Dear Mr. Mackenzie,
LEGALITY OF TRIDENT
I refer to your letter of 11 August, received here on 16th August, and note the points you have made further to the reply you recently received from Chief Superintendent Bunch to your letter of 20th July.
I am, of course, aware of the terms of the International Court of Justice’s Advisory Opinion on the threat or Use of nuclear weapons dated 8 July 1996, and of the use made of that advisory opinion by various members of Trident Ploughshares who have appeared in criminal Courts for Trial in connection with various offences committed during the ongoing protest action at Faslane and Coulport.
You will no doubt be aware of Lord Coulsfield’s Judgment at the High Court of Justiciary last July in the stated case of John-v-Donnelly, where reference was made to the advisory opinion. I am advised that in presenting the Appeal, Counsel for the Appellant accepted that the advisory opinion on which the Appellant founded her case that nuclear weapons were illegal, did not go so far as to hold that nuclear weapons were in all circumstances illegal: the majority view was that the threat or use of nuclear weapons would be, in general, illegal but that it might, in the last resort, not be illegal to use such weapons in self-defence against a threat of national extinction. Further, he accepted that there was nothing in the opinion of the court which indicated that it was illegal for a state to have nuclear weapons, as opposed to using or threatening to use them.
Likewise, I am aware of the Judgment by Sheriff Gimblett, at Greenock Sheriff Court, last October, when the three Trident protesters were acquitted, and I understand that the Lord Advocate thereafter referred those cases involving an Angela Zelter and two others to the High Court of Justiciary’s Court of Criminal Appeal for a ruling. I am not aware of the Court of Criminal Appeal yet having issued a ruling on the Lord Advocate’s Reference under and in terms of the Criminal Justice (Scotland) Act 1980.
Whatever might be the ruling of the Court of Criminal Appeal in answering the Lord Advocate’s reference, I am firmly of the view that throughout the Strathclyde Police Force area it is a function of Constables, in terms of the Police (Scotland) Act 1967, to guard watch and patrol, and to do so without fear or favour. As Chief Superintendent Bunch explained in his letter to you of 24th July, Strathclyde police have a sensitive task of balancing the fundamental right of freedom to assemble peacefully for the purpose of protest with the wider rights of the community to go about its lawful business without fear of disruption and intimidation.. In doing so, as you implicitly recognise in your letter to me of 20th July, Strathclyde Police strives to act impartially at all times.
I am aware that, in 1998, members of Trident Ploughshare attended at Dumbarton Police Office where they lodged a complaint of alleged criminal conduct against HM Government in respect of their retention and potential use of nuclear weapons. The Procurator Fiscal at Dumbarton referred the matter to Crown Counsel, who noted the existence of the complaint against HM Government, but directed there was no need for further Police action in respect of that complaint. As I trust you will appreciate I am unable to comment on the legality or otherwise of the use of nuclear weapons, and would simply express the view that any obligations the United Kingdom as a sovereign state may have, in terms of the Geneva Convention Acts of 1957 and 1995, are not obligations of Strathclyde Police.
In policing at Faslane and Coulport, Strathclyde Police Officers are acting in terms of Section 17 of the Police (Scotland) Act 1967, exercising their general powers in support of the community at large that Strathclyde Police seeks to serve. As such, I do not regard the involvement of of my Police Officers as being in support of any criminal activities, or any unlawful or illegal business of HM Government.
I trust the foregoing will be of assistance to you in understanding my position, and the position of Strathclyde Police.