Report of Proceedings
Sheriff Court, Greenock Sheriff M. Gimblett, and a Jury
H.M. ADVOCATE v. ANGELA CHRISTINA ZELTER, BODIL ULLA RODER and ELLEN MOXLEY
Tuesday, 19th to Thursday 21st October 1999
Mr. D. Webster, Procurator-Fiscal, for the Crown;
Mrs. A. Zelter, First Accused, appeared on her own behalf;
Mr. J. Mayer, Advocate, for the accused Roder;
Mr. J. McLaughlin, Advocate, for the accused Moxley.
TUESDAY, 19th OCTOBER, 1999
MRS. ZELTER: I really would like to go through three basic matters (inaudible), the common law defence of coercion or necessity, a Statutory defence, and an international law defence.
If we start with the common law defence of coercion and necessity. In Scots law the defence of necessity may be used where the accused has done something which is on the face of it unlawful but which is justified by the extreme circumstances of the situation. For instance you are permitted to destroy property belonging to a person in order to save his life. By committing a crime you have avoided the greater evil. The concept that one should not be punished when an act of breaking the law prevents more evil than it has caused is an essential and basic part of common law.
An important case is that of Moss v. Howdall, and I refer to my Bible of references, where a driver exceeded the speed limit by driving too fast to the nearest service station because his passenger was suffering from severe pain. The defence of necessity was available to this particular defendant and therefore it can be open to me too.
SHERIFF GIMBLETT: Mrs. Zelter?
MRS. ZELTER: Yes?
SHERIFF GIMBLETT: I am not sure if Mr. Webster has a copy of this case.
MRS. ZELTER: In this particular case the court found that the driver could have prudently followed an alternative course of action which would not have involved committing the offence, i.e. the driver could have pulled over to the side of the road rather than speeding. The court found the driver had had a real choice and was not constrained to commit the offence.
The Lord Justice General said the defence cannot apply (inaudible) did not in fact constrain the accuse to act in breach of the law. The common law basis of these requirements, minimum requirements of the defence of necessity, are made out sensibly in Moss v. Howdall and they consist of three.
One, that the accused acted in the face of danger of death or great bodily harm. Two, that it makes no difference where the danger arises from, it can be from a natural disaster, an illness, (inaudible) other danger, and three, that there is no other reasonable legal alternative to disobeying the law.
If I can take you through them one by one, the first, I will show that I acted in the face of immediate danger of death or greater bodily harm. Since the question of whether or not there is such a danger is a question of fact and not law it is of no import to this question as to whether British nuclear weapons are legal or illegal in international law. Even if the use of nuclear weapons was to be perfectly legal, which I of course dispute, the viability of this defence is not affected.
The ICJ opinion is of use in this regard not for the statement of law but as an authoritative and comprehensive review of the effects of nuclear weapons upon human life, health and habitat. It includes the detailed review of the current dangers of nuclear weapons. These are based on the testimony of many of the witnesses who gave oral testimony during the proceedings of the ICJ. In detail they are precedented magnitude of the destructive power of nuclear weapons which is uncontainable in both space and time, with the potential to destroy the entire nuclear system of the planet…..
SHERIFF GIMBLETT: Mrs. Zelter, I don’t think it is necessary at this stage that you (inaudible) this may be something that you would like to address the jury on when you address them.
MRS. ZELTER: I wasn’t sure that I would be allowed to which is why I wanted to say it to you.
SHERIFF GIMBLETT: Yes. I can see why you are addressing me on the question of necessity. In fact I think probably it would be fair to say that I am very familiar with the case of Moss v. Howdall and as far as you addressing me on if you like the basics (inaudible) I would totally agree with you there and I am not ruling out your defence of necessity, but that is for them not for me, and in your charge the things you are saying now that is properly put to them and it might help you to curtail a little of what you are saying to me now. I don’t want to hold you back too much but this is a matter which should properly go to the jury and nothing to do with me. I fully accept the defence of necessity and that obviously as part of my job I will be addressing the jury on my understanding of the law, (inaudible).
MRS. ZELTER: Would it be useful to tell you some of my thoughts about imminence and immediacy or should that wait for the jury as well?
SHERIFF GIMBLETT: Yes, I think so, because (inaudible), you will see the things that are absolutely vital to such a defence. If you wish to say the points that you think should be mentioned of course I will give you guidance on that.
MRS. ZELTER: I was going to say the question of imminence and how immediate a danger this would be is obviously arguable.
SHERIFF GIMBLETT: Yes, I think that is something that would be necessary to go to the jury, certainly a part of it, and obviously that will be reflected in some the questions which the Procurator-Fiscal has put to you.
MRS. ZELTER: Well I think as you have said that the defence is open to us I will leave that one and go on to the statutory……
I would like to bring your attention to Reference 4. It might be of use for this court to know that other judges facing a similar dilemma whether to convict or acquit peace protestors under the necessity defence have acquitted and there is an interesting Law Review article which gives a number of examples of people disarming nuclear weapons systems and (inaudible) necessity defence. For instance People v. Jarka in Illinois in 1995 where Judge Alfonse De Witt instructed the jury as follows: “The use or threat of use of nuclear weapons is a war crime or an attempted war crime because such use would rally international law by causing unnecessary suffering failing to distinguish between competent and non-competent and poisoning of targets by radiation.
And in 1982 in the case of People v. Bermitza(?) which involved an attempt to save lives by preventing further nuclear weapons preparation at the (inaudible) National Laboratory and the defendant also was acquitted on the principle of necessity.
Also more recently, on June 8th, eight activists who peacefully blockaded traffic into a U.S. Trident submarine base in the USA were found not guilty when Judge James Weil(?) told the jury to consider in their deliberations the fact that international treaties superseded local state and federal (inaudible).
If I could move on to the statutory defence, having the charge of wilfully and maliciously causing damage, to show that I had a reasonable excuse…..
