Case No: C201900126 C3, 201900128 to 201900135 and 201900137 to 201900142 IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 24 November 2020
Before:
THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON, LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE JAY and
THE HONOURABLE MRS JUSTICE WHIPPLE Between:
<NAMEONE>, <NAME TWO>, <NAME THREE>, <NAME FOUR>, <NAME
FIVE>, <NAME SIX>, <NAME SEVEN>, <NAME EIGHT>, <NAME NINE>, <NAME TEN>, <NAME ELEVEN>, <NAME TWELVE>, <NAME THIRTEEN>, <NAME
FOURTEEN>, <NAME FIFTEEN>
and
LIBERTY (Intervener)
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MS CLARE MONTGOMERY QC appeared on behalf of <Name One>, <Name Two>,
<Name Three>, <Name Seven>, <Name Ten>, <Name Eleven>, <Name Twelve>, <Name
Thirteen> and <Name Fourteen> (with MR OWEN GREENHALL for <Name Three> and MS BLINNE NÍGHRÁLAIGH for the remainder)
MR TIM MOLONEY QC appeared on behalf of <Name Fifteen>, <Name Four>, <Name Five>, <Name Six>, <Name Nine> and <Name Eight> (with MR OWEN GREENHALL for
<Name Eight> and MSBLINNE NÍ GHRÁLAIGH for the remainder)
MR TONY BADENOCH QC, MR PHILLIP MCGHEE & MR KARL LAIRD appeared on behalf of the Crown
MR JUDE BUNTING appeared on behalf of the Intervener
Proceedings Crown Copyright©
Tuesday 24 November 2020 (10:44)
THE CLERK OF THE COURT: In the Court of Appeal (Criminal Division), R v <Name One>, <Name Fourteen>,<Name Ten>, <Name Nine>, <Name Three>, <Name Two>, <Name Eight>, <Name Twelve>, <Name Four>, <Name Fifteen>, <Name Six>, <Name Five>, <Name Seven>, <Name Thirteen> and <Name Eleven>.
My Lord, counsel, Ms Montgomery and Mr Ní Ghrálaigh, are on the link.
LORD CHIEF JUSTICE: Thank you.
THE CLERK OF THE COURT: And the appellants are either in court or on CVP, and so are interested parties and the press.
LORD CHIEF JUSTICE: Thank you.
Yes. Well I understand that the proceedings are being relayed to other courtrooms as well.
I should remind those who are attending via link that that facility is being provided in the
interests of justice because of the need for social distancing here and also the difficulty in movement generally. I would remind everybody that it remains an offence to record the CVP proceedings or to broadcast them.
Now, I can see Ms Montgomery on the screen in front of me. Ms Montgomery, I understand you are going to be starting; is that right?
MS MONTGOMERY: My Lord, I am.
Can I apologise for being required by an order to self-isolate; I am not being impertinent. It would not be my choice to appear to you by the link.
LORD CHIEF JUSTICE: Please do not apologise. These things happen. In any event my practice at least is to accommodate attendance via video link for those who, for whatever reason, are finding it difficult to come to court at the moment.
MS MONTGOMERY: Certainly.
Just to complete the formalities, as your Lordship knows, I appear together with Ms Ní Ghrálaigh, who is also on the link, for nine of these appellants. Mr Moloney QC and Mr Greenhall, who are in court, represent the balance of the five.
Mr Tony Badenoch QC, Mr McGhee and Mr Laird, I think are all in court representing the respondent.
Also on the link is Mr Jude Bunting, who has been (inaudible) skeleton argument on behalf of Liberty, who your Lordship may read from the (inaudible).
I am assuming that the court has had the chance to look at the skeleton arguments. If you have you will know that effectively the arguments have been split so far as the appellants are concerned between myself and Mr Moloney. There are five issues, in relation to which two are the subject of a grant of leave by Sir John Royce. So if I could just identify them and identify who is going to be dealing with them.
The first issue that arises is the correct implementation of section 1(2(b) of the Act, which I am going to deal with. The position between the applicants and the respondent is effectively the respondent saying that this is an all-encompassing endangerment provision and we say that that is not correct. It was always intended to provide for punishment of serious criminal acts in the form of terrorism and the ingredients of the offence has to be construed with that purpose in mind. It is not aimed at free-standing health and safety requirement on protesters in airports, which is effectively the role which the prosecution (inaudible).
But that is a point I will deal with.
The second issue, which Mr Moloney will deal with, effectively is parasitic on that first issue.
If we are wrong and this was indeed a health and safety for protesters provision, then we submit it is plain that it should not have been permitted to be used in that way, given the stated purpose of the United Kingdom Government based to the Montreal Convention of (inaudible) all three to Parliament (inaudible) in that way but would be used only to prosecute cases of serious terrorism.
LORD CHIEF JUSTICE: Ms Montgomery, can I ask you to pause for a moment? The sound quality on the link is really not very good at the moment. I am understanding, I think, sufficiently what you are submitting, but you sound, if I can put it this way, as if you are at the bottom of a swimming pool. I wonder whether there is anything that we might do to try to improve the link? I would invite anybody who has a camera on other than
Ms Montgomery to turn it off and similarly anybody who might have a microphone on to turn it off, and then we can just see whether that improves matters, otherwise we may need to re-establish the link. All right. If those who have cameras or microphones on would turn them off, I would be grateful.
(Pause) I am sorry to have interrupted, Ms Montgomery.
MS MONTGOMERY: No, I am grateful for the interruption, and I do have an alternative device so I can come in on it if it remains difficult to hear me on this device.
LORD CHIEF JUSTICE: Yes. So you were dealing with the second ground that Mr Moloney will be arguing and just summarising your position.
MS MONTGOMERY: Yes.
The third ground, which it then will be for me to outline to the court, is the law of defence of necessity or alternatively the intervention under section 3 of the Criminal Law Act. I am going to concentrate on the defence of necessity because it may be that your Lordship will, or the court will, be persuaded that that is the lowest on a denominative offence. So that if it qualifies as necessity, that should have been left to the jury, even if for technical reasons to deal with location of the feared offending, it might not qualify under section 3 of the Criminal Law Act.
Fourthly, I will deal briefly with the way in which the judge summed the case up. This issue, on which we do not have leave, is in fact closely related to the first issue as to the proper approach to the statute, because the complaint that we make about the summing-up is that the judge treated the question of the “risks endangering safety” as being something that could be commented on sensibly in the summing-up as a matter of fact and common sense, whereas (inaudible) are principles of issue, the more of the risk we identify -- the risk of being run over on one of the approach roads because people might not be (inaudible) in a car, or the risk of something coming in on a runway, instead of located near the aircraft when (inaudible) -- all of those risks, we submit, in any event will qualify once the offence is properly understood, but they were introduced as fresh issues at the point of summing up, and we complain about that, effectively, or to that ruling.
