Leyton Marsh: Malice and the prosecution of Mike Wells
Two weeks ago the trial began of nine members of Critical Mass, out of 182 originally arrested, for riding their bikes too close to the Olympic Park on the evening of the Opening Ceremony. Another malicious Olympics prosecution (see p 12), that of citizen journalist and photographer Mike Wells, finally came to an end almost two months ago on 17th January 2013. The story began with an unsubstantiated allegation that Mike assaulted the driver of an excavator at Sandy Lane, the unmade road that runs alongside Leyton Marshes, and ended nine months later at Stratford Magistrate’s Court. Mike’s prosecution occurred against a background of warnings from police and politicians that the authorities would take a hard line in the face of protest and disorder.
Leyton Marsh had been the scene of protests against the construction of a Basketball training facility on Metropolitan Open Land in defiance of all normal planning procedures. The ODA immediately broke the planning permission by digging deeper than it was allowed resulting in the uncontrolled excavation of contaminated material. Following successful actions by local residents to stop lorries coming on to the site, including playing boules on Sandy Lane, residents were joined by a group from Occupy who set up camp next to the perimeter fence. The authorities responded with an injunction, eviction of the camp, imprisonment of four Occupy protesters who refused to pay fines and an ASBO for one, Simon Moore, who was barred from going within 100 metres of any Olympic facility and, bizarrely, any Jubilee event. One protester ended up paying £10,000 in legal fees and a confidential settlement when the ODA pursued her for participating in a sit down protest to prevent lorries entering the site, Later in the summer the ODA and Waltham Forest claimed almost £25,000 from the Save Leyton Marsh campaign in legal costs when the campaign sought a Judicial Review of Waltham Forest Council’s planning approval – successfully preventing the case from going further.
It was against this background of official disregard for the law and vindictiveness that Mike decided to make a film about Leyton Marsh, “London Takes Gold” available on Vimeo, and while out recording on location on April 26th found himself watching the erratic performance of an excavator on the public footpath known as Sandy Lane.
Mike was not the only person to be upset by the way the excavator was being operated. Another male passer-by, walking along Sandy Lane, was also astonished by the behaviour of the driver and went up to the excavator and told him to stop. Shortly afterwards Mike also approached the vehicle and argued with the driver. After an exchange of views there was a confrontation which began with the driver attempting to kick Mike in the head and then jumping on him from his cab and ending with the driver, who was on top of Mike on the ground beside the excavator, being hauled off by several security guards who were nearby. One had been standing next to the vehicle throughout the incident.
The security guards then pinned Mike to the ground before dragging him 200 metres and holding him captive until the police arrived. He was arrested and later charged with assaulting the driver of the excavator by pulling him from his cab. He had sustained cuts to his head and injuries to his ribs, which were possibly fractured. An ambulance was called and the paramedics treated Mike and offered to take him to hospital, which he declined. His assailant had not sustained any injuries.
After being held for forty hours Mike was taken to Bow Magistrates court where he pleaded not guilty. The Crown Prosecution claimed that a protest had been underway and that the incident was part of that protest and in breach of the injunction. On the grounds that Mike would return to protest and make mischief the District Judge ordered he be remanded in custody, despite his only being charged with common assault, which had caused no injuries, and there being no legitimate grounds for refusing bail. He was only released a week later when the Crown Prosecution lawyer was so confused that she couldn’t even organise her paperwork.
In addition to spending two nights in police custody followed by six nights in prison, bail conditions were imposed ordering him not to go within a hundred metres of any Olympic facility whether complete or under construction. A trial date was proposed which was conveniently just after the end of the Olympics. After the stress of preparing for this and waiting all day at the court the trial was then adjourned for another four months.
The evidence of the driver to the police was that Mike had climbed on the excavator and pulled him out of his cab through the front window. The police wrote in their statements that he had told them Mike had jumped up on to the bucket of the excavator. However, in court the driver said Mike had gone round to the side of the vehicle and pulled him out of the door, and denied that Mike had climbed on the bucket or that he ever said this to the police. In order to defend her witness’s credibility the Prosecution barrister was insistent that, on this point, the police had made false statements and had inserted things the driver had not said, an interesting position for a prosecution lawyer to adopt when prosecution witnesses contradicted each other. When confronted with this change in his story by Mike’s barrister the driver sat down, put his head in his hands and said he had not wanted to come to court and had to be forced to do so.
There were no other witnesses against Mike, none of the security guards, including the one who was standing next to the excavator, were prepared to give evidence. For the defence there were two strong witnesses, the passer-by who had initially complained to the driver and a woman walking her dog. Both confirmed that Mike came off worse from the incident, that the dispute was over the dangerous operation of the excavator and it had nothing to do with the earlier protests. Despite the fact that the Crown Prosecution barrister knew before starting her case that her only witness had completely changed his story and had perjured himself in one or both of his statements she went ahead with her case and continued even after the witness had made it plain he had no desire to give evidence. The District Judge made no attempt to call a halt to the proceedings and dismiss the charges.
Mike’s evidence was clear, he had argued with the driver to get him to stop him using his machine in a dangerous fashion. He had done this after another passer-by had done the same thing. When he had gone round to the side of the vehicle the driver had opened his door, taken a kick at him and then jumped on top of him so that he had fallen to the ground with the driver on top of him. The driver had then been dragged off him by the security guards and he, Mike, had been carried away by several guards, bleeding from wounds to his head and with pains in his chest.
As she had no case all the prosecution barrister could do was obfuscate. She tried to muddy the waters by referring to the injunction and the alleged protest even though no charge had been made about breaching the injunction and any such breach would have nothing to do with a criminal trial anyway and the two defence witnesses supported Mike’s statement that no protest had occurred. She suggested one of the other witnesses, who had been walking her dog, had also been involved in a protest by implying she had taken an unnecessarily long route to get home. She tried to argue that Mike’s refusal to make a statement to the police, which he was not obliged to do, and his refusal to go to hospital revealed inconsistencies in his story whereas he had made only one statement through his lawyer which remained consistent throughout. She also suggested that the defence was concealing evidence because photographs taken by the witness with the dog did not show the incident - though the defence was under no obligation to produce any evidence - and because neither of the defence witnesses was able to say exactly what had happened. Both witnesses said they had not seen the actual incident. She also tried to make out that the same witness with the dog was not being clear about where she was standing, even though the witness had already said she had not seen the incident.
Instead of simply pointing out that there was no evidence against Mike, as the only prosecution witness had changed his story, the District Judge then spent about quarter of an hour reviewing the case, entirely from the point of view of suggesting there might be a case against Mike. He said his ‘finding of fact’ was that Mike was a protester. This was not an offence, had nothing to do with the case, and was irrelevant as no evidence had been presented of any protest on that occasion.
He speculated about the possible motives of the driver and asked why he would want to get out of his cab and attack Mike. The prosecution had tried to suggest that Mike had caused the driver justifiable concern by getting close to the excavator. The judge was obliged to note that the other male passer-by had done the same thing so Mike's behaviour was not exceptional. Even so he could find no reason why the driver would want to attack Mike and he then asked why Mike, an educated man, had not been prepared to tell the police that he had been assaulted, even though Mike had said he had been advised by his lawyer to say nothing. Once again this was entirely irrelevant as he had not changed his story at any time and was not obliged to make a statement. Indeed, as the police had made an immediate assumption of guilt and had not asked Mike what happened prior to arresting him it was reasonable to assume anything he said would not be taken seriously and might damage his defence.
The fact that there was only one witness against Mike made no difference, as far as the District Judge was concerned it was the driver’s word against his and that would be sufficient for a conviction. The facts that the driver had changed his story and that there was no objective evidence from the police to corroborate that the alleged assault on the driver had occurred were not mentioned. Finally, tiring of trying to suggest there was a case where there was none the District Judge gave up and, reluctantly, said he did not know what had happened but he could not be sure Mike was guilty so he was free to go.
Mike was disbelieved when he said he had been making a film at Leyton Marsh and the District Judge took the attitude that this was simply part of a protest. Likewise his description of himself as a citizen journalist was sniffily dismissed by the Prosecution barrister. Yet it is fair to say that Mike’s work for Games Monitor, along with Charlie Charman, on the radioactive contamination of the Olympic Park and the botched remediation has been some of the most detailed and important journalism done on the London Olympics. The failures of the remediation is a topic almost completely ignored by the mainstream media and the Guardian was not prepared to pay Mike and Charlie for their work even though it relied on his and Charlie’s years of effort for the article it eventually published after months of vacillation.
This malicious prosecution, the arrogant refusal of the authorities to listen to reasoned and reasonable protest by residents and local Councillors, the dismissal of careful research done by local people are mirrored in the law breaking by the authorities at Leyton Marsh, the wilful overturning of planning rules, the failure to act when even those illegal planning conditions were breached and the use of power against those who acted peacefully to oppose those illegal acts. Leyton Marsh has been left a mess, no facilities have been created for local people to make up for the damage, promises of ‘legacy’ have been broken and new threats to open space emerge on a regular basis. Treasures are destroyed by arrogance while those who try to defend them are prosecuted with malice.
Submitted by Julian Cheyne on Sun, 10/03/2013 - 23:15.