SHERIFF GIMBLETT: I think perhaps you are continuing two things here. It is possible in Scotland to charge someone with this sort of offence but under Statute and that is the case that I think you will remember of Helen John. The court dealt with the reasonable excuse. In this indictment in which you are accused of the same offence but not under Statute. So there are defences open to you but not a Statutory defence. But the question of why you did it and the reasons may very well be wrapped up if you like in the whole question of necessity and I have no doubt Mr. Mayer or Mr. McLaughlin may elaborate on that. I don’t know.
MRS. ZELTER: I think it’s probably relevant to go through various elements though to prove that I didn’t act wilfully and maliciously.
I would suggest there might be six elements within that. One, preventing a crime is a reasonable excuse in Scots law. Two, that international law is relevant in Scotland. Three, the threat and use of Trident nuclear weapons is a crime in international law. Four……
SHERIFF GIMBLETT: Sorry, third is………
MRS. ZELTER: Third, that the threat and use of Trident nuclear weapons is a crime under international law. Four, that I honestly believe this crime was being committed and was imminent. Five, that I really do believe there was a practical link between my action and the prevention of the crime, and six, that my action was reasonable in the circumstances, that I had considered alternative courses of action and that I could not do anything else effectively to prevent the crime. Now, briefly let’s take two of those elements.
SHERIFF GIMBLETT: Again, that’s the proposition (inaudible) objecting to any of that (inaudible) then the view might be taken about whether it is a crime under international law but the facts, what you want to do is put them to the jury for them to consider. Is that right?
MRS. ZELTER: In Scots law the belief that one is preventing or halting a greater crime is a reasonable excuse when charged with offences against property. I would like to bring to your attention the case of McDougall v. (Inaudible) which is Reference 5.
SHERIFF GIMBLETT: Again, I am familiar with that and I can consider it.
MRS. ZELTER: One of the things — in the case of the second element international law is relevant in Scots law, the position of the Scottish courts as far as I am aware is that customary international law is part of Scots law although in case of a conflict with the Statute or precedent that Statute or precedent must prevail and it’s to be noted that for vandalism there’s no legislative guidance on the meaning of (inaudible) therefore it would be valid to look to customary international law to determine the meaning of the phrase, and I would like to refer to Morton v. Peters case, Reference 6.
My Lord Camlachie stated — I don’t know if I am pronouncing that right — there’s always a certain presumption against the legislature of a country asserting or assuming the existence of territorial jurisdiction going clearly beyond limits established by the consent of nations, that is to say by international law. It was indicated that when it cannot be said that the Scottish Statute contains express words or (inaudible) international law is agreed in determining the lead of the legislation or of common law. In this way international law can have a highly significant role in the Scottish courts.
For the court to apply a rule of customary international law I refer to Reference 7, the Pristina case. For the courts to apply a rule of customary international law it must have attained the position of general acceptance by a civilised nation as a rule of international conduct evidenced by international treaties and conventions or authorative text books, practice and judicial decisions.
Reference 8 is by Ian Brownie, Principles of Public International Law, and he says on page 4, “Customary international rules are all to be considered part of the law of the land and enforced as such”. I further contend that customary international law is binding on all faiths and is incorporated automatically into Scots law and refer you to Reference 9, Tremtex Trading Corporation v. The Central Bank of Nigeria. It’s the (inaudible). In its law (inaudible) “I now believe that the doctrine of incorporation is correct otherwise I do not see that our courts could ever recognise a change in the rule of international law. It is certain that international law does change. Thus when a rule of international law be changed by the course of public opinion first to condemn slavery the English courts were justified in applying the rules of international law.
Lord Denning in (inaudible) was cited with approval by Lord Oliver in Reference 10, McLean Watson v. Department of Trade and Industry, and as recently as March 24th, 1999 in Regina v. Bow Street Metropolitan Stipendiary Magistrate (inaudible) Pinochet in Glasgow — that’s Reference 11 — Lord Miller said in that case customary international law was part of the common law.
I further contend that the advisory opinion of the International Court of Justice is controlling because it is the authorative articulation customary international law on the legality of the use or threatened use of nuclear weapons. Moreover a recent Times Law Report on the 19th of May, 1999 shows that national courts must take cognisance of ICJ advisory opinions, Reference 12. The report stated “The Government of Malaysia was obliged and indicated the advisory opinion to the Malaysian court in order that Malaysian international obligations be given the effect and Mr. (inaudible) immunity be respected”.
In the war crimes tribunals for the former Yugoslavia and Rawanda are explicity based on what I have articulated, customary international law as it stands today relating to humanitarian law (inaudible). The international laws that I rely upon in this case are applicable to every nation and every individual within these nations regardless of their rank or status.
Now although customary international law is part of Scots law in cases of conflict with the Statute or precedent the Statute or precedent must prevail. Some people have taken the view because the Trident programme is official and because yearly Defence budgets have found amounts of money for Trident that therefore the nuclear weapons programme appears to be authorised by Parliament. In fact Parliament was initially kept totally in the dark, the Prime Minister actually managed to spend £100 million on the nuclear programme without informing Parliament and Churchill was re-elected in 1951 admitted at the time to discovering this and maintained the same veil of secrecty. Parliament is still kept uninformed about large parts of the nuclear programme. The current Government has refused to hold publicly accountable legal audit for Trident.
As far as I am aware there has been no specific Act of Parliament authorising Britain’s nuclear programme and I am not aware of any legislation which directly authorised Trident as such. As for the budgetary note Parliament (inaudible) to all Government programmes some of which are lawful and some of which are not, as some judicial reviews have uncovered. The very existence of judicial reviews makes it clearly a nonsense to suggest that the Government programmes cannot be questioned in a U.K. court. International law is incorporated into Scots law in so far as it is not in conflict of any specific Statutory provision and as far as I am aware there is no such provision regarding Trident.
To go to the third element, I have already spoken at length from the witness box to the third element in my defence, that the threat and use of Trident nuclear weapons is a crime in international law and I therefore refer you to that.
