Necessity, Non‐Violent Direct Activism, and the Stansted 15: Reasserting ‘Hoffmann's Bargain’
| Published date | 01 November 2022 |
| Author | Steven Cammiss,Graeme Hayes,Brian Doherty |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12715 |
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Modern Law Review
DOI:10.1111/1468-2230.12715
Necessity, Non-Violent Direct Activism, and the
Stansted 15: Reasserting ‘Homann’s Bargain’
Steven Cammiss, Graeme Hayes and Brian Doherty∗
In Thacker and ors the Court of Appeal overturned the convictions of the ‘Stansted 15’ due to
a misdirection on the substantive oence.However, the court rejected their necessity defence,
following Jones, as their actions were political, outweighing a desire to avoid a risk of death or
serious injury;in a ‘functioning democratic state’their claims should have been pursued through
conventional means. This is a rearmation of what we call ‘Homann’s Bargain’; in Jones,Lord
Homann noted that non-violent protestors who act proportionately can expect the state to act
with restraint, but a necessity defence is unavailable. We argue that this rejection of the defence
is mistaken and overlybroad for direct action cases. It also fails to acknowledge Valderamma-Vega,
where the Court of Appeal held that defendants who claim duress may act for dierent motives
as long as one is the avoidance of death or serious injury.
INTRODUCTION
On 29 January 2021 Lord Burnett CJ handed down judgment in RvThacker
and ors,1allowing the defence appeal of the ‘Stansted 15’. On 10 December
2018, after a ten-week trial at Chelmsford Crown Court in front of HHJ Mor-
gan, the appellants had been convicted of an oence of ‘intentional disrup-
tion of services at an aerodrome’ so as to ‘endanger the safe operation of the
aerodrome or the safety of persons’ under section 1(2)(b) of the Aviation and
Maritime Security Act 1990 (AMSA 1990).2
On the evening of 28 March 2017, the appellants had cut through the
perimeter fence of Stansted airpor t and proceeded directly to a Home Of-
ce chartered Boeing 767 which was to be used in the deportation of 60
∗Senior Lecturer in Law,University of Birmingham; Reader in Political Sociology, Aston University;
Professor of Political Sociology,Keele University.The authors would like to thank John Child, Alan
Desmond, Kieren McGun, Bernard Ryan, Katie Tonkiss and an anonymous reviewer for their
helpful suggestions, and those who agreed to be interviewed for our wider work on the trial. The
authors also thank the Universities of Aston, Keele and Leicester who provided research funding and
study leave which allowed the authors to view the rst instance trial. Funding was provided by the
Aston Institute of Forensic Linguistics which allowed for obtaining the transcript of oral argument
in the Court of Appeal. All URLs last visited 11 October 2021.
1 [2021] EWCA Crim 97; [2021] 2 WLR 1087.
2 Our analysis of the Court of Appeal decision is supplemented by our ethnographic observation
of the rst instance tr ial. From this, we have taken excerpts of the tr ial judge’s rulings, witness
testimony, and statements given by the appellants in police interviews. For a full description
of our methods see G. Hayes, S. Cammiss and B. Doherty, ‘Disciplinary Power and Impression
Management in the Trial of the Stansted 15’(2021) 55 Sociology 561 at https://doi.org/10.1177/
0038038520954318. We also obtained a transcript of oral argument in the Court of Appeal.
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited. (2022)85(6) MLR 1515–1533
Necessity,Non-Violent Direct Activism, and the Stansted 15
immigration detainees to West Africa.Erecting scaolding poles to make a tri-
pod, and then locking themselves on to one another at the base of the tripod
and the nose wheel of the plane, the appellants successfully caused the ight to
be cancelled. Further disruption was also caused, including the closure of the
runway while authorities ensured that it was safe. Upon arrest, the appellants
were charged with oences of aggravated trespass,3criminal damage,4and a
breach of Stansted bylaws;5they had preprepared defence statements with these
charges in mind. The subsequent Crown Prosecution Service (CPS) decision to
charge the appellants under AMSA 1990,and the decision of the Attor ney Gen-
eral to consent to the prosecution, broke new ground, being only the second
time this terrorism-related oence has been charged.6This was an important
development; the Court of Appeal’s clarication of the terms of the oence
is welcome, as it will discourage prosecutors and the Attorney General from
further inappropriate use of this oence, given that it carr ies a maximum sen-
tence of life imprisonment. This is itself a signicant ruling.As the Cour t noted,
AMSA 1990 was enacted to implement the state’s obligations in international
law to create oences of universal jur isdiction; parliament, they ruled, leg islated
to give eect to the Montreal Convention and Protocol.7The Protocol created
oences aimed at dealing with acts of terrorism and resulted from the interna-
tional community’s response to the December 1988 Lockerbie bombing. The
Court’s decision should put an end to the use of this terrorism-related oence
for non-violent protest cases.8
However, the likely impact of the Court’s ruling on future prosecutions of
direct action protest cases lies more clearly in the terms of the Court’s rejection
of the appellants’ defence of ‘necessity’. In rejecting the defence, the court reaf-
rmed what we call ‘Homann’s Bargain’from the House of Lords decision in
RvJones9(Jones). Perhaps the most quoted passage from Jones is the following:
civil disobedience on conscientious grounds has a long and honourable history in
this country.People who break the law to arm their belief in the injustice of a law
or government action are sometimes vindicated by history. The suragettes are an
example which comes immediately to mind.It is the mark of a civilised community
that it can accommodate protests and demonstrations of this kind. But there are
conventions which are generally accepted by the law-breakers on one side and the
law-enforcers on the other.The protesters behave with a sense of proportion and do
3 Criminal Justice and Public Order Act 1994, s 68.
4 Criminal Damage Act 1971, s 1.
5 Stansted Air port bylaws 1996, 3(17).
6 For the rst, see RvLees [2003] EWCA 243.
7 n 1 above at [43],[55] and [62].
8 That the AG consented to the prosecution is open to criticism given that the require-
ment to provide consent is to guard against disproportionate prosecutions or to en-
sure that any prosecutions are in accordance with the state’s international obligations.
On the role of the AG’s consent, see Law Commission Consents to Prosecution, Re-
port (1998) at https://s3-eu-west- 2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/
uploads/2015/03/lc255_Consents_to_Prosecution.pdf. Nevertheless, the Court expressly de-
clined to challenge the AG’s granting of consent, only going so far as to note that, ‘[f]rom
time-to-time prosecutors make errors of law and so too,with utmost respect, do Law Ocers’,
n 1 above at [111].
9 [2006] UKHL 16; [2006] WLR 772.
1516 © 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.
(2022) 85(6) MLR 1515–1533
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