|
CAAB
|
|
|
|
CAAB
|
|
|
CAAB Report 199 |
|
Northampton Magistrates' Court: 9 and 10 November 2006
(apologies for the lengthy report)
R v Lindis Percy
Charge: Alleged 'aggravated trespass' - section 69 (3a) Criminal
Justice and Public Order Act 1994 at USAF Croughton
19 February 2006
Section 69 (1) says:
If the senior police officer present at the scene reasonably believes -
a) that a person is committing, has committed or intends to commit the
offence of aggravated trespass on land in the open air - he may direct
that person to leave the land
3(a) says:
If a person knowing that a direction under subsection (1) has been
given which applies to him - fails to leave the land as soon as
practicable or (b) having left again enters the land as a trespasser
within the period of three months.........he commits an offence.....
David Chinnery - District Judge
Julian Kesner - Barrister - Crown Prosecutor
Tony Metzer - Barrister - Doughty Street Chambers - representing Lindis
Matt Foot - Instructing Solicitor - Birnberg Peirce and Partners
We had had great difficulty getting the Crown Prosecution Service (CPS)
to disclose documents (the Ministry of Defence Police Agency and
the US authorities). The District Judge had twice given directions
in previous hearings. The CPS had not kept to the time limits
imposed by the DJ and even on the day of the trial not all the documents
were forthcoming. The fact that there was such difficulty with the
disclosure of documents was of 'great concern' to the DJ and the Defence.
The CPS was criticised several times by the DJ although he
acknowledged that it was probably those 'who were behind' the CPS who
were at fault.
There was no CCTV recording of the incident as we were told by the
American authorities that the camera was not working during the
time of the incident. It would, of course shown what
happened to Lindis as she was violently handcuffed, put face down on the
ground and seriously assaulted by US military personnel.
The case was listed for four days.
9 November 2006 - DAY 1
The first day was slow. Julian Kesner (CPS) outlined the Crown's
case. There were two Ministry of Defence Police Agency (MDPA)
officers as witnesses for the Crown and five US military personnel.
The CPS had previously served a 'bad character' application against
Lindis.
The first witness to be called was Kenneth Woodhouse (Police Constable
MDPA). He had submitted three statements dated 19 February, 20 March
and 25 July. The latter statement had not been served
on the Defence. The statement contained serious 'hearsay'
allergations against Lindis. Tony Metzer (representing Lindis)
told the DJ that the Defence skeleton argument would have been drafted
in different terms had this statement been served on the Defence. A
statement written by the senior MDPA officer at USAF Croughton (Eileen
McAdam) was served only two days before the trial. Later Tony
Metzer said that it was of 'great concern' that the witnesses had been
asked by the CPS to write more statements and that it was increasingly
clear that this was because their statements were insufficient.
Kenneth Woodhouse said that he had been in the force since 1982 and
that this was his first time he had given evidence in court.
He had been on duty with his colleague Barry Athwase on the night
in question. When the officers arrived at the scene, Lindis
was face down on the grass, handcuffed and surrounded by 4 or 5 (later
amended to 7) US military personnel. She had asked them to 'take
control' and pleaded with them to take the handcuffs off. His
colleague Barry Athwases said to the US military personnel present that
he was now in control and that the handcuffs must be removed.
Frank Macdonald (supervising US Airman) refused to allow this to happen
saying that he 'would go to jail' if the handcuffs were removed.
Lindis would be taken to the main gate and the handcuffs
would be removed. Kenneth Woodhouse said that Lindis was searched
by a female security forces personnel. She was protesting about
her treatment and recalled that Lindis had 'requested that the
search be stopped'. This was ignored. She was
carried to the MDPA vehicle, forced in and driven to the main gate where
the hand cuffs were eventually removed. Kenneth Woodhouse had
started to write out the s'69 notice in the car. When they arrived
at the main gate he directed Lindis to leave (section 69).
She said that she would immediately return and that she had
made it clear that what had happened would come to court. He said
that he did not discuss the issuing of the s.69 notice with his
colleague but acknowledged that Barry Athwase was the senior officer.
Kenneth Woodhouse said that he had no previous dealings with
Lindis but had been informed about various alleged actions by
Lindis at USAF Croughton over the years. This information was
in his statement dated 25 July. It was at this point that the DJ
asked the officer to leave the court so that the issue of whether
the 25 July statement could be introduced would be discussed. The
DJ decided that he was prepared to allow the statement in but warned
Julian Kesner that he must be careful how he phrased his questions
to the officer. The officer was tentatively questioned (with
several objections raised by Tony Metzer). The court
adjourned for lunch.
In the afternoon, Kenneth Woodhouse was cross examined by Tony Metzer.
The officer was asked if he was aware of the Memorandum of
Understanding 1989 which sets out the arrangements and proceedures
between the US government and the Ministry of Defence Police (as it was
then). He was not aware of this and was invited to read the
relevant paragraph. The US authorities on US bases can detain an
'intruder', the MDPA must be notified and the 'intruder (if a
British national) must be handed over to the MDPA when it is 'safe and
practicable'. This had clearly not happened.
