Wednesday, October 11, 2006
Wednesday Afternoon, 11.10.06. HUNG JURY!
The start this morning was delayed by the vagaries of trains, acts of god etc, and so didn't get under way until 11.30, at which point it was announced that one of the jury had gone down with flu and wouldn't be available for today or tomorrow. The judge decided that the remaining 11 should carry on, and sent them off having told them that the absent juror's contributions up to then shouldn't influence them henceforth. The same instruction was given that he'd like a unanimous verdict but would accept one that ten of them agreed on.
Once they'd gone some reference was made to a banner outside the court reading "IS THE LAW WARFUL?" Mr Houlder said he thought it verged on contempt of court, but his opinion was dismissed by the judge, who said he thought it was rather clever actually.
After a tense day, and 12 hours and 44 minutes of deliberation, the judge accepted that the jury weren't going to be able to agree, thanked them for their efforts and discharged them. And that's that for this trial, though the prosecution said that they'll want a retrial. And T and P were released on bail, not to go within 2 metres of Fairford.
And Phil says a big thankyou to everyone who's been to court, read the blog, sent messages of support, peaceful hands for our banner and generally meant that this hasn't just been about two people's action but rather about loads of people who oppose this war and want to promote peace in the world.
That's about it from the trial blog for now. The website, www.b52two.org will tell you more, so go there in future to find out what happens next. See you at the court next time around?
Wednesday morning
Tuesday, October 10, 2006
Tuesday evening, 10th Oct.
First thing this morning, the judge answered the jury's questions from yesterday afternoon. They had asked, though perhaps not in exactly these words, 'does the definition of property include infrastructure jointly used by civilians and the military?' The answer was simply 'yes'. Then he sent them off again to carry on deliberating.
The only other action today was at 3.15 this afternoon when the court reconvened after the jury sent a note to the judge. They told him that they couldn't reach a unanimous verdict and asked him for directions about a majority verdict. The response was that they should try again for unanimity (apparently he's obliged to say that) but if they reach a point where they are sure they can't all agree then a verdict that 10 of them agree on would be acceptable. So off they went again for 40 minutes.
They were recalled, said again that they hadn't reached a verdict, and were sent home until 10.30 tomorrow. Jury thinking time now totals 8 hours 33 minutes. We know because the clerk keeps a stopwatch on them, I wonder if he's running a sweepstake?
More as soon as poss after it happens tomorrow.
Tuesday Morning, including the summing up of the Judge's summing up.
Having reassured the jury that they’re not considering the huge question of the legality of the war as a whole, nor is their verdict going to set any legal precedents, the judge reminded them that what they have to decide is: has it been proved that each of the accused conspired to cause criminal damage? Also that because the charge is one of conspiracy, or agreement, they must logically either convict both T and P, or neither of them.
Referring to the Steps to Verdict, a set of guidelines agreed between the defence and prosecution to help the jury reach their decision, the judge outlined the points they need to address.
Are they sure that the defendants agreed at some stage that they should commit damage at RAF Fairford. If the answer is yes (which the defence concedes it is) then the jury must consider if the prosecution have proved that the action agreed upon was not justified in law. Since the burden of proof rests on the prosecution, (ie. P and T are innocent unless the pros. proves them guilty) once the defences are proposed it’s up to the prosecution to prove that they don’t apply. And the defences offered are: 1) that T and P were acting to protect property, and 2) that the use of force is allowed in law to prevent a crime.
The first of those defences is derived from Section 5 of the Criminal Damage Act 1971, which states that:
"A person charged... shall be treated for those purposes as having a lawful excuse if he damaged or threatened to damage the property in question in order to protect property belonging to himself or another... and at the time of the act or acts alleged to constitute the offence he believed (i) that the property... was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held. "
So, may P and T have had a lawful excuse to protect property in Iraq?
If the jury are sure (i.e. The prosecution have proved) that there is no such lawful excuse they move on to consider defence 2) which is found in Section 3 of the Criminal Law Act 1967 :
“A person may use such force as is reasonable in the prevention of a crime”.
