LORD ADVOCATE’S REFERENCE
STATEMENT OF ARGUMENT
in support of the Devolution Issues raised
for 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
Messrs. Livingstone Brown
1.1 The present Lord Advocate’s Reference was initiated by the Lord Advocate in on 21 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.
1.2 At the time of the initiation of the Lord Advocates Reference to the third respondent 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.
1.3 On or about 6 September 2000, after discussion with counsel and having considered the terms of the Sheriff’s report, the third 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.
1.4 The matter was again raised with counsel representing the Lord Advocate immediately 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 in the light of the observations of the third respondents and of the amicus curiae.
1.5 On 29 September 2000 the matter again came before the court on the preliminary hearing continued from 12 September 2000. At that hearing, Duncan Menzies QC, 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.
1.6 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. On 2 October 2000 the third respondent served a Notice of her Intention to raise these Convention rights issues as against the Lord Advocate as a Devolution Issue under and in terms of Rule 40.4 of the Act of Adjournal (Devolution Issue Rules) 1999.
Applicability of Article 6 ECHR
2.1 As against the Lord Advocate, and before the present court, the third respondent wishes to assert their rights under Article 6 to a fair trial in the present proceedings. The position of the Lord Advocate, as understood by the third respondent, is that Article 6 cannot be relied upon against him by 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” The third respondent submits that any such submission on the part of the Lord Advocate should, however, be rejected by this court as being based on a unjustifiably restrictive reading of the terms of Article 6. As the Strasbourg Court has noted, the right to a fair trial is seen as holding so prominent a place in democratic society that there is no justification for interpreting Article 6(1) restrictively.1
2.2 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’s rights to a “fair trial” are to be recognised and protected by the court in the current proceedings.
2.3 As the Strasbourg Court has noted:
“The Court recognises that it may be difficult to define exactly the field of application of paragraph 1 of Article 6 (Article 6(1). … The [Belgian Government’s arguments [against the application of Article 6(1) in criminal proceedings before the Court of Cassation] are based essentially on the words ‘bien-fondé de toute accusation’ (‘in the determination of any criminal charge against him’) which delimit the scope of Article 6(1) in criminal cases. Article 95 of the Belgian constitution provides that the Court of Cassation ‘does not deal with the merits of the cases submitted to it’. Accordingly in the Government’s view there is not, strictly speaking, a prosecution or a defence before that Court: prosecution and defence cease to exist the moment that the judges dealing with the merits give judgment in final instance, subject to the possibility of their being reborn in the event of the Court of Cassation referring the case back to a lower court after quashing the decision attacked. For the rest, the Court of Cassation does not go into the substance of the offences alleged against the accused persons and judges not persons but judgment in regard to which it confines itself to supervising their validity. The court [of Cassation] does not therefore determine criminal charges. …
The Court [of Human Rights] cannot accept this view. Judicial decisions always affect persons. In criminal matters, especially, accused persons do not disappear from the scene when the decision of the judges at first instance or appeal give rise to an appeal in cassation. The judgment of the Court of Cassation can only confirm or quash such a decision – and not reverse or replace it – that judgment may rebound in different degrees on the position of the person concerned. He loses his status of a convicted person or, as the case may be, the benefit of his acquittal. …
Furthermore, the term ‘bien fondé’ which is found in the French text of Article 6(1) refers not only to the accusation being well-founded in fact, but also to its being well-founded in law. …
Article 6(1) of the Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before the court the fundamental guarantees contained in Article 6. … There would be a danger that serious consequences might ensue if the opposite view were adopted; the Principal Delegate of the Commission rightly pointed to these consequences and the Court cannot overlook them. In a democratic society within the meaning of the Convention the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision” 2
2.4 It is submitted that the fact that the purpose of the Lord Advocate’s reference is “to clarify the law for the future” 3 and shall not affected the acquittal of the respondents in the particular trial before Sheriff Gimblett does not mean that the protection of Article 6 can no longer be prayed in aid by the respondents. The present proceedings ultimately will determine as a matter of law the propriety and correctness of the criminal charges taken against the respondents.
