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.

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