IN THE HIGH COURT OF JUSTICIARY
LORD ADVOCATE’S REFERENCE
NOTICE OF INTENTION TO RAISE A DEVOLUTION ISSUE
on behalf of the Third Respondent
to the Petition of
COLIN BOYD QC, Her Majesty’ Advocate PETITIONER
in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995
(FIRST) ANGELA ZELTER; (SECOND) BODIL ULLA RODER; and (THIRD) ELLEN MOXLEY RESPONDENTS FORM 40.4 A HUMBLY SHEWETH:
Messrs. Livingstone Brown
That the present Lord Advocate’s Reference was initiated by the Lord Advocate on 21st January 2000 when it was lodged with the Clerk of Justiciary following the decision by Sheriff Gimblett, sitting in the Sheriffdom of North Strathclyde at Greenock, on 21 October 1999 (in a trial which had commenced on 26 September 1999) formally to instruct the jury to acquit all three accused (the respondents to the present petition) of charges relating to wilful and malicious damage arising out of an incident on 8 June 1999 when the three accused had boarded a vessel known as “Maytime” which was then moored in Loch Goil.
That Ellen Moxley, the third accused in the original proceeding and the third respondent to the present petition intends to take part in the proceedings in accordance with her rights under Section 123 of the Criminal Proceedings (Scotland Act 1995. A hearing diet has been fixed in this matter for 9 to 13 October 2000.
That Ellen Moxley intends to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act on the following grounds:
That at the time of the initiation of the Lord Advocates Reference no transcript of any of the original trial proceedings was made available to the third respondent, neither was there any Report from the Sheriff setting out the circumstances under which the third respondent had been acquitted of the charges against her. The Sheriff’s Report was eventually produced and lodged with the Justiciary Office on 21 August 2000.
That on or about 6 September 2000, after discussion with counsel and having considered the terms of the Sheriff’s report, the respondents’ agents wrote to Duncan Menzies QC, Home Advocate Depute proposing certain changes to the questions posed on behalf of the Lord Advocate in this reference on the grounds that the questions posed did not appear to arise out of the trial of the third respondent, in particular question 2 relative to a private individual’s objection to the United Kingdom’s possession of nuclear weapons. No substantive response was received to that letter advising whether or not the Lord Advocate was willing to consider the respondent’s proposed amendment to the questions.
That the matter was again raised with counsel representing the Lord Advocate prior to and in the course of the preliminary hearing on this reference before your Lordships which was held on 12 September 2000. In the course of that hearing Crown Counsel, while affirming his view that the questions to be asked of the court in such proceedings were a matter solely for decision by the Lord Advocate, advised the court that it was possible that that, now having the benefit of seeing the transcript and Report from the Sheriff neither of which were available at the time of the questions were originally drafted, the Lord Advocate might consider whether or not the questions were in fact framed correctly.
That on 29 September 2000 the matter again came before the court on the preliminary hearing continued from 12 September 2000. At that hearing, the Home Advocate Depute advised the court that, having considered matters, including the proposed changes to the questions suggested by the respondents, that it was not the intention or wish of the Lord Advocate that these questions should be altered in any way.
That it is submitted that the refusal on the part of the Lord Advocate to amend the questions submitted by him for consideration by the court in connection with the acquittal of, among others, the third respondent from the charges of wilful and malicious damage constitutes an act or omission on the part of the Lord Advocate incompatible with the third respondent’s Convention rights, in particular the rights to a fair trial contained in Article 6.
Applicability of Article 6(1) ECHR
That as against the Lord Advocate the respondent wishes to assert her rights under Article 6 to a fair trial. The position of the Lord Advocate, as understood by the third respondent, is that Article 6 cannot be relied upon in relation to the position of the third respondents in the present proceedings since, he says, there is no “determination of [an individual’s] civil rights and obligations or of any criminal charge against him” Any such submission should, however, be rejected by this court as being based on a unjustifiably restrictive reading of the terms of Article 6.