2.5 In any event, even if the present proceedings cannot be said to involve the (final) determination of a criminal charge against the third respondent, it is clear that the decision of this court is not simply one of hypothetical, theoretical or academic interest. Instead these proceedings will result in a formal legal ruling by this court which will be relied upon by the Lord Advocate in future proceedings. It will, if the questions currently asked by the Lord Advocate, result in a legal determination of the rights and obligations of individuals in the situation of the third respondent to carry out direct action and will delimit the extent of lawful civil resistance. It will thus determine her civil rights for the future. These proceedings would accordingly then fall within the first (civil) limb of Article 6.
2.6 As the Strasbourg Court observed in Delcourt “judicial decisions always affect persons”. It is submitted that the third respondent falls into the Convention category of “victim” for the purposes of the present proceedings, taking into account the following considerations, among others:
(i) she has been subjected to criminal prosecution in respect of her actions;
(ii) 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
(iii) if the present proceedings are successful in this end then the third 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. To adopt the words of the Strasbourg Court observed in Delcourt, she will lose her “status” as an acquitted person
(iv) She will also lose the “benefit” of her acquittal (again echoing Delcourt in that any such finding by this court will mean that her future actions as a conscientious peace protester will be proscribed.
(v) Further, the third 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.
2.7 In any event, the terms of Section 123 of the Criminal Proceedings (Scotland) Act 1995, in effect, recognise the third respondent’s interests in these proceedings by giving her a statutory right, under Section 123(2) either to appear personally at the hearing into the reference or to be represented thereat by counsel paid for (under Section 123(4)) by the Lord Advocate. Thus the third respondent is not a party to the present proceedings because of any indulgence exercised by either the Lord Advocate or the court. She has a right to be here, because the statute recognises that her interests may be directly affected by the outcome of these proceedings.
2.8 These proceedings are not then simply to be regarded as the Lord Advocate’s “ball game” in which he seeks the advice of the court on a matter of general interest. Instead he is permitted under Section 123(1) “to refer a point of law which has arisen in relation to that charge”, that is to say the charges against the third respondent in respect of which she was tried on indictment and acquitted. Thus, these are proceedings in which, in effect, it is sought again to impugn the propriety and legality of the third respondents’ conduct in respect of which a not guilty verdict was pronounced. Since the third respondent’s action are again being put on trial (albeit that by virtue of Section 123(5) she will not be convicted or sentenced if the court finds that she ought to have been found guilty) she is entitled to the protections of a fair trial in these proceedings, just as in their original trial.
2.9 For all these reasons, it is submitted that for the purposes of the Convention the third respondent may properly be regarded as both an actual and a potential victim in relation to the present Lord Advocate’s Reference and as such constitutes an individual who may, under reference to Section 7(1)(b) of the Human Rights Act, rely directly on her Convention rights in the present proceedings claim from this court full and proper protection of her rights under the Convention, under reference to Section 6(1) of the 1998 Act.
2.10 It should be noted in this regard that Section 22(4) of the Human Rights Act provides that Section 7(1)(b) of the Act “applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section” which is to say prior to 2 October 2000. By virtue of this section, then, it is open to the third respondent to complain of breaches of her Convention rights by the Lord Advocate prior to 2 October 2000, without requiring to rely upon the provisions of the Scotland Act 1998 and any procedural rules made thereunder.
Breaches of Article 6
3.1 In Albert and Le Compte v. Belgium 4 the Strasbourg Court confirmed that the civil and criminal aspects of Article 6(1) were not mutually exclusive and that Article 6(2) and 6(3) simply embodied aspects of the notion of fair trial which were also protected in a civil context by Article 6(1). A special importance is however attached by the Court to the rights of the defence in criminal proceedings. 5 States are required to exercise diligence in ensuring such rights of the defence and any measures restricting them are permissible only if “strictly necessary”. 6 It is submitted that currently the present proceedings, whether described a criminal civil or advisory, fall short of the requirements of Article 6 and/or the demands of natural justice.
