#Heathrow13 Trial: Day 3
Update: This was the last day of evidence. We're back at Willesden Magistrates Court on Monday 25th at 10am for closing speeches (until approx. 11am), then the judgement that afternoon at 2pm or later. Arrive 30 mins before.
“Was someone in your family at risk of impending death?”, “Were they in hospital at the time?”, “Had they emailed or phoned in the preceding days to tell you that?”.
During the breaks in the trial, everyone chatting outside the courtroom was bemused by the logic of these questions by the Prosecutor. He set out to prove that the defence in English law of necessity, properly known as “duress of circumstance”, is limited to immediately preventing imminent death of individuals you feel responsible for such as family, and that the defendants were not acting to protect family members. He got increasingly frustrated when many of the 13 defendants refused to answer in terms of having no particular named individual on their deathbed, instead saying that knowing groups of people in threatened regions was enough. And the judge today also seemed tired by the same debate happening time after time.
The first one up today to respond to this line of questioning was Edward Thacker, from Sipson. By now the defence barristers are pre-empting the Prosecutor's questions themselves and asked:
“Who do you know that is impacted by climate change?”
“In the Sahel region, at the periphery of the Sahara desert, there is starvation now.”
“Do you know anyone there?”
“Does that matter to you?”
“No. [pause] It's never been more apparent, our interconnectedness. If we cannot be moved by common humanity, what hope do-”
The judge interjected: “I think you've done enough of this.”
So the defence barrister moved on: “Do you know people affected by Heathrow?”
“In the community I live in there is distrust of Heathrow over breaches of EU air pollution limits, over promises not to expand-
The judge again: “I think we're now straying into political statements. I want to avoid that.”
So the barrister moved on: “How did you come to be motivated about climate change?”
“When I studied geography at university, I learnt about the 2007 forest fires in the Amazon rainforest. The scale of the fire unnerved scientists. They could forsee a time when the Amazon rainforest becomes a carbon source rather than a carbon sink. I learnt about these terrifying positive feedback loops of warming, described as climatic tipping points.”
The judge stepped in: “I can't see that any of this is relevant. The Amazon rainforest really has very little to do with what happened on the day. I can see that the defendants are genuinely concerned about climate change.”
The barrister: “Was your action reasonable?”
Eddy: “Yes. It was urgent. Scientists warn that above two degrees of warming, these feedback loops could make climate change irreversible.”
Now it was the Prosecution's turn to show that acting was not, legally speaking, necessary, as we chose whether and when to do it: “You've known about this issue for some time.”
And that we could not do enough to prevent death: “You knew you would only stop a small number of planes?”
“Yes, but there's a difference between the number of planes and the amount of carbon saved. A small number of planes are responsible for a vast quantity of carbon.”
Next up was Kara Moses, an outdoor educator and environment journalist.
Defence: “How did you come to be interested in a link between climate change and aviation?”
“I was teaching kids about the Zero Carbon Britain report, which shows that the UK can be zero carbon by 2050, using only existing, currently available technology. The only sectors that can't decarbonise are aviation and aspects of agriculture. If I can go into more detail?”
The judge: “No, I don't want to go into any more detail.”
The Prosecution: “You knew the authorities would remove you as soon as practicable, a relatively short time?”
“I thought I'd be there for most of the day.”
The judge intervened, as many of the other defendants had said they expected to stay for a few hours: “Is that really true? If you thought you were going to be there all day, how were you going to address basic needs?” She paused, then plucked up the courage: “such as going to the toilet?”
Kara replied: “We were wearing nappies, Madam,” amid giggles from the defendants in the dock.
The judge pressed on how long they had prepared to stay. Kara had described her position on the day, lying down with her arms locked to another defendant's arms within reinforced tubes. The judge asked: “Were you really expecting to stay in such an uncomfortable position all day?”
Kara explained: “A day of discomfort is a very small price I’m willing to pay. We live a life of privilege in the UK, compared to people in the global south who face the prospect of death and destruction of their homes every single day from climate change.”
“Why the 13th July?”
“The Davies report made me realise: I have to do something about this. The highest authorities are not going to do something about this. There has been a democratic failure. The biggest NGOs were working together on this, the now Prime Minister said it wouldn't happen.”
