An appeal involving Lindis Percy (Joint Co-ordinator of CAAB) was dismissed by the High Court today.   She was arrested and charged with 'aggravated trespass' s.68 Criminal Justice and Public Order Act 1994 at USAF Croughton at the start of the invasion of Iraq - 26 March 2003.  It was a quiet, personal and peaceful protest.  Northampton Magistrates remanded Lindis to Holloway for one week.  She was released after one week with strict bail conditions. 

This case eventually joined an appeal to the High Court by way of 'case stated' with 14 Greenpeace campaigners (protest at Marchwood – Southampton Waters and Valerie Swain – protest at USAF Faiford (all convicted of 'aggravated trespass' and 'criminal damage').  In a 32 page ruling Lord Justice Waller (backed by Mr Justice Jack) found against all three cases.  The Judges ruled that Lindis had committed a second act (by putting the upside down US flag on a perimeter fence.     The Judges took two months to deliver their verdict.

The lawyers representing Lindis did not argue that Lindis's action were to prevent the illegal invasion of Iraq.  This would have been absurd.  We argued that Lindis's 'crime' was no more than trespass.  The two Judges disagreed. 

The questions before the Judges were similar in all three cases except Lindis Percy's appeal did not involve questions relating to criminal damage.  We were seeking a ruling from the court on the question of whether crimes against peace or crimes of aggression were within s.68 (2) 'aggravated trespass'.

We were denied permission for leave to appeal to the House of Lords but the Judges did say that the cases raised questions of public importance.  We will be ‘petitioning’ to the House of Lords.

It may be helpful to be reminded of the background to the appeal by Lindis Percy - apologies for the length but it is important to get a flavour of how the American authorities were in firm control of the court process at Northampton Magistrates’ Court – where this case started.

Pre-trial review R v Lindis Percy

Alleged offence - USAF Croughton 26 March 2003

s.68 'Aggravated trespass' (Criminal Justice and Public Order Act 1994)

This was the second of two pre-trial reviews before District Judge Freil.  We had asked for a list of disclosures from the CPS.  The hearing was about whether or not the District Judge would allow these documents to be disclosed to the Defence. The arguments centred round the 'justiciability' of the court and the 'lawfulness' of the US security forces personnel.

Simply put, our defence is that the activities of USAF Croughton are illegal because they played/play a crucial role in the issue of the invasion of Iraq;  therefore the US security personnel  are acting unlawfully.  The list included a request for the Attorney General's ruling on the 'legality' of the invasion of Iraq, the activities of USAF Croughton and various other documents connected with the 'lawful' activities of this base and the 'lawfulness' of the US security forces personnel.

District Judge Freil ruled against the Defence saying that the documents were irrelevant to the case.  The issues must be confined to whether the activities of the US security personnel were 'disrupted' or not (one of the elements of s.68) during the incident. 

A very short section (about 30 seconds) of a CCTV recording of the incident was finally produced in the afternoon by the CPS (Peter Blair - Barrister acting for the CPS) with Mr Nusspickel (US Security Forces Operations Superintendant at USAF Croughton and a witness) standing by to explain the video.

Raza Hussein (Defence barrister) applied for a copy of the US security forces personnel 'respective orders and standard operating procedures' (as mentioned in the witness Statement from the RAF Liaison officer at USAF Croughton - Flight Lieutenant Richard Harwood). 

Peter Blair said that the CPS had applied for a copy of this document from the 'third party' (US authorities) and this had been refused.  He said that one of the options for the Defence would be to make a request for this document under the US Freedom of Information Act which would probably take up to 4 - 6 weeks.  Even then, Peter Blair thought that this request would probably be denied.

After taking instructions from Lyndon B James (a British solicitor based at USAF Mildenhall and who has followed Lindis round the courts over the years, an American from the base, an American from USAF Mildenhall and a British observer from the base) Peter Blair said that possibly something could be produced by Monday (the next hearing).  The four American observers sat at the back of the court all day.

We return to Northampton Magistrates' Court on Monday 29 September 2003 at 10 am when this document may be produced.  The trial of Lindis Percy will then start.