3.2 In particular, the principle of “equality of arms” embodied in Article 6 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. 7 All parties in court proceedings must be able to participate effectively in those proceedings and measures taken in the conduct of court proceedings must be reconcilable with an adequate and proper exercise of the rights of the defence. 8 Further, the Strasbourg Court has affirmed that “in this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice.” 9
Questions not arising from the trial against her
3.3 In particular, the third respondent has been required to prepare a substantive response to question 2 which does not properly identify the points of law which in fact arose in relation to the original trial and charges against her.
3.4 There is therefore 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 third respondent’s acquittal. 10
3.5 In particular, question 2 as currently framed by the Lord Advocate, with its reference to private individual’s “objection to the United Kingdom’s 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, as follows:
“[The] three accused considered that Trident was being used illegally, based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal, and as a I understand from Miss Zelter they do not propose that possession of such weapons in illegal but the use and threat is illegal. Then again they had a right particularly given the enormity or the risk of nuclear weapons to try and do something to stop that illegality.” 11
“I have to conclude that the three accused ladies in front of me in company with many others were justified in thinking that their Britain in their use of Trident not simple possession, their use and deployment of Trident allied with that use and deployment at times of great international unrest, coupled with first strike reservation and in the absence of any indication from any government official then or now that such use fell into the very strict category suggested by the International Court of Justice in their Opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other states, and as such is an infringement of international law. I think following on from that, although it was not touched on this morning, is the three accused took the view that if it was illegal and given the horrendous nature of nuclear weapons they had an obligation in terms of international law, never mind morally, to do the little they could to stop the going about the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the objecting [sic – possession ?] per se. It follows I think that if I considered that Miss Zelter, Miss Roder and Miss Moxley were justified in the first leg of their defence, namely the international law defence, and had given that as their principal reason for their actions that the Crown has a duty to rebut that defence. They have not done so and accordingly I uphold the three Defence submissions to the extent that they relate to the charges of malicious and wilful mischief.” 12
“She [Ms. Zelter] was asked [in cross-examination by the Procurator Fiscal] where in the [Advisory] Opinion [of the International Court of Justice] is said the possession of nuclear weapons was illegal. She referred to earlier parts of her evidence on this matter and again confirmed that the Opinion did not say that possession was illegal, but one had to look at the use and deployment of weapons as a whole. She pointed out that the court was not being asked about possession of nuclear weapons; what she was talking about was the active deployment of loaded Trident submarines. The present position was that it was possible to possess them, i.e. keep tem in store, but you could not use them. It was the threat of nuclear weapons which was illegal and that most other countries regarded the United Kingdom’s possession and deployment as a threat.” 13
“Your Lordships had been partly addressed on the issue of nuclear weapons in the Helen John case 14 but from the report which I have read it seems that you were not addressed at length and although I could see that you had carried out your own research, I did not know how far that research had extended. In any event, the Helen John case dealt with the possession and not with the treat or use of such weapons.” 15
“Given the growing anxiety among member so the public concerning nuclear weapons in general, and particularly in Scotland and given the troubled times internationally it is perhaps right and proper that all the matters raised in this trial and those outlined in the petition should be considered. It is clear that these there ladies are not the last of the peace protesters and they and their many followers from all walks of life need your decision on the legal point raised and your opinion on threat and deployment of nuclear weapons and what constitutes such, possession having already been considered in the Helen John case.” 16
3.6 Further and in any event, 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 abut 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 at a time of great international unrest.
3.7 Read in the light of the proper protection of the third respondent’s rights under Article 6 ECHR, Section 123 of the Criminal Procedure (Scotland) Act 1995 must mean that the Lord Advocate has no power to refer a point of law which has not arisen in relation to the third 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 third respondent, and the defences which she in fact offered to those charges.