The fourth element, I honestly believe that a crime was being committed and was imminent. I don’t want to go through the evidence arguments again when I refer you to the (inaudible). I think maybe the only thing I want to deal with here is that the P.F. seem to be suggesting that Trident would have to be actually launching its nuclear missiles before a crime is imminent or before one could detect the danger in order to be able to prevent a crime lawfully. That makes no sense to me in such a complex system.
I would argue that in ordinary life we don’t wait for precise (inaudible) faulty wiring will go up in flames or when gas mains will explode, any prudent and responsible person acts immediately they sense a danger. If an event can be reasonably foreseen to happy at some unspecified time or other, either over a course of years or it could of course come about immediately, then that danger is a real one.
There would be neither time or opportunity for reasonable and peaceful intervention like our own to prevent the terrible crime of mass destruction at the actual time that nuclear weapons are launched, apart from the fact that we are extremely unlikely to know when exactly a (inaudible) nuclear weapons.
The fifth element, I reasonably believe there was a practical link, I think that probably comes under something I picked out during (inaudible), actions reasonable in the circumstances pertaining.
I think we can go on to the international law defence. Judge Sharwood said on page 9 I think in the sentencing of (inaudible) once it is shown that the use of a weapon could annihilate mankind it returns to the conscience of the international community is not materially diminished by showing that it need not have that result in every case. It is not reasonable to respect that the conscience of the international community will both strangely and impossibly wait on the event to see if the results of any particular use is the destruction of the human species. The opposite consideration is the risk of annihilation, that result may not ensue in all cases, but the risk that it can is here in every case. The risk may be greater in some cases, less in others, but it is always present in sufficient measure to render the use of nuclear weapons unacceptable to the international community in all cases.
Again I’d like to refer to my testimony where I did explain fully why U.K. nuclear weapons are illegal and criminal, and which international law was being broken. I don’t want to repeat them here.
As Professor Boyle corroborated it is every citizens’ right and duty to try and uphold international law and prevent war crimes and crimes against peace, which is what our act was about. If you look at Reference 27, (inaudible) in Professor Boyle’s paper on the criminality of nuclear deterrents, states that every person around the world possesses the basic human right to be free from the criminal practice of nuclear deterrents, and its contomitent spectre of nuclear distinction, all human beings possess the basic human right under international law to engage in non-violent civil resistant activities designed for the express purpose of preventing, impeding or terminating the ongoing commission of these international crimes by the confirmed Government officials in the world nuclear weapons states. The universal declaration of human rights, Reference 31, as the chief exponents of customary international law would regard fundamental human rights irrelevant here, the preamble says the General Assembly proclaims this universal declaration of human rights as the common standard of achievement for all peoples and all nations. To the end that every individual and every society keeping this declaration constantly in mind shall strive whilst aggressive measures national and international to secure the universal and effective recognition and observance both among the people of member states themselves and among the people in the territories under their jurisdiction, the right of then outlining the charter or if possible reconcile with the use of nuclear weapons. If you just look at the first article they are all act towards one another in the spirit of brotherhood for instance, it is obvious that this (inaudible) threatening mass destruction.
I therefore argue that I have the peaceful privilege if not duty under this U.N. declaration of human rights to effective hearing by the U.K. Government and military to this declaration. The Nuremberg Charter also authorises me to act in order to prevent the commission of crimes recognised under international law, Reference 16, the International Military Tribunal, faced with the contention that international law provided the punishment to individuals held as follows. That international law imposes duties and liabilities upon individuals as well as states has long been recognised. Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provision of international law be enforced. The true test which is found in varying degrees in the criminal law of most nations is whether moral law — is whether moral choice (inaudible).
This duty derives from Article 8 of the Charter of the International Military Tribunal which you will find at Reference 16, that states that the fact that the defendant acted pursuant to order of his Government or his superior shall not free him from responsibility in international law. Similarly in the trial of German industrialists for war crimes committed during World War II the Tribunal stated with respect to private individuals, and this is Reference 32, and I think that one’s missing from your…… International law as such binds every citizen just as does ordinary municipal law, acts adjudged criminal when done by an officer of the Government are criminal when done by a private individual, the guilt differs only in magnitude not in quality, the offender in either case is charged with personal wrong and punishment falls on the offender in appropriate (inaudible). The application of international law to individuals is no novelty.
One example is that of a German businessman who provided the Dyclon B gas that was used in the gas chambers in Nazi Germany and who were eventually found guilty and sentenced to death for their breaches of international law, Reference 33. Saying they were only running a business and providing jobs and pretending that they didn’t know what the gas was to be used for was no defence. Now I am contented that if international law punishes individuals for complicity in the commission of war crimes, crimes against peace, crimes against humanity, and offences against the peace and security of mankind, then by inference international law must authorise (inaudible) to prevent those crimes. To go back to the German industrialist who was found guilty after they had plotted to kill thousands of people, it is quite obvious that any responsible citizen who had tried to prevent the gas from reaching the chambers or who tried to prevent the research of the gas taking place, even if she had caused some property damage would have been acting lawfully. Just as Jackson the Chief Prosecutor in the 1945 Nuremberg War Crimes Trial clearly establishes that the Nuremberg principles are inconsistent when they say the very essence of the Nuremberg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual states, and I can remind you of Professor Boyle’s testimony when he cited the recent Pinochet case where the legal opinion — the law lord, he didn’t mention his name, said explicity that the Nuremberg principles apply here in the U.K. today.
The Tokyo War Crimes Tribunal went so far as to declare anyone with knowledge of illegal activities had an opportunity to do something about it was a potential criminal under international law unless the person had taken affirmative measures to prevent the commission of crime. This is Reference 35 in the war crimes trials decisions, and I would like to repeat that. Anyone with knowledge of illegal activity had an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crime.
