ARGYLL & BUTE DISTRICT COURT
Clerk: SUSAN MAIR
Telephone No. (01546) 604146 Fax No. (01546) 604377
E-mail address: mailto:email@example.com KILMORY
DX No: 599700
Our Ref: GDDCH/NR3959
30 November 1998 Mr Hans P M Lammerant
Belgium-28 Dear Sir,ARGYLL AND BUTE DISTRICT COURT AT HELENSBURGH PROCURATOR FISCAL – YOURSELF AND ANOTHER APPLICATION FOR STATED CASE
I refer to your recent application for a stated case in connection with the above complaint which proceeded to trial on 10th November 1998. I enclose herewith the draft stated case for your consideration. I would advise you that you have a period of 3 weeks in which to intimate any proposed adjustments. Accordingly, the last date by which I should receive your proposed adjustments will be 22nd December 1998. Please note that if you have no adjustments to propose, you must intimate that fact to me by 22nd December 1998 otherwise your appeal will be deemed to have been abandoned. Thereafter, a hearing on the proposed adjustments to the draft stated case will require to be held. Normally, the statutory requirement is that the hearing should be held within I week of 22nd . December 1998. However, you will appreciate that it would perhaps be unreasonable to hold the hearing during the Christmas and New Year season. I would therefore propose to apply to the Sheriff Principal for an extension in the period for holding the Hearing. Given that you may require to travel from Belgium to attend the hearing, I would assume that you would wish the hearing to be held in early January 1999. Please do not hesitate to contact me if you require clarification on any of the above points. Yours faithfully Deputy Clerk of Court If phoning please ask for: Mr G Dagleish
GDMR3904Mov98IN THE HIGH COURT OF JUSTICIARY AT EDINBURGH STATED CASE IN CAUSA HANS PETER MICHAEL LAMMERANT APPELLANT
THE PROCURATOR FISCAL AT DUMBARTON RESPONDENT 1998
IN THE DISTRICT COURT OF ARGYLL AND BUTE AT HELENSBURGH CASE for the Opinion of the High Court of Justiciary at Edinburgh stated by Mary M McGugan, Justice of the Peace in HANS PETER MICHAEL LAMMERANT, residing at 14 Keizervest, Ghent, Belgium APPELLANT against CHRISTOPHER C DONNELLY, The Procurator Fiscal at Dumbarton RESPONDENT The appellant was charged with two contraventions of Section 52 (1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant was alone charged in charge I that on 16th August 1998, without reasonable excuse, the appellant wilfully or recklessly destroyed or damaged the perimeter fence of the Ministry of Defence Base, Royal Naval Armaments Depot, Coulport by cutting part of the said fence. In charge 3, the appellant was charged along with his co accused, Hanna Jarvinen, that on 18th August 1998, without reasonable excuse, the appellant wilfully or recklessly damaged or destroyed the perimeter fence of Her Majesty’s Naval Base, Clyde by cutting part of the said fence in the area of Camera 33, Perimeter Fence. The case first called in Court on 19th August 1998 when the appellant who was in custody at the time, pled not guilty to both charges (I) and (3). The trial diet was fixed for 10th November 1998. The appellant was granted bail subject to the standard conditions. On 10th November 1998, the appellant was represented by Mr Costello but Mr Costello withdrew from acting on behalf of the appellant after the appellant indicated that he wished to represent himself. The appellant maintained his plea of not guilty to both charges and the case then proceeded before me on that date. I found the appellant guilty of both charges (I) and (3) as libelled. 1 fined the appellant £20.00 in respect of charge I. I also fined the appellant £20.00 in respect of charge 3 and ordered him to pay compensation of £250.00 to H.M.N.B., Clyde in respect of the damage which the appellant had caused. I allowed rite appellant a period of 6 months in which to pay both fines and the compensation. I found the following facts admitted or proved:- I. At about 1.10 pm in the afternoon of Sunday, 16th August 1998, Constables Morag Stewart and Steven MacLean of Strathclyde Police based at Glasgow were both on duty in uniform outside the Royal Naval Armaments Depot at Coulport, Dunbartonshire. 2. The two Constables both saw the appellant, Hans Peter Michael Lammerant who was approximately 8 – 10 metres away from them, cut the perimeter fence line, close to the southern gate, near the roundabout, with a set of bolt cutters. Constables Stewart and McLean went over to where the appellant was standing. Constable Stewart warned the appellant that he was committing an offence and if the appellant did not desist in his actions, he would be arrested. However, the appellant continued to cut the perimeter fence and was arrested by the two police constables. 3. The perimeter fence line was the property of the Royal Naval Armaments Depot, Coulport, Local Authority Area of Argyll and Bute. The appellant had not been given permission by the owners of the perimeter fence line to cut the perimeter fence line. 4. The appellant cut one strand of the section of the perimeter fence line and in so doing caused damage to the perimeter fence line. 5. It was the intention of the appellant to cut the perimeter fence and the appellant’s actions were wilful. The appellant’s intention was to cut a hole in the perimeter fence line so that he could gain access into the Royal Naval Armaments Depot at Coulport. 6. The appellant did not have a reasonable excuse for his conduct on 16th August 1998. 7. When the appellant was cautioned and charged with vandalism, he made no reply. 