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R v Lindis Percy: Judge calls CPS behaviour "wholly, wholly unacceptable"

for CAAB | 21.01.2012 18:31 | Anti-militarism | Policing | Repression

On 18 January 2012, the trial of R v Lindis Percy briefly got underway at Harrogate Magistrates' Court before being adjourned yet again following failure by the Crown Prosecution Service (CPS) to comply with various court Directions. Lindis has been charged under s 89(2) Police Act 1996 with allegedly obstructing three Ministry of Defence Police Agency (MDPA) officers on 16 August 2011. The alleged offence took place during the weekly Tuesday evening demonstration at the American (NSA) Menwith Hill base near Harrogate, North Yorkshire. Since then there have been no fewer than five previous court appearances for a summary only case – cases which stay and are heard in a Magistrates’ court. The hearing on 18 January was the sixth.

NSA Menwith Hill, North Yorkshire
NSA Menwith Hill, North Yorkshire

Lindis is joint co-ordinator of the Campaign for the Accountability of American Bases (CAAB).
Read about this and other cases brought against Lindis Percy by the CPS here.

HEARING NUMBER 1: 6 September 2011

On 6 September, Lindis Percy appeared in court for a Plea Hearing to find that her name was not on the court list although she had been bailed to appear on that date. No papers were available despite Lindis having written to the CPS two days after charge requesting the evidence including vital CCTV recordings. After a long wait, Lindis was slotted into the court list. She pleaded not guilty and the case was adjourned to 20 September 2011 for a Case Management hearing.

HEARING NUMBER 2: 20 September 2011

This time, Lindis received the papers from the CPS just one day before the hearing. However, the bundle did not include all documents and statements. Some of the prosecution witness statements were missing as were pages of other documents. Lindis asked for all documents, statements, the Police Schedule of Unused Relevant Material and all the CCTV evidence to be made available to her. The CPS was ordered to supply these before the next hearing.

By this time, Lindis had already asked the CPS for a copy of the CCTV evidence several times, including a request made under the Data Protection Act 1998 to the DPA officer at the MDPA Headquarters at Wethersfield. Mrs Varlow for the CPS stated that this footage was not forthcoming as the US authorities had refused to release it for ‘national security’ reasons. This matter was to be pursued by the CPS.

Because of the significant legal arguments involved in this case and the disputed facts around the circumstances of her arrest, Lindis made an application for the trial to be dealt with by a District Judge rather than Magistrates. The court agreed to make this application to the Lord Chancellor's Office and the case was adjourned again to a further Case Management hearing on 10 October.

When Lindis eventually received the Police Schedule of Relevant Unused Non-sensitive Material from the CPS, Simon Ostler had written against one of the listed items - ‘CCTV RAF Menwith Hill’ - “These don’t appear to assist defence/undermine Prosecution case – note re CCTV – not seen by me – viewed by Police who say incident not featured on CCTV as obscured by hedge”. As the reviewing lawyer, Simon Ostler is responsible for reviewing all the police evidence.

HEARING NUMBER 3: 10 October 2011

Lindis' application for a District Judge to hear the case was successful and Jane Goodwin was appointed to hear all stages of this case and to be the presiding District Judge at trial. Lindis required all six Prosecution witnesses, who are all MDPA officers, to give evidence. The Defence witness would be Melanie Ndzinga of CAAB. Lindis was directed by the court to submit a Defence Case Statement within 14 days, with the CPS directed to provide a Skeleton Argument within 14 days of receipt of the Defence Statement.

A Case Management Review Hearing was set for 21 November and a provisional date for trial was fixed as 18 January 2012.

HEARING NUMBER 4: 21 November 2011

This hearing addressed two main issues: (a) the non-release by the US authorities of CCTV footage of the incident and (b) whether officers of the Ministry of Defence Police Agency are constables within the meaning of the Police Act 1996 under which Lindis has been charged.

(a) CCTV

It should be noted that Menwith Hill is a high security American base surrounded by many CCTV cameras. Both the MDPA and the CPS had previously said that the incident in question had been obscured by a hedge and there was therefore nothing on the CCTV footage that would be of assistance. The American authorities were refusing to release the footage. An employee from Menwith Hill was in court with the material in case the application by Lindis was successful. After submissions from Lindis, the District Judge (DJ) ordered that the footage should be shown in court. It was viewed twice – the second time at the request of the DJ – and was played on a laptop computer as it was not in a suitable format to be shown using court equipment. The DJ ruled that it would assist the defence and directed that it should be supplied to Lindis and the court in a 'viewable format' within 14 days.