It was extremely disappointing that despite alerting the press, there were no reporters in court. The case was heard in Court 5 - a court tucked away in Northampton Magistrates' Court.

Day 2 - continuing to obtain documents and start of Trial

Northampton Magistrates' Court

Monday 29 September 2003

The day revolved around a long struggle to get disclosure of a copy of the US security forces personnel 'respective orders and standard operating procedures' document. This was mentioned in the witness Statement from the RAF Liaison officer at USAF Croughton - Flight Lieutenant Richard Harwood. 

Quarter of an hour before the hearing on Monday, the CPS handed a few pages (some information 'blacked out') of the document to the Defence.

We made an application to District Judge (DJ) Freil for all the document to be disclosed as it was central to the Defence case. The US officials in court predictably objected. Peter Blair (Barrister CPS) said that he had not been allowed to see the document either.

The CPS suggested that the DJ might retire to look at the document by himself.  This was agreed.  The document was handed over by a representative of the US Staff Judge Advocate's Office at USAF Mildenhall who was sitting in court. 

The DJ returned after some time to say that about 10 chapters of the document were missing.  We were under the impression that the whole document had been handed to him. He had in fact only been given the 'headings' of the chapters of the document.

The CPS then made an 'ex parte' application for the Staff Judge Advocate's representative to explain to the DJ the apparent necessity not to disclose all the document on the grounds of 'national security'. (An 'ex parte' application is when one party is before the DJ without the other party present).

This was accepted by the DJ and the court was cleared.  In fact two US officials and a British 'observer' from USAF Croughton stayed in court with the Clerk and the DJ.  Peter Blair was not allowed in court. This 'procedure' was highly unusual and irregular.  We had strongly objected to this application. 

District Judge Freil recalled the US officials twice to answer more questions.  He then ordered that certain parts of the document be released to the Defence.  Peter Blair said that the US authorities would not object to this.  Copies were made (still with a section 'blacked out').

Raza Hussein (Barrister - Defence) made an application that the case should be stopped as Lindis had now been denied a fair trial under Article 6 (Human Rights Act 1998) as the document had not been disclosed in it's entirety. The application was denied.

The trial eventually started at 3.45 pm.  Ms Van West (US security 'police') was the first witness to give evidence.  The court finished at 4.45 pm.

The case continues at 10 am on Wednesday 1 October 2003 at Towcester Magistrates' Court.

Towcester Magistrates' Court

R v Lindis Percy

It was another complicated day (apologies for this long report).

The trial continued today with evidence being heard from US security 'police' from USAF Croughton.  The whole day was once again focussed on procedures and documents that the US authorities had in their possession but were clearly reluctant to disclose.  There were many adjournments while District Judge Freil retired to reflect on what he had just heard.

Giving evidence, Sergeant Nusspickle (US Security Forces Operational Superintendent) said that they had been briefed about Lindis Percy and other protesters when they came on duty that night.  He gave evidence that Lindis was known to be 'non-violent' and that she was a Quaker.  When questioned as to whether any more information was held by the US authorities at USAF Croughton on Lindis, he reluctantly said  that there was indeed a 'file'.

Raza Hussein made an application to see the 'file'.  He was told by Mr Blair (after instructions from the US authorities who were again sitting at the back of the court) that it might take some time to obtain it but that they would 'do their best'.

During his evidence, Sergeant Nusspickle revealed that he had liaised and been advised by Major Villarreal when Lindis had been taken handcuffed and shackled with flexi-cuffs to Building 4 (US Security 'police' building) at USAF Croughton on 26 March this year.

It is extremely important to note that Major Villarreal had been present at the quaisi 'ex-parte' application on Monday when the DJ had been advised by him and others as to what could or could not be revealed in the US security forces personnel 'respective orders and standard operating procedures' document.  As the proceedings continued it became more and more apparent how central the US authorities had been to the prosecution against Lindis.