Now, the (inaudible) has confirmed that the Nuremberg Charter applies to nuclear weapons, thus military personnel should obey the Nuremberg Charter even if given a contrary order by a superior or by its national Government. The British Marinary Military Law actual expresses this principle in stronger language, Reference 36, where it says “If a person who is bound to obey a duly constituted superior receives from the superior an order to do some act or make some omission which is manifestly illegal, he is bound under a legal duty to refuse to carry out an order and if he does carry it out he will be criminally responsible for what he does”. This would mean in my submission refusing to fire nuclear warheads. But more importantly for this case the foregoing applies to my friends and I, we three did have knowledge of illegal activity and we had an opportunity to do something about it, therefore I contend that under international law I have a positive duty to take such steps that are reasonable and necessary to prevent the commission of war crimes and other violation of international humanitarian law and that this duty is supreme vis-a-vis the domestic law of any state which includes Scotland.
SHERIFF GIMBLETT: (Inaudible).
MR. MAYER: My lady, I’m conscious of the hour and your ladyship’s remarks to the jury regarding the timetable of events.
SHERIFF GIMBLETT: Yes. We may in fact however (inaudible) very shortly so whether we (inaudible) they may not all be there. So I think I would rather you started. When we come back at 2.15 we can maybe then if it seems appropriate then I can release them for the rest of the day or whatever. I think that is probably the way to go because although you may be finished quite early on in the afternoon I would have thought if they had some time to think about the matters that have been raised, on some of these matters I think I would like to take proper time and give you a reasoned decision (inaudible).
I don’t wish to rush you in any way but if you would like to start, Mr. Mayer, let’s do so.
MR. MAYER: I’m obliged, my lady. SHERIFF GIMBLETT: What I would say on the (inaudible) I would not have thought it was necessary for you to deal with that. I accept that that defence is live and it’s up to you what you claim or charge, obviously I will (inaudible) when I return to speak in my charge. I am much more interested in the international side, it may of course impinge on the question of necessity but it is the international law that applies. (Inaudible). If there is something however you think I should hear in your submission, please go ahead.
MR. MAYER: Your ladyship has had from me this morning a handwritten list of certain authorities and a typed version called a submissin by me on behalf of the second panel. I want to say immediately that the handwritten list and the submission were transmitted in an attempt to be helpful.
SHERIFF GIMBLETT: I accept that.
MR. MAYER: I’m obliged. And that neither of them is ex partie — I really now talking about submissions — and whilst I’m on my feet, my lady, it seems to me that being a legal submission there’s no need for translation because even if the panel were an English speaker she would be deemed not to understand the submission.
SHERIFF GIMBLETT: (Inaudible) knowing if Miss Roder is bright — I don’t mean that disparagingly — is intelligent and is interested in this whole trial as clearly as Mrs. Zelter and Miss Moxley are then I think it appropriate that anything you have to say even if it is legal is translated to her. Please go slowly, I think she would appreciate that.
MR. MAYER: Yes. I thought — I will try to do this as quickly as possible.
SHERIFF GIMBLETT: Perhaps I could check, if that is her wish, I mean, I was thinking that…….
Could you ask her if that is what she would like, a translation?
MR. MAYER: It appears that the second panel would prefer to hear a translation.
SHERIFF GIMBLETT: I’m sure I would if I were in her position and I am very happy that you should continue. If you don’t mind — are you quite happy to continue translating?
THE TRANSLATOR: I am quite happy to continue.
SHERIFF GIMBLETT: Yes, right.
MR. MAYER: My submission which I have typed is to be understood of course as only one way of seeing the defence available to the second panel. It is however in my submission the most comprehensive way of seeing the defence. That the admission within that comprehensive (inaudible) two things, there are matters of fact and matters of law.
My clear understanding and in terms of your ladyship’s opening remarks after the empanelling of the jury that all matters of law in criminal courts are entirely in the province of the judge. It is no function, no part of the jury’s function, to make up their own minds about matters of law. They are incapable of doing so. Accordingly their only function is to decide matters of fact.
What I have attempted to do in my written submission solely for the benefit of your ladyship, who is uniquely capable in this court of approving or disapproving of their approach, is to set out my view of how one gets on this approach from the beginning of the trial to the end of the trial. Within my written submission where any reference expressed or implied is made to the law, then those issues must before the jury retires to consider its verdict be ruled upon or at least decided upon by the court.
I now identify certain areas of my submission which I say, (inaudible) submission if I may, my lady, in three parts, which I submit require attention before charge — judicial charge — to the jury.
Your ladyship indicates a certain particular judicial interest in the international law defence and I shall deal with that to some extent in a different way from the way in which it has been done by Mrs. Zelter, but as your ladyship can see there is a — I have taken a comprehensive approach to lines of defence open and of course it’s entirely a matter for others to take their approach, and certain concessions I recall were given to the court at an early stage by others but not by me. That may be academic because the court may now take the view that if a line of defence is open to one of these accused then it’s open to them all.
Now, I am conscious that it’s now four minutes to one, I could now embark on the first step of my analysis but I am entirely in the court’s hands.
SHERIFF GIMBLETT: No, if you are about to embark on the first step in fact this may be an appropriate moment to adjourn and then perhaps we can make a start at 2 (inaudible) but about 2.15, so if you could come to a suitable pause (inaudible).
MR. McLAUGHLIN: Just one point really for my assistance, would my lady depending on how long these addresses take, be expecting me to address the jury late this afternoon, because obviously it will have some effect on what I do over lunchtime, whether I return to that matter or whether I simply restrict myself to the submissions that have been made so far.
SHERIFF GIMBLETT: No, I think (inaudible) to consider what we’ve said to fine tune anything you may wish to say in reply. I don’t want anyone to rush (inaudible). I (inaudible) until tomorrow (inaudible) that there should be a pause before the various speeches and the charge. It’s not important to rush.
MR. McLAUGHLIN: I quite appreciate……
SHERIFF GIMBLETT: I don’t wish you to be working all through your lunchtime.