Fifthly and finally on the issue that Mr Moloney is going to deal with, again an issue on which
leave has been granted, the directions on the adverse inferences that were to be drawn.
So, my Lords and my Lady, I am going to start with the construction of the actual Acts. For this purpose your Lordships and my Lady will need the Act, which is in volume 1 of the bundle of authorities behind flag 6 at page 22 if you are using the electronic bundles. Alongside this -- I hope it was received this morning -- a supplemental bundle of authorities, which had mini text on the relevant Protocol to the Montreal Convention, because it will be necessary to look at those effectively side by side. So the supplemental bundle that you have before you should have the Montreal Protocol as page 1 and 2 contain what was contained in Article 1(1)(b) sub the Convention.
LORD CHIEF JUSTICE: Yes, I think we all have that thank you.
MS MONTGOMERY: Thank you.
So, effectively, when the court looks at the text of section 1(1) -- so I am now back at page 23 in the main bundle of the authorities -- you will see that the offences have been effectively separated out by subsection into four different forms of the offence, which is not the approach that was taken in relation to the drafting of the provision in Montreal. In relation to the drafting of the provision in Montreal -- this is (2) -- all of which were conceived by the common introductory word "unlawfully and intentionally using a device, substance or weapon". But the technique that has been used here, effectively instead of having "unlawfully and intentionally using" -- applying the Convention as the introductory tool -- you can see that the language has been slightly altered so that it now becomes "by means of a device ... intentionally", and then a list of acts: (1)(a) causing death; (1)(b) endangering safety; and then in (2) destroying property on aircraft; and then in (b) disrupting.
So, the first question that the court has to address is what are the conduct elements of the
section 1(1)(a) and 1(2) offence, and what is the role of the words "by means of any device"?
The respondent's position is effectively that the phrase "by means of a device" is merely a gateway or (inaudible) issue, and that once the use of a device or substance is established then it ceases to be of any direct relevance, because we then consider the conduct all around -- whether it is conduct with or without the device -- in order to determine whether or not the other elements in the offence are committed. In our submission that is plainly wrong and results in an offence that is far from wide.
Our core submission is that the intention of those drafting the Convention and those drafting this Act was, as was most clearly linguistically expressed in the Convention itself, to catch unlawful an intentional use of devices that had (inaudible) consequences.
The court will see that that phrase I have just used -- "unlawful and intentional use of
devices" -- is exactly the introductory clause that has been used in the international law and can appropriately be, with instruction of the phrase that we now have in section 1(1) and 1(2), it has altered "usually limited by means of" and removed the requirement for
"unlawfully" to a point after the reference to "with devices". So it now reads, "By moving the device unlawfully with the intention ..." So the order of the words has been altered. It has been altered in a way that allowed the judge who was competent in this case to argue that the requirement for (inaudible) had been divorced from the requirement for which leave "by means of a device"; and we say that is absolutely his right.
There are two aspects to that point. Firstly, the offence, that is the disruption, rightly through the danger, in the context of 1(2)(b), has to be a disruption by means of the
device -- moving the device; and secondly, the use of the device must be per se criminal, or criminal in the context in which it is. It is not simply a gateway provision.
The second issue that arises, again by looking at the provisions of the Convention and the statute side by side, is what is the disruption or quality of disruption that is required? And that again, we submit, a (inaudible) from the fact that the issue of disruption is one aspect of the wider offending which is clearly concerned with serious acts of terrorism. So (1)(a) and (b) has had the requirement that effectively violent confrontation or death or disruption to (inaudible) in the vicinity. In our submission it is quite wrong to treat the quality of the disruption as being disruption to, for example, the road surfaces that might be employed within the framework of an airport. It must be disruption of a fundamental character to the core services of the aerodrome -- that is, the safe, controlled landing and departure of aircraft, and the physical safety of the passengers who are sitting on those planes.
The third conduct element provided is the mode, the question of endangerment which arises because the requirement is the disruption, and we would submit, the use of the device must be such as to endanger or be likely to endanger.
Now in this case it is clear that the focus was on the likelihood of endangerment. Again we submit that the trial court and the respondents are plainly wrong to have sought to argue and hold in the directions to the jury that all that was required was a minimal level of likelihood, that is something that was sufficiently minimal that it could happen, rather than what we would submit would be the normal approach to a criminal statute in this court assessing a higher standard of likelihood. As the court knows, the term "likely" in its statutory context can have a range of meaning from the one (inaudible) for the trial court could happen, to more likely than not. But on any view, given the seriousness and confidence (long inaudible) in this case, a higher standard of than could happen should have been employed.
Finally, in terms of the constituent element, the court would normally consider what the mental element is of this offence. It was suggested, and (inaudible) directly, it was sufficient (inaudible) that there should be an intent to disrupt; and that was the limit of it. But in our submission, it is quite plain, for the reasons that I have given about the centrality of the use of devices that are unlawful, that at the very least that must also be part of the intended Conference. So that the defendant must intend, we would say at a minimum, to use devices unlawfully to cause disruption, and, we would say in fact, in order to ensure that this stays within legitimate (inaudible) or with direct conviction the danger is likely to be caused.
MR MOLONEY: If Ms Montgomery will forgive me, I apologise for rising, my Lords and my Lady. As I am in court, I am necessarily the conduit for people who are on the CVP. It has been conveyed to me that there is a large amount of feedback for people on CVP which is preventing them from hearing Ms Montgomery. I do not know if there is anything that can be done about it?
THE CLERK OF THE COURT: My Lord, this is what I was going to suggest a minute ago.
I can mute the recording of the court, which will improve the quality of the sound.
However, if the court wants to address Ms Montgomery, I need to know to unmute the court.
LORD CHIEF JUSTICE: I think that might be too complex.
Ms Montgomery, have you by chance anywhere where you are got a headset with a microphone?
MS MONTGOMERY: I have, and I can plug that in now.
LORD CHIEF JUSTICE: I think our collective experience is that that can help. So what I am going to suggest, because obviously it is important that not only we but others can hear your submissions, is that -- if you have it with you and can plug it in, we will not rise, but
if you are like me, Ms Montgomery, you probably want to get it sorted. So we will rise for just a minute or two to enable you to do that.
