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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Maxey & Anor v R. [2025] EWCA Crim 472 (16 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/472.html Cite as: [2025] EWCA Crim 472 |
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202400261 B4 |
ON APPEAL FROM Isleworth Crown Court
His Honour Judge Edmunds KC
T20197326
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE GOSS
and
MR JUSTICE DEXTER DIAS
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LARCH MAXEY |
First Appellant |
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JULIAN ROGER HALLAM |
Second Appellant |
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- and - |
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REX |
Respondent |
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James Curtis KC and Martyn Bowyer (instructed by Jane Scholefield, CPS Appeals and Review Unit) for the Respondent
Hearing dates: 27 March 2025
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Crown Copyright ©
LORD JUSTICE WILLIAM DAVIS:
Introduction
Factual background
The legal framework
"A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects."
In respect of the mental element Lord Bingham at [39] confirmed that the correct test was as stated in Shorrock (1994) 87 Cr App R 67 at 75:
"…..what state of mind must be proved against a defendant to convict him of causing a public nuisance?.....the correct test was that laid down by the Court of Appeal in R v Shorrock [1994] QB 279, 289, that the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequence of what he did or omitted to do."
Conspiracy is a statutory offence. The elements of the offence are in section 1 of the Criminal Law 1977:
"(1)Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—
(a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
(2)Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."
"(1)A person commits an offence if— (a)the person —
(i)does an act, or (ii)omits to do an act that they are required to do by any enactment or rule of law,
(b)the person's act or omission—
(i)creates a risk of, or causes, serious harm to the public or a section of the public, or (ii)obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and
(c)the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence."
The submissions before the judge
"…..are you sure that the agreement encompassed flying drones (themselves or by encouraging others to do so) sufficient to achieve the result of compelling the airport authorities to close the airport OR at least that they agreed to carry out specific drone flying in the belief that so doing would compel the authorities to close the airport even though, in fact, it would be impossible to achieve the closure of the airport by the specific method that they had agreed to adopt."
"Are you sure that there was an agreement intending to cause the authorities to close Heathrow Airport to air traffic – at least temporarily?
Are you sure that the defendant you are considering believed that flying drones in accordance with the safety protocol in the numbers that defendant contemplated was capable of compelling the closure of the airport?
If so are you sure that defendant entered into an agreement intending to compel closure by the flying of drones in that way?
Are you sure that it was a possibility that flying drones within the terms of the protocol could have achieved such an intention to compel the airport authorities to close the airport to air traffic?
Are you sure that closing the airport, were it to be achieved, would necessarily cause a public nuisance?"
The submissions on appeal
Discussion
i) The appellants and others agreed to carry out a course of conduct.
ii) They intended by the course of conduct to cause Heathrow Airport to be closed.
iii) If the agreement were carried out in accordance with their intentions, it would involve the offence of causing a public nuisance.
That was a case which the judge properly left to the jury. If established on the facts, the appellants were guilty. That was the conclusion the jury reached. On the evidence, they were entitled to do so. The flying of many drones carried with it the possibility of a closure of the airport. The appellants had stated their intentions in clear terms prior to 13 September 2019. In contrast, the appellants' case was that they did not intend to cause the airport to be closed. If the jury had found that this was or may have been the case, the appellants would have been acquitted. The first and third questions of the revised route to verdict required the jury to be sure that the appellants intended to cause the closure of the airport. The verdicts in relation to the appellants shows that the jury were so sure.
"A person acts through an innocent agent when he intentionally causes the external elements of the offence to be committed by (or partly by) a person who is himself innocent of the offence charged by reason of lack of a required fault element, or lack of capacity."
The airport authorities in this instance, had they decided to close Heathrow to air traffic, would not have any fault element. To be more precise, they would have had a defence to any charge of causing a public nuisance. The fact that they would have been exercising independent judgment would be of no consequence.
Conclusion