After an adjournment for
SHERIFF GIMBLETT: Ladies and gentlemen of the jury, I promised that I would let you know what was happening when you came back at 2.15. It might have been that we were in a position to continue with the speeches and then my charge but the legal arguments with which I am dealing do appear to be going on longer than might have been anticipated and may indeed stretch into most of this afternoon, and it may be also that we have an adjournment during the course of these arguments to allow one side or another to consider their position, which includes me, because I may wish a little time before I give my response. Some of these arguments are quite complicated. So I think rather than detain you in the jury room much longer what I would like to do is to discharge you for the rest of the day but ask you to come back tomorrow at the usual time. I don’t think there is anything to preclude us starting at the normal time, and hopefully by that time we should be in a position to proceed. If we are not obviously I will let you know the position.
So I am going to warn you again most strenuously not to start discussing what you have heard and all the evidence and to form an opinion. Obviously you can think about it and I have no doubt you have been ever since this started, but please do not talk about the subject matter of this trial, any evidence, or indeed anything connected with it until you are ready to retire into the jury room and consider your verdict.
So you are free to go this afternoon, I am sure you are delighted, and I’ll see you again tomorrow morning.
The jury left the courtroom at 14.17 p.m.
MR. MAYER: My lady, before embarking on the first step of my analysis I should point out although I’m certain your ladyship will have recognised the structure of my thinking, that my paper is written in philogistical form. It begins with the word — and the final proposition begins with the word “then” and I trust that is clear. I have explained the basis of the (inaudible) position to the translators so that they know the thrust of how this is set out.
My lady, during this submission I shall identify certain words or phrases which in my submission have a legal definition. It may be just as in the rest of the (inaudible) that certain words or phrases on thinks of in statements in criminal cases which are mixed fact and law, but in so far as the words and phrases have legal connotation I shall deal with only the legal connotation.
The first such phrase occurs on the second line of the first development which is at item one, and the phrase is made up of two words which so far as I know do not occur together anywhere else in any of the law in the United Kingdom, but if they do I would welcome instruction and enlightenment thereupon. My lady the words are “mass destruction”.
I turn to the Scotland Act, 1998, Schedule 5, Part 2, Heading L, Third Heading L3, and see that the Parliament at Westminster has reserved and I quote “Control of nuclear, biological and chemical weapons and other weapons of mass destruction”. My lady, it is unusual to find the concept of jus dem generis applied more than once in the same position. Other than intact Statutes it seems to be abhorred by the Lord Advocate’s legal draughtsmen, but it’s used here. The provision clearly begins with the idea of controlled nuclear then goes into other weapons, types of weapons, which the United Kingdom Government has dealt with by way of treaty and it’s interesting to see that the concept of what has been controlled by Westminster stretches as far as legal drafting allows out into the wide flatlands of the word “other” without definition, but the provision ends very succinctly and conclusively with the words “mass destruction”.
Mass destruction in my submission does not require to be otherwise statutorily interpreted because the words are quite ordinarily capable of receiving their ordinary usual meaning. If I may be permitted to read and think in my preferred language for the second I read the phrase as meaning destruction of masses. So, the phrase “mass destruction” is used by the Westminster Parliament, and in my submission perfectly clear what sub-heading L3 is for and what control, that’s all control, the control is not restricted over the said types of weapons.
Item two proceeds purely on the basis of fact, and in my submission and unless the court sees otherwise and I can assist, I do not see cause for the court to define as a matter of law any words in Part 2; similarly Part 3.
It may be that a threat to use might be considered as a word which is used considered by the International Court of Justice but once again it does appear to me that even at that high level it was unnecessary to explain the threat meant. The word “threat” or “threatening” appears in a large number of places in the advisory opinion, it appears in an even larger number of places in the dissenting opinions and unless I can assist the court with any of those references to any particular part I don’t propose to take the court through every single place in the considerations of all the judges where they use the word “threat”, it is a word in very common parlance and in ordinary usage.
SHERIFF GIMBLETT: You would have to consider the context in which it was used and throughout the opinion and I am aware that there were dissenting opinions (inaudible) if one looks at the opinions the word “threat” is used and used in the context of if I can put it, before war and in war (inaudible).
MR. MAYER: Yes, my lady, I am conscious that this exercise is ultimately in benefit of the three accused in affording them a fair trial, part of which is ultimately really the jury’s understanding of what this lady means. The jury can only proceed on the basis of the evidence and nothing else, and it would be open to them to recall from their own recollections or their notes the evidence from witnesses, Rodgers, Johnston and there may have been others, what threat amounted to, by whom it was perceived, the nature of the perception and so on. That would be matter of fact or matters of fact. For my purposes I do not seek the assistance of the court in defining for the ladies and gentlemen the word “threat”.
Juries are brought to court because they have knowledge of the ways of the world and their understandings are crucial, their understandings of the way the world works are crucial in interpreting what they see and hear from the witness box, and in my submission it wouldn’t be necessary to tell 15 people from Greenock what a threat was. They’ve heard two or three weeks of evidence and understand it in the context of threat or use of nuclear weapons from accident, inadvertence or purposeful firing. That may be if the court needs to define or explain assist in the using of the word threat may be as far as the court has to go go.
SHERIFF GIMBLETT: May I interrupt you?
MR. MAYER: Indeed, my lady, of course.
SHERIFF GIMBLETT: I am purely saying could I (inaudible) word advisedly.
MR. MAYER: Yes.
SHERIFF GIMBLETT: You see if one takes the view that the opinion of the International Court of Justice is very persuasive on the question of the legality of otherwise of nuclear weapons then I think one has to look very carefully as I’ve indicated already, that the context in which that court used the word “threat” (inaudible).
MR. MAYER: Yes.
SHERIFF GIMBLETT: So, for instance, it may well be that in considering the question of the legality of nuclear weapons in their final decision, ambiguous though it may be in the last part, one has to look at it from the way they were looking at it, i.e., (inaudible) in war circumstances. That doesn’t mean to say, of course, that even if it is — even if Britain had not illegally at the time, it doesn’t mean to say that there needn’t be a threat in the minds of those looking…..
MR. MAYER: Perceived threat.
SHERIFF GIMBLETT: ……perceived threat in looking exactly (inaudible) and indeed you have such a thing. I think you have to make some distinction because if as the High Court has said that the position of nuclear weapons is nowhere pledged to be legal, then one has to look at various types of threat, and while you and I may concede — I’m talking not personally if I can put it, you or anyone else if I can put it that way because I’m not saying what I think one way or another…….