So, may the actions T and P agreed upon have been agreed upon to prevent a war crime, and in those circumstances was it reasonable? Further to this the judge remarked that over time the international community had established rules of war, and that one of the primary aims of these rules is to protect the lives and property of civilians. In the light of that, for the purposes of this trial, the jury should regard as a war crime ‘the use, to achieve a military purpose, of weapons with an adverse effect on civilian populations which is disproportionate to the need to achieve the military objective.’ But the jury doesn’t need to decide whether war crimes were, in fact, committed. What they have to consider is whether the T and P believed that war crimes would be committed, which the prosecution has accepted they did.
In the jury’s Steps to Verdict guidelines about the first defence, that of acting to protect property, there are three questions. If the jurors decide that the answer to each of these questions is yes, then T and P had a lawful excuse for their actions and must be found not guilty. The questions are:
i) did T and P agree that they would act to protect another’s property from damage?
ii) Did they believe that at the time they were to act, property would be in immediate need of protection, i.e. on the 18th March 2003 did they believe they had to act right then if protection was required?
iii) Did they believe that the means of protection they agreed on would be reasonable having regard to all the circumstances as they understood them.
If the answer to any of these three questions is no then the defence of lawful excuse of acting in protection of property doesn’t apply, and the jury have to go on to consider the second defence, that of acting to prevent a crime.
In order for this defence to apply the answer to the following two points must be yes:
i) that what P and T agreed to do was to do only such damage as was necessary to prevent the crime they believed was about to be committed.
ii) that such damage as they agreed to commit was reasonable.
Here the issue of reasonableness becomes a little complicated. The damage must be objectively reasonable, in the light of the circumstances as T and P believed them to be. So the point isn’t whether T and P then believed the damage would be reasonable, but whether the jury now think the damage would have been reasonable, in the light of the circs as P and T believed them to be then. (If that hasn’t clarified the point, Sorry!)
So that’s the legal framework the jury is working to, using the evidence presented to them in court to decide the facts. After setting that out the judge reviewed all the evidence, but I’m not going to go into that now. We may post a summary of his summary later, but if you want our version of the ev. you’ll find it in the postings from last week. In the meantime what you probably want to know is that the jurors are still doing the deliberation thing. As soon as anything more happens we’ll try to get it up here, so do come back and check later on today.
Monday, October 09, 2006
From then til now
As we're emailing this to the blog all the apostrophes will become little squares. Sorry bout that, and please interpret acordingly.
Everyone had a marvellous weekend? We've all been resting and recuperating in our various ways, with the result that some of us are more tired than we were on Friday. So, needing to take out a bit of tired tetchiness on someone or something, it's time to talk about Mr Houlder. And despite the title, and with the aid of all the technology at our disposal and a bit of forgetfulness, we'll hopefully get from Thursday to Monday in the space of one posting.
On Thursday afternoon at the end of his examination by Ed Rees, defence QC, Phil referred to a report written by Malcolm Hooper of The Gulf War Veterans� Association about Gulf War Syndrome. Among other evidence concerned with the consequences of the use of depleted uranium weapons it states that a number of UK and US veterans have been found to have DU in their urine almost 10 years after the first Gulf Conflict, and that the presence of DU in urine correlates to an increased risk of cancers, disruption of reproductive hormones, and lowered neurocognitive performance.
Cross examining Phil, Mr Houlder was the epitome of righteous indignation, harrumphing so hard that his chins shook. He showed a touching, though perhaps misplaced, faith in the honesty of senior members of the government, appearing particularly determined to defend the integrity of Jack Straw. As with Toby, Mr.H. asserted that Phil had no respect for democratic processes, despite Phil�s evidence that he�d tried and exhausted all the usual channels such as lobbying MP�s etc.
