J-D@19:
It is my (admittedly limited) understanding that there is not the same accepted hostility to nullification/equity in UK courts, so while there exist means for prosecution or the judge to stand jurors by for opaque reasons, they cannot engage in open search for potential nullifiers as their US counterparts can. Significantly, though, there are a number of clauses allowing for removal for bias or suspicion of intent to decide the case on something other than the evidence heard. That, combined with the additional juror scrutiny mandated for terrorism and national security cases, opens a door for government mischief in this regard, though yes, still nowhere to the same degree as in the US. However, nonetheless, the greater scrutiny applicable to potential jurors in “terrorism” cases does potentially offer another motive for trying this as a terrorist offense.

CS@24:
As a direct counterpoint, nullification in the US prior to the Civil War was so rampant in free-state trials of violations of the fugitive slave laws that part of the laws making up the Compromise of 1850 specifically made provision to deny trial by jury to alleged violators. It can be good, and it can be bad. What it can’t be is consistent.

28

Stephen 12.18.18 at 9:16 pm

Moz: re pleading ignorance of the law, “The bar is … right on down to almost non-existent for “I thought banks were allowed to rip off their customers”.

Depends, surely. on how you define “ripping off”. If banks have done things that are against the existing law so as to take money from their customers – fraud, embezzlement, and so on – then their attempts to plead ignorance of the law would I think get nowhere. But if they have ripped off their customers in the sense of doing things that Moz of Yarramulla deeply disapproves of, but are not in fact currently illegal, then I don’t think they would have to plead ignorance of non-existent laws.

29

J-D 12.19.18 at 3:31 am

Orange Watch

You can find a description of the jury selection process for England and Wales at the following URL:
https://www.inbrief.co.uk/legal-system/jury-selection-process/

It does mention the possibility that in a national security case there will be checks on jurors above and beyond the usual ones, namely, a Special Branch records check and a Security Services check, although only if specifically approved by the Attorney-General. However, the US practice of requiring potential jurors to submit to questioning in court by both parties before they are accepted as jurors is not part of the system. If somebody is able to find out that a potential juror is a devout believer in nullification, it probably would result in removal; but potential jurors won’t be questioned about this, so compared to the US pattern there’s little chance of nullificationists being discovered. I don’t think it’s the kind of thing likely to be revealed by a Special Branch records check.

30

Orange Watch 12.19.18 at 10:21 pm

J-D:

I read that and a great deal more online before posting the above, to include relevant legislation and discussion of the protections offered to nullifiers. I agree that it would be difficult for specific jury equity/nullification proponents to be outed (unless in a case where additional scrutiny was brought to bear a juror was found to be an open activist promoting such things), and there does not appear to be a specific trend in the UK to try to detect it as a matter of course. However, the more relevant thing that I found when I dug through all that was that it seems as though the extra vetting for terror cases opens room for quashing such activity in an incidental but politicized manner; there is a significant amount of reference in discussions of the process and the relevant legislation to eliminating “bias” or preventing juries from the case from being decided on anything but the facts (which skirts tightly around highly relevant precedent-forbidden territory). This could very well amount to eliminating anyone who gave public indications that their public politics might tempt them to nullify in this case regardless of whether they’d given the matter thought. It further indicates state hostility to the idea of juries judging laws. UK courts have more firmly established precedents than US courts for defending the right of juries to nullify. But the UK gov’t is fairly clearly not a fan of it, and does try to tamp down on its practice to the degree it is allowed to, and there does appear to be some limited room for such malicious mischief.

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