13 December 2003

Northampton Magistrates' Court
R v Lindis Percy
Alleged offence of s.68 'aggravated trespass' Criminal Justice and Public Order Act 1994
26 March 2003 at USAF Croughton Northants.

This report of the two days in court so far is lengthy because of the complexity of the legal arguments and the presence and control of the court process by the 'third party' (the American authorities).

Day 1 - Monday 8 December 2003

This was the first day of the retrial of this case.  The previous trial came to a halt when District Judge Freil disqualified himself from the hearing - refer to previous report.

Two days had been set aside for legal arguments concerning justiciability (whether the Defence could challenge the 'lawful activity' of USAF Croughton - as in the wording of section 68 of CJPO Act 1994) and disclosure of documents [previously] asked for by the Defence.

After lengthy legal aruguments, District Judge Holland from Leicester ruled against the Defence.  He said the Defence could only confine their defence to the lawful activity of the US security personnel who detained Lindis before Northampton police arrived.  Anything else was too remote and irrelevant.

The Defence had asked for a list of 11 items involving Instructions to US security personnel, Law Enforcement and Security patrols, Detention of Intruders etc be disclosed (for this trial and the previous trial).

The US authorities had always refused to let the CPS (Peter Blair) see these documents and had decided themselves what could or could not be disclosed.

There was much 'toing and froing' between the Americans (sitting at the back of the court - including David Fearan - Staff Judge Advocate from USAF Mildenhall) and the CPS with the Americans continuing to refuse to allow the documents to be released (a few had been released in the first trial but some of the information had been 'blacked out').

This was a highly unusual situation. The CPS has to abide by the rules of the Criminal Proceedings and Investigation Act 1998. This had not happened as the CPS had allowed the 'third party' to dictate what could or could not be disclosed.

However in a somewhat similar move as in the first trial, late on Monday afternoon Peter Blair made an application for the American authorities to have an 'inter party' hearing with the District Judge re the disclosure of documents. The DJ ruled that this time, both the CPS and Defence lawyers could be present but the hearing would be 'in camera'.

The Americans finally consented to the DJ being given a copy of the document to read overnight with the Defence being given a copy of the chapter headings.

Day 2 - Tuesday 9 December

Raza Hussein (Barrister for the Defence) strongly objected to this highly unusual process - however under protest, agreed to participate in the hearing 'in camera'.

The DJ said he had been troubled by some aspects of this unusual process and asked if the Defence had any submissions to make. He would hear them.

Raza Hussain made various submissions which included:

1. CPS should have called for the document and reviewed any evidence - the 'third party' should not be calling the tune.

2. it was unusual for the tribunal to decide what should be released before the CPS had seen and reviewed the information.

3. unless the documents were released Ms Percy could not have a fair trial.

Peter Blair was reminded that he was a 'minister of justice' and as such should be 'holding the fort' rather than allowing  the 'third party' to be in control.

Some documents were released during the lunch break.  However the Defence was told by Peter Blair that he had still not seen the documents and further more it was revealed that the document that had been given to the District Judge by the Americans had some of the information 'blacked out'.

Peter Blair had made great play of the fact that there was nothing in the documents that would undermine his case (as laid down in the Criminal Proceedings and Investigation Act 1998). However he had not seen the documents.

After more adjournments for Peter Blair to speak to the 'third party', he came back to court to say that some of the information had been released under the US Freedom of Information Act (FOIA).

Raza Hussein objected strongly to this, pointing out to the DJ that the FOIA did not apply in English law. He again said that because the Defence was being denied the information a fair trial was seriously being put in jeopardy. He said there were two choices:

CPS drop the case or the DJ does.

The DJ said that he had to accept that on the submissions he had heard it 'may not be possible for a fair trial unless the CPS sees the whole document'.

At that point Peter Blair asked for another adjournment to discuss the matter with David Fearan (US Staff Judge Advocate representative). He returned after sometime to say that 'within the last 30 seconds I will be permitted to see the whole document after there have been a number of calls to higher authority' (by David Fearan).

Peter Blair finally returned to court having said that he had reviewed the whole document and had come to the conclusion that there was 'nothing whatsoever' in the whole document that might undermine his case.