Lack of specification in questions
3.8 Further and in any event, questions 2, 3 and 4 are so lacking in specificity that it thereby fails to give due notice to the third respondent as to the case for which she has to prepare as to render the present proceedings “unfair” for the purposes of Article 6 17. This lack of specification is also it is submitted in breach of the third respondent’s rights (specifically articulated in the context of Article 6(3)(a) in relation to persons charged with a criminal offence) to be informed promptly and in detail of the nature and cause of the case against her challenging the lawfulness of her acquittal.
3.9 In particular, the reference in Question 2 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 third respondent is left arguing in the dark. 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.
3.10 Evidence, it would seem, would have to be led on this matter if the Lord Advocate seriously wishes to discuss the United Kingdom’s policies on nuclear weapons. At the moment, however, there is a breach of the requirements of fairness in Article 6 because it would seem that at the proposed substantive hearing into this 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) will be made available to all parties, including the third respondent. 18 The third respondent is therefore being denied her Article 6 rights properly to contest any position taken by the Lord Advocate’s position on the matter of what are the policies of the United Kingdom in relation to the deployment and use of Trident II. 19
3.11 Further and in any event, by virtue of Article 6(3)(d) a person charged with a criminal offence has a specific right “to obtain the attendance and examination of witnesses on her behalf”. Since, as the Court noted in Delcourt, “the term ‘bien fondé’ which is found in the French text of Article 6(1) refers not only to the accusation being well-founded in fact, but also to its being well-founded in law“, and the present proceedings are concerned with the lawfulness of her acquittal this may mean that the third respondent has a right to bring expert witnesses as to the relevant (international) law on which she based her defence.
3.12 Question 3 does not focus on the factual issues raised in the trial and 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 again 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. Again, the wording of the question is such that it gives absolutely no indication to the third 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.
3.13 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 third 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 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 third respondent is 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 third respondents’ right under Article 6 to have adequate time to prepare their case in response.
3.14 That 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 days prior to the hearing on behalf of the Lord Advocate setting out what he envisages arguing. Insofar as any such Statement of Argument appears to limit the basis on which he is to be arguing before the court, then the Lord Advocate 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 third respondent, however.
Remedies for breach of Article 6
4.1 The unfairness to the third respondent in contravention of Article 6 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 third respondent’s trial; and secondly by his giving the third respondent fair and specific notice of the approach which would be taken by him in relation to these duly amended questions. 20 He 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 third 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.
4.2 The court, too, is itself directly bound by Section 6(1) of the Human Rights Act and is therefore required itself to act in a manner compatible with the third respondent’s Convention rights to a fair trial. Thus, if the Lord Advocate is insistent on his wish to continue with the current Section 123 proceedings, the unfairness therein might be remedied by this Court first, reformulating the questions asked so that they properly reflect the issues raised at the third respondent’s original trial and, secondly, ordering the Lord Advocate to give fair and specific notice to the third respondent to these re-formulated questions. It is submitted that the principle of equality of arms requires that the Lord Advocate’s position on these questions, and the legal basis on which he will argue for particular answers be disclosed to the other parties hereto in sufficient time for them to prepare their case in reply to him. As Article 6(3)(b) notes in the context of a person charged with a criminal offence, that they should have adequate time and facilities for the preparation of their defence
4.3 It should be noted, in this regard, that there is nothing in Section 123 of the Criminal Procedure (Scotland) Act 1995, the primary Westminster legislative provision which governs the present procedure, which prevents or is otherwise incompatible with the court making such orders. In any event, it is the court’s duty under Section 3(1) of the Human Rights Act to read and give effect to these primary legislative provisions in a way which is compatible with the third respondent’s Convention rights, if necessary by reading appropriate words therein where the statute is silent. 21
4.4 And any subordinate legislation (defined in Section 21 as including “(a) Orders in Council, (b) Acts of the Scottish Parliament, and … (f) orders or other instruments made under primary legislation” – for example Acts of Adjournal and Acts of Sederunt) which might prevent such the court from reformulating the questions and directing the Lord Advocate, should he wish to continue with the Section 123 Reference, to give fair notice to the third respondent’s of his approach thereto, should be over-ruled or dis-applied, by virtue of Section 3(2)(c) of the Human Rights Act.
