R v Saibene

Background

EDO MBM Technology Ltd is a unit of ITT Integrated Structures and was previously owned by EDO Corporation. It has an armaments factory on Home Farm Industrial Estate, Moulsecoomb, Brighton and Hove. There have been numerous protests and direct actions since 2004 voicing the opinion that the corporation should close or convert its factory to civilian use. Protest actions have included road blockades, rooftop occupations, attempted weapons inspections, and three peace camps set up in woodland next to the factory. There have also been several marches through Brighton city centre involving hundreds of protesters. In the process several arrests have been made by Sussex Police, mostly under public order legislation. The ongoing campaign of protest, civil disobedience and non-violent direct action against EDO in Brighton, began in 2004 and came to be known as the "Smash EDO Campaign".

The Rome Statute of the International Criminal Court brought into UK domestic law by the ICC Act, makes it an offence for UK citizens and residents to act in complicity in war crimes that take place anywhere in the world. In nearly all criminal trials, protesters against EDO MBM have argued that the company is acting unlawfully by assisting war crimes committed by the UK and US forces in Iraq and the Israeli forces in the West Bank and Gaza. Magistrates in Brighton have generally refused to acknowledge the argument, but demonstrators have frequently been acquitted.

In March 2008 a feature length documentary, On the Verge, about the Smash EDO campaign was released.

Break-in at EDO MBM Technology

On 17 January 2009 activists Elijah Smith, 42, Robert Nicholls, 52, Tom Woodhead, 25, Harvey Tadman, 44, Ornella Saibene, 50, all from Bristol, raided EDO's factory in Moulsecoomb. Computers and filing cabinets were thrown out of windows and according to Sussex Police, "extensive damage was caused". Smash EDO said that they had performed a "citizen's decommissioning" of the factory in response to the ongoing conflict in Gaza. After destroying equipment, the activists lay down on the floor and waited to be arrested. Before the action, the activists recorded their motivation in a video. After the arrests, the statements were posted on the Indymedia website. The total damage caused was later estimated at £180,000 (US$275,000). Police made further arrests of people outside the factory on the night, including Christopher Osmond, 29, and Simon Levin, 35, both from Brighton, on suspicion they were involved.

Trial

On 17 May 2010, the trial began at Hove crown court of the seven activists on charges of conspiring to cause criminal damage. The activists faced the possibility of up to five years in jail if found guilty. Although the activists admitted they had sabotaged the factory, their defence argued that criminal damage was legally justified if the damage occurs while trying to prevent greater damage to other properties - in this case, homes in Gaza. The lawful excuse defence was invoked, according to which it can be lawful to commit an offence to prevent a more serious crime. Caroline Lucas, the MP for Brighton and the leader of the Green Party of England and Wales, supported the activists and said that this was a case in which she considered non-violent direct action legitimate.

Stephen Shay, prosecuting, argued that the factory was so small that even if it had been supplying Israel, it would have made no difference to the war in Gaza. EDO managing director Paul Hills denied in court that the company supplied components to Israel but said it did make parts for F-16 fighter planes. Judge George Bathurst-Norman said that, despite Hill’s denials, it was clear that there was enough evidence to the contrary and that the certificates required for arms export licenses were "not worth the paper they are written on," as they can be easily manipulated.

Summing-up

In his summing-up, George Bathurst-Norman suggested to the jury that "you may well think that hell on earth would not be an understatement of what the Gazans suffered in that time". Bathurst-Norman also highlighted the testimony by Caroline Lucas, the Green MP for Brighton Pavilion, that "all democratic paths had been exhausted" before the activists embarked on their action.

Bathurst-Norman also suggested to the jury that Chris Osmond should be rewarded for his actions, stating that: "People like Mr Osmond, who put themselves in harm's way to protect others… there may be much to be admired about people like that. Perhaps if he had done it in this country in the last war he would probably have received a George Medal." Judge Bathurst-Norman also criticised the British and US governments, telling jurors: "You must put aside any feelings of being thoroughly ashamed of our government, of the American government and the United Nations and the EU in doing nothing about what was happening." Commenting on Israeli's military operations in Gaza, Bathurst-Norman stated that "It may be as you went through what I can only describe as horrific scenes, scenes of devastation to civilian population, scenes which one would rather have hoped to have disappeared with the Nazi regimes of the last war, you may have felt anger and been absolutely appalled by them, but you must put that emotion aside."