8. At about 1.40 am of Tuesday, 18th August 1998, Constable Terence Reid of the Ministry Of Defence Police was on duty outside the perimeter fence of H.M. Base, Clyde in the Area of Camera 33, when he saw 2 persons, the male person being the appellant, Hans Lammerant and the female person being the co-accused Hanna Jarvinen. Constable Reid went over to the appellant and his co accused and took hold of them. 9. When Constable Leslie Greenaway of the Ministry of Defence Police arrived at the scene, he saw his colleague, Constable Reid, had hold of both the appellant and his co accused. 10. The two Constables both saw the appellant, Hans Peter Michael Lammerant, apply pressure to the bolt croppers. 11. The perimeter fence line was the property of Her Majesty’s Naval Base, Clyde, Local Authority Area of Argyll and Bute. The appellant had not been given permission by the owners of the perimeter fence line to cut the perimeter fence line. 12. The appellant made cuts in the section of the perimeter fence line and in so doing caused damage to the perimeter fence line. 13. It was the intention of the appellant to cut the perimeter fence line and the appellant’s actions were wilful. The appellant’s intention was to cut a hole in the perimeter fence line so that he could gain access into Her Majesty’s Naval Base, Clyde. 14. The appellant did not have a reasonable excuse for his conduct on 18th August 1998. 15. When the appellant was cautioned and charged by Constable Reid, he made no reply. 16. The appellant was then taken to the prisoner processing centre within the police station in the Clyde Naval Base where the appellant was searched. An eclipse hacksaw blade was found on the person of the appellant. There were two Crown witnesses with respect to charge I, namely Constable Morag Stewart, aged 30 and Constable Steven MacLean, aged 27 who were both Police Constables with Strathclyde Police based in Glasgow. With respect to charge 3, there were 2 Crown Witnesses namely Constable Terence Reid, aged 48 and Constable Leslie Greenaway, aged 49 who were both Ministry Of Defence Policemen based at H. M. Naval Base, Clyde at the time of the offence narrated in charge 3. Constable Stewart stated that on Sunday, 16th August 1998, she had been on duty in uniform, along with Constable McLean, outside RNAD Coulport and at about 1,10pm, while on the footpath, she had observed a male person whom she identified as the appellant, cutting a section of the fence with a set of wire cutters. The incident had happened a couple of metres from her. Constable Stewart had asked the appellant to desist in his course of action but the appellant continued and was arrested. The appellant made no reply when he was cautioned and charged with vandalism. He was thereafter taken to Maryhill Police Station. Constable Stewart confirmed that the appellant had caused damage to the fence. Constable McLean stated that he was on duty with Constable Stewart in the vicinity of RNAD Coulport on Sunday, 16th August 1998 and at about 1.10pm, while outside the perimeter fence he had seen a male person, whom he identified as the appellant, cutting the fence at the southern gate near the roundabout. The appellant was approximately 8-10 metres from where Constables McLean and Stewart were standing. Both Constables McLean and Stewart immediately went across to the appellant and Constable Stewart advised the appellant that he was committing a defence and that if he did not desist he would be arrested. The appellant continued in his actions and he was arrested. The appellant made no reply when he was cautioned and charged with vandalism Constable McLean confirmed that the appellant had caused damage to the fence with the set of bolt cutters. Only I strand of the fence had been cut by the appellant because the two Police Constables had prevented the appellant from cutting any more strands. In cross examination by the appellant, Constable McLean claimed that there were a few other people in the neighbourhood. Constable Reid stated that he had been on duty on Tuesday, 18th August 1998. In the early hours of the Morning, just before 1A0am, while on patrol of the perimeter fence of HM Naval Base, Clyde, he was directed to go to the area of camera 33 where he had observed 2 persons, I male and I female whom he identified as the appellant, Hans Lammerant and his co accused, Hanna Jarvinen in the area of camera 33. They were quite a distance away but he reached them in about a minute. The appellant had bolt cutters which he put on the fence and applied pressure. Constable Reid had first seen the co accused, Hannah Jarvinen applying pressure to the bolt cutters which were placed on the fence and he had pulled Miss Jarvinen from the fence. Miss Jarvinen handed the bolt cutters to the appellant and the appellant went to the fence and started to apply pressure. The appellant was thereupon arrested and cautioned and charged. The appellant made no reply. Constable Reid stated that there was damage to the fence across the bottom 2 or 3 feet. Constable Reid confirmed that the set of bolt cutters (label I) were the set of bolt cutters which were taken from the appellant. Both the appellant and his co accused were taken to the police station within the base. Constable Greenaway stated that he had been on duty in the early hours of the Morning on Tuesday, 18th August 1998. Shortly before lA0am, while patrolling the perimeter fence of HM Naval Base Clyde, he was directed to rite area near to camera 33. When he arrived at the scene a male person whom he identified as the appellant, was applying pressure to a set of bolt cutters which were on the fence. His colleague, Constable Reid had a hold of both the appellant and the co accused. Constable