“Can you name people you know who are impacted by climate change?”
“When I was in Madagascar researching the links between primate behaviour, climate change and forest ecology, I met people who live in villages near the coast. They are in ongoing imminent danger of devastating cyclones.”
“Are there individuals you can name that were on your mind?”
“Yes, from when I did my research, there are individuals I can name if naming them is helpful. Shall I name them?”
The prosecution was a bit annoyed. Perhaps they feared that, like Rob's sister-in-law, the harrowing reality of their situation would not swing things his way: “No. We can assume that you are able to name people. Were you acting on any news recently received on 13 July that they were about to die?”
“No. Every single day they are in danger.”
“Did you receive an email or phone call from them warning of a cyclone?”
“Floods, droughts and cyclones are ongoing risks. Often they do not get warning of a cyclone, and they live in small rural villages and would not be likely to email or phone me even if they did.”
“I think we can accept that climate change generally increases threats to certain populations. I'm thinking of a particular threat to a particular person on a particular day. Was there one?”
“Often they don't get warning of a deadly cyclone.”
The judge stepped in: “Were you aware of one?”
“No. I'm aware there's a threat every single day.”
Next up was Richard Hawkins.
“How did you come to be motivated about climate change?”
“I remember it well. It was in the last year of my law degree, when I took a module on international environmental law. The lecturer said that essentially there is no international environmental law, or at least none that's worth the paper it's written on. Instead they'd just teach us about what appropriate laws would look like. That module changed my life.
“Have you worked professionally on aviation-related issues?
“I advised on how to communicate around a policy to, essentially, persuade people who fly 20 or 30 times a year to fly less. It was based on research that found that a small minority, 15% of flyers, take the lions share, 70%, of flights.
“And on climate-related issues?”
“I have worked with climate scientists on how to communicate their research, to make it accessible and motivational. I vividly recall the fear in the eyes of the climate scientists I've worked with when they described the impacts. A destabilised climate puts off the inbuilt cues that species' patterns of behaviour rely on.”
“Did that affect your decision to act on the 13 July?”
“I learnt that climate change is what's known as a stock problem, and not a flow problem. Put another way, the bathtub can still overflow while you're turning the tap off. We need to be turning the tap off fast. The Davies Report suggests the government wants to turn the tap on further. The Davies Report was the final straw, a signal of democratic failure on this issue.”
The prosecution pressed: “But the threat of climate change still remains?”
“So actions of the defendants did not remove that threat?”
“We removed the threat posed by the emissions we stopped.”
“Were you aware of a press release by or on behalf of the group?”
The prosecutor asked: “So media was a purpose of the protest?”
“Media was an ancillary purpose. The primary purpose was to stop emissions.”
“So it was a purpose?”
“Yes, I think this is semantic. it was a multi-purpose action with a primary purpose.”
The Prosecutor replied: “I don't think you and I disagree about that.”
Next up was Bec Sanderson.
“How did you come to be motivated about climate change?”
“My dad worked in the British Antarctic Survey. He wrote one of the first papers on the effect of climatic warming on the West Antarctic Ice Sheet. In my professional life I work on the psychology of action on climate change, on why we choose to act or not to act. Like Rich, I have advised climate scientists in the UK on how they communicate.”
After running through some of the earlier questions, the Prosecutor put to Bec: “The regrettable reality for your group is that that problem [of climate change] still remains.”
“It was not in response to the impending death of anyone in particular was it?”
“300,000 people died last year. I don't know their names and addresses.”
This, at last, was the end of all 13 defendants, having been asked by the prosecution whether their had a family member on their deathbed and whether their action had succeeded in stopping climate change. The visitors still in the court public gallery were by now around a dozen in total, down from around 30 on Monday: parents, journalists, campaigners including a Harmondsworth resident whose home would be bulldozed and supporters including a Heathrow worker.
Next, solicitor Raj Chada summarised the expert report of climate scientist Alice Bows Larkin:
1.1: “However, unlike other transport sectors, the altitude at which aircraft fly, and the sensitivity of this part of the atmosphere to chemical input, means emissions released there contribute additional climate warming.”
2.6: “Heathrow airport is estimated to contribute a little under 50% of the total CO2 produced by domestic and international flights associated with the UK.”