Only once did the District Judge make a comment about the fact that this process was overdue - two days into the trial'. The Defence had requested a list of documents on 8 August and there had already been a trial at which the same arguments were canvassed.

The trial then started with the first witness being called for the CPS - Carlos Ferreira - US Senior Airman at USAF Croughton.

The court adjourned on Wednesday after an application was made by Raza Hussein.  The trial continues today ( 10am Thursday 11 December at Northampton Magistrates' Court).

Thank you so much for Northampton Ffriends for once again quietly supporting Lindis and Raza in court over the two days.

Day 3 - Thursday 11 December 2003

Again apologies for the lengthy report....this report gives only a summary of the progress of this case.

The Crown Prosecution continued with their case, the court having heard from one of their witnesses late on Tuesday afternoon (refer to CAAB report of first two days).

Airman Van West (US security personnel at USAF Croughton) had been flown over from Guam to give evidence. Ms Van West said that Lindis Percy had immediately identified herself and had said 'something about the Iraq war and that we shouldn't be there'. She did not recall Lindis saying that she was leaving.

Ms Van West said Lindis  was well known to the US authorites on base and that her photograph was up round the base. She said that Lindis was 'uncooperative' and refused to accompany the US security personnel to their waiting car. She said that Lindis kept talking about the fact that there were Instructions, rules and regulations to deal with British citizens found on base. These included specific rules which said that the local police or Ministry of Defence Police Agency had to be called and that they would then deal with the situation.

Under cross examination by Raza Hussein (Defence Barrister) Ms Van West was asked why she carried out such an intrusive search of Lindis. She said that she was 'hostile' and 'uncooperative'. She said that the mere act of coming on the base was 'hostile'.

When pressed Ms Van West said that she did agree that they were frequently briefed about known protesters and that Lindis was known to the US authorities as a 'peaceful, non-violent Quaker'.

She was asked to read out the paragraph in the Instructions (which we had eventually been allowed to see - however sections had been 'blacked out' and a third of a page cut off). She agreed that the US security police could only ;use handcuffs, leg shackles and a search if the 'intruder' was hostile or violent. She said that Lindis had 'kicked out' and she had been shackled for the 'safety of the officers present'.

Ms Van West was asked about the Mission Statement of the US Security personnel, which is written on the wall of the Law and Enforcement Center at USAF Croughton. She recited it to the court, 'word for word' and in an alarming and conditioned monotoned way. She was however unable to recall many of the conversations she had had with Lindis during this incident.

Sergeant Nusspickle (US Security Superintendent on duty at the time of the incident) said that he had known Lindis from when he was at USAF Greenham Common.  He had ordered the search and shackles to be used because she was 'kicking and squirming'. This was done for the safety of his officers. (His evidence in the first trial was different). When cross examined by Razza Hussein his attention was drawn to the Instructions when an intruder is on base. On the second day Airman Ferreira had agreed that these Instructions had been violated.

Sergeant Nusspickle said that he was deeply upset at the use of the US flag and that a US flag upside down indicated that the base was under attack.

The court heard evidence from Airman Forrest who was on duty on the Main gate. She said that the base had been immediately 'shut down' and that this was normal procedure when an 'intruder' is suspected of being on base. She had made a list of the registration numbers of the cars that had been prevented from entering and leaving the base. The CPS however declined to reveal this list for 'security reasons'.

The court was told that a witness (Sergeant Stillwell) had since left the US Army on 'medical grounds' and was somewhere in the US. Peter Blair (CPS Barrister) said that despite extensive searches and enquiries, he could not be found. Peter Blair  was therefore making an application (Lindis unclear as to which Act he was using) to dispense with the calling of this witness. Raza Hussein asked for evidence of these searches and enquiries made. The court adjourned over lunch so that this could be produced.  After lunch Peter Blair dropped his application.

Two Northampton police (NP) officers gave evidence in the afternoon. The arresting officer (PC Cook) said that he had been instructed by Sergeant Terry (NP) to arrest Lindis for 'aggravated trespass' after speaking to Major Villereal and Sergeant Nusspickle.

This evidence took the Defence by complete surprise as Sergeant Terry had put in a very short statement only to say that she had been at Weston Faville police station and had been the officer who had charged Lindis. There was nothing in her statement about actually being present at USAF Croughton on the night.

