GH COURT OF JUSTICIARY
Note of Argument
G.J.B. Moynihan Q.C.
Lord Advocate’s Reference (No. 1 of 2000)
1. This Note is written without sight of the Crown’s Note of Argument.
2. It is acknowledged that it is both unnecessary and incompetent to seek to prove domestic law by evidence: Macmillan v McConnell 1917 JC 43 at 47, per Lord Justice Clerk Scott Dickson.
3. Nonetheless, it is submitted that that proposition does not entirely prohibit reference to matters of law in the course of evidence. There are (a) general and (b) specific reasons in this case why evidence of the content of customary international law was admissible, quantum valeat.
4. The general considerations relate to the fact that in practice witnesses do properly from time to time refer in evidence to matters of law, not to prove the content of the legal rules but to set the scene for their factual evidence. For example, in a VAT fraud trial it would be permissible for an expert accountant to explain in evidence what he understood to be the salient features of the relevant VAT rules in order for the jury to put in context his evidence regarding the particular business practices that are in issue in the trial.
5. Applied to this case it would be legitimate to ask a witness the salient features of the ICJ’s Advisory Opinion to put in context the evidence to be given about the operational and design characteristics of Trident (i.e. the factual evidence upon which it was to be argued that Trident is unlawful). Otherwise the jury might be listening without knowing the possible relevance of the evidence. The witness’s evidence regarding the content or interpretation of the ICJ’s Opinion sets the scene only and is of no probative value because these remain matters of law for the Sheriff to determine after submissions and matters on which the Sheriff has to give appropriate directions in law to the jury.
6. There are two specific reasons.
The first specific reason is peculiar to the nature of customary international law. Customary international law is not derived from textbooks or precedents. It derives from the practice of States. For any norm to be recognised as a precept of international law there must be (a) a sufficiently widespread practice among States and (b) States must apply this practice out of a sense of obligation: see, for example, The North Sea Continental Shelf Case 1969 ICJR 3 at 41. Evidence of State practice can come from a variety of sources: Stair Encyclopaedia, Vol. 19, para. 642. It is submitted that it would be legitimate to lead evidence to prove requirements (a) and (b): see West Rand v The King  2 KB 391 at 407.
The second specific reason relates to the defence that the respondents had reasonable belief that they were justified in law in acting as they did. Assuming that that is a relevant defence, evidence of international law would be admissible to establish that the accused had reason to hold the belief that they did.
7. The primary submission is that this question is incompetent because it does not relate to the issue at the Trial. To be competent under section 123 of the Criminal Procedure (Scotland) Act 1995 the Reference must relate to “a point of law which has arisen in relation to [the] charge” in the Trial.
8. The formulation of the question differs in four separate respects from the issue at the Trial.
The Trial did not relate to any personal “objection” that the respondents had. It related to the contentions (a) that the UK was acting unlawfully according to international law and (b) that the respondents acted to stop that illegality.
The Trial did not relate to nuclear weapons in general but to Trident in particular.
The defence focussed not on possession but on the threat or use of the weapon.
The defence also focused on the then prevailing circumstances. To quote the Sheriff, the Defence case related to “use and deployment at times of great international unrest” (Transcript of 20th October 1999, page 151A-B).
9. Statement of Fact 1(d) of the Reference contains an incomplete and misleading quotation from the ex tempore Judgment of the Sheriff and, as a consequence, Question 2 fails to identify the point of law at issue.
10. Strictly construed the question could be answered in the negative without prejudice to the defence that was upheld by the Sheriff. On a strict construction the question goes no further than the decision in John v Donnelly 2000 SLT 11. That decision was not challenged in the course of the Trial. The Defence case was that it was distinguishable.
11. It is respectfully submitted that in light of the facts that (1) Question 2 is framed in terms echoing John and (2) the correctness of that decision has not been questioned, this Court should refuse to answer Question 2 on the grounds that it is unnecessary.
12. There is a preliminary issue even in relation to the alternative, secondary submission which would be made if the Court is persuaded by the Crown that the question as formulated can be construed as encompassing the issues in paragraph 8 above. That relates to the lack of specification in the question. It is not clear whether the question relates exclusively to (a) the existence of any relevant rule of international law or (b) the relationship between rules of international law and municipal law (or for that matter to any combination of the two). The refusal of the Crown to include a specific question related to the legality of Trident has been interpreted as confining the question to (b).
13. So construed this question concerns the scope of the defence of necessity or justification. That defence was not well developed in Scotland prior to Moss v Howdle 1997 SLT 782: Stair Encyclopaedia, Vol. 7, para. 200. The development of the law is hampered by the fact that those people who act out of necessity tend to be praised, not prosecuted, with the consequence that the limits of the criminal law are rarely put to the test: Card, Cross & Jones, Criminal Law, 14th ed., page 653.
14. John does not exclude the defence of necessity (or reasonable excuse). It is a question of fact and circumstance: (14A-B). An American precedent, not cited in John, is founded upon for a convenient summary of the relevant criteria to be applied in determining whether or not the defence of necessity can apply. It is Commonwealth of Pennsylvania v Berrigan 501 A.2d. 226 (Pa.1985), which is directly in point because it concerned antinuclear activists.
15. The Defence evidence at the Trial was directed to the criteria specified in Berrigan and, notably the respondents throughout have maintained that their actions were “aimed at stopping perceived illegal conduct, not legal conduct”. Indeed, the Sheriff held that the Trident programme was illegal according to International Law and that ruling is not in question in this Reference.
16. The secondary submission is that Question 2 should be answered in the affirmative subject to the conditions contained in the Berrigan case.
17. This question is too general to admit of any exhaustive answer and is, again, open to objection because it is not focused specifically on the issues raised in the trial.
18. The question cannot be answered as a matter of generality. No doubt there are some circumstances, illustrated by the case of Clark v Syme 1957 JC 1, in which such a belief would not constitute a defence. On the other hand, circumstances may be postulated in which there would be no crime. An example would be a man destroying property while under the mistaken belief that in law it belonged to him.
19. If the Court is considering this question narrowed to the specific circumstances of the present case reference is made to the alternative submission in response to Question 2.
20. This question is irrelevant because it asks only whether there is a “general defence”. By not challenging the correctness of the decision in John the respondents demonstrated that they were not attempting to set up a “general defence”. They merely set out to establish a specific defence in the peculiar circumstances of their case. That specific defence is not the subject of this question.
21. The question can be answered in the affirmative and that will not prejudice the rulings of the Sheriff in the Trial. Accordingly, it is respectfully submitted that the proper course would be to regard this question as incompetent because it does not address the point of law in issue at the Trial.
2nd October 2000