P and T�s express purpose was to carry out a non-violent action which would not result in harm to anyone, and indeed they haven�t been charged with conspiring to endanger anyone�s safety. Despite this, and the facts that: a) they intended to put caution notices on the planes, b) they intended to stay with the planes and tell their operators what they�d done, and c) that in consequence the most meticulous examination, repair and checking processes would have been carried out on the planes, Mr Houlder tried for some time to imply that they had intended to act with reckless violence, and to get Phil to agree with suggestions that he and T had intended to cut fuel or brake lines. Despite his bullying manner Phil didn�t agree, calmly re-stating the facts. Hmm. Not only has Mr Houlder seemed to want to scare the jury with ridiculous assertions about P and T�s intentions which surely even he can�t believe, but I also remember last Monday he somehow neglected to mention that T and P carried evidence packs during their action. How much does Mr. Houlder care for �the truth, the whole truth, and nothing but the truth�?
After the jury had been dismissed for the day, and on Friday morning, there was extensive discussion of what form of words concerning the definition of war crimes the judge would use to address the jury in his summing up. The upshot was that it made no difference how he defined it, as the jury only had to consider what Phil and Toby believed to be the case.
FRIDAY
The main business of Friday was the closing speeches. The prosecution started, and Mr Houlder hit the hyperbolic high notes right from the off, with an undisguised appeal to the jury�s emotions. It would therefore seem reasonable to assume that he doesn�t have a great deal of confidence in getting a conviction on the basis of the factual evidence. He wrongly suggested that B52s from Fairford would be providing defensive air cover for troops going into
This effort to present P and T as the vanguard of anarchy was deflated quickly and effectively in the defence closing speech. Ed Rees appealed to the jury�s common sense and returned their focus to this case, reminding them that the important questions are, what did Toby and Phil believe the circumstances to be, and in the circumstances as they believed them to be did they act reasonably? He also reminded them of the evidence they�d heard about the long consideration Phil and Toby gave to their action, their determination and care in ensuring that their action shouldn�t cause harm to anyone, and about the destructive effects of cluster bombs and DU weapons.
And then everyone disappeared for the weekend, which in blogtime was just three dots long�
MONDAY
In which the judge sums up.
Well, he has done, and we�ll tell all when we can, most likely tomorrow. Meanwhile, the jury have retired to consider their verdict, come back into court to be sent off home, and will return tomorrow to carry on pondering. We�re off to ease the tension with a few beers��.
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Friday, October 06, 2006
A QUICK NOTE, FRIDAY LUNCHTIME
Ed Rees, defence QC, did a fine job of bringing proceedings back to a more realistic level, and left us feeling hopeful. Hopeful for what? Well, it seems like tempting fate, not that I'm superstitious or anything, so I'm not going to say.
So, that's it for now, jury and lawyers and Uncle Tom Cobley and all are off home for the weekend and so are we - we'll try to get the rest of the proceedings blogged soon, but don't hold your breath because we're a bit shattered. Toby and Phil have promised to relax to the max, and we're trying to get hold of a bucketload of beta-blockers for next week. On Monday morning, the judge will deliver his summing up to the jury, directing them on the points of law, then they will retire to consider their verdict. So, no stress there then......gulp.
Day Four report cont.
Phil explained, as Toby had, that he'd done everything else in his power to prevent the war before deciding that he could only stop the commission of war crimes by damaging B52s at Fairford. He'd tried to influence politicians and the military, and explain his concerns to ordinary people, by petitioning MPs, demonstrating near parliament and at military bases, and attending vigils and marches. A particular example was a demonstration on Valentine's day at the gates of Downing Street, locked on to a huge pink heart bearing the message "WAR BREAKS MY HEART", to which Tony Blair didn't respond.