Before the court adjourned for lunch, the DJ revealed that he was 'uneasy' at this stage of the proceedings and expressed some concern that Major Villarreal had been involved in Monday's 'ex-party' hearing. He was now concerned that had he known about Major Villarreal's significant presence during the incident, he may not have agreed to hear from the US authorities in private.

The DJ then ordered that the two US authorities and the British 'observer' should leave the court and that they should no longer be part of the proceedings.  They duly left the court.

While we all waited for the 'file' to be produced, evidence was heard from Senior Airman Carlos Ferreira who had been present when Lindis was apprehended.  The court also heard from Installation Entry Controller Airman Eloia Forrest.  The court also heard that Staff Sergeant Rock Stilwell, who was a key witness had now left the USAF and could not be traced.

Hand written documents dictated to Peter Blair CPS Barrister) over the telephone were eventually produced in court concerning the 'file'. Various incidents going back several years showed that Lindis had always been escorted out of the base when apprehended on the base.  A photograph of Lindis was also produced which the US security 'police' were shown during their briefings.

Much discussion and argument continued concerning the 'abuse of process' by the CPS.  Raza Hussein tried to put the proceedings into a chronology showing that Lindis had not been given a fair trial under Article 6 Human Rights Act 1998.  The DJ told him that he had already ruled on this point on Monday and stopped him from continuing.

Finally the DJ retired to 'collect his thoughts' and said he would return with his decision concerning the central presence and obvious influence by Major Villarreal in this prosecution.  One of the questions to be addressed - did Lindis have a fair trial?

District Judge Freil returned to court at 3.40pm.  He said that if 'an intelligent bystander who was witness to the facts believed that the trial was 'unfair' then he must disqualify himself.  He went on to say that 'with great reluctance' he was therefore disqualifying himself from the proceedings.

The CPS will now decide by 15 October whether there should be a retrial or if the case is should be discontinued.  Again there were no reporters in court.

Northampton Magistrates' Court

R v Lindis Percy

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).

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 arguments, 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.

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:

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 2003 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).

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 authorities 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 mono-toned 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 Raza 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.

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 violent, 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) -

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.

Northampton Magistrates' Court

R v Lindis Percy

16 December 2003

SENTENCE RULING

We returned to court for DJ Richard Holland to sentence Lindis after he had found her  guilty of section 68 'aggravated trespass' (Criminal Justice and Public Order 1994) on Friday 12 December 2003.

Suraj Minocha (CPS Solicitor who had not been present in court or conducted the case) made an application for costs of £2,000 and also for £1,078 which was the cost of flying Ms Van West (US security personnel at USAF Croughton) over from Guam for the retrial of Lindis.

Richard Holland seemed somewhat surprised at the second application and commented that it was usual to apply for costs in full and not make a separate application beyond this. 

It was 'staggering' that costs had been applied for Ms Van West's flight and he reminded the court that if the CPS had conducted their case as per the standard procedures there would have been no second trial.  The DJ commented that he had 'some sympathy' for the Defence. 

The CPS had allowed the American authorities to 'redact' the Manual which was handed to the DJ at both trials (we had asked for 11 items to be disclosed long before the start of the first trial) and this was 'unprecedented'.

He also said that there had been no adequate explanation as to the crucial omissions in Sergeant Terry's statement.  There had been no apology to either the court or the defence by this police officer or the CPS.  There were a number of occasions when the conduct of the CPS was 'well short of adequate'.

Lindis was also in breach of a conditional discharge imposed by Scarborough Magistrates' Court in February 2003 (an incident at Fylingdales - refer to CAAB website).

Summing up and giving his ruling Richard Holland said that Lindis had committed a 'serious offence'.  He went on to say that Lindis had been remanded to Holloway for one week and that he would not therefore consider a custodial sentence.

The DJ said that Lindis was 'always peaceful, non-aggressive and principled'.  There had been 'no hostile' act by Lindis.  She was committed and that she had 'an abiding feeling re the US authorites'. He said that community service was not an option because of the 'seriousness of this offence'.

Richard Holland ordered costs against Lindis of £100, £50 for breaching the conditional discharge and a fine of £200 for the offence (reminder:  the CPS had applied for costs of £3,078).