MS MONTGOMERY: I have it here.
LORD CHIEF JUSTICE: You have it there? All right. Let us try.
MS MONTGOMERY: (Inaudible).
So, my Lord, I hope you have now got it.
LORD CHIEF JUSTICE: Yes. Well I think that has improved things, but let us see how we go, and if Mr Moloney gets further feedback of a different sort --
MR MOLONEY: Indeed.
LORD CHIEF JUSTICE: -- do let us know.
MR MOLONEY: Thank you.
LORD CHIEF JUSTICE: Yes Ms Montgomery, you were saying that the intention that the statute refers to must include an intention to disrupt and an intention to cause the harm that is spoken of.
(Pause)
Oh dear, Ms Montgomery has now frozen completely. What I am going to do is rise for a few moments. I think it is going to be necessary to try to re-establish this link.
(11:07)
(The court adjourned for a short time)
(11:17)
LORD CHIEF JUSTICE: Ms Montgomery, what we are going to do is essentially turn off some of the bandwidth being used here in a second and it will be turned back on if we need to speak to you. Good.
So we were on intention and your submissions about what has to be intended.
MS MONTGOMERY: Yes.
So having looked at the language of the Act I was going to attempt to persuade the court that it ought to be construed restrictively in any event just on conventional principles governing any approach to this sort of penal statue. The first is because effectively if the intention is merely the basic intention of an intention to disrupt without any need for there to be any foresight to the use of weapons or if a device was unlawful or without any appreciation that it was likely to endanger, that provides an extremely wide-ranging criminal offence of a type that it had been described by the academics as an endangerment offence. In our submission an endangerment offence is only appropriate in relation to restricted types of activity, like driving or handling explosives, where the need for some strict liability involving merely that they intended to carry out the act -- driving or possessing explosives -- clearly requires there to be a wide-ranging criminal offence to cover that conduct. But in my submission here, simply irresponsible behaviour in the context of political protest does not require to be subject to some sort of wide-ranging penalisation, and in our submission just on that conventional principle the constituent elements in the offence have to be read restrictively.
Secondly, even in its own terms, the offence with which the court is dealing is clearly one of the utmost seriousness: it carries a sentence of life imprisonment. Critically it is also subject to universal jurisdiction: that is, that anyone anywhere carrying a tripod onto the runway of an airport in any jurisdiction may be liable to be prosecuted in the UK. That is
an extraordinary provision. The court will know crime whilst it ceased to be local has never been suggested as being an appropriate means for providing jurisdiction of anything that happens anywhere. The exception is where that sort of universal jurisdiction is asserted is only in the gravest possible of cases: genocide, torture and so on.
Thirdly, for the reasons that we identify in our skeleton argument, in any event the consequence of the way in which this offence is framed is that it has been designated both as a serious offence, serious offence for the purpose of dangerousness, but more critically, it is a Convention offence (so defined) for the purposes of the terrorist legislation. As a consequence, under the Terrorism Act, which the court has behind tab 10, under the Terrorism Act 2006 anyone who could be understood as encouraging this sort of conduct would themselves commit an offence punishable by 15 years' imprisonment, and anyone who carries out, as indeed was carried out in this case, a training exercise to make sure the process could take place safely, would commit the offence of (inaudible) and
terrorism -- again an offence which carries, this time, imprisonment for life.
So if one identifies that the very act of some well-meaning bystander saying, 'I think what happened to Fancy(?) was a very good idea and she had to attend because frankly the approach of the British government to forced deportation is disgraceful' potentially has committed a section 1 offence. So that one has to bear in mind the consequences not just for potential offending, but also for the necessarily chilling effect that has upon this type of activity, falling, as it does, potentially within the area of legitimate public protest.
None of that requires begging the court either to wider purpose or to anything beyond the language. That all of that points to the idea, we suggest, that one has to identify with considerable rigour and great care the constituent element of the offence to ensure it does not become this wide-ranging offence that can merely be committed provided only you have a device with you and you then disrupt an airport in some way that might give rise to a possibility of risk.
However, as the court knows, we submit this is not simply a case in which you would take a purely linguistic approach to the statute. I appreciate the respondents deny, or have
denied, the purpose was to give effect to the Montreal Convention, and I appreciate that they want to warn the court against the dangers of a purposive gloss being placed on plain language, but the reality is that you cannot just by looking at the words of the section identify with certainty the precise scope of the constituent elements. And if that is right, you are entitled to look at purpose on the grounds of uncertainty in any event, but more importantly, you are entitled to look at purpose because as, again on perfectly conventional ground, you are permitted to look at the long title of the Act.
As you can see, it has got the Act at 109 flag 6, page 22. The long title starts with (flag 6-22) the statement that the Act is to give effect to the Protocol for the Suppression of Unlawful Acts, which is the 1988 Montreal Convention. That is a perfectly straightforward
mechanism by which Bennion -- you have Bennion in the bundle, but the court will be familiar with the principles. It is a perfectly straightforward and conventional method for construing a statute of this type, because the long title is available for debate within
Parliament and therefore can be attempting to reflect the will of Parliament just as much as the contents of the offence-creating section.
I know that the respondents want to remind the court about the work of the House of Lords in Lyons, which resulted in a refusal to read in, effectively retrospectively, the effect of the Human Rights Act and the obligation under the Strasbourg Convention, but that is quite a different circumstance. The circumstance here is, as the long title suggests, that this was specifically intended to provide for the "giving effect to the International Convention for long title affairs". So there is no question of there being a wider purpose. That there was either an intention to give a narrower or a wider range of penalisation in response to Montreal; it was to give effect to Montreal.
For that reason, as we see it, you are entitled to look at the effect of the Montreal Convention and
the Travaux Préparatoires, and indeed to safe practice afterwards, in order to understand what the Act is giving effect to. But you would be entitled to in any event because the UK is a signatory to the Montreal Convention and there is, as the court sees, the additional presumption that we would legislate it according to our international obligations.
For that reason, I am going to take you very briefly to the Travaux to make it clear what particularly the phrase "using devices" was intending to add to the offence that Montreal approved and also to the safe practice -- although that is something that I think Mr Bunting on behalf of Liberty has already drawn your attention to. There has never been
a prosecution in a compilate set of circumstances anywhere in the world, and indeed, as you may have seen if you have ventured into the bundle at page 2452, there has been criticism in UN of the use of this particular form of prosecution in the context of its effect upon the rights to peaceful assembly.