Greenaway stated that there were several cuts to the fence. Constable Greenaway immediately restrained Mr Lammerant and took possession of the bolt croppers which he identified as Label I. Both the appellant and the co accused were then taken to the prisoner processing centre which forms part of the police station in the Clyde Naval Base. When the appellant was searched at the prisoner processing centre, an eclipse hacksaw blade (label 2) had been found on the appellant. There were 3 defence witnesses namely the appellant, Hans Peter Michael Lammerant of 14 Keizervest, Ghent Belgium, Katrina Janet Drew, aged 33 of 50 Carson Street, Glasgow, William John Ainsley, aged 44 of 26 Central Street Glasgow and Frederick Starkey, aged 77 of 3 Llys- Fammau Pant-y-mwyn, Mold, Flintshire. In his evidence, the appellant explained to the Court that his defence to both charges was founded on necessity and self defence, the statutory defence that he had a reasonable excuse for his actions, the international law defence which he contended authorises him to act in order to prevent the commission of crimes recognised under international law and the moral defence that nuclear weapons are illegal. A number of productions were lodged by the appellant in support of his position, including a written defence. The appellant addressed the requirements for a defence of necessity as laid out in the case of Moss -v-Howdle 1997 SCCR 215. First of all, the appellant believed that he had acted in the face of immediate danger of death or great bodily harm. The appellant referred to the Advisory Opinion of the International Court of Justice as an authoritative and comprehensive review of the effects of nuclear weapons upon human life, health and habitat and with specific reference to Weeramantry’s Opinion which is appended to the advisory opinion, for confirmation of the danger of nuclear weapons. The appellant also referred to a report by the World Health Organisation. To show that the danger was immediate, the appellant gave 2 examples where states possessing nuclear weapons had come close to launching retaliatory strikes in the face of a perceived attack by nuclear missiles which proved to be unfounded. The first incident had occurred in the United States of America on 9th November 1979 when an exercise tape caused the United States Command Centre displays to show a full scale missile attack which required the United States to take emergency measures which were only countermanded when the error became apparent following further checks. The second incident involved the launch by Norway of a missile near Spitzbergen on 25th January 1995 which was detected by the Russian early warning radars. Although Russia had been notified of the launch, the information had not been passed to the personnel involved in early warning radar and the personnel prepared for a counter attack until it became apparent that the missile would not hit Russia. While mistakes might be inevitable, the state of alert which could result in a retaliatory strike occurring in as little as 15 minutes did not leave much room for error especially when consideration was given to the time it had taken to recognise that there had been an error on both occasions. The state of alert was such that the risk of an accident was greatly increased and the effects of an accident would render the planet uninhabitable. The appellant therefore believes that he required to react now because to wait until an accident actually happened would not leave him with enough time to do anything. The appellant alleged that the United Kingdom had implicitly threatened to use nuclear weapons against Iraq during the crisis in February of this year. The case of Moss -v- Howdle had indicated that it makes no difference where the danger comes from and accordingly the dangers of nuclear weapons and from our own Government’s defence policies could be regard as a valid danger. The appellant stated that his actions were intended not only to protect himself but also other people who might be affected by the results of a nuclear attack. The appellant recognised that he had to show that he had no other reasonable legal alternative to disobeying the law. The appellant referred to the attempts by one of his witnesses, Fred Starkey, to prosecute the Government but Mr Starkey had been unsuccessful because of procedural problems. This indicated that the legal system did not want to review the issues of the illegality of nuclear weapons and therefore there were no legal means open to the appellant to bring the matter before the courts. Obviously, it would be pointless for the appellant to try to bring legal proceedings after a nuclear attack had occurred given the likely results of a nuclear attack. The appellant therefore felt that the only resort available to him was to take action himself. The appellant also referred to the comments of Colonel Dunlap, the United States Staff Judge Advocate of United States Strategic Command, that people have a duty to restrain their Government from committing nuclear aggression and if they fail in that duty, their absolute immunity as non-combatants is undermined. Although the group of which Mr Lammerant is a member has been in correspondence with the British Government, no satisfactory response had been received. The appellant then explained why he believed he had a reasonable excuse for his action. The appellant believed that the case of MacDougall
v- Yuk-Sun Ho 1985 SCCR 199 was authority for the proposition that there can be a reasonable excuse whew the smaller crime is intended to prevent a greater crime. In the appellant’s view, the deployment of Trident is illegal under International Humanitarian Law and, even if that were not the case, the use of nuclear weapons would be illegal and the appellant was attempting to prevent this crime from occurring in the future. The appellant believed that the case of Mortensen -v- Peters 1906 14 SLT 227 was authority for the proposition that international customary law was to be considered to form part of Scots Law so long as there was no statute contradicting it. The Advisory Opinion of the International Court of Justice had clarified customary international law in relation to the threat and use of nuclear weapons and what would be considered criminal actions under international law. By considering how the threat or use of Trident nuclear weapons would contravene various international treaties, including the Geneva Conventions as well as the Nuremburg Principles, it was possible to deduce that the threat or use of Trident constituted a crime under international law. The fundamental problem which the United Kingdom faced was that in the use of nuclear weapons, no distinction could be made between combatants and non-combatants. The effect of the use of nuclear weapons would breach several rules of international law including causing long term damage to the environment and the appellant therefore felt that he had a personal responsibility under international law to take action and try to prevent the deployment, threat and use of British nuclear weapons which was why he had acted in the way he had done on the 2 dates libelled. The British Government could no longer rely on the argument of self defence because its own Strategic Defence Review had concluded that there was now no danger to the very survival of the United Kingdom. The appellant was also of the view that there was a practical link between his actions and the prevention of crime. His actions had been designed to help prevent the greater crime. The aim was to get into the bases to disarm Trident. However, in pursuing that aim, the appellant stated that he had restrained his actions to non-violent methods. His actions were therefore reasonable in the circumstances given that other methods, such as legal means or political lobbying, had proved to be fruitless. The appellant also believed that international law authorises individuals to act in order to prevent the commission of crimes under international law and drew particular attention to the comments of the Tokyo War Crimes Tribunal about the duty of individuals to act where they had an opportunity to prevent a crime under international law. The appellant further believed that he had a duty to take action. The appellant also believed that the immortality of nuclear weapons justified the actions he had taken. In cross examination, the appellant agreed that he had been at the perimeter fence on 16th August and that he had attempted to cut the fence at Faslane of 18th August. The next witness was Katrina Janet Drew who stated that she was a lecturer in international law at Glasgow University. Miss Drew contrasted the way the Scottish legal system approaches the incorporation of international custom into Scots Law from that adopted by the Scottish legal system with respect to international treaties. International treaties would not form part of the law of Scotland until their terms are enacted by an Act of Parliament. However, from the case of Mortensen
v- Peters, international custom would, like common law, automatically form part of Scots law unless there was statutory provision on conflicting terms. Provided that the defence founded upon by the appellant could be shown to form part of customary international law, the appellant could invoke such a defence as part of Scots law. In her view, it was quite valid to look at customary international law when considering the meaning of the expression, “reasonable excuse”, and to take customary international law into account when interpreting the meaning of the expression. The Advisory Opinion of the International Court of Justice was given at the request of the United Nations which asked whether the use of nuclear weapons was illegal under international law. Two main principles were applied. The first principle was that the use of nuclear weapons must not cause unnecessary suffering and this was to be ascertained by applying the test of what was reasonable. The second principle was that nuclear weapons must be used in such a way as to distinguish between combatants and non-combatants. As it appeared likely that unnecessary suffering would be caused by the use of nuclear weapons, their use was therefore to be regarded as illegal. Miss Drew advised that rite Opinion was not binding on Scots law but sets out binding principles of international law. Miss Drew did not know of any legal authority that would suggest that the simple possession of nuclear weapons was illegal. Miss Drew considered the Advisory Opinion unsatisfactory in relation to the question of self defence. No guidance had been given to ordinary citizens as the Opinion did not go beyond the question put to it by the General Assembly. Miss Drew was of the view that there was a need to establish some sort of international crime before a citizen had a duty to act. According to Miss Drew, this aspect of international law was quite unrefined. The third defence witness was William John Ainsley who had a Bachelor’s degree in both Arts and Divinity. During the 1970’s, Mr Ainsley had served in the Black Watch. Later, he took a role in CND and had participated in the recent Strategic Defence Review. During the course of his evidence, Mr Ainsley was asked about rite state of readiness of British Trident Submarines. I indicated that I thought this line of questioning was of no value to the case. The appellant argued that the line of questioning was necessary to prove that there had been immediate danger on the dates libelled. It was at this stage that I indicated to the appellant that I had believed him when he was giving his evidence and that I had taken in what he had said. I further indicated that the appellant did not need to have the point proved to that extent. In cross examination by the solicitor for the appellant’s co-accused, Mr Ainsley indicated that his knowledge of nuclear strategy had been obtained from reports and other information in the public domain. According to Mr Ainsley, the Trident system was on 3 days notice to fire whereas the American and Russian systems were on very short notice to fire. The fourth defence witness was Fred Starkey who is a member of a group called Pax Legalis which has tried over a period of 10 years to obtain a ruling by the Courts on the illegality of nuclear weapons. Both rite Attorney General and the Director of Public Prosecutions had refused him permission to prosecute the Government and the application for judicial review of those decisions had also been refused. The group had also been refused a summons for a private prosecution by Magistrates. The final defence witness was the appellant’s co-accused, Hanna Riika Maria Jarvinen. As I had upheld the submission by Miss Jarvinen’s agent of no case to answer in respect of charge 3, Miss Jarvinen’s evidence only related to charge 2. In summing up, the Procurator Fiscal invited me to convict both the accused in terms of their own confessions. In his view, a prima facie case had been made in respect of all 3 charges so far as they remained before the court. The special defence of necessity did not apply when there was not very strong evidence of a more serious offence happening. To justify the committing of the offence, there had to be very strong evidence of a exculpatory nature. The Procurator Fiscal suggested that if there was the danger in the mere presence of nuclear weapons, something would have happened long before now. The Procurator Fiscal also noted that on page 18 of the Strategic Defence Review, there had been a substantial reduction in the types and quantity of nuclear weapons held by the United Kingdom. In addition, there was no war crime being committed by the United Kingdom as there was no crime in the mere possession of nuclear weapons. The defence argument was therefore fundamentally flawed. The appellant indicated that he did not dispute the facts which had been established. However, his actions had been justified by necessity. It was quite clear that in the event of an attack, there would not be time to take preventative action. His second witness, Mr Ainsley had explained the state of alert. The lack of success by Mr Starkey in bringing the question of the illegality of nuclear weapons to Court meant that the appellant had no legal alternative. In the appellant’s view, there was a crime going on and the appellant’s position was founded upon humanitarian law, the article by Lord Murray, the International Conventions and the Nuremburg Principles. The appellant also felt that he had a moral defence in that he was justified in his actions. Also, under international humanitarian law, he felt that he was legally bound to act in the way that he did to prevent the commission of a greater crime. I considered the evidence of all four Crown witnesses to be both credible and reliable. Both Constable Stewart and Constable McLean stated that they had seen the appellant cut the perimeter fence line at RNAD Coulport on 16th August 1998. Both Constables Reid and Constable Greenaway stated that they had seen the appellant cut the perimeter fence line at HM Naval Base, Clyde. None of the evidence of any of the four Crown witnesses was challenged by the appellant in cross-examination. In spite of being warned by Constable Stewart that he was committing an offence, the appellant had continued to cut the fence on 16th August 1998. On 18th August 1998, the appellant was present when his co-accused was apprehended by Constable Reid. The appellant had taken the bolt cutters from his co-accused and then proceeded to cut the fence with them. It was clear to me that the appellant’s conduct on both occasions was deliberate and wilful. The appellant confirmed in his own testimony that his intention was to get into both RNAD Coulport and HM Naval Base Clyde. As he would not have been allowed entry to either military establishment, he was therefore attempting to break through the perimeter fences which were there to prevent unauthorised access. Having satisfied myself that the central elements of both charges (I) and (3) had been proved, I required to consider whether the appellant had caused the damage on each occasion without reasonable excuse. The appellant advanced the same defences for both charges (I) and (3). In addressing the arguments, I recognised that the only defence available to the appellant was that he had a reasonable excuse for his conduct on each occasion. As necessity, self defence, international law and morality could all possibly fall within the category of a reasonable excuse, I felt entitled to consider the appellant’s evidence in its entirety. While I gave careful consideration to all the points made by the appellant, I believe that his arguments were flawed in several respects. First of all, the appellant conceded that even if possession, the threat or the use of nuclear weapons are crimes under customary international law, if there is a United Kingdom statute which conflicts with customary law in this respect then, in Scots Law, the statutory provisions will prevail. The expenditure for the Trident Nuclear Weapons programme would have required authorisation by statute and it appeared to me that I must assume that Parliament was therefore giving its consent, in principle, to the use of nuclear weapons as a deterrent. I therefore felt that there was a specific conflict with statute and therefore the area of customary international law relied on by rite appellant could not be considered to form part of Scots Law. The fact that certain aspects of the Geneva Conventions had been incorporated into the law of the United Kingdom did not, in my view, imply that Parliament had intended that all future statutory provisions should always be seen as complying with the Geneva Conventions and other international treaties. I was not satisfied that the Advisory Opinion of the International Court of Justice necessarily represented an exhaustive statement on international law in relation to the threat or use of nuclear weapons. In her evidence, Miss Drew believed that it might, in certain circumstances, be possible for the United Kingdom to use nuclear weapons in self defence. It appeared to me entirely possible that it could still be lawful under International Law for the United Kingdom to possess nuclear weapons. If nuclear weapons could be used in self defence, the proposition that the threat or use of nuclear weapons was illegal under international law required to be qualified to that extent. I therefore felt that it was unsafe for me to consider that it was now settled in international law that the threat or use of nuclear weapons was automatically illegal. I also took account of the fact that the appellant was relying on an Advisory Opinion rather titan a case in which a State had been tried and convicted for possessing nuclear weapons. Although the appellant stated that the Strategic Defence Review did not now envisage a threat to the very existence of the United Kingdom at the present time, it was clear to me that there must always remain the possibility that circumstances may change and accordingly there might be legal justification in international law for the United Kingdom retaining the Trident Nuclear Weapons system. I was not satisfied that International Law automatically permits an individual to decide what activities might contravene international law and then take such actions as that individual considers appropriate to prevent the perceived illegal activities occurring. I did not accept the argument that the appellant had acted out of necessity. I was not satisfied that the state of alert for the United Kingdom’s nuclear weapons system could be construed as an immediate danger. While I appreciated and recognised that accidents might occur, tile examples cited by the appellant suggested that there were procedures in place to minimise the risk of nuclear weapons being fired in error. I was also not satisfied that reasonable legal alternatives were not open to the appellant. Although correspondence with the British Government might not have achieved the result desired by the appellant, the Strategic Defence Review indicated that the United Kingdom had reduced its nuclear weapons capacity. I was not convinced that an unscheduled patrol by a submarine which might be carrying nuclear weapons made the use of nuclear weapons more likely in August 1998. I was also not prepared to accept that the appellant’s argument that as he had a moral defence for his actions, this amounted to a reasonable excuse in Scots Law. I accept that I curtailed the evidence of both Mr Ainsley and Mr Starkey. From his own evidence, Mr Ainsley accepted that he had no special knowledge or expertise of nuclear weapons or nuclear strategy but relied on information which was in the public domain and his observations of naval manoeuvres at Faslane and Coulport to draw conclusions on the risk of nuclear weapons. It was at the point when Mr Ainsley was going to describe the movements of the submarines and the possible state of alert that this might indicate that I interrupted his evidence. As the 2 offences with which the appellant was charged related to statutory vandalism, I did not feel that line of evidence was particularly relevant. I did indicate to the appellant that I was quite happy to accept the evidence he had given as to the reasons for his actions the appellant confirmed to me that the evidence of both witnesses would have been on the same points previously covered by the appellant in his evidence. I do not believe that in closing this line of evidence, the appellant was prejudiced in his defence. After all, even if the appellant had been wrong about the level of danger, he could still be said to have had an honest belief if he relied on the opinions given by Mr Ainsley. The evidence given by Mr Starkey related to legal proceedings in England. As the loci specified in the complaint are in Scotland, a decision by an English Court on the legality or otherwise of nuclear weapons could not be considered binding on Scottish Courts and any legal procedure that applied in England would not necessarily apply in Scotland. I would also point out that the appellant was given the opportunity ask any other questions of Mr Starkey but the appellant indicated that he had no other questions. There is no suggestion in the application for a stated case that the appellant wished to elicit further evidence which might have had a material bearing on whether he would have been convicted. I believed that in considering what amounted to a reasonable excuse for the purposes of Section 52 (1), 1 should interpret the expression in a way which would reflect how the expression is normally used. While international law might be a factor to take into account when considering criminal acts designed to prevent slavery or genocide, I did not accept that it was applicable in the present case. I therefore found the appellant guilty of both charges as libelled. I then had to consider the appropriate sentence. The Procurator Fiscal indicated that the appellant had no previous convictions. The appellant had not been detained in custody from the date of his first appearance in Court. The cost of repairing the damage to the perimeter fence at H M Naval Base, Clyde was £1.044.71. The Procurator Fiscal did not have any information with regard to the cost of repairing the damage referred to in charge I. In mitigation, the appellant indicated that he earned £40.00 per month from a part time job and had expenses of about £20.00 per month. The appellant indicated that the reasons for his actions had already been dearly developed in his evidence. In my view, both offences were committed in open defiance of the law. On the first occasion, as narrated in charge I, the appellant had been given the opportunity to desist from his actions but had chosen not to do so. The occurrence of the second offence so close in time to the occurrence of the first offence appeared to me to indicate that the 2 offences were not isolated incidents but part of an ongoing course of criminal conduct. After the commission of the first offence on 16 August, the appellant could have been in no doubt that a repeat of his behaviour in cutting the perimeter fence would lead to him being arrested and charged. I therefore viewed the commission of the offence on 18 August 1998 to be the more serious of the 2 offences. I also noted that the offence had occurred at the time when his co accused was being arrested. The appellant had taken tile bolt cutters from Miss Jarvinen and was clearly trying to take advantage of the fact that the attention of the 2 police officers would be directed towards detaining Miss Jarvinen. The fact that the appellant had an eclipse hacksaw blade on his person indicated to me that the appellant had prepared himself to cause damage to the fence. I also took account of the fact that Constable Greenaway had to restrain the appellant and take possession of the bolt croppers which indicated to me that the appellant would have continued to damage the fence but for the timely intervention of the two police officers. The appellant, in his evidence, clearly stated his intention to get into the bases to disarm the nuclear weapons system although he had chosen to break in rather than attempting to blow up the bases. It also appeared to me important that compensation for the damage caused should be paid by the appellant even if I would then require to lower the fines being imposed in respect of each charge to take account of the limited income available to the appellant. I considered that a compensation order for £250.00 was appropriate in the circumstances because, on the basis of the evidence which I heard, the appellant could not be considered to have been solely responsible for the damage and also having regard to his limited income. Having regard to the circumstances in which both offences occurred, I believed that the appellant should, in addition, pay nominal fines of £20.00 in respect of each charge. I may have made reference to five people being involved in the commission of charge 3. I believe that this was an oversight on my part and possibly arose because I had also heard evidence in relation to charge 2 where 5 people were alleged to have been in the R.N.A.D. Coulport. I confirm that in deciding my sentence, the principal factors I took into account were those which I have referred to in this paragraph. I did hear evidence from Constables Reid and Greenaway as to the extent of damage to the bottom of the perimeter fence which was greater than the cutting of a single strand of wire. The questions submitted for the opinion of the Court are:- I. On the facts stated, was I entitled to hold that the appellant did not have a reasonable excuse in law for his conduct? 2. On the facts stated, was I entitled to convict the appellant? 3. On the facts stated, was the sentence I imposed in respect of both charges I and 3 excessive? This case is stated by me,—–
To : George Farebrother .firstname.lastname@example.org
Subject: Re: Legal: TP2000: details of Faslane Case.
Thank you, George, for the decision in the Lammerant case, recently at the Argyll & Bute District Court. I have a few brief thoughts on the substantive part of the judgment – these are provisional; if you get other comments from interested parties maybe we could combine & refine our arguments, and circulate the resulting ideas to the tp2000 list’? Best wishes, Glen.
I. ’First of all, the appellant conceded that even if possession, the threat or the use of nuclear weapons are crimes under customary international law, if there is a United Kingdom statute which conflicts with customary law in this respect then, in Scots Law, the statutory professions will prevail. The expenditure for the Trident Nuclear weapons programme would have required authorisation by statute and it appeared to me that I must assume that Parliament was therefore giving its consent, in principle, to the use of nuclear weapons as a deterrent. I therefore felt that there was a specific conflict with statute and therefore the area of customary international law relied on by the rite appellant could not be considered to form part of Scots Law.’
