HIGH COURT OF JUSTICIARY
LORD ADVOCATE’S REFERENCE
(under section 123 of the Criminal Procedure (Scotland) Act 1995)
NOTE OF ARGUMENT FOR THE PETITIONER
1. In a prosecution for malicious mischief if the Crown establishes on the evidence that the accused deliberately damaged the property of another then apart from the defence of necessity the crime is complete.
To prove malicious mischief at common law 1the Crown requires to show
(1) Property of another damaged by accused;
(2) By a deliberate or reckless act. Enough that an accused person knew what he did would cause damage – for example simply walking across a field is enough if know likely to damage the crops. What is important is “that the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property of or possessory rights of another”
Ward v Robertson 1938 J.C. 32; Gordon at Paragraph 22-03
Motive is irrelevant. There is no need to show spite (see Gordon paragraph 22-04). A mistaken belief that there is an entitlement to cause the damage is not a defence see Clark v Syme 1957 J.C. 1
A misconception of legal rights, however gross, will never justify the substitution of the jungle for rules of civilised behaviour or even of common sense… The respondant in this case acted deliberately. He knew what he was doing and he displayed in his acting’s a complete disregard of the rights of others… A desire to vindicate his own rights of property is all very well in the proper place, but, when that involves the deliberate destruction of the property and the invasion of the rights of others, it ceases, in my view to be excusable. ”
Lord Justice General Clyde at page 5;
2.The defence of necessity is available in relation to a charge of malicious mischief In principle necessity can arise as a defence to any crime charged. The leading case is Moss v Howdle 1997 SCCR 215. An example of the kind of’ situation, which might arise in connection with malicious mischief, is Farrell v Marshall 1962 SI.T (Sh Ct) 65 where in a prosecution under a statutory charge of cruelty to animals the owner of cattle was entitled to shoot a dog causing real or imminent danger to them.
3.The defence is only available in very limited circumstances
For the defence to be available (that is left for the jury’s consideration) the evidence must be capable of showing that the accused had no real choice when he committed the crime. The circumstances must be capable of showing that the accused was constrained to break the law. The evidence must be capable of showing that his action was “remorselessly compelled by normal human instincts” [Perka v The Queen  2 S.C.R. 232 at 249]. There must be no reasonable legal alternative. There must be an
immediatedanger of death or great bodily harm to someone (though not necessarily the accused) but it must be someone positively identified and having some relation to the accused – “his companion” (see Moss v Howdle 1997 SCCR at P222l). The accused must have reason to think that the commission of the acts libelled will have some prospect of removing the perceived danger
(1) On no view of the facts narrated in the Sheriff’s report could the court have legitimately left the defence of necessity available for the jury’s consideration
There was no evidence of immediate danger of death or great bodily harm to anyone.
Even if such immediate danger of death or great bodily harm existed (which it clearly did not) there must be no other means of avoiding it before an accused is permitted to commit the acts libelled. There must he some prospect that committing the acts libelled will remove the perceived danger. Further, apart from the defence of necessity it is not a defence to commit a crime to prevent the commission of another (Palazzo v Copeland 1976 J.C. 52).
(2) Even if the defence of necessity is available (i.e. successfully raised) it is for the jury to determine whether it should lead to an acquittal in any case
It is not competent other than in consequence of a successful submission of no case to answer (under section 97 of the 1995 Act) for the Sheriff to withdraw any charge from the Jury. See HMA v Kent 1950 J.C 38 2.
(See also Renton & Brown paragraph 18-76 (c.f. section 106 (3)(b) of the Criminal Procedure (Scotland) Act 1995 – power of High Court to quash unreasonable jury verdict)
The Crown did not withdraw charges 1,3 and 4. The Crown did not consent to the course adopted by the Court, which was incompetent. The motions made by the defence (pages 104 D to 105D; 112B to C; 113B of the Transcript dated 19th, 20th and 21st October 1999) that the Sheriff should acquit the accused, should have been refused as incompetent.
4. It is incompetent to lead evidence as to the content of customary international law.
In a Scots Criminal Court, Scots Criminal Law is to be applied. If there are rights and duties flowing from rules of customary international law recognised and given effect to in Scots Criminal Law those rules are part of the lex fori and do not have to be proved as fact. Such rules are not foreign law and are not the subject of proof. (See Oppenheim at page 57; Foreign Affairs in English Courts F. A. Mann at pages 125 to 127; Halsbury Laws of England Volume 18 paragraph 1403). In no case in Scotland has evidence been admitted in relation to the content of International law (c.f. Mortensen v Peters (1906) 8 F 93). In relation to conventional International Law the law is clear (see T Petitioner 1997 SLT 724). With regard to customary International law in attempting to ascertain whether there is an applicable rule and its content reference may be made to treaties and conventions, textbooks and judicial decisions see Lord Macmillan, “The Cristina”  AC 485 at 497 3) But
Any alleged rule of customary law must be shown to be a valid rule of international law and not merely an unsupported proposition.
