Drax protesters’ convictions quashed by appeal judges

The Court of Appeal hearing in London came after an announcement in 2012 by the then-director of public prosecutions Keir Starmer that there were concerns about the safety of convictions which followed the Drax power station protest near Selby in 2008.

The convictions were overturned by the Lord Chief Justice Lord Thomas, Mr Justice Simon and Mr Justice Irwin.

Convictions followed a protest when campaigners ambushed a freight train as it took fuel to Drax, the largest coal-fired power station in Europe.

Participants in the non-violent protest were sentenced at Leeds Crown Court in 2009 and 2010 for obstructing the railway.

They were charged with obstructing engines or carriages on railways, which is an offence under the Malicious Damage Act 1861.

The actions of former undercover officer Mark Kennedy, who spent seven years posing as Mark “Flash” Stone, had led to the collapse in 2011 of the case against six protesters accused of planning to invade the coal-fired Ratcliffe-on-Soar power station in Nottinghamshire and led to a review of police undercover tactics.

Mr Starmer said in 2012 he was inviting those convicted after the Drax protest to appeal after a review of the case by a senior CPS lawyer and after taking advice on the safety of the convictions from a senior QC.

Today the convictions were quashed because of the failure in the Drax case to disclose the fact that Mr Kennedy had been working undercover in the protest.

Lord Thomas said: “There was a complete and total failure, for reasons which remain unclear, to make a disclosure fundamental to the defence.

“In those circumstances, this court has no alternative but to quash the convictions.”

Outside court, Beth Stratford, speaking on behalf of the 29, said: “We are pleased because this shines a light on the underhand tactics of the police and the Crown Prosecution Service (CPS) in their policing of political movements. It underlines further the need for public independent inquiry into the use of political policing.”

Lord Thomas said Mr Kennedy, who hired a van and transported activists to the site, kept a detailed record of what happened and made reports to his handler, who communicated them to senior police officers in West Yorkshire.

He added: “None of that was disclosed at the trial or at any time prior to it.”

It appeared that the failure to disclose Mr Kennedy’s involvement was “either the fault of the police or someone at the CPS or possibly counsel involved”.

“Each of those interviewed has given a different account and it is not the function of this court to inquire into the matter.

“What is important, however, is that the appellants were all convicted without disclosure being made of the role of Kennedy.”

According to the records of Mr Kennedy’s handler, he was the sole driver in the protest.

It could not be categorically stated that the event would or would not have taken place without his involvement but if that had been disclosed, as it should, issues would have been raised before the trial as to whether there had been an abuse of process or whether Mr Kennedy acted as an agent provocateur.

Lord Thomas asked counsel to prepare written submissions on the question of who should be responsible for the “substantial” legal costs incurred, to be decided at a later date.

Querying why the Ministry of Justice should foot the bill, he commented: “This is a plain case of fault, either by the West Yorkshire Police or the CPS, so why shouldn’t they pay?”

During the protest the freight train was stopped by two men posing as Network Rail staff, wearing orange jackets and hard hats, who held up a red flag.

Moments later, the train and a nearby bridge were scaled by the protesters wearing white paper boiler suits and carrying banners.

The protest lasted 16 hours, causing delays to numerous freight and passenger services and the clean-up operation cost Network Rail nearly £37,000.

Defendants told jurors they did not believe they were doing anything criminal because they were trying to prevent climate change.

Some were ordered to do 60 hours of unpaid work and others were given conditional discharges.

Brian Altman QC, for the Crown, told the court today that “wherever the fault lay here there was a catastrophic failure of disclosure in this case”.