27th – 28th October 2004
Burghfield Action 1st June 2004
Defendants: Kathryn Amos, Bernadette (Jenna) Hutchby, Margaret Hutchby, Zina Zelter. [Steve Bonham and Margaret Charnley accepted bindovers.]
Summary of preamble: Judge Turner stated that there is a difference between giving judgement and reasons. He went into detail so that the defendants understood his decision. This is not a court of record and he is not in the habit of giving written judgements, but needs to give enough detail for it to go to appeal if necessary.
Jenna did not give evidence but he is not inclined to draw inference from this as
She gave an interview relied on by the crown
He can look on the action as a whole
She’s very young so he can appreciate why she would not want to give evidence
It’s unlikely she would have been cross examined
The prosecution didn’t ask for him to take a negative inference from her not giving evidence
Therefore he is not ruling a defence as unavailable for her. Judges Statement
N.B. These notes are compiled from three sets of notes written as Judge Turner made his judgement. They are therefore not a complete transcript, but are a very close approximation. Much of the notes were recorded pretty-much word-for-word. Words about which our notes did not agree have been highlighted in the following text, and abbreviations noted in italics. We have highlighted some sections of text in bold to emphasise sections of particular interest; this does not indicate emphasis made within the judgement.
It is not every day one tries a trial of this nature or people of the character of the defendants in this case. They say and I entirely accept that their intention was to cause the least damage necessary, but damage was done, amounting to the offence of criminal damage unless otherwise justified.
The intention was to distribute leaflets to largely scientific and technical staff drawing attention to the legality and morality of work carried on at Burghfield, to advise those working there of their personal responsibility under the Nuremberg Principles, and to disrupt work at the site which all defendants sincerely believed to be unlawful in that it forms an integral part of the maintenance of nuclear missiles the use of which would inevitably constitute genocide – indiscriminate and not contained in time or space. These were the motives.
I have heard in evidence that the defendants had not come to the decision to use direct action lightly.
If I deal with characters briefly I hope they won’t take offence, but I must move soon to the legal issues.
Mrs Hutchby: believed she was using lawful means, that this was a just cause and held her beliefs very deeply.
Miss Zelter: has a long and proud ancestry in relation to peace protest and a link in that ancestry to the holocaust. A dedicated peace activist who has very naturally [2 people taking notes think he said naturally! I think he said latterly] come to the view that she must now take direct action to pursue her aims and sincerely held beliefs.
Dr Amos: is a highly qualified environmental scientist with technical expertise to add to her strong moral convictions.
The defendants belong to a group called Trident Ploughshares (hereafter abbreviated to TP) and their handbook was presented to me. Each has signed the pledge that is set out in that handbook and all defendants of course believe firmly and sincerely in the arguments and facts set out by TP which are the reasons for the tactics they used. I add that TP is an organisation of comparatively recent origin but of course there have been organised protests of one sort or another in the case of nuclear weapons since they came into being, CND is the best known of course.
International Jurisprudence on the subject is scant. In 1996 the UN sought advice from the International Court of Justice (the ICJ). Many states submitted views or arguments and the ICJ then delivered its opinion. I will come in due course to the examination of that opinion in the Hutchinson case and the interpretation put on it, (A) where international stood on the legality of nuclear weapons and (B) the position of domestic law in that regard.
I will come back to Hutchinson presently but this is perhaps a good moment to repeat what I said yesterday, namely that Hutchinson binds me and unless there are such factual and or legal differences now as would make it clear to me that I am no longer bound by that precedent, then I must follow it and in my view there has to be appropriate factual and or legal differences and not merely a device to find them before I could justify taking a different view to that found in Hutchinson.
This is an appropriate moment for me to make reference to the various documents handed to me by the defence during the proceedings. All are relevant in terms of what informed their actions and motives.
Rebecca Johnson’s statement and report relate to the US and UK in relation to nuclear weapons. I’m sure the defendants sincerely believe there are negotiations and exchanges taking place at the moment as regards post trident WMD which in the opinion of the defendants is in breach of the NPT and this is a view shared by Rabinder Singh QC.
I have also been given a document entitled concern over safety shortfall by the Environment Editor of the Sunday Herald
I have an address by General Lee Butler in which he says what he discovered about US nuclear plans after the Cold War.
There is a paper entitled Lethal Arrogance that is concerned with safety issues.
Then I have a summary of Nuclear weapons accidents, a document prepared by Miss Zelter’s mother, accidents with the potential for obviously very grave human harm.
Next a paper by John Ainslie regarding the safety of Trident.