“It is certainly not for a domestic tribunal in effect to legislate a rule into existence for the purposes of domestic law and on the basis of material that is wholly indeterminate”
Lord Oliver in Maclaine Watson v DTI  3 All E.R. 523 at 554
There was (and is) no evidence in fact and no basis in law to conclude that the United Kingdom was in breach of any of its International obligations. There was (and is) in any event no justification in law for damaging and destroying property in pursuit of an objection to nuclear weapons.
Article 2 (4) of the United Nations Charter provides that:
” All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner with the Purposes of the United Nations”
It is submitted that a threat of force in this context consists in
“…an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government. If the promise is to resort to force in conditions in which no justification for the use of that force exists, the threat itself is illegal” [Brownlie International Law and the Use of Force by States (1963 page 364]
The United Kingdom has not at any time made a threat to use nuclear weapons. Nothing in the facts narrated in the Sheriff’s report indicates that any such threat of force (which would of itself be a contravention of international law unless authorised by the competent organ of the United Nations or in the exercise of the right of self defence 6) had been made.
The International Court of Justice in its advisory opinion did not question the legality of the possession or deployment of nuclear weapons.
In relation to the “threat or use” it is clear from the ICJ opinion that there is no prohibition per se in relation to the threat to use or use of nuclear weapons. It states “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons” (Paragraph 105 page 36).
There is no rule of customary international law justifying a private individual in Scotland from damaging or destroying property 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.
6. The questions posed in the reference should be answered in the negative.
Notes: 1 Under section 52 (1) of the Criminal Law (Consolidation) (Scotland) Act 1995) (the statutory charge of vandalism) the mens rea is the same (i.e. requiring wilfulness or recklessness) but the offence is not committed if there is a “reasonable excuse”. In such cases it is arguable that the burden of proving that the act was committed with a reasonable excuse falls upon the accused (see Criminal Procedure (Scotland) Act 1995, Schedule 3 paragraph 16 see also Buchanan v Price 1982 SCCR 534 Stewart v Aitchison 1984 SCCR 357; and c.f. Earnshaw v HMA 1981 SCCR 279). In any event there is certainly an evidential burden to raise an excuse. Whether a given excuse is reasonable depends on the facts and circumstances of each case and is a question of law (see John v Donnelly 1999 SCCR 802) 2 The Crown can always drop a charge: and it is of course right and proper in suitable circumstances that a Sheriff or presiding Judge when charging a jury at the end of the day after the evidence is complete and the speeches for the Crown and for the defence have been concluded should direct the jury that there is no evidence in law to support a charge (or one or more of several charges), and that it is their duty to return a verdict of not guilty accordingly. But it is only at that stage that such a duty falls on the Judge or can be competently be undertaken by him on his own responsibility, for according to practice the Lord Advocate is master of the instance, and without his consent or the consent of his representative who is prosecuting, it is in my view incompetent for the case to be withdrawn at an earlier stage from the knowledge of the assize. If therefore a practice of withdrawing criminal charges prematurely has arisen, derived from a supposed analogy with civil jury practice, or with the very different practice in criminal trials in England, I hope that it will now be discarded as wholly unwarranted in Scottish criminal administration.”
Lord Justice Clerk Cooper at page 42 3 ” It is a recognised prerequisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions. It is manifestly of the highest importance that the courts of this country, before they give the force of law within this realm to any doctrine of international law, should be satisfied that it has the hall-marks of general assent and reciprocity”. 4 No treaty has been adopted specifically prohibiting the possession or even use of nuclear weapons in marked contrast to other weapons (e.g. the Geneva Protocol 1925 prohibiting the use of asphyxiating poisonous or other gases, all analogous liquids, materials or devices and bacteriological methods of warfare, or the Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological and Toxin Weapons 1972 which prohibits the possession of bacteriological and toxin weapons and reinforces the prohibition on their use or the Chemical Weapons Convention 1993 which prohibits all use of chemical weapons and requires the destruction of existing stocks) 5 The deployment of nuclear weapons is prohibited by treaty in Antartica (Antartica Treaty 1959), outer space or on celestial bodies (Outer Space Treaty 1967) and on the deep seabed (Sea-Bed Treaty 1971). For those States who have become parties to the Treaty of Tlatelolco or its 1st Protocol the deployment of nuclear weapons is prohibited within areas covered by that agreement (the areas covered are most of Latin America and certain adjacent waters and islands. Those States that are parties to the Treaty of Rorotonga or its 1st Protocol have undertaken not to deploy nuclear weapons within the areas (parts of the South Pacific) covered by that agreement. The United Kingdom is not a part to the protocols to that treaty but it has been stated that the United Kingdom has no intention of deploying weapons in the South Pacific. (Statement by the Minister of State, Foreign and Commonwealth Office in the House of Commons 20 March 1987 HC Debs volume 112) 6 Article 51 of the United Nations Charter which provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs”