Two days before the missiles started raining down on Baghdad in March 2003, Josh Richards packed a mixture of petrol and washing-up liquid into his rucksack and headed off to RAF Fairford in Gloucestershire. His plan was to set fire to the wheels of a B-52 USAF bomber to prevent it from joining in the imminent shock and awe.
He was caught before he could act, but he was not the only person planning a last-ditch attempt to hinder a war which many considered illegal. A few days earlier, Margaret Jones and Paul Milling had cut their way into the same airbase and damaged a number of fuel tankers and bomb trailers. Another two men in their thirties, Phil Pritchard and Toby Olditch, armed themselves with paint, nuts and bolts with the intention of damaging the bombers‘ engines.
Today this group of five would be labelled terrorists. See the government‘s reaction last week when pro-Palestinian activists broke into RAF Brize Norton and—just like their earlier counterparts at Fairford—damaged two military planes with red paint. "A disgraceful act of vandalism," said the prime minister Keir Starmer.
Within days, the home secretary Yvette Cooper was on her feet in the House of Commons announcing that the group involved, Palestine Action, would be added to the list of organisations proscribed under the Terrorism Act 2000. If you dare donate so much as a fiver to it in future, you will be committing a crime.
Twenty-odd years ago we lived in a kinder, gentler age. Society was not so harsh in its judgements about the group which became known as the Fairford Five. The protestors lawyered up and their briefs decided on an original defence—arguing that their actions were justified, morally and legally, because they were aimed at preventing a greater evil—ie the war in Iraq and its probable consequences. They were, in short, willing to commit crimes in order to prevent greater crimes.
Among the barristers who came up with this intriguing defence was a rising star of the human rights bar, Keir Starmer QC. He argued the case on behalf of Josh Richards, first at the Court of Appeal in June 2004 and then again before the House of Lords in March 2006. The presiding judge, Lord Bingham, went out of his way to praise the “erudition” involved.
The appeal did not totally succeed, but in his judgment Lord Hoffmann articulated a humane view of how, in the UK, he believed we have traditionally regarded such acts of protest,
“Civil disobedience on conscientious grounds has a long and honourable history in this country," he wrote (at paragraph 89). “People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind.”
Hoffman outlined the “conventions” he thought should govern such acts of civil disobedience in his “civilised community”. The law-breakers had to behave with a sense of proportion and avoid excessive damage. The law-enforcers, on the other hand, should “behave with restraint [and]… take the conscientious motives of the protesters into account”.
I imagine Mr Starmer QC read those words with some pleasure at the time: they have been quoted many times in courts over the years by his learned friends in defending clients acting on conscientious grounds.
But now, at the behest of his government, such people are to be defined as terrorists. Forget trying to understand their conscientious motives. Lock them up and ban them. What happened?
Let‘s try some hypotheses.
The first possible explanation is that Starmer in 2004 was just operating on the “cab rank” principle. He didn‘t actually believe all that stuff he argued in the posh courts: he was just making the best case he could. But one former Doughty Street Chambers colleague told me Starmer “totally” believed in the right to protest.
Some argue he is simply a massive hypocrite. He couldn‘t care less that there‘s a yawning gulf between what he then argued and what he now advocates. Or maybe he has just changed his mind? Perhaps he had some sympathy with the Fairford cause (Iraq) and less for the Brize Norton protests (Palestine)?
Perhaps he still holds the same views he expressed 20 years ago, but has been advised it would be politically unwise to voice them. Reform is storming ahead in the polls and is demanding tough action. Now‘s not the time to out yourself as a bleeding-heart liberal. So, you can show your toughness by outlawing the very sort of people you once defended. And, while you‘re about it, tell Glastonbury to drop another “terrorist” from its bill— in this case, the Irish-language rap group Kneecap.
Or maybe he believes in nothing? That, after all, is what a significant slew of even his own backbenchers are coming to assume.
Twenty years ago the public took a more forgiving view of protestors. Juries initially failed to agree on a verdict on charges against four of the Fairford defendants. Olditch and Pritchard were subsequently cleared of all charges after two trials. Josh Richards was also tried twice after admitting he wanted to set fire to a B-52 bomber. Twice he walked free. Only Margaret Jones and Paul Milling were found guilty—at the second attempt—and were treated relatively leniently. Milling was given a conditional discharge and a £250 fine. Dr Jones was given a five-month curfew order.
So perhaps this explains what‘s going on in Starmer‘s mind. He, of all people, knows that juries are quite likely to side with conscientious protestors on an issue like Gaza. So it is cleaner simply to outlaw protest groups from the start. For someone who believes in the rule of law it‘s a clever way of getting round the rule of law.
“Yes, they should stand trial. Yes, they‘ve committed criminal damage,” Baroness Helena Kennedy, a fellow civil rights lawyer, told me. “But to label them terrorists seems extraordinary to me. It‘s going down the old Trump road, and I don‘t like it at all. There‘s a sense in which you have a US government which has no respect for the rule of law and there‘s now a kind of poison seeping into our own legal aquifer.”
As I write another four protestors have been arrested by counter-terror police in relation to action at Brize Norton. You can’t help wondering whether the concept of terrorism itself is being somewhat watered down by the Starmer government.
And you can’t help wonder at the philosophical somersaults taking place in the prime minister’s mind as he stands everything he argued for 20 years ago on its head.