– That it is the contention of the Third Respondent that the present proceedings fall to be governed by the principles contained in Article 6 ECHR, that is to say, that the Third Respondent rights to a “fair trial” are to be recognised and protected by the court in the current proceedings. Reference is made in this regard to the decisions of the European Court of Human Rights in: Delcourt v. Belgium A/11 (1979-80) 1 EHRR 355 at paragraphs 22-26; Borgers v. Belgium A/214 (1991) 15 EHRR 92 at paragraphs 22-26; Vermeulen v. Belgium, 20 February 1996, RJD 1996-I 225 at 233, paragraphs 32-33; Voisine v. France, 8 February 2000, ECtHR unreported judgment available at www.dhcour.coe.fr/hudoc
That it is submitted that the respondent falls into the Convention category of “victim” for the purposes of the present proceedings, taking into account the following considerations, among others:
she has been subjected to criminal prosecution in respect of her actions;
the purpose of the present proceedings is, in effect, to attempt to overturn a finding that her actions were, in the circumstances of their case, justifiable and hence devoid of necessary criminal intent
if the present proceedings are successful in this end then the respondent’s actions will, in effect, retrospectively be declared to have been illegal and the necessary finding from that is that she was unjustly and unlawfully acquitted. She will therefore lose her “status” as an acquitted person
She will also lose the “benefit” of her acquittal in that any such finding by this court will mean that her future actions as a conscientious peace protester will be proscribed.
Further, the respondent may also, conceivably, be held liable at civil law for the damage inflicted by them if she is found, as a result of a decision in the present reference, to have had no defence to the criminal prosecution against them.
Breaches of Article 6
That it is submitted that manner in which the Lord Advocate has conducted himself in the proceedings to date and the manner in which he intends to conduct these proceedings fall short of the requirements of Article 6. In particular, the respondents relies on the principle of “equality of arms” embodied in Article 6 (and spoken to by the Strasbourg Court in Neumeister v. Austria, Judgment of 27 June 1968, Series A No. 8 (1979-80) 1 EHRR 91) which requires that each party to a civil action or criminal trial must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage compared to his opponent.
That the third respondent complains that she has been required to prepare to respond to proceedings which raise questions which do not properly identify the points of law which in fact arose in relation to the original charges against the respondent. She submits that there is a basic unfairness in the disjunction between the original proceedings and the present reference by the Lord Advocate which, ostensibly, seeks to challenge the lawfulness of the respondent’s acquittal, contrary to the principles of fairness spoken to by the Strasbourg Court in, among other decisions, Ekbatani v. Sweden A/134 (1988) 13 EHRR 134 at paragraphs 24-27
That in particular, question 2 as framed by the Lord Advocate, with its reference to possession of nuclear weapons, did not arise in relation to the charges against the respondents as is clear from observations of Sheriff Gimblett, both in the transcript of the original trial and in her Report to this court in which it was emphasised, that the respondents, including the third respondent, did not propose that possession as such of such weapons in illegal but rather that their deployment and threat of use by the United Kingdom Government, particularly at times of great international unrest and coupled with first strike reservation, was illegal.
That it was accepted by the third respondent in the course of her trial that standing the decision of this court in the case of Helen John v. Procurator Fiscal, Dumbarton, HCJ, (unreported decision of Lord Coulsfield, Lord Milligan and Lord Cowie 23 July 1999) that the question of simple possession of nuclear weapons could not be considered illegal. The respondents proceeded on the basis that the Helen John decision case dealt only with the possession and not with the treat or use of such weapons and argued their case accordingly. Her acquittal by Sheriff Gimblett proceeded on the basis that the threat and deployment of Trident II nuclear weapons was illegal, possession having already been considered in the Helen John case.
That further and in any event, the third respondent submits that the reference in question 2 to the United Kingdom’s “actions in placing such at weapons at location within Scotland” also does not arise from the charges and the defence presented thereat at trial, in that what was argued about was not a neutral “placing of weapons within Scotland” but rather the threat to use specifically Trident 2 missiles from a variety of location and their being placed in a state of combat first strike readiness.
That read in the light of the proper protection of the respondent’s rights under Article 6(1), it is submitted that Section 123 must mean that the Lord Advocate has no power to refer a point of law which has not arisen in relation to the respondent’s successful defence to a charge against her. Question 2 as framed by the Lord Advocate did not arise in relation to the charges against the respondent, and the defences which she in fact offered to those charges.
That further and in any event, the third respondent submits that questions 2 and 4 are so lacking in specificity that they fails to give due notice to the respondent as to the case for which she has to prepare as to render the present proceedings “unfair” for the purposes of Article 6 – reference is made in this regard to the Strasbourg Court’s decisions in JJ v. The Netherlands 27 March 1998, RJD 1998 613 at paragraph 43 and Reinhardt and Slimane-Kaïd v. France, 31 March 1998, RJD 1998-II 666 at paragraphs 106-107.
That further, the third respondent also submits that this lack of specification is also arguably in breach of the respondent’s specific rights under Article 6(3)(a) “to be informed promptly and in detail of the nature and cause of the case against her challenging the lawfulness of her acquittal In particular, the reference to the United Kingdom’s “policies in relation to such weapons” requires that the Lord Advocate spell out what those policies are, as he understand it, otherwise the respondent is left arguing in the dark.