3.3: “For most sectors, CO2 cuts in line with the ‘well below’ 2°C goal could feasibly be brought about through a combination technological, operational and demand-side changes (although this would be very demanding to achieve). However, within the aviation sector, there is a major barrier to any significant technical change in the foreseeable decades that will improve efficiency or carbon intensity to a level that outstrips anticipated growth sufficiently for a proportionate response to the 2°C goal (Bows et al 2008). This is a view that is echoed by other academics and many industry sources. It is also is why the UK Government’s own projections for 2050 at best show a 12% reduction in CO2 from aviation between 2010 and 2050.”
8.1: “The IPCC state that if climate change continues as projected in line with their Representative Concentration Pathways (RCP), the major negative changes to health compared to a no climate change future will include (inter alia):
• “Greater risk of injury, disease, and death due to more intense heat waves and fires (very high confidence)”
• “Increased risk of undernutrition resulting from diminished food production in poor regions (high confidence)”
• “Increased risks of food- and water-borne diseases (very high confidence) and vector-borne diseases (medium confidence)”(p713)”
“The World Health Organization (2014), through scenario analysis of future climate impacts, estimate the additional deaths due to climate change across a range of health issues known to be sensitive to climate change (heat-related mortality in elderly people, mortality associated with coastal flooding, mortality associated with diarrhoeal disease in children aged under 15 years, malaria population at risk and mortality, dengue population at risk and mortality, undernutrition (stunting) and associated mortality). Using a medium-high emissions scenario (this would be one that is relatively close to the current emissions track, and not a ‘well below 2°C’ scenario) they project an additional 250,000 deaths per annum due to climate change across this subset of potential health issues.”
8.2: In the recent Paris Agreement it was recognised that climate change “represents an urgent and potentially irreversible threat to human societies and the planet”.
Next, Raj Chada summarised the witness statement of Bryan Tomlinson, a taxi driver from the Heathrow villages.
He says: “I have lived in Harlington, very close to Heathrow Airport on and off for 30 years.
“I have had asthma since I was a child but I have noticed that it has got worse in recent years. I believe that this is because of how close I live to Heathrow airport.
“There is only a chain link fence between my back garden and the airport grounds.
“I am certain the the pollution from the airport has affected my asthma. It is obvious. When I come out of my house I can smell burning rubber from the aircraft. When I wipe my face there is dust and grime on my face.
“I cannot go into my garden now because of the pollution and its effect on my asthma. I have to stay indoors or away from the area. This is becoming increasingly difficult as I have got older as I need to stay at home more frequently.
“The excessive noise from Heathrow Airport has also had a detrimental effect on my health. The noise from the aircraft taking off comes through the windows at my house. It drives me mad. This is another reason why I do not use the garden.
“The worse the noise gets, the more it causes me stress, which in turn affects my asthma and general health. It is becoming more and more depressing to live here.
“As a local resident I have just got used to Heathrow affecting my health. Everyone knows about it. It does not need to be said. You can tell by living here that it affects your health and that the life expectancy as a local resident of Heathrow is going to be shorter than for someone living elsewhere, which I have also read in studies.
“I have spoken to [the defendant] Sam about my health problems and the reasons I believe I am suffering from these problems, as outlined above.
“I am supportive of Sam and his actions, because of the impact the Heathrow has had on my health and on other local residents. I really do appreciate what Sam and the others have done. It means so much to me that they have put themselves on the line for us as local residents and for me personally.
“The noise and air pollution from the airport is getting worse and I believe that something needs to be done to prevent this increasing to an even more dangerous level.”
Next, the statement from Rob's sister-in-law was summarised, and then a statement from Philip Rumsey, a resident of Harmondsworth, the village that would be destroyed for the third runway.
“I visited Harefield Hospital as I was getting pains in my chest. They discovered I have a 99% blockage in two places in the Left Anterior Descending Artery. I am lucky to still be alive.
“I know that air pollution and noise can cause problems with blood clotting and the build-up of plaque in the arteries. No one else in my family have suffered with this. They all lived in South East London or the East End. I am the only one who moved to Harmondsworth. I have been here for 42 years.