5.1 The protection which the court is required to afford fair trial rights under the Convention rights has to be practical and effective rather than theoretical or illusory. 22 And as Lord Hope noted in R v. Director of Public Prosecutions, ex parte Kebeline and others:
“In Attorney General of Hong Kong v. Lee Kwong Kut  AC 951 at 966, Lord Woolf referred to the general approach to the interpretations of constitutions and bills of rights in the previous decisions [of the Judicial Committee of the Privy Council] which he said were equally applicable to the Hong Kong Bill of Rights Ordinance 1991. He mentioned Lord Wilberforce’s observation in Minister of Home Affairs v. Fisher  AC 319 at 328 that instruments of this nature call for a generous interpretation suitable to give individuals the full measure of the fundamental rights and freedoms referred to, and Lord Diplock’s comments in Attorney General of the Gambia v. Momodou Jobe  AC 696 at 700 that a generous and purposive construction is to be given to that part of the constitution which protects and entrenches fundamental rights and freedoms to which all persons in the State are to be entitled. The same approach will now have to be applied in this country where issues are raised under the Human Rights Act 1998 about the compatibility of domestic legislation and of the acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention.” 23
5.2 By imposing a new rule of statutory interpretation, Section 3 of the Human Rights Act renders pre-Human Rights Act decisions (insofar as based upon a different rule of statutory interpretation) ipso facto distinguishable. The statutory duty under Section 3 requires all courts to interpret legislation in a new way, and they cannot be prevented from so doing by precedent. As Francis Bennion has noted:
“No pre-1998 Act court decision on the legal meaning of an enactment to which a Convention right is relevant can now stand unexamined. Even though it truly reflected the intention Parliament had when passing the enactment, the decision needs to be looked at again in the light of [the interpretative obligation set out in] Section 3(1). Parliament’s original intention is no longer the sole deciding factor. While it retains its importance, it must now be reassessed in the light of the new rule. For pre-1998 Act enactment the interpretative criteria can therefore be ultimately reduced to legislative intention plus [Convention] compatible construction rule, to which must now be added the fundamental rights criterion [set out by Lord Hope in R v. Director of Public Prosecutions, ex parte Kebeline and others  4 All ER 801 at 838-839].” 24
5.3 It is not enough, then for the court of the Lord Advocate to rely on past practice in relation to the manner in which Lord Advocates References have been conducted to date. These proceedings take place under a devolved Lord Advocate required to respect the terms of the Convention before a court which itself from 2 October 2000 has also require to ensure full respect for the third respondent’s Convention rights, both in the substance of their decision and the manner and in the procedure adopted in relation to coming to that decision. Failure on the part of the Lord Advocate to respect the third respondent’s Convention right in the manner in which he has conducted or proposes to conduct this hearing is unlawful by virtue of Section 6(1) of the Human Rights Act and insofar as there is any need to invoke the procedures under the Scotland Act, potentially gives rise to a Devolution issue.
5.4 Further, in the context of the present proceedings all previous procedural interlocutors pronounced in the course of these proceedings prior to this court becoming directly bound by the requirements of the Convention on 2 October 2000 will have to be re-considered in the light of the requirements of the Convention to ensure the compatibility of the current procedures post 2 October 2000 with the third respondent’s Convention rights.
5.5 In the whole circumstances, the court is therefore asked, before considering the arguments on the substance of the questions currently proposed by the Lord Advocate, either to dismiss this reference insofar as it relates to questions 2, 3 and 4 without further inquiry, because of the aforelisted breaches of the third respondent’s rights under Article 6 ECHR.