Then there are transcripts of statements made by Secretary of State for Defence Geoff Hoon, both in and out of Parliament, the most recent of which was in 2002. It is claimed by the defendants that what he says there about how Britain may use nuclear weapons amounts to a threat to use them unlawfully as constitutes genocide as defined by the ICCA (i.e. the International Criminal Court Act, 2001).
A Greenpeace paper etc. (the rest of this sentence was not noted)
I’ve said enough to make the point that clearly all of the defendants are highly informed and well researched on the topic. They are people of reason and of considerable intellect and moral fibre.
What was done to the fence was criminal unless otherwise justified. I will come in a moment to the defence skeleton arguments. Before that I remind myself of the burden of standard of proof – once they have been raised it is for the crown to disprove each and every one of the cases that the defendants presented. In a case like this however where the facts are agreed, burdens and standards of course still legally there to be properly met, become effectively a matter of interpretation.
To summarise the defences which Miss Curtis [defence lawyer] presents, which Amos and Zelter adopt, although they treat them rather differently, are:
1. Section 3 Criminal Law Act with reference to the ICCA 2001
2. Section 5 Criminal Damage Act 1971
4. Tenets of civil disobedience.
The latter is a newcomer to cases of this sort and one will find no discussion or jurisprudence in domestic works on criminal law. In essence, the defence is that a law can become so unjust that there is a defence for anyone who breaks it. This is not a defence that has been recognised before by courts in the country and to find it here would be to go against the whole character of disobedience. One can’t both obey and disobey in the same act. In my view the justice arguments that arise are covered adequately by domestic law. I do not see room for any new doctrine however you try to define it.
Miss Curtis’ skeleton argument fleshes out each of the defences in considerable and very helpful detail. Lawful excuse: this is defined in 5(2) of the act. The definition allows “a wide degree of latitude” from a recent case, in the sense that the views of the defendant enjoy a higher status in this defence than she finds elsewhere in the criminal law. The argument then sets out a long discussion on the legality of Trident. It deals with the ICJ advice and then it recites the relevant articles of Rome that the ICCA implements in domestic law. Specifically, Section 51 makes it an offence against domestic law to commit genocide and crimes against humanity or a war crime, and those terms have the meaning set out in articles 6, 7 and 8.2 of the Rome Statute. Section 52 of the act makes it an offence against domestic law for a person to engage in conduct ancillary to conduct to which this section applies.
When one seeks to ascertain the territorial aspects of the ancillary offence it is advisable to have a few wet towels and aspirins handy but I think I’ve worked it out. It seems possible as I read Section 52b to aid and abet in this country an offence overseas which would be an offence if committed in this country. However it is plain that conduct ancillary (Section 55) is a concept that embraces incitement, conspiracy and aiding and abetting as understood in domestic law, and secondary liability is contingent on primary liability (except incitement). You can’t aid and abet a crime when it has actually happened. Intent to commit an offence is necessary, not merely having the means to do it.
A clear argument in this case is whether or not these provisions rendered activities taking place at Burghfield unlawful – i.e. is it now an offence in domestic law to maintain nuclear warheads with regard to the alleged proximity of that activity to a genocide and the other crimes set out in Sections 51 and 52 of the ICCA.
A further point to be made about the act before more detailed analysis: under the act and treaty that gave rise to it, the primary obligation to prosecute genocide is with the States parties (should read party?) to the treaties. The International Criminal Court (the ICC), yet to come into being, will be there to step in when a State is at fault. And one can see both the logic and principle in that. Prosecution of offences is and always should be a matter for States, International Tribunals only come in to fill vacancies – I make this point because Mr McKinley (prosecution) said I couldn’t second guess what the ICC might decide in regard of our Trident programme and Government declarations in relation to how it night be used. I don’t have to second guess. I have to make a primary decision on whether this legislation makes it an offence for this country to have Trident.
In one of several very helpful dialogues that I had yesterday I asked the question, do Sections 51 and 52 make it an offence merely to be equipped to cause genocide, crimes against humanity, or other war crimes. And that is in my view the main difficulty that the argument based on the ICCA encounters. When one reads the articles that set out in detail the elements of these offences, nowhere does one [find] the mere possession – no matter how potentially destructive – to be an offence. Nor does one find the threat to use such a weapon [to be an offence].
The ICCA is one post-Hutchinson development. Others mentioned include bilateral discussions with the USA said to breach the NPT, statements by Geoff Hoon re. how Trident might be deployed and the defendants say sincerely that in the last of their statements the proposed deployment would in their view amount to genocide. And that’s in 2002.
The fact that we live in dangerous times that raise the risk of use of these weapons; the fact that though it is now more than 35 years old the NPT has not
achieved its aim of total nuclear disarmament; the fact that States that gave up their nuclear programmes are showing increasing frustration adding to tensions that might one day lead to a nuclear scenario…all that forms part of the background leading to the 1st June present in the defendants minds. Where subjective elements are involved in defence those are matters I must take into account.