The Defence would not agree to this statement being read and insisted that Sergeant Terry was called to give evidence. However suddenly she could not be found and despite the CPS saying they were making 'every effort' to contact her, there had been no response.

District Judge Holland was clearly troubled and agreed with Raza Hussein that Lindis would not be able to have a fair trial if this witness did not appear in court.  The hearing was adjourned in the afternoon and Ms Terry was to be traced and ordered to appear in court the next morning.

Richard Holland (DJ) again made no comments or observations about the fact that apparently a US witness could be flown over from Guam but that one of the local police officers who lived in Northampton was not available in court despite having been warned to appear.  Neither did he comment about Ms Terry's statement that had completely omitted to include key details concerning this officer's crucial involvement in the incident.

Major Villereal (Staff Judge Advocate at USAF Croughton) was not called to give evidence, despite being a key Prosecution witness.

DAY 4 - Thursday 12 December 2003

Sergeant Terry was present in court to give her evidence.  Again there was no apology, comment and reasons given as to why this witness did not appear (to either the court or the Defence).  Peter Blair confined his questions to her to address her very short statement. 

Raza Hussein cross examined her as to her presence at USAF Croughton on the night of the incident in March 2003.  She was asked why she did not include this detail in her statement.  She said that it was not necessary as any detail of conversations she had had would be 'hearsay' evidence.  The DJ again asked  no questions and made no comments.

Lindis was then called to give evidence.  She told the court what had happened to move her to go to USAF Croughton.  She had been invited to attend a two day conference organised by the Oxford Research Group at Charney Manor and had been deeply impressed by a passionate plea by Di Macdonald at the end of the conference.  Di had been asked by a woman in Iraq to plead for people to do something to show their opposition to the illegal US invasion of Iraq.

Lindis had gone to the base on her way home to Hull and had climbed over the perimeter fence.  She had been on the base for about an hour and a half before walking over the fields to an operations compound (there are 5 radomes there and also the US Embassy Annex).  She had walked quietly round the double rows of fencing with CCTV cameras all round the area  and had hung a US flag upside down with the words:  WAR ON IRAQ:  IMMORAL, ILLEGAL, MADNESS written on the flag. She was  in the process of leaving the area the way she came in when apprehended by US security personnel.

Lindis said that she was well aware that there were specific Instructions that the US authorities had to abide by when dealing with a British citizen.  These rules had been seriously violated when she was prevented from leaving (there was evidence in court to show that on many previous occasions Lindis had been escorted off the base - as per Instructions).

Lindis said that she would never be violent and did not show any expression of violence or verbal abuse.  She followed the Quaker Peace Testimony and practiced a deeply held belief of non violence, peaceful protest.  Lindis went on to demonstrate that it was a physical impossibility to 'kick out' when handcuffed, face down on the ground.  The account given by the US witnesses had not been the truth of what actually happened at USAF Croughton.

Lindis was upset when talking about the search of her whole body and which went over and into intimate areas.  She said that it was deeply humiliating, her body had been appropriated, violated and degraded.  This was not done in the UK and the US security personnel had not adhered to their Instructions;  so violating their Instructions.  She was in the witness box for over two hours after being cross examined by Peter Blair.

The DJ adjourned for lunch while Raza Hussein was summing up the Defence case.  It was continued after lunch with factual and legal submissions.  Peter Blair responded to the legal submissions.  The DJ then adjourned to prepare his ruling.

After two hours Richard Holland gave his ruling which was that Lindis was guilty of the alleged offence of s.68 'aggravated trespass' (Criminal Justice and Public Order Act 1994) -

details of ruling later.

Lindis quietly said 'excuse me' and left the court.  She had to be persuaded to return to hear the sentence and only returned to court after hearing from her legal team that if she did not return this  any future appeal might be jeopardised.  She returned to the court and quietly addressed the DJ but later left the court before the end of the hearing.

Lindis will be sentenced on Tuesday 16 December 2003 at Northampton Magistrates' Court.

Once again thank you so much  to  all Northampton Ffriends and others who came from Essex and Bedford to support Raza and Lindis each day in court.  A special thanks to Eleanor Barden (Northampton Meeting) who worked so hard to organise this support.  It felt so good to have the quiet presence of Ffriends in the court.