“The effect on my life was that I could not walk quickly and could not walk uphill no matter how small the gradient. I have lost most of my energy and spend most days taking it easy. I had to rely on my wife to do all of the heavy work on our allotment and in the house.
“An operation that normally takes around 40 minutes took 2 ½ hours in my case.
“There is no guarantee that the blockage will not happen again. That would then entail a bypass to be performed.”
Next, statements were read out about the good character of the defendants.
This was followed by an impassioned battle between the defence and prosecution about whether MP John McDonnell's statement was admissible.
The judge said: “This will not assist me in my deliberations. The issue in the case is, 'Did the defendants honestly hold a reasonable belief that what they were doing was necessary to protect life and limb?'
Defence barrister Raj Chada argued hard that an issue in the case was what alternatives the defendants had. He said that the Prosecutor had put to a defendant that she should have persuaded elected representatives rather than taking direct action herself, and had then asked her whether she had stood for elected office.
McDonnell, he argued, was uniquely well placed to speak on the possibility of influence through the parliamentary process, as he has represented Hayes and Harlington constituency as an MP for 19 years. The constituency includes Heathrow. He was suspended from Parliament for five days after he protested in Parliament, calling the refusal to let MPs vote on a third runway “a disgrace to our democracy”. He launched a High Court judicial review that found that the Climate Change Act made plans for a third runway “untenable in law and common sense”.
So the judge asked the Prosecutor to simply agree the statement, to prevent defendants feeling “aggrieved”, but meaning McDonnell would not appear in court, saying: “I can understand this [the Prosecution position that the statement is not relevant] may be the case in law, but what harm does it do to your case?”
The Prosecutor was having absolutely none of it. In a feisty retort, he gave her short shrift: “Yes it is. That's the end of the matter.”
Although the judge tried again, the Prosecutor was dug in for war, bluntly stating “While I have some sympathy as a person for that argument, as a Prosecution lawyer I have none.” He paused. But he went on: “End of story.”
So the judge gave her ruling on McDonnell:
“In that statement, he [John McDonnell] talks about a number of things, including his views over the development of 4th terminal at Heathrow. His opposition to further expansion, based on the strongly held views of many constituents, living in surrounding villages. The concerns of local residents about the building of a third runway, for a variety of reasons, including the impact of increased air pollution. He talks about the deleterious effect of the expansion of the airport on climate change and confirms he has campaigned against further expansion of the airport.
“It talks about a High Court action in 2010 , which led to recommendations and promises from planning inspectors. He says that promises made have not been observed. He gives opinion on the debate about expansion of Heathrow and talks about the benefits of direct action, which he says are many, although it may cause short term inconvenience...
“Mr Chada's case is, in effect, that Mr McDonnell provides evidence that the democratic process has not worked and therefore it is relevant...
“Nothing in Mr McDonnell's statement assists me ... in relation to the threat to life or limb.
“I can say that I will find that each of the defendants genuinely felt exasperated that their very considerable efforts to draw the attention of those in authority to the very real threat that climate change poses have not been effective. I am therefore not going to to allow Mr McDonnell to give live evidence.
“I would say to the defendants, in respect of what you wanted him to say, you've already won.”
Next, Sian Berry, the Green Party’s candidate for the London mayoral elections, watched from the public gallery rather than the witness box, as her evidence had already been ruled as irrelevant by the judge. Four more campaigners were ruled irrelevant. Out of the eight total defence witnesses, only four had their statements accepted, and none were permitted to appear in person.
Timetabling finished the day off and we went to the pub, where they were showing on the big telly a programme about police interceptors (cops in action with cameras). There was a moment of silence and heads turned when one of the clips started with a police car driving down a runway that had various emergency services vehicles already at the scene. “Is that them?” “It can't be” As the police car got closer, however, it became clear that it was an incident involving a microlite aircraft, and we returned to our afternoon pints and orange juices.
The next day, Thursday 21st (when I finished writing the blog), Transport secretary Philip McLoughlin said on LBC radio there should be a third runway decision “I hope later this year”, implying there was still a chance that a decision on the zombie runway might resurface after 2016.
The same day, scientists from Kings College London advised Londoners with heart conditions or breathing problems to reduce exercise and to stay at home due to a particulate air pollution alert.