MR. MAYER: But for the purposes of the notes I understand exactly what your ladyship is driving at.
SHERIFF GIMBLETT: Yes, well we may perceive a threat and in fact there may be the threat although if it’s extremely worrying and looks like a threat to see Vanguard or any of the others cruising up and down the Clyde knowing what it is carrying and its range, that’s not to say it is a threat as looked at by the International Court of Justice.
MR. MAYER: Precisely, my lady, that was the purpose of leading Miss Johnston yesterday because the threat as understood by the judges who gave consideration in the ICJ is not a threat to one’s own population, it’s other’s population, that’s why questions were (inaudible) of the witnesses on the question of neutrality, neutral countries. The perceived threat would be from countries other than the United Kingdom.
I was later in my submission hoping to refer your ladyship to a document which I had the benefit of providing to the court at a much earlier stage of this trial, but I shall be reading certain parts from the journal, the Oxford Journal of Medicine, Conflict and Survival, and in particular an article from Volume 15 of 1999 written……
SHERIFF GIMBLETT: I don’t think I’ve got it here but I am familiar with the article and have read it before.
MR. MAYER: Written by Ronald King Murray — Lord Murray, and particularly at page 132.
SHERIFF GIMBLETT: I think Reference 25 I think submitted by you (inaudible) an article that’s not in the journal but seems to be for all intents and purposes the same but perhaps slightly longer.
MR. MAYER: The journal is — the journal I am holding in my hand…..
SHERIFF GIMBLETT: I have seen that…..
MR. MAYER: Yes, my lady, which I submitted to your ladyship….
SHERIFF GIMBLETT: (Inaudible).
MR. MAYER: This is the longest and only authorative version. I have to say I have seen abridged and I one has to say bastardised version but I refer your ladyship to the journal because I could swear as an officer of the court to the source of this journal which is the address at the very end of the article. I was hoping — I agree with the point as your ladyship has read this, page 132 in the middle of the big block of paragraphs the author, learned author writes, “The court” — that’s the ICJ — “I think rightly proceeded on the basis that threat was equivalent to use”. I’ll deal with that in its place if I may later, but my submission would be that the jury are entitled having heard evidence not (inaudible) to the High Court for interpretation to find that the method of deployment which the jury has heard so much about is far more than mere possession which is the phrase used by Lord Coulsfield — mere possession, it would be open to the jury in my submission to find there was nothing mere about the way in which Trident is possessed. I’ll return to the point about — if I may later, my lady.
That brings me to item four, and the three words or three parts of that sentence having dealt with major threat which required judicial consideration at the moment would (inaudible) but if I may I’ll leave that until the end and the other two phrases which require attention, namely “international law” and “Scots law”.
My lady, the beginning of Governmental and judicial consideration of a crime against humanity, whether that may be described as crimes against peace, war crimes, et al the whole thrust of these phrases amounts to the same thing, that vast amounts of humanity are having crime committed against them. This line begins in the 19th Century in The Hague but was so abruptly brought to world attention by the defence at Nuremberg.
The starting point, my lady, are the Nuremberg Principles. I have a copy for your ladyship. These are succinct, they were in my submission always meant to be succinct, that’s what principles are, they’re not principles if they’re capable of wide interpretation, to be unclear, but on the second page of what I’ve handed up you’ll find Principle 6 which is headed, sub-headed, “The crimes hereinafter set out are punishable as crimes under international law”. Your ladyship will recall the vigour with which Professor Boyle applied to the word “criminal” when it was put to him that the deployment, the threat, etc., all of which seemed a little out of place as we hadn’t had any other evidence in which to set this context, was given. But it’s clear that Principle 6 refers to crime punishable not simply advisory or subject of recommendation, hope or cajoling, but punishable under international law.
My lady, I’ll deal with certain instruments of international law in a moment, but it’s important in my submission to recognise that international law does not proceed into authority in the same way in which European law for instances proceeds, nor domestic law. The only parallel between the way in which international law works which as I say I’ll deal with in a moment and European law is in my submission where the European directive is in issue. In those circumstances which are in contra-distinction to European regulations which are directly applicable to all individuals, all corporations in Europe from the moment the are promulgated is that that directives are just that — they point the way forward. However they can distinguish from the way in which international law works because they provide a complete timetable and deadline by which time nation states, member states as they’re known — must comply with the directives of European Parliament. Failure to do so would mean certain sanctions.
Thus one thinks for instance of the Environment Act of 1995 which called for a huge plethora of changes to the — to everything to do with the environment within Europe from the cleanliness of air, beaches, public places beyond a certain size, to the use of public buildings controlling temperature, airflow, light and so on. States need time to implement these changes in their own ways, and that’s crucial in their own way, and the whole idea in my submission is to reach an objective by a deadline in different ways, the methods matter really not provided the Statute is complied with.
My lady, it would be possible to develop a line — I don’t mention it — from for instance the orders or certain what might be practice notes by say the Sheriff Principal, where the Sheriff Principal says something shall be done from a certain date, we can think of acts of (inaudible) where the Lord President promulgates exactly the same thing — it must be done now, as soon as he says. Through to an Act of Parliament which themselves bring in certain provisions by a certain time these are brought in as and when the Civil Service and the other organs dominant can get them into place, usually after consultation, but they are brought in. Everybody knows the thrust of the Act, everybody knows what’s to be brought in and everybody knows that they will come into force eventually if they don’t exactly know the date. Well, European regulations of course apply (inaudible), the directives have the same kind of approach as a large Act of the United Kingdom which comes into force in bits and pieces perhaps, but by a deadline. The distinction of international law of course is that no one, not the International Court of Justice, nor the United Nations General Assembly, can actually force nation states to bring about any particular state of affairs within a particular time.