It was interesting that the officer could not recall certain crucial
things said or that were done to Lindis by the US military personnel
present. For example he did not remember when asked, if he
recalled that she had said that she could not breath. He said that
he 'could not tell'. He did not recall Lindis saying many
times that the handcuffs were digging in and therefore very painful.
The officer was asked if he thought it was wrong that Lindis was put in
handcuffs. He replied that he 'could not speak for the US'.
He did not remember Barry Athwase saying "For God's sake she could
be your mother". He did agree however that she had pleaded
with him to take the handcuffs off and assert control. He acknowledged
that Lindis had said that she had complained about a facial palsy and
numbness to part of her face. He remembered pressure being applied
but could not remember how it had been applied. Surprisingly there
was no reference to any of this in any of his statements or
his police pocket book. He agreed that Lindis had repeatedly said
that she was not under arrest.
Speaking to the officer, the DJ said that in his evidence he had
said that the general proceedures by the US authorities were that they
could detain an 'intruder', but that they had to notify the MDPA if the
intruder was a 'British national' and then they were to hand the
intruder to the MDPA. The officer was asked why he could not have
taken control and if necessary asked for assistance from the US military
personnel? He agreed that this was their 'remit'.
Barry Athwase then gave evidence. He said that he had been in the
force for 28 years and been at USAF Croughton since last November. He
had written his first statement on 19 February and had since been
asked by the CPS to give three more. He had arrived at the scene
with Kenneth Woodhouse and had heard Lindis say 'take control' and 'take
the handcuffs off''. He said that he had told the US military
personnel that he was now in control and that they were to remove the
handcuffs. This was refused but as Barry Athwase 'realised that
the US had proceedures to follow' he 'did not push the point'.
Lindis had been carried to the MDPA car and taken to the main gate.
The handcuffs were removed by one of the US military personnel.
Lindis had then been issued with a s.69 notice by his colleague which he
said was 'proceedure'. He had had no conversation with him about
the issuing of the notice. At this point the court adjourned for
the day.
Friday 10 November 2006 - DAY 2
Julian Kesner said that yesterday he had said that there was only
one issue - that of 'reasonable grounds' by the officer in issuing a
s.69 notice. However, overnight he had reflected on this and said
that this was not the only issue now. The DJ agreed. He said
that it was important when there was a restriction of liberty that the
notice was not given 'viciously or arbitarily'. The question had
arisen as to who was 'the senior officer present at the scene'?
Tony Metzer said that Kenneth Woodhouse gave evidence that he had
taken this decision himself and that Barry Athwase was the senior office
by virtue of years of service. He had also taken a 'proactive approach'.
It was clear that neither officer were familiar with s.69. This
was not purely a technical point as there was a 'huge gap' in the
Crown's case in order to meet the pre-requisites of the Act.
Therefore the charge against Lindis should be dismissed.
The DJ responded by saying that Parliament could never have envisaged a
situation like this. Julian Kesner tried to argue that there was
not a 'paper crack' in terms of service between the officers therefore
it was arbitary as to who 'the senior officer' was. The DJ said
that as the legislation was used by the MDPA 'the tool must be
used properly'. The court adjourned for the DJ to decide if the
s.69 had been given by 'the senior officer present at the scene'.
In his ruling the DJ said that the evidence given was that Barry Athwase
was the senior officer. He said that 'the thought had never
entered their heads' as required by the Act that it was the senior
officer present who had to direct the person to leave. He said
that Barry Athwase was the senior officer (the fact was that Kenneth
Woodhouse had issued the s.69 notice himself) and therefore it was
right to conclude that the Crown's case would fall on this point.
Julian Kesner asked the DJ if he could make a telephone call. He
returned later to say that he would be offering no further evidence and
the DJ dismissed the case against Lindis. He awarded Lindis costs
out of Public funds.
The end of the case at this early stage meant that Barry Athwase was not
cross examined by the Defence and that none of the US military personnel
gave evidence. We intend to pursue an alternative legal
route to bring the MDPA officers and the US Visiting Forces to account
for what happened to Lindis.
PLEASE NOTE: This case is a classic example of who is actually in
control of US bases. It is certainly not the Ministry of Defence
Police Agency.
Thank you so much to the legal team for their skillful attention and
care in this case (in particular Rafael - pupil Barrister) and to
the Ffriends who so kindly came to the court - particular thanks to
Eleanor Barden - Northampton Quaker Meeting.
Lindis Percy and Anni Rainbow
Joint Co-ordinators of the Campaign for the Accountability of American
Bases - CAAB
59 Swarcliffe Road
Harrogate HG1 4QZ
Tel no: 01423 884076 or mobile 07949897904
"Never
doubt that a small group of thoughtful, committed citizens can change
the world: |