5.6 Should the Lord Advocate indicate to the court that he wishes to make a reference which does in fact arise out of the third respondent’s trial and acquittal, then unless he offers and adequate re-wording of it, Questions 3 and 4 should still be dismissed on grounds of lack of its irrelevancy and lack of specification. It is submitted that the court should order the reformulation of the entire reference as follows.
5.7 First, the additional or new question proposed by Ms. Zelter, namely: “Is the UK actually in breach of international law in its deployment of the Trident system, given the United Kingdom Government’s present ‘nuclear deterrence’ policy?” should be included by the court in the reformulated reference, since it is clear that the issue at trial was the question as to whether or not in its current deployment of the Trident system the United Kingdom was acting illegally under international law, and if so what rights and obligations the respondents might have in response to such illegal action. Such a question arises directly from the respondents’ trial as is clear from the terms of the Sheriff’s ruling, on the basis of the evidence and legal submissions put to her in the course of the trial, in which she found in the following terms that the UK Government’s current policy on Trident was illegal under international law:
“I have to conclude that the three accused ladies in front of me … were justified in thinking that their [sic] Britain in their use of Trident not simple possession, their use and deployment of Trident allied with that use and deployment at times of great international unrest, coupled with first strike reservation and in the absence of any indication from any government official then or now that such use fell into the very strict category suggested by the International Court of Justice in their Opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other states, and as such is an infringement of international law.” 25
5.8 Secondly, a reformulation of the current Question 2 might then be ordered so that it accurately captures the issue raised at trial and conforms to the third respondents fair trial rights. It is submitted that such a re-formulation should be in the following or similar terms:
“Does any rule of domestic or International Law justify an individual in Scotland damaging or destroying property by way of an attempt to prevent the commission of State act or acts which are themselves deemed criminal under customary international law, namely all or any of the following:
(i) the United Kingdom’s current threat to use its Trident II nuclear weapons;
(ii) the United Kingdom’s actions in deploying its Trident II nuclear weapons at locations within or outwith Scotland; or
(iii) the United Kingdom’s policies, including reservation of the possibility first strike use, in relation to its Trident II nuclear weapons.”
5.9 Such reformulation will ensure that the legal questions on the basis of which the third respondent was in fact acquitted after her trial are indeed properly before the court, thereby ensuring preservation of the third respondent’s Article 6 rights which are being breached by the current procedure which effectively seeks the reversal of her acquittal on different grounds from those under which she was acquitted.
2 October 2000
Edinburgh EH1 1RF
AIDAN O’NEILL QC
2. Delcourt v. Belgium A/11 (1979-80) 1 EHRR 355 at paragraphs 22-26. See, too: 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
6. See, for example: Colozza v. Italy Judgment of 12 February 1985, A/89 (1985) 7 EHRR 516 at paragraph 28; Hamer v. France, Judgment of 17 December 1996, RJD 1996-III No. 13 at paragraph 28; and Van Mechelen v. Netherlands, Judgment of 23 April 1997, RJD 1997-III No. 36 at paragraph 58
“That right [contained in Article 6] means in principle the opportunity for all parties to a criminal or civil trial to have knowledge of and comment on all the evidence adduced to observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision.”
“[T]he greater flexibility available to the court in applying a purposive construction to legislation designed to give effect to the United Kingdom’s Treaty obligations to the Community enables the court, where necessary, to supply by implication words appropriate to comply with those obligations. … Having regard to the manifest purpose of the regulations I do not for my part feel inhibited from making such an implication in the instant case.”
See, too, R v. Secretary of State for the Environment, ex parte Greenpeace  4 All ER 352 per Potts J. at 365:
“The [interpretative] principle does not permit the plain meaning of the statute to be distorted, but allows words to be read in when a statute is silent”.