Phil believed that the decision to go to war had been made long before the vote in parliament at the end of February 2003, in which 198 MPs voted that the case for war had not been made. This number included 112 Labour MPs!He referred to a war summit in the Azores attended by US, Spanish, and UK politicians following which Colin Powell, the US Secretary of State, adopted a pro-war stance. Shortly after this Donald Rumsfeld, the US Secretary for Defence stated publicly that the US was likely to go to war alone if no other nations would support it. Asked about the UN, Phil spoke of an announcement in early March 2003 that the UK and US had withdrawn from the UN process and were going to go it alone. Consequently Phil didn't believe statements by the British govt. that the decision to go to war hadn't yet been made. He wasn't prepared to accept the political refusal to fully consider the case against war because of his fears that cluster weapons and depleted uranium-containing weapons would be used. He couldn't believe a statement in the house of lords that they wouldn't be used because his research showed that they had been widely used in all recent conflicts the US and Britain had fought. (And subsequent statements have revealed that in fact the UK used 66 cluster bombs in the ini Iraq War.) Asked about the effects of DU weapons he spoke of a report by Malcolm Hooper for the Gulf War Veterans Association, a technical paper collating information about the long term effects on British soldiers of exposure to depleted uranium.
Right, time for court now - more later.
Thursday, October 05, 2006
Day Four
Day four - Thursday
This morning saw Phil sworn in and giving his 'evidence in chief', first being questioned by Ed Rees, defence QC. He confirmed that a lot of evidence that would otherwise be brought in his defence had already been covered in T's evidence. One area that they did pay particular attention to was Phil's understanding of what would be the effects of the 'Shock and Awe' bombardment, based on his knowledge of the pre-existing situation in
Phil described
Phil confirmed that his principal aim in trying to damage bombers at Fairford was to try to stop cluster weapons and bombs containing Depleted Uranium from being dropped on Iraqi civilians. He also hoped that damaging bombers and perhaps causing the base to be closed might cause sufficient delay that the 'weather window', during which the war could begin, would pass, allowing more time for a diplomatic solution to the conflict.
A further aim was to communicate to personnel at RAF Fairford that they might be complicit in the commission of war crimes, and that they could choose not to be.
Asked about the video he and T had made and included in evidence packs they took with them, he said that he believed that many of the thousands of people who marched against the war felt helpless and hopeless, unable to do anything else to stop it. He wanted the video, among other things, to stimulate people to consider that they might be able to take further action.
His underlying philosophy is to communicate clearly, reasonably, proportionately, and above all peacefully.
And on that note, we'll finish for now. More on Phil's evidence tomrrow.
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Day three, continued at even greater length.
The prosecutor, Mr Houlder's cross examination of Toby rounded off the morning and continued in the afternoon. Mr Houlder's boring inability to grasp the concept that fencing pliers are used for constructing and dismantling fences rather seemed to hold up the proceedings, but once he resigned himself to this intellectual failure he got on with the rest of it and Toby's evidence finished at about three o' clock.
All that Toby had said about the awful nature of cluster bombs was confirmed by an expert witness in the last part of the afternoon. Rae McGrath was the founding Director of the Mines Advisory Group, which has assisted in post conflict clearance of unexploded mines and cluster bomb munitions, and campaigned for their use to be outlawed. The evidence he gave was necessarily horrifying, although in keeping with legal protocol, given in a 'non-emotive' delivery.
That's about it for Wednesday - so about time we reported on today.
Day three continued
Much more importantly, Toby was giving evidence yesterday about how he reached the decision to try to disable bombers at Fairford. As all the other petitions, demonstrations and protests were going on, (which T and P participated in) and in spite of these various manifestations of the huge popular opposition to it, war seemed increasingly likely. Over a period of months the possibility of taking some form of non-violen direct action led to research into how the US and Britain have waged wars in the past, and would be likely to again. The likely use of cluster bombs and Depleted Uranium weapons led to thinking about how to prevent them being used, and thus to B52 bombers. Fairford airbase, which was essentially at the disposal of the US , is a very convenient place from which to fly missions to drop bombs, and it was very likely that B52s would go from there to bomb Iraq. From there T and P began to plan how they might be able to stop them.
The very important points about all of this are that T and P didn't jump in at the deep end. They tried everything else they could to prevent the commission of war crimes, including communicating with politicians, using the "normal channels open to people in a democracy" despite Mr. Houlder's assertions that Toby and Phil had no respect for the democratic process. Only when nothing else had had the desired effect did they attempt to damage aircraft and prevent their missions.