(b) Are MDPA officers 'constables'?

Lindis then addressed the DJ on this question. The DJ found that it appeared that they were constables within the meaning of the Police Act 1996 although she also indicated that she may alter her position after she had heard further legal arguments at trial concerning the powers and jurisdiction of the MDPA.

The DJ directed Lindis to file an amended Defence Case Statement within 28 days with a response from the CPS within 14 days of receipt and that both parties were to submit copies of any legislation/documents to be relied on no later than 14 days before the trial.

The DJ decided that the trial would need two days and the dates were fixed for 18 and 19 January 2012.

HEARING NUMBER 5: 29 December 2011

This was an Interim Hearing for Directions, applied for by Lindis following problems over the footage supplied by the CPS, which failed to comply with the court's directions to supply footage in a 'viewable format'. The District Judge was unavailable so the hearing was held before two Magistrates.

Although Lindis had received a disc within the time limit, it was in an American format and unplayable on her computers. Simon Ostler of the CPS sent some (American) instructions to Lindis but she was still unable to view the footage, hence the request for a Directions Hearing. The CPS prosecutor, Caroline Midgeley, had no information about the case and asked for an adjournment while she phoned Simon Ostler (CPS) who had been present at the hearing on 21 November 2011, is managing the case and will prosecute at the trial.

Being a Defence application, Lindis presented her case first, handing a letter to the Magistrates explaining what had happened along with a copy of the amended Defence Case Statement.

On the question of CCTV she made the points that:
1) having viewed some of the CCTV recording she believed there was still more CCTV evidence to view.
2) the CCTV evidence viewed in court on 21 November 2011 was selective; that she be given the whole of the CCTV evidence, since any irrelevant sections could be ‘fast forwarded’. It was necessary to have all the CCTV evidence disclosed and not just the selected part.
3) a simple solution would be that all the CCTV evidence be converted from the American version to a viewable format (NTSC to PAL).

Ms Midgeley said that the disc was in American format and had been ‘encrypted and coded’. Simon Ostler, who she spoke to on the phone, had suggested that Lindis could go to the office to view the CCTV recording and also that he would instruct the MDPA to bring ‘equipment’ so that the CCTV disc could be set up and viewed before the start of the trial on 18 January 2012.

Lindis objected on the grounds that:
1) the District Judge had directed the CPS to provide the court and the Defence with the footage in a viewable format.
2) Lindis needed to view in leisure and comfort of her own home thus allowing her to fully prepare her defence before trial.
3) she would not be able to view the CCTV before the trial if Simon Ostler’s second suggestion was adopted.

The Magistrates decided to endorse the District Judge’s Direction and renewed the previous order made by the DJ - that the CPS provide the CCTV recording in a ‘viewable format’ no later than 10 January 2012.

Lindis asked that it be on the court record that she believed a site visit might be helpful to the court.

AFTER HEARING NUMBER 5: letter to District Judge

Lindis wrote to the District Judge as at the end of the hearing she was left with some concerns:
1) the CPS gave no credible reason (in Lindis' opinion) as to why the Direction of the DJ had not been complied with.
2) the Defence is somewhat sceptical as to whether ALL the CCTV evidence will be disclosed without directions.
3) the Defence acknowledges that the DJ said (at the November Hearing) that she believed there was no more CCTV evidence. However having viewed the section of the alleged incident – which was clearly from another camera – the Defence believes there is more CCTV evidence which should be disclosed and which may assist the defence.

10 January came and went without Lindis receiving the 'viewable' CCTV footage. The MDPA arranged with the court to have a Hearing on 11 January to check whether their 'viewable' footage would play on the court equipment. Insufficient notice of this Hearing was given to Lindis and she was unable to attend. At this Hearing, the two MDPA officers had not been able to play the disc at first, but had eventually managed to do so with the help of an expert from Menwith Hill. Although the 'viewable' footage should have been supplied to Lindis, she now found herself having to make yet another trip to the court with a laptop to try and obtain it. There were still technical problems with viewing the disc which seemed to require files to be downloaded, prompting a comment from the Court Legal Adviser (previously called a Clerk) that he wouldn't download anything from Menwith Hill. There was also a query over how many discs were involved as the Legal Adviser said that he thought there may be two discs.