So in our submission the second reason to look at what happened in Montreal can be derived from any number of perfectly legitimate conventional interpretive rules. As a result I am going to ask the court just to look very briefly in volume 3 at the lead up to that 1988 Convention and the circumstances giving rise to the International Action was (inaudible).
So it is volume 3, flag 105, beginning at page 2337. (Pause) So the court will see this is the International Civil Aviation Organisation, which was the originator organisation responsible for the First Montreal Convention in relation to Hijacking. As you will see in the first paragraph, the Legal Committee set up the 1988 Convention. The circumstances were that there had been -- this is at the bottom of that first paragraph -- an attack on Narita Airport and further attacks on Rome and Vienna in December 1985. The court may not be able to much remember those, but they took the form of simultaneous machine gun attacks upon passengers waiting in the terminal at Rome and in Vienna. You will see that the
purpose that the Committee identified in having a further Air Law Conference is set out at the bottom of the page:
"That an attempt must be made to revisit the subject of suppression of unlawful acts of violence at airports and international air transportation".
The idea was (as over the page, paragraph 3 said) to have a further initiative aimed at the adoption of an act in respect of perpetrating acts of violence at airports, with the prosecution/extradition regime -- that is the universal jurisdiction: either extradite or prosecute or prevention. As a result, an Instrument was prepared and then considered at the Conference on Air Law. You have an extract from the Minutes at the next flag, behind 106. By this stage, I can tell the court that the Instrument which was finally adopted had in fact been recommended by the Legal Committee of the ICAL, and so it came effectively to the Conference fully formed and remained unchanged. But as you can see, the Chairman at 2343 introduces the Act that is proposed (at the top of page 2343) by pointing out that the unlawful acts of violence should already be criminal acts under the ordinary criminal codes and the part effect for the Convention was to find that "due to their relation to international civil aviation, endangering or likely to endanger safety ... should be singled out as acts deserving the establishment of concurrent (or universal) jurisdiction."
They end that paragraph by referring:
"It is our intention is to define ... only acts of a certain level of magnitude deserving the establishment of ... [that] jurisdiction."
That was the subject of a number of comments in debate. It was made clear by a number of delegates, including delegates from the Netherlands, United Kingdom and France, who had been three of the primary protagonists in the drafting, that, as the Netherlands said at 2344, it had to remain at a considerable level of magnitude. At 2344 they observe that talk of safety at the airport should not include traffic safety or safe conditions of labour; whereas
in fact, as we know, the judge held that traffic safety was squarely within the type of service that might be disrupted and likely to endanger under the domestic law.
Just to pick up the other delegations. The United Kingdom's observations -- there are a couple of observations from the United Kingdom, the first of which is at 2345 at paragraph 4.
This is again in the Plenary Meeting, where, as the delegate says, five lines into that paragraph:
"... although there was no reference to terrorism in the text of the Protocol, all knew that it was terrorism ... that had [got] the Delegation to the Conference and raised the need for the Protocol."
Coming to the issue of the meanings used, you can see there was debate amongst the delegates as to the requirement that there should be unlawful means used, and the draft remained
unchanged because it was recognised as being an important qualifier, although some (as you can see from 2346) thought it was not a sufficiently precise qualifier at 4:46. At paragraph 4:46 at page 2346 you can see there was some suggestion that because it should only relate to indiscriminate acts of a serious nature typical of terrorism the new instrument should not apply to minor offences, and so they suggested using the word "dangerous"
before the words "device, substance or weapon".
So that as you can see at 4:47, there was opposition to the idea that there was a requirement for
"dangerousness" to be added because of the possibility of loopholes, but it was said that was not necessary because of a requirement for unlawfulness and intentional; and you can see the underlining in paragraph 4:47. That is the point I made of course in opening: that the use of the device must be the use of an unlawful device. It does mean to use
dangerously; it must be unlawful per se.
Then over the page again, just to finish off the idea of the National Comment, 2347, if the court
would not mind turning to that. You can see there the comments of France. The
concerns make it clear that you could not add "using a device ... or other means" -- in other words you could not make it a gateway -- because, as they said in the middle of
paragraph 1:
"... the present wording meets the concern of the Legal Committee to exclude ... acts not involving the use of material means such as strikes or gatherings by demonstrators. These were not terrorist acts justifying international criminalisation."
Similarly, so far as the United Kingdom is concerned at page 2348, again concern that it should not catch non-terrorist activity, if I can put it that way. The second full paragraph on the comments by the United Kingdom:
"... what unlawful acts should be made an international crime?"
And:
"Proper definition" -- This is five lines into that paragraph.
-- "is required so as not to cover behaviour which should be left to the regulation for [domestic laws]. ... not acceptable ... that an act happened to have taken place in an airport ... (even if the act had unintended consequences for civil aviation). Something more is required to justify the
internationalisation ..."
You can see the suggestion is that that can be achieved by making it clear -- this is the next full paragraph -- it is not simply committing the offence, but "causing the wider consequences.
The test should be satisfied where a person commits the acts in the knowledge that such consequences will follow" and a concern that the formulation endangered or is likely to endanger may not achieve that purpose because it might catch, for example, hooligans at an airport rather than international crime.
Over the page at 2349 -- a point I made about what services had to be disrupted: they make the
point that so far as an airport is concerned, the concern is about safety in relation to core functions. So they say, for example -- fourth line down -- "safe take-off or landing" and
"persons' safety affected by many minor occurrences is not intended." They say that in those circumstances "safe operation" has to be for those who recognise that the act will have those wider consequences.
So the court can see, facing the language in the Protocol and in the debate that takes place both in the previous session and in the other Travaux Préparatoires, but it is absolutely clear that there is concern that this new instrument, which came into effect very shortly after the conference in Montreal, should be read sufficiently narrowly so as to catch only the most serious offences for which leave out of jurisdiction could be justified.
If there was doubt about it, I would, in my submission, given the doubt as to the precise contours of the constituent elements in the offence -- just repeating the language -- I would be entitled to take you to Hansard in accordance with the principles in Pepper v Hart because there is a very clear statement -- I am not going to take you to it -- but there is a very clear statement both in the Lords and the Commons by the Minister introducing the Bill that the intention was (I will obviously give you the references -- it is 2470 in the Commons and it is at at 2501 in the Lords) making it clear that the intention in section 1 was to give effect and to punish terrorist activity at airports as foreshadowed by the remarks made by the United Kingdom delegation in Montreal.