Verdicts

Five of the activists were found not guilty by the jury on 30 June. The remaining two activists, Chris Osmond and Elijah Smith, were acquitted by the jury two days later on the direction of the judge.

Reaction

Following the verdict, the judge's comments were criticised by Israeli ambassador Ron Prosor who said: "This is not a great era for the British justice system. I assume that Sderot's children, who have lived under thousands of missiles for years, will be able to enlighten the judge as to the meaning of 'hell on earth.'" A statement form the Board of Deputies said: "The acquittal was clearly a result of the skewed narrative around Cast Lead, the judge's comments and the appearance of the local MP, who is known for her anti-Israel bias." The Zionist Federation released a statement calling for the government to censure Judge Bathurst-Norman.

The defendants' solicitor said: "We're delighted at the result. I think it sends a clear indication that sometimes direct action is the only option when all other avenues have failed."

"We made our case very clear and 12 normal people from Sussex heard that case and agreed unanimously that we'd done nothing wrong. We did £200,000 of damage and we've never denied that. We did what we believed was necessary and the jury agreed."

"We're very happy that a jury of ordinary people confronted with the facts recognised that our actions were justified... Presented with the facts of what was going on in Palestine they have backed our action. It's a victory for the anti-war movement in this country, for justice and for both British and Palestinian people."

On 15 July 2010 the Jewish Chronicle published a full transcript of Judge George Bathurst Norman's final summing up of the evidence, and reported that the Zionist Federation were calling for a mistrial. Jonathan Hoffman, vice-chair of the Zionist Federation, argued that "Judge Bathurst-Norman behaved more like the defence counsel than the neutral officer of the court that he was supposed to be. The role of a judge – far from advancing his own political agenda – is to clarify points of law to the lay members of the jury... Bathurst-Norman's comments reveal that he has an extreme anti-Israel agenda."

British journalist and social commentator Robin Shepherd called the case an "extraordinary moment in modern British legal history" and that:

“Bigotry against the Jewish state is now so entrenched in contemporary British society that juries have begun to acquit criminals merely if they can show that they acted against Israeli interests. No other defence is necessary.”

Writing in the Spectator, Melanie Phillips sharply criticized Judge Bathurst-Norman and suggested his politics and bias were factors in his statements to the jury. Phillips noted that Bathurst-Norman had previously stated that "The trouble is, if you go on for political reasons undermining the public's faith in the judiciary, sooner or later you are heading for anarchy and... in due course for the equivalent of a police state." Phillips also noted that Bathurst-Norman had previously jailed a man for three months for beheading a statue of Margaret Thatcher, saying that "although many people sympathised with him, smashing up property deserved a custodial sentence."

In late July 2010, the Office for Judicial Complaints (OJC) began an investigation into Judge Bathurst-Norman's conduct. On 7 October he was formally reprimanded by the OJC, which stated that "An investigation found that a number of [Bathurst-Norman's] observations did not arise directly from the evidence at trial and could be seen as an expression of the judge’s personal views on a political question. This was an error." Bathurst-Norman declined any comment on the matter.

In response to the reprimand, the Smash EDO Campaign stated, "Judge George Bathurst-Norman has become subject of a concerted campaign of smears and defamation by a number of right-wing columnists, the Zionist Federation, and the Board of Deputies of British Jews on grounds that his summary of the evidence was 'anti-semitic' ... the charges of anti-semitism, which have been made against Bathurst-Norman, are a grossly cynical attempt to undermine the significance of these acquittals of pro-Palestinian activists on evidence of Israeli war crimes. This evidence was not challenged by the Crown Prosecution Service. There is nothing anti-semitic in putting agreed evidence of Israeli war crimes to a jury."