Five protesters arrested at RAF Fairford on the eve of the Iraq war start
their bid to win a landmark ruling at the appeal court today. Clare Dyer
explains
Clare Dyer
Tuesday June 29, 2004
The Guardian
It was just after seven on the night of March 13 2003 when Margaret Jones
and Paul Milling saw the helicopter fly over RAF Fairford. From their
reconnoitres of the base, they knew that meant the coast was clear. There
were rumblings of war, and massed ranks of US B-52 bombers stood ready
to take off for Iraq once the word came through. Though the two peace
activists didn’t know it then, the US and Britain were to launch their
armed strike on Iraq just one week later.
Jones, 55, a former university lecturer in American literature from Bristol,
and Milling, 57, a handyman from Birmingham who now lives in the Lake
District, are members of the peace group Trident Ploughshares. They met
at a protest at Fairford, but with war looming they felt they had to
do more than just wave banners and march. They decided to try to disable
the tankers used for refuelling the planes and the trailers that transported
the bombs for loading on to the bombers.
“The obvious thing would be to disable a plane. But if you do a plane
it’s one plane and there are 14 of them,” explains Jones. “But if you
do the support system, you have the potential capacity to ground the
whole fleet for quite a while. We thought, if they haven’t got fuel on
the planes yet and they haven’t got the bombs on, they’re not going anywhere
till they’ve sorted out those two jobs.”
A full moon lit their way as they slipped down a back road and slit the
chain-link fence with bolt cutters. They were in the bomb compound full
of low loaders and trailers used for transporting the bombs to the planes.
“We put sand in a couple of petrol tanks and cut the brake pipes on as
many low loaders as we could reach.” At one point, when they were under
the low loaders, “we heard American voices and a pair of legs in camouflage
appeared. We waited for a face to come down and find us”. But the men
went away. “We put labels on some of the vehicles saying ‘out of order’,
‘illegal activity’, ‘do not use’, so nobody would have an accident.”
Crossing the road and deploying their bolt cutters again, they entered
the main airfield. “We went into a fuel compound where we found three
big fuel tankers. The first cab we tried swung open and there was a key
in the ignition. We took a hammer and smashed all the windows and the
dials on the cab. Having smashed all this glass, we thought surely now
somebody would come and arrest us but nobody came. We worked very thoroughly
through the other two vehicles.
“Just then a long shadow fell and a young American soldier came round
the corner and looked absolutely horrified. I felt more for that guy
than for me because he look absolutely freaked. He had a gun but he pointed
it at the ground the whole time.”
The US military put the cost of their night’s work at more than £80,000.
Milling and Jones now face trial on charges of criminal damage, which
could put them in jail for up to 10 years. With a trial looming, both
media and defendants are usually circumspect about what they say for
fear of prejudicing the outcome. But unlike most defendants pleading
not guilty to serious criminal charges, Milling and Jones readily admit
what they did. They argue, however, that they have a defence which could
allow a jury to acquit them – that they were trying to prevent an illegal
war.
In a hearing which starts today in the court of appeal, three judges
will decide how far that defence is open to them and to three other peace
activists who also breached, or tried to breach, the fences at Fairford
in the lead-up to the war. Toby Olditch and Philip Pritchard broke into
Fairford on March 18, and in a separate initiative Josh Richards was
arrested on the same day trying to enter the base. Pritchard, 33, and
Olditch, 35, both from Oxford, who tried to ground bombers, are charged
with conspiring to cause criminal damage and possessing articles, including
bolt cutters and glue, with intent to destroy or damage property.
Richards, 30, of Bristol, was caught trying to get into the base with
pliers, cigarette lighters and containers of petrol mixed with detergent.
He faces charges of attempted arson, criminal damage to the fence, and
having articles with him which he intended to use to damage or destroy
property.
The five face three separate trials but all deny the charges and are
putting forward the same defences. Last month a high court judge, Mr
Justice Grigson, ruled that the courts are barred from inquiring into
the legality of the war. Matters of defence and foreign policy, including
decisions to launch a war, are covered by crown prerogative and cannot
be questioned in a court of law, he said.
But in an unprecedented ruling, the judge held that while foreign policy
cannot be examined in court, the “secondary effects” of the policy can.
So the five would be entitled to mount a defence on the basis that they
were acting to prevent the commission of war crimes as set out in the
International Criminal Court Act 2001. The act does not make the waging
of war a crime, but categorises certain specific acts committed abroad
as offences triable in the UK courts. These acts include attacking or
bombing undefended buildings which are not military objectives, or
destroying
enemy property where this is not demanded by the necessities of war.
The five want to raise three standard defences to criminal charges –
two applicable to any crime and the third only to charges of criminal
damage – which entitle a jury, if it accepts that any of them applied
to the circumstances of the defendants’ actions, to acquit them of what
would otherwise be a crime. The judge ruled that these three defences
could, in principle, be put before the juries at their trials. The first
defence is that they were acting through necessity to prevent death or
serious injury – that they reasonably believed Iraqis would be killed
or seriously injured and that they acted reasonably and proportionately
to try to prevent it, even though their actions were themselves a crime.
The second is that they were trying to prevent a crime, a defence allowed
under the Criminal Law Act 1967. They say that the manner in which force
was to be used in Iraq amounted to a war crime.
The third defence is “lawful excuse”, which applies only to cases of
criminal damage. This is available where a defendant believes his actions
were reasonable to prevent danger to property – in this case, the property
of the Iraqi people who were about to be bombed.
Both prosecution and defence are appealing against the judgment. The
defence hopes to overturn the ruling barring any inquiry into the legality
of the war. The crime of “aggression”, defence lawyers argue, is an offence
contrary to international and domestic law, which the five were trying
to prevent. The prosecution, on the other hand, argues that the defences
of necessity and lawful excuse are not available where action is taken
to prevent the use of force in a foreign country in the exercise of a
crown prerogative which is not itself challengeable in the UK courts.
So far the courts have refused all attempts to persuade them to pronounce
on the legality of the war against Iraq. The Campaign for Nuclear
Disarmament
went to the high court in December 2002 to argue that a fresh UN resolution
was required before war could be launched on Iraq, but the judges decided
they had no power to interpret a UN resolution.
Whether the war was lawful or unlawful is not an issue that will trouble
the judges hearing today’s appeal either. They will simply have to decide
which defences the law allows the Fairford Five to put forward. Once
the trial starts and the evidence is heard, it will still be open to
the trial judge to exclude a particular defence on the evidence.
Nor will the 36 jurors in the three trials have to make up their minds
on the war’s legality when the time comes for their deliberations. Their
task will be to decide what the defendants believed at the time, whether
their belief was reasonable, and whether their response was reasonable
and proportionate. And, since juries’ views are secret, we will never
know the reasons for the verdicts they eventually give.