Time for court. More later.
DAY THREE
Morning all. This is an updated and expanded version of yesterday evening's stuff, which still isn't finished. Hope that we'll get the blog up to date by lunchtime, so come back later if you're a completist, or read on if you're content with getting it a bit at a time.
Phew! what a scorcher - and I'm not talking about the weather. Things in court today have definitely been a lot less matey, getting decidedly hostile in fact. But before getting into the gory details, we want to put in Big Letters the whole big thing point from the legal defence point of view:
*The issue before the jury is whether in the circumstances as the defendants believed them to be, their actions were reasonable.*
The burden of proof rests with the prosecution ie. it's up to the prosecution to prove that their actions were not reasonable.
The standard of proof in the old-fashioned phrase is 'beyond reasonable doubt.'
So, as Ed Rees (defence barrister) said to the jury "It is for the crown to prove that the defendants' actions were not reasonable and to prove it so that you are sure with no room for doubt."
That being so, Mr Houlder has been having a go today.....
We started off this morning with Toby back on the stand- he's been under oath since yesterday and therefore not allowed to talk to anyone including his lawyers about anything to do with the trial - so we played Frisbee instead (but not in court.) Another of those interesting exercises in communication through the medium of movement?
What did happen in court was that Ed Rees, the defence barrister, continued his questioning of Toby, aiming to establish his state of mind in the time before the action.
Asked about their purposes in carrying out the action, T responded that the primary purpose was, as we all know, to disable a B52 bomber or bombers and prevent it/them from flying and dropping bombs on
Ed Rees then clarified to the jury that the question of whether the war as a whole was legal or not is not something they need to, or should, consider in this case and is not a defence T and P are using. BUT if T and P believed that there would be specific war crimes committed during the conduct of the war, the commission of otherwise criminal acts to prevent these war crimes would be lawful.
The questions were then about what war crimes Toby believed would be committed if war against
To take these in turn at a more basic level than the discussion in court reached, cluster bombs are essentially large containers within which are approximately 200 submunitions (smaller bombs). The container is dropped from an aircraft and releases the smaller bombs as it descends. These typically spread over an area of about 100 metres by 200 metres. They are designed to explode on impact, some to penetrate armour and buildings, some to fragment and project a hail of shrapnel in all directions. All are designed to kill. Some do so immediately, and some explode on impact but cause no casualties. Others, between 5 and 20% of all the small bombs, fail to explode on impact and remain where they land. They're then effectively landmines which can kill and maim for decades afterwards. After a war is over civilians are the people most likely to be hurt by these things. Under the terms of the Geneva Conventions it is a war crime to use weapons like this, which will cause disproportionate civilian casualties and continue to harm people after the war is over. To give you some idea of the scale of the problem: During the first Gulf War about 50,000 of the United States� cluster bombs were dropped, releasing over 13,000,000 small bombs. Using the
Likewise for depleted uranium. It gives 'bunker busting' bombs their penetrating power, but in the process scatters radioactive dust and fragments which can be carried on the wind for miles around, contaminating the soil, water, crops and livestock and being ingested and inhaled by people. Among the consequences are genetic mutations, congenital defects, and increased incidence of cancers.
Next, the questioning was directed at how Toby had reached the point of carrying out the attempt to disable the B52s at Fairford. It was established that along with many other people, millions in the case of the biggest marches, he�d petitioned his MP and Tony Blair, attended vigils, demonstrated in
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Tuesday, October 03, 2006
DAY TWO
What really happened was that the prosecution continued their case: their fourth and final witness was the MoD police detective sergeant who interviewed Phil and Toby on the night following their action, at Stroud copshop. Proceeding in a northerly direction through his evidence he confirmed that their response to questioning was to read out statements they'd prepared earlier (using old washing up liquid bottles and sticky-backed plastic.) The statements are on the website www.b52two.org , and when read out in court almost caused an eruption of cheering, so do go to the website to read them if you haven't cheered recently, or if you simply feel there can't be too much cheering done generally. Perversely we're secretly hoping their effect on the prosecution will be an eruption of something far less pleasant! And there ended the lesson, and the evidence for the prosecution.