That in any event, it is arguable that there may well be justification in damaging or destroying property if those policies do in fact contemplate unlawful use contrary to the requirements of international humanitarian law. If however those policies are not in contravention of such international norms, a different approach might be taken to justification. Evidence of the facts therefore would have to be led on this matter if the Lord Advocate wishes to discuss the United Kingdom’s policies on nuclear weapons. But no notice of any facts as to the United Kingdom’s policies on nuclear weapons has been given to the third respondent. This therefore separately constitutes a breach of the requirements of fairness in Article 6 in that it means that at the hearing into these question not all materials relevant to the case (that is to say official Statements outlining UK Government policy in relation to their deployment and/or threat to use nuclear weapons) are being made available to both parties. The respondent is therefore being denied her Article 6 rights properly to contest the Lord Advocate’s position on this matter. She relies in this regard particularly on the decision of the European Court of Human Rights in Barbara, Messegue and Jabardo v. Spain, A/146 (1989) 11 EHRR 360
That further, the respondent submits that by virtue of Article 6(3)(d) she has a specific right “to obtain the attendance and examination of witnesses on her behalf” to establish whether or not her acquittal was well-founded in law. The present proceedings as conducted by the Lord Advocate however make no provision for her being able to bring expert witnesses as to the relevant (international) law on which she based her defence so as to establish the lawfulness of her original acquittal
That in any event it is submitted that question 4 with its reference to 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” is also far to broadly drafted and makes no reference to the facts of the situation under which the third respondent was acting in this case, the offence which she was charged with and any offence which she might have been seeking to prevent or bring an end to. The wording of the question is such that it gives absolutely no indication to the respondent as to what case she has to prepare for in these proceedings which have been brought by the Lord Advocate with a view to overturning the legal basis of her particular conviction.
That it is submitted too that because of the breadth of the questions which the Lord Advocate has chosen to ask in this case, no sufficient notice can be given to the respondents as to the case which might be put by or on behalf of the Lord Advocate, or which might be made out by the court. The principle of sufficient and fair notice requires not only adequate warning of arguments that are intended to be taken, but also a limitation and specification in the pleadings as to the arguments which might conceivably be taken, or founded upon by the court. That is to say, fair notice requires precision in the questions put before the court. This breach of Article 6(1) consequent upon the lack of specification in the questions posed is not then remedied by any Statement of Argument produced on the part of the Crown since it is the questions (rather than the Crown’s Statement of Argument) which determine the case in respect of which the respondents are required to prepare and respond. For the Lord Advocate to proceed to court on the basis of wholly inadequate and unspecific questions necessarily adversely affects and impacts upon the respondents’ right under Article 6 to have adequate time to prepare their case in response.
That the principle of fair notice has therefore been breached by the Lord Advocate in his decision to proceed with the question in their present unacceptably wide terms, regardless of the terms of any Statement of Argument lodged 7 days prior to the hearing on behalf of the Lord Advocate setting out what he envisages arguing. Insofar as this Statement of Argument seeks to limit the basis on which he is to be arguing before the court, then he should also formally seek to limit the terms of the questions actually before the court, rather than leaving them unamended. Any such late amendment may itself, raise fair notice points on the part of the respondents, however.
That the unfairness to the respondent in contravention of Article 6(1) could have been remedied by the Lord Advocate: first, by amending the questions so as properly to reflect the legal issues which arose as the respondent’s trial; and secondly by his giving the respondent fair and specific notice of the approach which would be taken by him in relation to these duly amended question: reference is made in this regard to the decision of the Strasbourg Court in Vermeulen v. Belgium, 20 February 1996, RJD 1996-I 225 at 233, paragraphs 33. The Lord Advocate has refused to amend the questions and, it necessarily follows that he has also failed to give due notice of his approach in relation to any properly formulated questions. Such failure to respect the respondent’s Convention rights to a fair trial renders his conduct in continuing with the present proceedings under the currently drafted questions both unlawful under reference to Section 6(1) of the Human Rights Actet separatim ultra vires under reference to Section 57(2) of the Scotland Act 1998.
That a copy of this minute has been duly intimated to Her Majesty’s Advocate, and to Angela Zelter, to Bodil Ulla Roder to Gerard Moynihan QC, amicus curiae and to the relevant authority within the meaning of Rule 40.1 conform to the executions attached to this minute
MAY IT THEREFORE PLEASE YOUR LORDSHIPS
To order that there be a diet and to assign a date for that diet
IN RESPECT WHEREOF
Gerard A. Brown
84 Carlton Place