I don’t think that the Trident programme was established by statute at all; in fact, the only parliamentary votes relevant to Trident would be the acceptance of the Budget which makes an outlay for Trident, probably explicitly, through the allocation to MoD expenditure. At first glance this might seem to prop up the argument of the court by relying on the doctrine of parliamentary sovereignty; i.e. since parliament endorses Trident it must be valid in all UK courts. But this line of reasoning makes a nonsense of past precedents on, not to mention the very existence of, judicial review (at least on reviews of government programmes with any expenditure). For through the budgetary vote parliament allocates funds to all government programmes; if the court’s line if reasoning is to be followed, no government programme could be questioned in UK courts – clearly this is ridiculous. International law is incorporated into Scottish law in so far as it is not in conflict with any explicit statutory provision – and there is no such provision regarding the upholding of Trident (I think).
2. ’I was not satisfied that the Advisory Opinion of the International Court of Justice necessarily represented an exhaustive statement on international law in relation to the threat or use of nuclear weapons. In her evidence, Miss Drew believed that it might, in certain circumstances, be possible for the United Kingdom to use nuclear weapons in self defence. It appeared to me entirely possible that it could still be lawful under International Law for the United Kingdom to possess nuclear weapons. If nuclear weapons could be used in self defence, the proposition that the threat or use of nuclear weapons was legal under international law required to be qualified to that extent, I therefore felt that it was unsafe for me to consider that it was now settled in international law that the threat or use of nuclear weapons was automatically illegal.’ The self defence argument is invalid, and can only be accepted in law by, someone who has made only the most cursory reading of the Advisory Opinion. As it was an Advisory Opinion & not a contentious case; the dispositif is of much less significance than the process of reasoning taken by the judges in their assessment of NWs. If one looks at the separate & dissenting opinions, one finds that 6 of the 14 judges (viz. Ranjeva, Herczegh; Ferrari Bravo, Shahabuddeen, Weeramantry’, Koroma JJ) believe that any threat or use of NWs will always be unlawful; furthermore, 2 judges (viz. Bedjaoui and Vereschetinj argued that although the threat or use of NWs could not be considered lawful, the current state of international law does not enable us to confidently assert that there is a prohibition of this nature. This reflects a particular doctrine of international law; in which permission and prohibition have to be established individually, & are not simply by the demise of the other; this follows from (they, believe) the incomplete nature of international law. In summary, 8 – a majority.
of judges believed that any threat or use of NWs could not be considered lawful. Only, one, judge (Fleischhauer) explicitly asserted an extreme self-defence principle: judges Shi, Oda & Higgins did not make substantive comments on this crucial part of the Opinion. Alternatively, it could be argued that the self-defence principle was left in the dispositif (due to the elements of fact at its [the Court’s] disposal’ (2E), referring back to para.94 – i.e. the court did not know how-low-yield tactical warheads were or could be in future; Trident, despite claims to a substrategic role, cannot be seen to have a low enough yield to exempt it from a finding of unlawfulness.
3. ’I also took account of the fact that the appellant was relying on an Advisory Opinion rather than a case in which a State had been tried and convicted for possessing nuclear weapons. Although the appellant stated that the Strategic Defence Review did not now envisage a threat to the very existence of the United Kingdom at the present time, it was clear to me that there must always remain the possibility that circumstances may change and accordingly there might be legal justification in international law for the United Kingdom retaining the Trident Nuclear Weapons system’
An Advisory Opinion of the ICJ is the most authoritative clarification possible of customary international law; international lawyers (and states) draw little distinction between the findings of a contentious judgment & those of an Advisory Opinion in an assessment of the law.
4. ’I was not satisfied that International Law automatically, permits an individual to decide what activities might contravene international law – and then take such actions as that individual considers appropriate to prevent the perceived illegal activities occurring.’ Correct – this is a matter for national courts; prevention of a crime is a defence of Scottish law.
5. ’I did not accept the argument that the appellant had acted out of necessity-. I was not satisfied that the state of alert for the United Kingdom’s nuclear weapons system could be construed as an immediate danger. While I appreciated and recognised that accidents might occur; the examples cited by the appellant suggested that the review procedures in place to minimise the risk of nuclear weapons being fired in error.’ I tend not to like the defendant’s argument about accidents – at first sight, this looks only like a call for greater safety procedures. Any weapons system will cause great suffering if a particular type of accident occurs, but it doesn’t follow that the weapons system is unlawful because of it. It could further be argued by the defence that however many safety procedures are installed, Trident will still be susceptible to accidents this is much more difficult to establish (though I believe true) & so I tend to avoid this argument altogether.
6. Although correspondence with the British Government might not have achieved the result desired by the appellant, the Strategic Defence Review indicated that the United Kingdom had reduced its nuclear weapons capacity.’ Irrelevant, as Trident still exists.
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