The skeleton defence presented by Amos and Zelter is a list of points concerning the alleged danger of Burghfield activities, alleged immediacy of threat, and claimed reasonableness of actions. They claim proportionality and list Conventions it is said that Trident breaches, all encompassed by the ICJ. Finally they say their actions were reasonable in the circumstances.
The Crowns response to the skeleton argument takes as a starting point the case of Hutchinson The Crowns case is in short that as a binding authority – that is right of course – that no substantial factual distinctions between Hutchinson and the present case exist, and that the position has not changed as a result of the ICCA 2001.
I propose now to go through Hutchinson, to explain the rulings made, and will then go on to explore what if anything is different now.
Hutchinson, in common with the defence of this case, is a sincere anti-nuclear campaigner, and no doubt she, as in the defence of the current case, attempted all sorts of lawful means to persuade before doing direct action. She went to Aldermaston, which like Burghfield fulfils an essential role in the production and maintenance of nuclear warheads. Like the current defendants she damaged a fence, but unlike them she was not seeking to minimise damage – she was seeking to cause £5000 so as to claim her right to jury trial. The current defence went there to get in, leaflet and cause some disruption. Hutchinson also knew her actions would cause some disruption, a result she desired, and obviously her acts would be witnessed by employees in the same way.
So I see no material factual distinctions. Obviously no 2 cases are the same but there are clearly here substantial similarities. She failed to do £5000 damage – it was £2500 so the case went to the Magistrates court. What she perhaps hadn’t appreciated is that this would give her 3 bites of the cherry and therefore more publicity than if she had gone direct to the Crown Court.
In the Magistrates and Crown Courts she ran the arguments of International illegality and lawful excuse that have been argued before me in the current case. Arguments of duress and necessity were also run, as they have been presented to me. There appears to be no discussion of the Section 5 defence in Hutchinson so I’ll be looking at that de novo, but I am bound by the rest, unless there are such actual distinctions or legal movements to justify me at a lower level of court deciding that I am not bound.
I am sure you know the case very well. The leading Judge, Buxton, argued that in International Law there was an offence prohibiting the use of nuclear weapons and argued there was a distinction between International and National Law. He analysed the ICJ advice, drawing attention to what it did not decide as well as what it did decide. In relation to the former, he gave particular attention to Paragraph 67 “the court does not intend here in the ICJ to pronounce upon a practise known as the policy of deterrence”. Mr Mercer who appeared for Hutchinson at the appeal hearing formulated the following contention as to where International Law stood following the advice of the ICJ. He contended this (page 24 of Hutchinson): threat or use is contrary to International Law unless the policy is consistent with International Law. It is not entirely surprising that Buxton did not find that the most helpful formulation. His paragraph 28 “I therefore take the view that [that argument] is not demonstrated by the ICJ which is the only material relied on in support of it. His Lordship held that even if he was wrong about that, there was still the question of whether or not an international law defence has found its way into English law and if so how. He concluded there was no offence in domestic law even if he was wrong about international law. That disposes of the defence under Section 3 1967 because acting to prevent crime must be to prevent domestic crime.
Beginning at paragraph 39, his Lordship dealt with the issue of lawful excuse. Mercer contented that as Mrs Hutchinson was acting to impede activities illegal in international law she had lawful excuse in British law. Turner then quoted the Hutchinson Crown Court Judgement, paragraph 40, including that the radiation emission did not present reasonable excuse for Hutchinson to damage the fence, and paragraph 49 re duress. Duress of circumstance must show that she was overborne by a pressure which she could not resist. This action was calculated. It was not a particularly dangerous day, it was a day of no particular significance except that it was convenient for Hutchinson to travel to Aldermaston.
I take on board all that’s been said about development in recent years, the NPT, Singh’s view, Hoon etc. but it is clear to me that nothing made the 1st June special from other dates in terms of anyone’s reasonable perception of immanent threat or danger, let alone what is reasonable or proportionate in response to that. If I put it this way don’t take it as glib on my part, but 1st June this year was not materially different to any other day in the post-nuclear age in terms of the launch of nuclear strikes or immanent threat of such or the action that could proportionately be taken.
I am mindful here of the way that duress of circumstance is developing and of the increased subjectivity as a result of previous cases. A reasonable belief of an immanent threat makes up the first limb. I take on board also the distinction between immanent threat and immediacy. In that case there is a helpful analogy that Anne Frank does not have to wait for the Gestapo to come knocking on her door – she’s entitled to flee before that, and if circumstances made it necessary, by stealing a car.
