England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 26 June 2008

1. THE RECORDER OF BIRMINGHAM: On 25th March 2008 at Thames Magistrates Court both applicants pleaded guilty to the one offence of recklessly acting in a manner likely to endanger an aircraft. They were committed to the Crown Court for sentence where, on 15th May at Snaresbrook, they were each sentenced to six months in custody. In Hussain's case that was a term of imprisonment. In Miah's case it was detention in a young offender institution. Their applications for leave to appeal those sentences have been referred to the full court.
2. The facts of the case are really quite simple. At about 9 o'clock on the evening of Saturday 12th January 2008 a police helicopter was engaged in a night operation in the Whitechapel area when it was suddenly struck by a bright green laser beam being shone from the ground. It was dark and the cockpit was dimly lit in accordance with the standard operating procedure for night flying so that the pilot could see out. The laser was so bright that it completely illuminated the cockpit, making it extremely difficult for the pilot to read his flight instruments or to see out of the aircraft. The pilot, Captain Paul Watts was forced to take urgent emergency action to avoid the hazard. He closed one eye to minimise the loss of all of his night vision and turned the helicopter away from the laser beam to make it more difficult for the beam to illuminate the cockpit. The applicants, however, continued to shine the laser at the helicopter for several more minutes as the pilot manoeuvred to maintain flight safety. Both accepted through their counsel at the sentence hearing that they acted jointly and at different times each of them had used the laser passing it between the two of them.
3. While the pilot positioned the helicopter to prevent the beam entering the cockpit again, police officers on board radioed for assistance to apprehend the offenders and using the helicopter's video camera and thermal imaging equipment they filmed what was going on and assisted officers on the ground to catch the applicants. Throughout that time (several minutes) the applicants continued to target the helicopter. The police on the ground arrested both of the applicants but by then they had discarded the laser pen. Fortunately this action was observed from the helicopter and the laser pen was recovered.
4. The learned trial judge who plainly took a great deal of care over this case had before him a report and also evidence in person from Captain Brian Baldwin, a former test pilot with over 35 years of experience as a professional helicopter pilot. He spoke of the great danger to a pilot when night vision is lost and the risks that this creates, especially to pilots of police helicopters who more often have to work at lower altitudes. It requires little imagination to comprehend how a catastrophe could easily occur. From Captain Baldwin the learned judge learnt that incidents of this sort have increased rapidly in the last three years and that in particular the use of the green laser pen causes the most trouble and distraction for pilots. In passing sentence the learned judge said this:

"The message should go out that people tempted to target helicopters in this idiotic and dangerous way should expect to receive custodial sentences."

5. Few cases of this sort come before the court, in part because it is often difficult to apprehend those on the ground. One such case was referred to in the court below, the case of Voice [2008] EWCA Crim 953. That case also concerned a helicopter in East London. At first instance Voice was sentenced to four months' imprisonment, but on appeal that sentence was set aside. There are however two very important distinctions to be made between that case and the present one. First, it was accepted in Voice that the appellant had the torch which happened to have a very bright beam for a legitimate if not laudable reason. He was a member of a residents association trying to deal with disturbances which arose at the block of flats where he lived. By contrast, these two applicants had no legitimate reason for having the laser pen. As the learned judge found, the fact that they discarded it before they ran away is the clearest possible evidence that they knew that what they were doing was wrong. Secondly, in Voice the helicopter flew through and out of the beam of light and the beam did not follow the aircraft. The evidence in this case shows that the laser beam followed the helicopter even when the pilot was trying to manoeuvre away from the beam. This activity was not a transitory moment but lasted for several minutes. In Voice the beam of light fell on the helicopter through negligence, whereas here the beam of light was deliberately aimed at the helicopter. In our judgment the learned judge was right to distinguish the present case from that of Voice and right to make it clear that custodial sentences will usually follow when offenders committing this offence are caught.
6. Both applicants have previous convictions. Hussain is 21. He has convictions for taking a vehicle without consent, burglary, resisting arrest, attempting to obtain by deception and two offences of criminal damage. Miah, who is 19, has offences for assault with intent to resist arrest, burglary, theft and again an offence of criminal damage. Those past convictions have little bearing on the decision we make but it cannot be said that these two applicants are normally law-abiding, hard working citizens. Likewise, personal circumstances and personal mitigation will carry less weight in this case than it may in some others.
7. In our view this offence does pass the custody threshold and cannot be properly dealt with by any lesser penalty. Having regard to their pleas of guilty and the limited previous offending, we conclude that the sentence of six months was the least that could properly have been imposed. Therefore these two applications are rejected.