So in our submission the appropriate way to approach this statute, section 1, is not, as the
respondents say, to ignore the Montreal Convention or the obligation in relation to the new 1(1)(b) defence, nor still the more bizarre suggestion that in fact what was in mind was not to introduce the Montreal Convention but instead to reflect some fairly obscure sections from the Offences Against the Person Act 1861, which seems improbable. One does not
imagine that the Parliamentary draftsman sitting down with the Montreal Convention thought, 'I know, I will just go back to the Offences Against the Person Act 1861 rather than follow the language of the Convention'. But it is with that purpose in mind that one needs to come back and consider, again with that purpose in mind, what I submit is the effect of the purpose on the construction of the elements in the offence.
So looking at it afresh, it is our respectful submission that certainly "by means of a device unlawfully" -- which is my compression of the introductory language of 1(2)(b) -- "by means of any device unlawfully" must reflect, at the very minimum, two things. Firstly, that the use of the device must be a direct cause of the prohibited act -- the prohibited act being the disruption likely to endanger; and secondly, given the positioning of the
"unlawfully" requirement, whether it is before or after the reference to "device", that the device itself and its use must be unlawful per se. By doing that, one does absolutely no violence to the terrorist purpose. So that if the device is an explosive or a firearm or a poison or something of that sort, there is no difficulty, this will be caught by this
provision. And the causative effect of the device is clearly intended, if one considers what it is really looking at, as one can see from the remainder of the section is it is trying to kill or injure people or destroy facilities to the point that causes serious damage or disruption.
As you will appreciate, that is not what happened at trial. What happened at trial was
effectively the court and the prosecution approached this on the basis that provided only that you had a device with you, even if the device was benign, in the sense of not itself being dangerous -- and that is true of a number of the devices in this case because the devices identified included the tripod upon which protesters hung themselves or locked themselves on (the lock-ons), and indeed the foam that was designed to harden off within the lock-ons to make them difficult to remove -- all of those, it is said, were devices, and
that provided only they were used, as I said in opening this issue to the court, you then look at the (inaudible) in the round and said (long inaudible). And in our submission that is to open up this offence to a point of absurdity. So that one could, for example, say that the relevant device is a pair of shoes, or indeed the banner that was used to put up the flyer saying "Deportation Kills" or something of that sort. As soon as you fail to treat with sufficient rigour the requirement of unlawful device then you open up -- and the causal effect of that unlawful device, then you open up a whole range of activity, unarmed activity, which surely cannot have been intended to be caught.
So the requirement that it is per se unlawful and it is the cause of the (inaudible) disruption is essential in order to provide an appropriate limitation in the width of this offence.
So just so your note has it, the summing up deals with the relevant devices as including the lock-ons, the tripods and the foam at 422 in the summing-up. I do not know how the court has the summing-up, but I have it in file 1B behind flag 25.
LORD CHIEF JUSTICE: Yes.
MS MONTGOMERY: So flag 25 -- 422. You can see that the devices just between F and G that were included in his description of the devices, having given no help at all about what
"by means of" -- not suggesting that it required any causal effect, which he does at F. He says, device includes the lock-ons (that is the means by which the defendants (now
appellants) lock themselves together to make them hard to remove) and the tripods, and the substance referred to -- it says "phone" in the transcript, that should be
foam -- F-O-A-M -- in the transcript that we heard about.
Then so far as unlawfully, there is no focus upon the illegality of devices. Why should there be?
Because he has already concluded the submission (inaudible) that they do not require to be unlawful per se. The focus is on what other offences might have been committed,
including, as he points out, the offence under the byelaws, which he sets out at the top of 423, the next page.
So on his analysis the requirement of domestic illegality does not relate to the use of devices at all. It could be satisfied by, for example, breach of byelaw -- and that should be paragraph 3.17 -- literally translated as byelaw 3, subparagraph 17 -- which prohibits public
demonstrations at the airport.
So you can readily see that, on the judge's analysis, any demonstrator with something that could be regarded as a device which is otherwise benign -- whether it is a sign or a placard -- will commit an offence under the Stansted Airport byelaws punishable by a fine, summary only. But provided that that happened all you then need is to say, was there intentional disruption? Because you do not look at what was done with the placard, you look at their conduct widely. If there was intentional disruption, was it likely to endanger safety?
And that is, with respect, absurd for an offence that carries universal jurisdiction, life imprisonment and where somebody encouraging that type of demonstration -- "take a placard to Stansted" -- is themselves guilty of encouraging terrorism.
So I am going to turn to the second element that I would like to concentrate on, which is the element requiring proof of disruption and in particular to look at how the court approached it. So the court approached it on the basis that, not only was one entitled to look at what the appellant (then defendants) actually did, you were entitled to look at the consequences of what they did in the form of the acts of third parties and indeed in the form of potential rather than actual disruption. So that when one comes to look at the summing-up, as I will in due course, the jury were left with the direction from the judge that included amongst the disruptive acts which they could analyse to determine whether or not they had had the effect of being likely to endanger safety. Was for example the possibility -- which did not
happen -- that in crossing one of the roadways they might have encountered a car or a fuel truck, and the possibility again -- that did not happen -- that by their ingress to the airfield they could have introduced some foreign object that might have formed debris on the runway so as to provide a threat to safety. In our submission that is again absurd. What section 1(2)(b) is at the very least considering is not theoretical disruption or indeed disruption caused by the act of third parties: for example, there was disruption because a choice was made to shut the runway for a period. What one is looking at in 1(2)(b) in our respectful submission is actual disruption: what was it they intentionally did? That does mean -- contrary to the directions given by the judge -- one is required to focus upon the disruption actually resulting from the conduct which took place. As you know, the conduct was all focused upon the stand where the deportation flight was due to leave, the lock-ons and the tripods were all erected around the plane which was due to be the means by which the deportation flight took place, and that nothing happened on the runway, nothing happened on the nearby roadways, and therefore there was no disruption to allow the judge to go on, as he did, to describe it as one of the relevant risks -- the danger of being hit by a moving vehicle or a fuel truck or introducing foreign objects onto the runway.
So one then has to consider -- not only does one have to look at the actual consequences, but one leaves out of account the suggestion that somehow something else might have happened.
We have given the court -- I suspect you probably do not need it --
an example -- a petition, a Scottish petition, McIntosh v Her Majesty's Advocate, which is behind tab 44 of the authorities. But I probably do not need to go there because the statement is self-evident. It is a case in which somebody threw a petrol bomb which landed and exploded outside a house, and the issue was, was that likely to endanger?