But that lack of compulsion with a deadline attached to it in my submission does not demean or diminish the force of international law as it develops. It is a developing organ and as an organ of law it’s embryonic, by comparison with the ancient systems, Roman law, Scots law, Western European common law, use communing, all of these sources which we looked at, it’s really only about 100 years old and that in my submission is embryonic.
So, with that in mind, my lady, I turn to what has happened to the Nuremberg Principles. Perhaps before it passes on I should direct your ladyship to Principle 6A on the second page and point out that 6A(1) makes it criminal to plan, prepare or initiate to wage a war of aggression or a war in violation of international treaties, agreements or assurances. Your ladyship will be aware that the force with which the Nuremberg Principles were brought into law was by the affirmation of the principles of international law recognised by the Charter of Nuremberg and UNOV. I have brought your ladyship a copy of the resolution. I’m privileged to be holding in my hand the official printed version which at page 188, Section 95(1) reads: “The General Assembly recognises the obligation laid upon it by Article 13, paragraph 1, sub paragraph (a) of the Charter to initiate studies, make recommendations for the purposes of encouraging progressive development of international law and its qualification and I would point my lady, particularly to the words progressive development of international law and its qualification.
Your ladyship has heard that plans are afoot to promulgate a Statute bringing into being an international criminal court. This is more than 50 years after these words were written, an indication if any were needed about the long hard road along which international law proceeds. The General Assembly takes note of certain facts of history and then affirms the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal. Direct committee on the qualification of international law established by the resolution of 11th December, 1946 to treat as a matter of primary importance plans for formulation in the context of the general qualification of offences against the peace and security of mankind, or of an international criminal code of the principles recognised in the Charter.
So where one might say point me to the sub-section or section which deals with A, B or C in international law in the way that one would point for instance to a sub-section of the Licensing (Scotland) Act or the Town and Country Planning Act for authority on a fine point. It may not be possible in international law. One has to construct one’s authority from a broad base of sources. Fortunately there are certain documents which have been produced as Production 14 for the second panel and these have been referred to in evidence throughout.
Before turning to that, my lady, I would simply point to two Statutes, United Kingdom Statutes, first the Geneva Convention’s Act of 1937 an Act to enable effect to be given to certain international conventions done in Geneva on the 12th of August, 1949 and for purposes connected therewith. The conventions are mentioned in the schedule — well, four of them, and this in 1957 was the bringing into domestic law of several treaty obligations which the United Kingdom had undertaken.
Your ladyship will see that the fourth schedule is relative to the protection of civilian persons in time of war. But in 1957, my lady, the concept of what was the time of war was perhaps a good deal narrower than ongoing for years, situations where countries received daily threats from such weapons as nuclear weapons, but for all that I say you can’t go beyond the normal rules of interpretation of this Act and simply point to it and say this was the bringing in of these conventions.
The other Act I would point to as an example of the way in which the course of law in this country is specifically provided by Acts is the Genocide Act of 1969, Chapter 12, I should have said to your ladyship for completeness that the ’57 Act is Chapter 52. Of course the Genocide Act was brought into force specifically with effect to the convention on the prevention of punishment of the crime of genocide. I have to accept that the whole tests of the Act anticipates punishing acts of crimes of genocide which have already taken place.
I also accept that there is no United Kingdom or as yet Scottish Statute which makes a specific provision as these Acts for the issues dealt with by these Acts. So what is left relying upon the treaties which we’ve heard so much about. We know about the Geneva Convention’s Act and that it protects civilians in times of war, that’s Convention 4, it’s amongst the bundle of Productions, so that aspect of international crime is certainly covered by United Kingdom law — directly covered I should say.
The other treaty which I mentioned is one which was covered at length yesterday by Miss Johnston in evidence and that’s the Protocol One as we know it of June, 1977, ratified by the present British Government in December of 1997. My lady I pause to reflect that the present Government if challenged upon the reason why they did nothing for 20 years about ratifying this very important protocol would argue we were out of Government for 18 years. We have done what we can when we can. The parallels with the three accused in this case are quite obvious.
My lady the front page of the protocol starts in the usual kind of way in which these international instruments begin. The high contracting parties proclaim their earnest wish to see peace prevail among peoples. They recall that every state has the duty in conformity with the Charter of the United Nations to refrain in its international relations from threat or use of force against the sovereignty, territorial integrity for political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflict and to supplement measures intended to reinforce their application, expressing their conviction that nothing in this protocol should be construed as legitimising or authorising any acts of aggression or any other use of force inconsistent with the said Charter.
They reaffirm that the convention of 12th August and this protocol must be fully applied in all circumstances to all persons who are protected by those instruments without adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the parties to the conflict. If I read that in ordinary language, my lady, it seems to say sort your own battles out in your own way but don’t adversely affect those persons from all of those states unprotected, and as Mrs. Zelter has argued and I would adopt it is impossible to imagine the use of a nuclear weapon which given the vagaries of the weather with which we’re so familiar in Scotland could effectively should blow any which way, north, south, east or west and cause the kind of damage which we’ve heard in a very restricted way in evidence can happen.
Part 1 of the protocol begins after saying that how contracted parties undertake this step and ensure the effect of this protocol. In all circumstances in cases not covered by this protocol or by other international agreements civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience. So those provisions applied in this country on the 8th of June, 1999. In my submission, my lady, that was the law, there is no other law covering the position.
It follows, therefore, and it’s a very important point, despite what the position taken by the learned Fiscal several times during this case and one or two other comments, despite those things the accused as far as the second panel is concerned does not therefore have to rely upon the advisory opinion of the International Court of Justice to find legal authority justification for their understanding of the situation quoad Trident on the 8th of June this year and their rights on that date. They don’t need the ICJ in, if it didn’t exist they would still have the law which I have just outlined. But they do have it, and in my submission and against the background of the way in timescale against which international law works, the advisory opinion so far as threat of use of nuclear weapons is concerned, is entirely with the accused’s position. For as I’ll come on in a moment to say as Lord Murray points out the court was clearly dead against the threat of nuclear weapons. The only legal use which might be, depending on the facts at the time, might afford a nation a defence for using nuclear weapons was when it was faced, imminently faced, with annihilation. In my submission that is the only scenario which the court envisaged could afford legal use of nuclear weapons. It wasn’t certain about that because it depended on the facts at the time.
