Lees [2003] EWCA Crim 243

R v Lees [2003] EWCA Crim 243 concerned an appeal against a sentence of three years’ imprisonment imposed by the Crown Court at Warwick for disrupting services at an aerodrome with intent.

Mr Lees pleaded guilty to an offence contrary to sections 1(2)(b) and (5) of the Aviation and Maritime Security Act 1990 and to an offence of damaging property at the aerodrome, for which no separate penalty was imposed. A further count of endangering the safety of a person or property on an aircraft lay on the file. The sentencing judge, His Honour Judge Coates, imposed a total sentence of three years’ imprisonment on 12 April 2002.

The offences took place on 12 October 2001 at Coventry Airport. Mr Lees was a helicopter pilot who used the airport for leisure purposes. A dispute had arisen between him and the airport director, who had initially mistaken him for a wanted person with a criminal record. Although the director realised his error, he subsequently discovered that Mr Lees’s medical certificate required for his pilot’s licence had expired. The director then told Mr Lees that he needed a pass to access the airport and circulated a notice excluding him from using it. Mr Lees felt the director had treated him unreasonably, and he had been prevented from using the airport for some five weeks before the offences.

On the day in question, Mr Lees landed at the airport at 5.10 p.m. intending to refuel. He was told there would be a delay because of the departure of two private passenger jets. The director approached him in the pilot’s seat and told him to leave immediately because he had no landing pass. Mr Lees took off but instead of leaving the airport he hovered at the intersection of the only two operational runways, effectively closing the airport. He radioed the control tower stating that he had a problem with the director and that the airport was closed. The two jets waiting to take off had to taxi to a position just off the runway. Mr Lees positioned his helicopter facing the first jet in an intimidating fashion, prompting the pilot of the other jet to return to the apron and disembark his passengers. His actions also caused another helicopter coming in to land to pull up short to avoid collision.

Mr Lees became increasingly irate. On learning that the director was in the control tower, he said he was coming to talk to him and flew the helicopter at speed towards the control tower, pulling into a hover directly outside the fourth floor window. He then flew in a loop around the tower, over-flew the fire station and circled the tower again before returning to hover by the fourth floor window. These actions forced two inbound aircraft, one low on fuel, into a holding pattern for ten to fifteen minutes. Another pilot who knew Mr Lees tried to calm him down, but he continued to rant on the radio, saying he had had enough. The helicopter’s nose then dipped and the engine note changed as it powered up. It came straight for the control tower, only pulling away at the last minute. An immediate evacuation was ordered out of fear that Mr Lees was going to ram the tower. This incident occurred only a month after the events of 11 September 2001 in New York. Some in the control tower believed they were going to die, and one person was off work for a month afterwards. Mr Lees then flew towards the aeroplane club on the far side of the perimeter, clipping a glide path monitor which required recalibration at substantial cost. He landed and was arrested.

Mr Lees was aged 42, of exemplary character, and had been self-employed as a helicopter pilot since 1984. References described him as trustworthy with a careful and professional approach to flying. He assisted his disabled mother and her severely disabled children. A pre-sentence report indicated that he was struggling to come to terms with the loss of his good character, had low self-esteem, and was having difficulty accepting his criminal record. The likelihood of reoffending was considered low. A psychiatric report from Dr Whitehouse stated that Mr Lees had suffered severe effects from the events, including difficulties sleeping, inability to concentrate, depression, and a diagnosis of moderate to severe post traumatic stress disorder. He was described as extremely remorseful.

The sentencing judge acknowledged that the conduct was wholly out of character, recognised the devastating effect a custodial sentence would have on Mr Lees and his family, and accepted that he was unlikely to reoffend. Nonetheless, he felt bound by public duty to pass a custodial sentence, stating that anybody reading the events would expect such a sentence. He took account of Mr Lees’s positive good character, early guilty plea and the effect of custody, but imposed three years’ imprisonment.

On appeal, Mr Cliff submitted on behalf of Mr Lees that the sentence was manifestly excessive. The Court of Appeal accepted that the judge was entirely justified in imposing a custodial sentence, emphasising that using an aircraft in such a manner was foolhardy and dangerous in the extreme and that the seriousness of such conduct was reflected in the maximum sentence of life imprisonment available for the offence. The court considered, however, whether three years was manifestly excessive.

The Court of Appeal acknowledged that the sentencing judge had faced a difficult task. Mr Lees was a man of unblemished character who, as Mr Cliff put it, had “snapped” as a result of what he perceived to be unreasonable behaviour on the part of those running the airport. While this did not excuse his conduct, it went some way to explain it. Moreover, the judge had accepted that there was no question of Mr Lees reoffending and that he did not represent a future risk to the public, meaning there was no need for any deterrent element in the sentence directed at him personally. As to punishment, the court considered it right to take into account that for this individual any custodial sentence was likely to carry with it the loss of his livelihood, not just for the term of the sentence but very likely for a period thereafter. There was also the mitigation of remorse, guilty pleas and positive good character.

The Court of Appeal was persuaded that the judge had made insufficient allowance for these considerations in imposing three years’ imprisonment. It did not appear that public perception or any other consideration required the imposition of so long a sentence upon Mr Lees. The court found itself unable to accede to the suggestion that a sentence should be imposed that was tailored to enable his immediate release. The Court of Appeal quashed the sentence of three years and substituted one of two years’ imprisonment. In short, the appeal was allowed to the extent of reducing the sentence from three years to two years on the basis that the judge had made insufficient allowance for the appellant’s positive mitigation despite being entitled to impose custody for such dangerous conduct.

R v Pitman [1972] 2 All ER 1099
R v Tolson (1889) 23 QBD 168
R v Tyrrell [1894] 1 QB 710
Morgan (1976) AC 182, [1975] 2 WLR 913, [1975] 1 All ER 8 , 61 CrAppR 136
Khan [1997] AC 558; [1996] UKHL 14; [1996] 3 All ER 289; [1996] 3 WLR 162
Khan [1997] AC 558; [1996] UKHL 14; [1996] 3 All ER 289; [1996] 3 WLR 162
R v Constanza [1997] 2 WLR 302
R v Burstow [1997] 4 All ER 225
Adomako [1994] 3 WLR 288