1) The Hearing
9th October 2000, for five days, in the High Court of the Justiciary, Lawnmarket, Edinburgh and for four or five days from 14th November 2000.
2) The Maytime Incident and the Greenock Ruling
On June 8th 1999 three Trident Ploughshares Pledgers, Angie Zelter (English), Ulla Roder (Danish) and Ellen Moxley (Scottish) disarmed a floating laboratory called ’Maytime’ that was moored in Loch Goil, Scotland, by throwing equipment into the loch. The lab is vital to the Trident programme as it researches, tests and maintains the ability of Trident submarines to remain undetected under water while on patrol. The three women were charged with causing damage to several hundred thousand pounds worth of equipment and were remanded for 4 months awaiting trial. They then spent a further month at Greenock Sheriff Court, in front of a jury arguing their case. They had openly admitted, from the very beginning when their supporters phoned the Ministry of Defence Police to alert them to their successful disarmament action, that they had purposely destroyed the equipment. But they argued that their actions were lawful as well as being moral. They were acting to prevent nuclear crime and the UK nuclear weapon system was both illegal and criminal under international law. The Crown could not and did not rebut their arguments and Sheriff Gimblett acquitted them.
This case has become the subject of a Lord Advocate’s Reference.
3) Maytime in Context
In recent years people have begun to disarm nuclear weapon systems where Government and State institutions have not taken on this responsibility and obligation themselves. Nuclear weapon states promised to disarm all nuclear weapons over 30 years ago in the Non-Proliferation Treaty. People cannot wait any longer. This is called People’s Disarmament.
Trident Ploughshares is a campaign based in the UK which currently has 169 ’global citizens’ from 14 different countries who have Pledged to Prevent Nuclear Crime by engaging in peaceful acts of practical disarmament. The whole campaign is based on international law and the basic human right to life. People from many different nations come together as ’global citizens’ and begin the task of peacefully dismantling the nuclear system This involves the safe destruction of fences and equipment just as it does when it is part of an ’official’ international disarmament agreement. It is not criminal damage but practical and lawful ’people’s’ disarmament.
Of course, the government and its institutions do not see it this way. Since Trident Ploughshares began in August 1998 – there have been 710 arrests, mainly at the disarmament camps, held every three months, at Coulport and Faslane in Scotland. There have been 67 trials completed and 733 days have been spent in prison, not including the days in police custody.
4. What is a Lord Advocate’s Reference (LAR)?
This is set down in Section 123 of the Criminal Procedure (Scotland) Act.
Where someone is acquitted of a charge, the Lord Advocate may refer a point of law, which has arisen from the original charge, to the High Court for the opinion of that Court. [S.123 (1)]
- The people charged and then acquitted are called ’respondents’ in the proceedings.
- The respondents have a right either to participate in the reference proceedings themselves or to be represented. Respondents who elect to be represented are nevertheless allowed to attend the Reference proceedings. [S.123 (2)]
- Where a respondent does not elect to be represented then the High Court appoints Counsel to act at the hearing as a friend of the court or ’amicus curiae’ [S.123 (3)] to act as a contradictor.
- The costs of all these legal representatives are covered by the Lord Advocate [S.123(4)] but no mention is made of covering the costs of respondents who elect to represent themselves.
- The LAR proceedings are open to the public.
- The opinion of the High Court on the point of law referred by the Lord Advocate has no effect upon the acquittal. [S.123 (5)]
- The LAR procedure has not been used very often. The first example of its use was in 1983. To date there have been only six and all of them have gone against the original trial judge. They have dealt with such issues as leading questions in police interviews, admissability of evidence in perjury cases, jokes not being a defence to assault charges, the breaking of causal links in supply of drugs leading to death, and means of proof of bank statements. Although, in theory, this is a procedure to clarify any point of law that arises, in practice it seems to be a way of appealing against acquittals through the back door.
5. Who is participating in this LAR?
Angie Zelter (the 1st Respondent) will be appearing for herself.
Ulla Roder (the 2nd Respondent) has legal representation consisting of Joanna McDonald, Solicitor, John Mayer, Advocate and Ian Anderson, Advocate.
Ellen Moxley (the 3rd Respondent) has legal representation consisting of, Jerry Brown, Solicitor, John McLaughlin, Advocate and Aidan O’Neill QC, Advocate.
Amicus Curiae appointed by the Court on April 4th Gerry Moynihan QC.
For the Crown: Duncan Menzies QC, Home Depute or Home Advocate (Head of Advocate Deputes and all Procurators Fiscal); Simon Di Rollo Advocate.
Also in attendance is a representative of Linda Clark MP, Advocate General, who advises the Westminster government on Scottish matters. The representative is there since devolution issues have been raised.
Lord Prosser is the presiding Judge. The others are Lords Kirkwood and Penrose
6. What are the questions that have been referred to the High Court?
There are four questions:-
In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?
Does any rule of customary international law justify a private individual in Scotland in damaging or destroying in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?
Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?
Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?
7. What are the implications of the LAR?
These could be immense if the High Court and Scottish Law rise to the challenge. A legal system can be supported by people if, and only if, it remains firmly grounded on natural justice and morality. Crime prevention is natural and as long as it is done nonviolently, safely and accountably forms a recognised right in the vast majority of cultures, societies and nations, many of which have incorporated it directly within their judicial systems. Roder, Zelter and Moxley acted to prevent crime. Mass murder is probably one of the most heinous wrongs known to mankind. The Trident nuclear weapon system is a conspiracy to commit mass murder.
Although the questions put to the High Court seem to be purely technical, nevertheless they challenge the right of ordinary citizens to try to put very great wrongs right. If this right is undermined it will be disastrous for our society and will lead to a protracted conflict of interests between the State and ordinary people. People will no longer be able to remain responsible caring human beings as well as law-abiding citizens. They will have to choose between the two.
If the Court is wise and courageous it will also grapple with the underlying problems arising out of the Greenock Trial – that of the underlying question of the illegality of Trident. It will suggest that a full and independent public inquiry into the legality of the British Trident system and present British Defence Policies be immediately instituted.
Although the Reference is considerable relevance to the struggle against nuclear crime, it is far from critical. Those who are committed to People’s Disarmament will continue that work whatever its outcome.