08 September 2010

Leicester Laser

The BBC reports, "Leicester boy loses 'laser pen' appeal"

"A 14-year-old youth accused of shining a laser pen at a police helicopter in Leicester has failed to convince the High Court he should not be prosecuted.

The boy was charged with recklessly endangering an aircraft after the helicopter was targeted in October.

His barrister argued it was not in the public interest to impose a criminal record for "10 minutes of stupidity".

But the judge refused to intervene, saying the consequences could have been "catastrophic".

The charge of "recklessly endangering an aircraft" comes from Article 73 of SI 1970, The Air Navigation Order 2005,

"73. A person shall not recklessly or negligently act in a manner likely to endanger an aircraft, or any person therein."

According, Article 148(7) and Schedule C, Part 14,

"If any person contravenes [Article 148(7)] he shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine or imprisonment for a term not exceeding five years or both."

After having said all that, recall the following story, again from the BBC.

"Crackdown on aircraft laser louts" from 12th Dec 2009. This gives background to the 'laser scourge' and explains the Article 73 charge,

"Those caught are charged under article 73 of the Air Navigation Order for recklessly endangering an aircraft - a penalty carrying a maximum five-year jail term.

It is the same charge used in air rage cases and, according to regulators, far from ideal.

The CAA says the sheer number of cases has prompted it to draft a new, more specific charge of shining a light at an aircraft - due to come into effect in January.

It hopes the changes will increase the number of prosecutions, make the law clearer and deter offenders.

Well, the sought for, charge has come into effect (see Lights which dazzle) and is found in Article 222 of The Air Navigation Order 2009 (No. 3015),

"222. A person must not in the United Kingdom direct or shine any light at any aircraft in flight so as to dazzle or distract the pilot of the aircraft."

The penalty for this can be found in Article 241(6) and Schedule 13 Part B,

"Any person who [...] is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale."

Once these two provisions have been reviewed, we can go back to the story from the BBC and ask ourselves whether or not it is true that the 14 year old boy asked the High Court not to be prosecuted. Instead, one suspects that his argument would go along the lines of, why is it in the public interest to prosecute him under the 2005 instrument rather than the 2009 instrument?

"... Mr Justice Collins said it was up to the CPS to decide whether to mount a full prosecution."

But that doesn't tell us much as to how the public interest test is being applied when there are two competing provisions on the statute books; of which, one was specifically drafted for the behaviour of the accused.

This is somewhat troubling. I wonder if there is an appeal in the offing.
Update 9th Sept 2010.

A closer reading of the 2009 Regulations gives the commencement in article 1 (1) as the 1st January 2010. In other words, when the boy from Leicester committed his act (October, presumably 2009), the regulations were not law. He couldn't have been charged under these regulations. Sigh.

The question still remains as to what will be used to charge and prosecute future alleged miscreants, but not this one. It looks like the older law will is being used, for example, from 14th August 2010,

"Man charged after laser shone at police helicopter

A man has been charged after a laser was shone at a police helicopter in Cheshire.

The laser was directed at the cockpit of Cheshire Constabulary's aircraft as it flew over Winsford on Wednesday night, police said.

The 27-year-old from Winsford is charged with recklessly endangering an aircraft.

He is due to appear before magistrates in Northwich next month, a police spokesman said.

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