Since you are looking at it, perhaps we should just go there. The relevant passage is at page 730. So it is flag 44, 370 is the page number. The issue in that case was, as I say, a petrol bomb had been thrown. It had landed outside the house. The question for the Scottish jury was whether or not that was likely to endanger life. Obviously, one would have thought, the court concluded that he was not entitled to direct the jury that they should consider what might have happened had the petrol bomb been thrown inside the house and therefore be likely to endanger life in that way. When one is looking at endangerment offences, you look at the acts as they actually occurred rather than what might have happened had circumstances been different. That, as you will see when we come to look at the summing-up, lies at the heart of one of our complaints about the judge's and indeed the prosecution's attitude to this being the case. That a great deal of it turned on, well what would have happened maybe if they had built the tripod a bit higher?
Then it might have hit the wing. One does not analyse the danger to the airplane or the airfield by reference to something that did not happen, one analyses it by reference to what did.
So that is the first point I would make about the element of disruption. It is the actual disruption and the actual consequences that need to be looked at. So it is necessary to identify with some precision what it is that is said to have been done.
And then one needs to consider two other elements. Firstly, what level of danger is
encompassed in the requirement that there should be something that endangers the safe operation of the aerodrome or the safety of the people in the aerodrome. As the court knows, our clear submission on this, based both on the purpose of the Montreal Convention and the language of the Act, is that what must be endangered are the core operations that make civil aviation possible, international civil aviation possible. So it is
not concerned with the operations to maintain appropriate lighting or vehicle movement, it is concerned, we would respectfully suggest, with the core operations that need to be conducted safely: to land planes safely, to let them take-off safely, to run an appropriate air traffic control to prevent them colliding in mid-air and to allow passengers not to be
exposed to risk of serious injury or death.
Now I accept that as a matter of language it is possible to get to the point that the judge appears to have got to, which is to say, well really any operation. As he put it in his summing-up, the whole purpose of having a secure area, he said, was to allow an uncontaminated safe space in which lots of different air-related activities can take place, say preparing aircraft for flight, moving things about, moving passengers out. All of that, he said, are included within the safe operation space; and so that is why he ended up referring the jury to the manual, the Air Safety Manual, saying any one of those risks that are related in the manual and provided with some stipulation of how those risks are to be negotiated. It is sufficient (inaudible) one point he specifically directs the jury that so far as the penetration of the secure area is concerned, once that has happened that is enough of itself to give rise to the need for the jury to consider all the risks relating to the manual in so far as it governs that air-secure area.
But that cannot be right. Obviously, the judge did not accept that he was reducing to a point of absurdity the type of operation that might be considered. But it was pointed out that one could easily include within the phrase "safe operation of the airport", the janitorial services, or the dangerous slipping when someone has mopped a floor, or something of that sort. And he says, I am not doing that. But we suggest he did the functional
equivalent once he got to the point, as he did, in his summing-up of identifying the fact that lights might cause distraction (he said at 433), or that there might be a risk if there was the
noise of the auxiliary power unit (at 440), or that he might, for example, have thought that there was a danger of collision with a fuel tanker (443) -- at one point in the far distance, unconnected with the defendants, one could see a fuel tanker moving about, doing its business. All of that is, we suggest, is taking the concept of the safety of the airport or aerodrome far too literally, so that it covers every single possible conceivable health and safety risk arising as a result of the day-to-day activities of air travel. So in our respectful submission the court should have identified only those things that might be regarded as being the safe operations that required international protection. As I say that act would be those core activities.
So I have spoken about the need to look at actual disruption and I have spoken about the need for that actual disruption to be focused upon core activities, but there remains the question of likelihood, which I touched upon. As you know, there was no suggestion of actual danger in this case and therefore the entire prosecution construct depended upon saying there was a likelihood of endangerment and the court was persuaded that the appropriate level at which the question of likelihood could be analysed was at the level that it might happen, provided it was not minimal or unrealistic, provided it might happen, as was held to be an appropriate standard in Boyle v SCA Packaging, that would be sufficient. And the difficulty -- perhaps it does not need me to say, but the difficulty is with that approach is that Boyle v SCA Packaging, where that standard is set at "could well happen", is dealing with an entirely different statutory context and an entirely different factual matrix where it would be necessary to have such a low standard -- could well happen -- because as the court will appreciate, Boyle v SCA Packaging is dealing with the question of whether or not conduct was likely to have an adverse effect upon disability, and since one is dealing with something that is essentially very hard to predict because it depended upon a variety
of circumstances, they (the House of Lords) said it was necessary to take that lower standard because anything higher was harder.
So it is perhaps just reflecting within Boyle v SCA Packaging itself, there is a recognition that there will be a range of meanings that are likely which will have to be considered depending on the context. Perhaps it is just worth looking at that. So Boyle v SCA Packaging is in file 2 behind flag 68. It is the decision of Lord Rodger, where he deals with, there is shape and meaning for "likely" at 1424-paragraph 36. So file 2, flag 68, 1424. So you will see there at paragraph 36 the range of meanings are discussed by Lord Nicholls in Cream Holdings and the fact that it depends upon the context. Obviously Cream Holdings, as the court will remember, the standard of likelihood was set at a higher standard because there the issue was the question as to whether or not a defence of
justification might succeed at trial. You will remember some interim relief should be granted, and it was considered appropriate in Cream Holdings and set rightly at a higher level. Certainly in this regard, given the need to keep this offence within reasonable statutory bounds, our submission is that "likely" should certainly not be set at the minimal level of could well happen. If the purpose is to catch terrorist acts, then one is looking not at potential consequences right at the remote end of likelihood. One is looking at a real, substantial and, we would submit, more likely than not outcome which prevents a threat to safety.
So I have now identified so far as I can what we submit the correct approach should be to the conduct elements here in this case. Had that approach been adopted this case simply would never have got past the closing prosecution case, and it certainly was
inappropriately presented to the jury on the basis that, provided only they breached the byelaws by protesting and they had things that could be regarded as devices, and that
because they were there various things could well have happened, including collisions with fuel tankers or crossing the road unsafely or foreign objects on the runway, that was clearly wrong.
Now, because this is an Act or at least a section in an Act that has never been construed, it is for the court to determine which of those constituent elements need to be analysed in a way that provides the proper boundaries to this offence. I am not suggesting necessarily that they would not be affected by the approach that the court takes one to another. So, for example, if you say the device has to be unlawful per se then there might be a case to say the likelihood of endangerment could be set at a lower level because that would be legitimate because you are dealing with something that is inherently dangerous and unlawful. It has got to say that one is in an area where it would be appropriate to say, once you, let us say, (long inaudible), it has to be an explosive device, that then if you try to say, well we will take a lower level of likelihood because we are dealing with things that are inherently dangerous and therefore ought to be subject to greater restriction when one comes to consider the element of likelihood of endangerment.