After the jury were dismissed for a long lunch, the lawyers settled down to a discussion about how much, if any, of the evidence packs Toby and Phil were carrying during the action should be given to the jury. The prosecution's fear, we assume, is that allowing jurors to consider the documents and photos T and P had amassed to communicate their rationale and intent, might cause them to be as outraged as we all should be. (Thinks... if this works out, twelve good people and true might become activists overnight!) Seriously though, everything T and P hadn't written themselves came from and is still available in the public domain, eg. newspaper articles, photos, a piece from the Ecologist magazine on the effects of depleted uranium etc. After lengthy discussions, the decision on what the jury will see has been deferred until Toby has given more evidence.
Meanwhile, Toby has been called to the stand and sworn in. Ed Rees, T and P's QC, asked Toby some questions which he answered with remarkable aplomb, given the circs. The legendary coolness of cucumbers was called to mind. This session covered some background on Toby and Phil's friendship and shared politics, and an outline of what they intended. The What and the Why was then further explained through a multimedia performance involving dance, text, and some innovative use of ceramics. OK, that's not exactly true - we couldn't get the potter's wheel through the metal detector, and the judge might have frowned on a music and movement session, so we watched a video. While the naughty boys at the back tried not to see themselves again on TV the rest of us sat rapt, watching a tape Tand P made just before their action. In this they interview each other about their reasons, their intentions, their hopes and their fears. They also include some newspaper photos which show the effects of war on people and the environment. The video lasted about 45 minutes, and is available as a dvd (see website for contact details). Speaking for the two of us writing this, we found it inspiring and moving. It shows so clearly how they arrived at the decision to take this action, after all their other efforts to prevent war. What they've done seems and is heroic, but the video shows so clearly that they're real people, coming to a difficult, scary decision in ways that are easy to identify with. What I'm trying to say is that they make it apparent that otherwise ordinary people can do the most amazing things. It's difficult to read the jurors' response, but impossible to believe that anyone could remain unaffected.
Toby's back on the stand tomorrow am. and we're off home now - more tomorrow.
Monday, October 02, 2006
End of the first day...
Jury selection took all morning, complicated by the delicacy of not wanting to exclude opinions but at the same time wishing to avoid embarrassment to jury members who may then have to explain to family members in the military why they decided to acquit.
We started the afternoon with the prosecution introducing their case. Mr. Houlder QC. presented the agreed facts and went on to adduce evidence from witnesses who were working on the base at the time the action took place. Among the exhibits were the now infamous "deely boppers" that Mr Houlder kindly modelled for the court once the judge and jury had retired. He could almost be a direct activist.
Maybe we should explain the deely boppers; slightly silly flashing head gear which the pair took with them in an attempt to avoid getting shot. The idea being that nobody could feel threatened by someone topped with flashing peace poppies.
So that was the comedy moment, after that we went to the two MOD policemen who arrested Phil and Toby, then came the RAF commanding officer at Fairford. Among other things he was asked to comment on the contents of "The Fairford Flyer" a particularly gung-ho piece of in-house journalism, glorifying the USAF's ability to fly big planes around the globe and bomb people.
He conceeded that as the senior British officer he had absolutely no control over the operations on the base; in effect it's a USAF fortress in the middle of Gloucestershire over which there's little or no oversight.
There were loads of interesting bits and pieces going on: the arcane speechifying that takes on its own rhythm and starts to make sense after a while; the wigs and gowns; the mannered delivery and politeness that barely masks the knife.
So, we'll add more details as we go along, but that's all for today folks!
Tomorrow the defence will probably start presenting their case, we'll let you know what happens.
The first day
Sunday, October 01, 2006
Trial Prep
For information regarding where, when and what you can do: www.b52two.org