Eventually, after another letter from Lindis to the District Judge and a day before the trial, an officer from the MDPA handed over a disc to Lindis at Harrogate Police Station along with new instructions. This disc did play, but it was NOT the complete footage. It showed the start of the peaceful demonstration up to the start of the incident involving the car with the four lads in. Lindis had not seen this before.

HEARING NUMBER 6: 18 January 2012

This was supposed to be the two day trial, heard by District Judge (DJ) Jane Goodwin and with Simon Ostler of the CPS prosecuting.

Two more witness statements were delivered by post to Lindis on the afternoon before the trial and there was a list of two more undisclosed items for the Police Schedule of Relevant Unused Non-sensitive Material – one from Jane Taylor (Inspector North Yorkshire Police who said she gave authority for the MDPA to police the demonstration) and the other from James Sheardown (Sergeant MDPA at Menwith Hill) who said he was the Control Room Supervisor (MDPA) during the demonstration. He had checked the footage of another security camera that Lindis thought should have been monitoring the incident on the slip road. However, James Sheardown said there was nothing to ‘archive' as the camera was ‘facing away’. Lindis also thought that one of the documents on the list may assist in her defence as there were ‘notes’. On arrival at court Lindis informed Simon Ostler that she would be applying to the DJ for both witnesses to attend as she did not accept their statements.

This led to lengthy discussions in court, at the end of which the DJ declined the applications, accepting a late statement by Simon Ostler saying that the CCTV evidence disclosed was all there was and ruling that one witness who was present in court could be cross-examined by the defence.

When the trial proper started, Simon Ostler outlined the case against Lindis, which involved important legal points as well as the factual matters in the case. Simon Ostler had ignored the previous court Direction to serve any legal authorities and documents on the other party and supply copies to the court a minimum of 14 days before the hearing. This meant Lindis had not got a copy of the Act quoted by Simon Ostler in his summary of his case (Anti Terrorism, Crime and Security Act 2001 – extending jurisdiction and powers of the Ministry of Defence Police Agency). Lindis made an application to the DJ that she was supplied with a copy and a copy of another amended Act (Ministry of Defence Police Act 1987) which was also quoted by Simon Ostler. This was granted, the court copied both these Acts for Lindis and the DJ adjourned for 15 minutes so that Lindis could study them.

Following this adjournment, Lindis said to the DJ ‘I can’t do this’, with the DJ responding ‘I have every sympathy with you, Ms Percy’. Lindis applied for an adjournment so she could look at these Acts and seek legal advice. The DJ severely reprimanded Simon Ostler for not once but twice ignoring her directions (and incidently a third time for ignoring the directions of two Magistrates at a previous hearing when the DJ could not be present to hear an application by Lindis made because the judge's directions had been ignored). Simon Ostler was also reprimanded for seriously wasting court time: the court would now stand empty for a day and a half, seven police officers had been unnecessarily taken away from their duties – as well as other impacts. The DJ also said she had not received any apology from Simon Ostler. District Judge Goodwin said “This is wholly, wholly unacceptable”.

The DJ granted Lindis an adjournment and directed that a new date be set, for the new estimated time of two and a half days. She also said that she would be seriously considering a ‘wasted costs order’ against the CPS and that Lindis should be prepared at the next hearing to submit a breakdown of her expenses incurred for this one.

At the end, the DJ asked Simon Ostler if the prosecution case had been reviewed as being ‘in the public interest’. He said he had discussed the case with his line manager. DJ Goodwin said that he had 14 days to decide whether the prosecution should be discontinued or go ahead – bearing in mind that it was now to be a three day trial.

Another date for trial was fixed for 17-19 April 2012 at Harrogate Magistrates’ Court before District Judge Goodwin.

Watch this space!

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Trial to go ahead

23.02.2012 00:14

Simon Ostler (Crown Prosecution Service) is going ahead with this case. District Judge Jane Goodwin set the trial for 17-19 April - Harrogate Magistrates' Court 10 am.

Lindis Percy
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