So, so far as the conduct element is concerned that is all I want to say.
So far as the element of intention, again our submission is that one must intend those conduct elements, each of them. So one must intend not merely disruption, which is what the judge and the prosecution said, one must intend unlawful use of devices to cause disruption by the unlawful use, and that there should be danger or likely endangerment, and that that should be aimed at core operations.
Now I am conscious that it is quite hard listening to me sitting with sound problems on as a result of my being on a link. That is all I propose to say about constituent elements and interpretation. Unless I can assist you further and I am going to move on to the question
of necessity.
LORD CHIEF JUSTICE: Yes. Thank you.
MR BADENOCH: My Lord, I think you may still be muted which is why ...
LORD CHIEF JUSTICE: It is all right, I nodded, and Ms Montgomery understands to keep going. (Pause) I think!
MS MONTGOMERY: Thank you. I do, thank you.
So I am going to deal with the question of necessity. Again in our submission the law in relation to necessity is tolerably clear in terms of identifying the various tests that have to be satisfied. Indeed it is sufficiently clear that for our purposes we do not need to go any further than the way in which it is expressed in the current edition of Archbold. So perhaps in the interests of simplicity we can start there. The court has the description of the defence in volume 4 flag 123 at page 2751. (Pause) They have set out the technical definition in Stephen's Digest, which is approved as being a general statement. So three elements: firstly, necessary to avoid evil; secondly, no more than is reasonably necessary to avoid that evil; and thirdly, that your action is proportionate, that is that your conduct is not worse than the evil you seek to avoid.
Now clearly the problem with that defence, expressed severally as it is, is in satisfying yourself as to the conduct that must be proved in order to qualify under each of those three heads.
And that has been accepted as being the root of the difficulty. But that those three heads represent the law can be taken from two cases, which I am just going to briefly show the court. The first is the decision in Martin, which is in volume 1 behind flag 36 of the authorities, which is generally identified as being the core statement of the principle. So volume 1, flag 36. This is useful for two reasons: firstly, because it demonstrates the genesis of the modern recognition that necessity of fact derives from a series of driving
cases. This was such a one. It was in relation to driving whilst disqualified: that the husband was required by his wife, who had suicidal tendencies, to drive their son, who was late for work, to work because otherwise she said that she would kill herself, and the issue arose if you could raise that by way of defence of necessity given that he genuinely and reasonably believed that she would kill herself. Having looked at the earlier cases at the bottom of 542 -- this is not the report numbering, this is the numbering in the extract at the bottom right -- saying:
"[Peter Shaw] recognises the defence of necessity, most often arising out of duress, but it can arise in relation to other objective dangers called duress of circumstance."
For the moment I am not going to get into the issue of classification because there is no unified theory of justification and so I am going to try to just concentrate on
necessity -- sometimes called duress of circumstance; sometimes not. But the reason it is not is because, as we will see shortly, duress of circumstances suggest that if it contains necessity (inaudible) will be overborne, whereas it is clear from the cases in tort and in some of the criminal cases that your will does not have to be overborne, it could just be a case where you feel that you had to act to prevent a greater evil. Anyway, just to pick it up again. First, they say -- this is at the top of 543:
"... the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in ... avoiding a threat of death or serious injury.
Thirdly, assuming the defence is open ... the issue should be left to the jury, who should be [be required to] determine two things: first, was the accused ...
impelled to act ... because [of what] he reasonably believed to be the situation and had good cause to fear ... death or ... physical injury. Secondly, ... may a sober person ... sharing his characteristics ... have responded ... by acting in [that way]? If the answer to both those questions is yes, then the jury would acquit."
That does not include the addition I added as to whether or not the evil avoided was
proportionate with the crime committed, but that does emerge fairly clearly from the later analysis by Lord Goff in the case of AF and then later on Brooke LJ in Re: A, both of which deal with necessity in the criminal law for the purpose of determining the scope of the doctrine in the context of doctors and necessary treatment of patients.
So if I could just look at those two cases, analysing the position. F, which is the first of the doctor cases, is a case of sterilisation. The most extended treatment of the defence of necessity appears in the speech of Lord Goff beginning at page 627. The speech runs through effectively to 631. But in summary, Lord Goff identified the principle of necessity as deriving effectively indiscriminately both in criminal law and in civil law.
That must be right. In the end there cannot be something that will amount to a defence to tort and therefore something that would protect you from civil liability that would
nevertheless not be protective from criminal liability: a fortiori the liability to expose to criminal sanction must be narrower than the liability to expose to sanction under civil law.
In any event, at 627, he analyses the earlier cases, both in relation to public necessity (that is tearing down somebody else's house to stop the Great Fire of London) and private necessity (that is to stop somebody effectively letting loose something that might destroy your own property), and then also the rescue principle, which is what he deals with in the middle of 627, namely that should be taken of necessity -- so he gives the example between B and E of seizing someone and dragging them out of the path of an oncoming car. He makes the point that there need not be in those circumstances a pre-existing relationship between the person concerned.
Then in addition he deals with the question of lawful intervention (a matter of Roman law) at the bottom of 627, where there is not necessarily an emergency. Because, as I will submit to
the court in a moment, although many of the cases on necessity say that it has to be
a necessity that arises immediately or in an emergency situation, that is not the principle in our submission. The principle is (inaudible) necessity: sometimes action may be
necessary even if there is no imminent threat, if it is a persistent and long-standing threat which must be addressed, as I think at least one of the cases -- memory says: if you know that Anne Frank is hiding in her house in Amsterdam, you do not have to wait 2 years for the Gestapo to come and get her, you can intervene earlier in the process as necessity despite the fact that her arrest is not imminent.
But in any event Lord Goff gets to the same point in what he describes (at page 628) as an issue of "permanent emergency", as he puts it, where somebody is not able to address a problem.
Then he says at just between C and D:
"... the relevance of an emergency is that it may give rise to a necessity...
without first obtaining ... consent. Emergency is however not the criterion or even a pre-requisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity not of emergency."
For that reason, as well as by reference to "agency of necessity", he concludes that the basic requirements at the bottom of 628 at H are:
"... there must be a necessity to act ... and the action taken must be such that a reasonable person ... is acting in the best interests ..."
