Tuesday Law Report: Real risk of danger to aircraft must be shown

14 December 1999

Regina v Whitehouse

Court of Appeal, Criminal Division (Lord Justice Pill, Mr Justice Rougier and Mr Justice Morison) 7 December 1999

THE WORD "likely" in Article 55 of the Air Navigation (No 2) Order 1995, which made it an offence to do an act likely to endanger an aircraft or any person therein, should be construed as meaning that there had to be real risk, which could not be ignored .

The Court of Appeal dismissed the appeal of Neil Whitehouse against his conviction of an offence of doing an act likely to endanger an aircraft, or any person therein, contrary to Article 55 of the Air Navigation (No 2) Order 1995.

On 24 September 1998, the appellant was a passenger on a British Airways flight from Madrid to Manchester. A member of the cabin crew noticed that he was using a mobile telephone to write a text message. She asked him to turn off the phone and pointed out that leaving the telephone on or using it during the flight was not permitted. He turned the phone off after a further request, but shortly afterwards turned it on again. When again told to turn it off, he replied "Why, are we going to get lost?" He turned off the phone.

The appellant again turned on the phone and was asked by a different member of the cabin crew to turn it off. When he refused, he was told that it could interfere with the aircraft's system. He replied "So what?" The flight captain was informed. The appellant told the captain that he had only received a short call. The captain explained to him that the use, or "On" position of the mobile telephone, could endanger the aircraft. He switched it off but to declined to hand it over to the captain. On arrival at Manchester Airport, the appellant was arrested.

The appellant did not challenge the evidence of what happened on the aircraft and did not give evidence. He challenged the prosecution claim that the act of the appellant had been likely to endanger the aircraft.

Thomas Fitzpatrick (Registrar of Criminal Appeals) for the defendant; Ian Metcalfe (Crown Prosecution Service) for the Crown.

Lord Justice Pill said that it did not affect the outcome of the present appeal, but a direction as to the meaning of the word "likely" was a necessary part of the summing-up. Judges were encouraged not to attempt further explanations of expressions such as "reasonable doubt". However the word "likely" was protean in character in that its meaning might vary with the context. It was also colloquially used with different shades of meaning which highlighted the danger of leaving it to members of a jury to form their own view.

More recently, and in a very different context, a meaning of the word "likely" in the expression "likely to suffer significant harm" in section 31 of the Children Act 1989 was considered in the House of Lords in Re H (minors) [1996] AC 563. Lord Nicholls, with whom Lord Goff and Lord Mustill agreed, declined to accept the submission that likely meant probable. He said that:

In my view, therefore, the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.

While the present context was very different from that under the Children Act, it had in common the disastrous results which might follow if the danger of which there was a risk materialised. The consequences in the present context might include great loss of life and damage. In this context the word "likely" should be construed in the same way as in Re H.

There was in the present case evidence of a real risk, a risk that ought not to have been ignored. Moreover, no complaint could legitimately be made as to the judge's summing-up of the expert evidence. While the judge ought to have given a legal direction upon the meaning of the word "likely" in this context, his direction had sufficiently identified the lower threshold, which was the appropriate one. The failure to direct did not, and was not suggested, in itself to avail the appellant because the jury were entitled to convict upon the suggested test which placed a lower burden upon the prosecution.