Hussien and the other hijackers believed that they were liable to immanent arrest leading to their deportation to Iraq where they believed they faced risk of grave harm. And subsequent to the same case we have the Crown vs. Saafi and others where the defendants were fleeing the Taliban and a discussion of whether the threat had to exist or whether reasonable belief of threat would suffice. The court ruled in favour of the latter.
The court had this to say in reference to threat and duress of circumstance: duress of threat and duress of circumstance are instances of wider defence of necessity. Other instances are self-defence and defence of others. Because necessity can become a mask for anarchy, courts treat such a defence with great caution judged by great danger, reasonableness, proportionality, choice overborne or unwilling between two evils, actors compelled to act by outside pressure.
I turn now to the defence of Section 5. What the defence rely on here is their belief as to the reasonableness of the actions they took. Even here there has to be an objective element. It is very helpfully discussed in Hunt(on?) and Hall, also 689-690 of Smith and Hove re the subjective/objective balance the courts have shown. Merely mouthing “I thought what I did was reasonable” would be a recipe for anarchy. I don’t need to examine more closely the concept of belief as it arises in Section 5 because the answer lies at a much simpler level. What was done here was not in reality done to prevent immediate damage to property but in hopes of influencing hearts and minds and causing disruption. There was no necessity to act in that way – it was done to achieve greater effect and impact. It was done from the highest notions of humanity and concern – on that we are all agreed. That was its purpose. Even allowing for the extent that belief applies to Section 5, this doesn’t in my view come near the sort of situations that these defences exist to cater for.
I do not find the defence under the ICCA that exists here to help the defence at all. It is true that in some international articles distinctions are not drawn between crime and threat (paragraph 47) but in domestic law the court found no offence in the Hutchinson case and I find no offence now in result of domestic development subsequent to Hutchinson. The defences which have been so ably presented haven’t dealt with the facts of Hutchinson so similar to the facts of this case. The defenses were dealt with in Hutchinson except criminal damage and that fails here for the reasons I’ve given.
It follows that the act of damage in which all 4 took part was not justified by any private or public defence and I must therefore convict all 4 on this charge. What We Learnt From This
If your judge/magistrate is unfriendly it can be very risky not to give evidence in the witness box
It would be worth saying that international jurisprudence on the illegality of nuclear weapons is not scant, and showing where Britain is bound by the rules of war.
Does acting to prevent crime have to be domestic crime, i.e. a crime under domestic law? – surely there must be case law some where that shows this isn’t true. Ideally have an expert witness or witness statement to speak about this.
In England, MAKE SURE YOU KNOW THE HUTCHINSON CASE and make a clear statement about why it no longer applies. The ICCA (2001) came in since and means domestic law has changed. She was making a symbolic protest in order to get a jury trial, we are trying to make a physical difference. The illegal war on Iraq and Hoons threats to use nuclear weapons on Iraq and the renewal very soon of the mutual defence pact with the intention to use it to develop new usable nuclear weapons are all since then and the latter is being done with Aldermaston and Burghfield scientists. The Hutchinson ruling talked about possession of nuclear weapons but we are talking about deployment which is a much more active threat.
The part of the ICCA we should have emphasised was war crimes not genocide.
Go through your evidence as you hand it in. Highlight on the judges copy as well as your own the bits you want noticed and say why they are important. Important points in our defence about the ongoing threat through accident, the immediacy of the Mutual Defence Agreement and the deployment being an active threat and therefore crime got lost because we didn’t do this. We handed our evidence in from the witness box, which enabled us to go through each piece as we gave it to him. This was a good way of doing things!
It’s the prosecutions responsibility to disprove your case – say if you don’t think they have done so.
The combination of legal representation for some defendants and others defending themselves really paid off. We put a lot of hard and time-consuming work in beforehand, but it was definitely worth it. The barrister knew the process better than us and had ways of saying things that definitely helped, but we got a lot more leeway in what we were allowed to say, and we generally knew our stuff better than the barrister did!
File all your papers in logical order in ring binders so that you can keep finding them again and again, and can find things in the middle of the hearing!
The judge commented on how long ago Hoons quotes were made (in 2002), in relation to the immediacy of our action (in 2004). If you have the time it could well be worth writing to Hoon well before you do an action, asking him what his position on use of nuclear weapons is in order to have a recent response. It would also be worth spending some time putting together a more coherent defence regarding immediacy of the action (i.e. why we did this action when we did), to counter the judges claims that it was simply a convenient date!
We gave the judge a copy of the TP handbook as evidence (in particular, we pointed him to the safety pledges and guidelines and the summary of international laws). This was very useful – he had obviously read and digested sections of it.