He makes the point, which I am going to come to in more detail when we consider the very criticisms that have been made about the dangers of self-help and vigilantism in relation to necessity. At the top of 629 in the bundle (76 in the report) he says that officious
intervention cannot be justified by necessity when there a more appropriate person is available or willing to help; or if you are acting contrary to the wishes of the assisted person. But subject to that, he takes the point -- again going back to the need to provide
assistance -- between C and D. He says:
"... as a general rule ... interference with the assisted person's property or person will not be unlawful."
He gives the example of a railway accident where there will be passengers, railway staff, as well as medical persons who might intervene -- all of which, he says, is obviously lawful by reference to the principle of necessity.
For that reason, he says that it is not necessarily the case that you need to be under a duty to act in order to be able to benefit from the principle of necessity, which is a suggestion that is made in the Canadian cases because, as he says as at the bottom of 630 (77 in the report) that so far as the existence of a doctor/patient relationship as being needed to justify necessity, he takes the view that there is no need particularly for a duty because, and he says, “is the doctor in the house?" at the bottom of that page. But furthermore, over the page, he says, a non-professional stranger who rushes to assist an injured man, it is a necessity that provides justification for that intervention.
Now as I have indicated, that was expanded upon and used as the foundation for an analysis, a further analysis of the criminal defence that might be available because of the conjoined twins case, which we have reported in Re: A. Again I would just like to take you briefly to it. It is in volume 2 of the authorities behind flag 52. Volume 2 flag 52, and I am just going to deal effectively with the judgment of Brooke LJ -- not that the others do not deal with it, but because it is the most extended analysis of the criminal cases and saves me having to go back to the Criminal Law Reports in order to identify the basis for his decision. So I was going to start in his judgment at page 1000. The court will probably remember the case. This was conjoined twins, one of whom was effectively unable to survive if separated because of her reliance upon her twin's vitals, and the issue was
whether or not permission should be given for that separation operation to be carried out in the knowledge that it would result in the death of the weaker twin and the consequence that it was necessary to consider the availability of necessity, at page 1000 in the bundle (232 in the report) under the heading, "Necessity: the courts and the defence of duress of
circumstances". Again I am not going to read the whole passage because there is a long analysis that ends at page 1008. So I am just going to pick out, if I may, some of the salient features which will underpin the submissions that we make.
The difference between duress by threats and duress by circumstances is first, it is the starting point at page 1000. So "duress by threat" is dealt with at 1000E of the decision in Howe.
Then the start of the "duress by circumstances", you can see, are a series of driving offences. So in Kitson at F -- somebody driving under the influence of drink because he had not stopped the car and was running away; Willer at H -- a person driving on the kerb because he was trying to escape a gang of youths; Conway -- again a case where in fact they were being pursued by police but Conway thought he was being pursued by a rival gang and the question as to whether, given that was a reasonable and honest belief, he should have been permitted to run the defence; and finally on 1001, Martin -- the case that we have looked at and the judgment of Simon Brown LJ (as he was).
Then over the page 1002 the decision in Pommell, which again is of value. That was, as Brooke LJ points out, a case where the defence was for the possession of a loaded semi-automatic firearm that the defendant Pommell had taken it from a friend who was threatening to use it to kill somebody and kept it loaded in his bedroom. The Court of Appeal held that his defence of necessity should have been permitted to go to the jury despite the difficulty it had in seeking to explain why, having kept it in his bedroom, he kept it loaded and he had not taken it to the police when he could. But as you can see, it was held that there was
nevertheless a viable defence of necessity available to him.
Then on the next page, 1003, Abdul-Hussain, a judgment of Rose LJ, holding that hijackers who feared their removal from Sudan to Iraq were entitled to use not only the threat that they considered that posed to themselves, but also to their families, and notwithstanding the fact that it could not be regarded as being immediate as a threat because it all depended on whether the Sudanese authorities would act against them. Nonetheless, as they said at 1003 in the middle in a citation from the decision in Abdul-Hussain, the decision was that provided the terror operated on the minds of the defendant so as to overbear his will the execution need not be immediately in prospect. The period in time which elapses between the terror and the defendant's act was relevant but not a determinative factor and including all the circumstances of peril and the opportunity to avoid it were relevant in assessing whether the defendant's mind was affected by it.
Then finally so far as the review of authorities is concerned, there is a reference to the decision in Hudson, where the need for the will to be overborne is referred to.
Then over the page again, 1004, the decision in Perka is dealt with at C. Effectively we put Perka in the bundle for what assistance it provides. Chief Justice Dickson (or Dickson J as he was) gives the majority decision, but it is the subject of disagreement, at least as to its jurisprudential analysis by Wilson J, who is normally in fact, although the minority writer, the person whose judgment is most often referred to. She takes the view that, so far as necessity is concerned, that it is a defence of justification, as it is put at H, where an act can be justified if it is said the act was not only necessary but also rightful rather than
wrongful. She did not think the fact that one act was done out of a sense of immediacy or urgency and another after some contemplation could serve to distinguish its quality.
Instead, she considered justification of a wrongful act must be premised on the need to
fulfil a legal duty which is in conflict with the duty the defendant is charged with breaching.
That is why I drew attention to the disagreement such that it is, and indeed you will see Brooke LJ disagrees with that, as to the need for duty In Re: F -- Lord Goff was clear that the duty was not, so far as he was concerned, a required aspect of the defence.
But so far as the analysis is concerned, the observation is made that so far as the Canadian approach is concerned, it is difficult to maintain the duty distinction, for the reasons given at the bottom of 1005 in Professor John Smith's Hamlyn Lecture. If one moves over to 1006, as he points out, "the distinction" (at B) "between those who save others out of a legal duty and those who do the same for reasons which cannot be characterised is not always easy to sustain".
So in conclusion at 1007 the court (at H) said that:
"There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the ...
doctrine of necessity. The principle ... of necessity, not emergency: citing Lord Goff."
Then over the page at 240 that:
"There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with 'unjust aggression.'"
So far as Brooke LJ is concerned -- and this comes from where I started with the court -- at D:
"... there are three necessary requirements. First, the act is needed to avoid ...
irreparable evil; secondly, no more can be done than is reasonably necessary for the purpose to be achieved; and thirdly, the evil inflicted [is] not
disproportionate to the evil avoided."
Now that in fact is effectively where not just the English authorities have ended up on necessity, it is also where the Australian authorities have ended up. We have put into the bundle for the court -- it may not be necessary to go to it -- we put into the bundle for the court the