My lady, I couldn’t take the court in detail through the ICJ opinion but against the background of the accused’s legal right to act as they did on the 8th of June this year, it is unnecessary for me to do so because as I said it’s not necessary to rely upon the ICJ opinion. I would rather spend my time this afternoon, my lady, dealing with analysis than pointing to articles which I am certain your ladyship has read in any event.
That brings me to the learned article by Lord Murray to which I have referred. On page 128 of the journal Lord Murray reminds us under the heading “International Law” that international law despite any appearance to the contrary is real law, not just international morality or international expediency, it may be less developed than domestic law as I have said today but it has a genuine and growing force of its own. To ignore international law is to ignore a factor which is significant if less than conclusive in the conduct of international affairs. My lady I pause there to reflect on my earlier submission that nothing can be conclusive in the field of global affairs, happily the globe continues in existence. Under international law slavery has been outlawed, worldwide post(?) is regulated, navigation at sea and in the air controlled and — navigation at sea and in the air control — and under very special circumstances even war criminal brought to trial and executed. All law consists of organised structured principles with an institutional base. What international law lacks is the state’s power to legislate and to enforce the law, but in contrast with moralities want of agreed institutions international law has a court of law whose authority is almost universally accepted.
My lady, it is my understanding from elsewhere in this document and other places that 95 per cent of what the International Court of Justice promulgates is universally accepted as being the legal position in the world. It is notable in my submission that Miss Johnston told us about the United Kingdom’s rather reluctant position to go along with if I can put it that way 105F of the opinion as we know it.
Now, Lord Murray deals with earlier opinions of the court, ICJ that is, involving various parts of the world and very serious schisms therein demonstrates how the court’s authority has had ultimate success in many of these before going on to say that its judicial decisions which really bring these advisory opinions to light. His lordship then at page 131 analyses the advisory opinion and reminds us that the judges were unanimous on a number of points, they were divided on the form of the final answer in which they declared one, that the threat or use of nuclear weapons would generally be contrary to international law but two, that it could not be determined definitively whether such threat of use would be lawful in an extreme circumstance of self-defence in which the very survival of a state would be at stake.
His lordship also reminds us that the President of the court stated that that situation upholding of the court cannot be interpreted as a half open door to recognition of the legality of the threat of use of nuclear armaments.
The court was unanimous on two important issues. It heard that the threat or use of nuclear force which did not comply with Articles 2 to 51 of the U.N. Charter would definitely be unlawful, and secondly it held to avoid illegality nuclear threat or use would have to be compatible with the laws of armed conflict and in particular international humanitarian law. These propositions by themselves would severely restrict the scope of nuclear arms. In my submission the scope of nuclear arms is restricted to the imminent moments where the very survival of a nation state is at stake.
It’s very important to recognise, in my submission, that an absolute majority of the court — ten out of 14 — a two-thirds majority judged that threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception, the one I’ve mentioned. So a summary of that is that a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.
The learned author says that he thinks rightly that the court proceeded on the basis that threat is equivalent to use, because as Miss Johnston assured us you can get the situation you want internationally by the threat of these weapons than actually have to use them. His lordship then goes on to deal with treaties and conventions, reminds us of the St. Petersburg Declaration of 1868 and sets in context three cardinal principles. No targeting of civilians, use of inhumane weapons is forbidden, where they are designed to cause unnecessary suffering to combatants and civilians caught up in combat, page 133, my lady, and the Martins(?) clause which is the sort of catch-all about morality and the dictates of public conscience. But at the bottom of page 133 his lordship says it is to be noted that in so far as they consist of international customary law these treaties are part of the domestic law of this country, and I find comfort for my submission about the way in which the phrase “mass destruction” is to be construed from the bottom of the first paragraph to page 134 where the learned author says that the use of a weapon of mass destruction will be unlawful almost by definition where the target is the mass — and the mass in question is the population as a whole as Hiroshima and Nagisaki show.
The stringent limitations introduced by the 1977 Geneva Protocols on possible reprisals leave little scope for relying on them to counter an opponent’s breach of international law. That in my submission is what Professor Boyle dealt with when he gave evidence about mutually assured destruction or MAD.
My lady, I pass now if I may having dealt with Item 5 and the right of citizens to intervene to 6 where I shall deal with some force in my submission with the prevention of crime aspect as it is understood in common law to Scotland. The key words in Item 6 of my analysis in my submission are “against the said crime”. My lady, it has always been the law of Scotland — I shall turn to the well known passage in Moss v. Howdell in a moment where Lord Rodger says from memory — I’ll quote it in a moment, Scots law has never been so mean spirited as to deny a defence against the libel when intention was the prevention of the greater harm.
That might just be enough said on that matter. I do want to deal with a particular line of authority on the question of necessity, something which her ladyship has mentioned several times. The defence of necessity in the law of Scotland despite having been available for centuries as having been the subject of calling by Baron Hume and late 20th century judicial consideration remains in a state of paucity. It has only so far as I can see certainly this century dealt with drunk drivers and irate shopkeepers and the like. The whole Scottish jurisprudential enlightenment is silent on the bigger issues, certainly the issues which engages the court instantly, but other jurisdictions are not so silent. In the United States where the volume of the population has afforded them the opportunity and perhaps their whole sociopolitical history has afforded them the opportunity of considering the defence of necessity, both on a far wider scope and with far greater depth than has the population and sociopolitical history of Scotland.
I couldn’t take your ladyship through the well known cases, I have in fact prepared a bundle of materials on the defence of necessity in Scots law which begins I have to say with a not very helpful, not to criticise the author too much, not very helpful article I pass for your ladyship’s consideration. This bundle has this article and then the chronological development of the law of necessity case by case up to the latest one. But I would point out that the learned author in the article at the front begins in the second paragraph of his article by reminding us that the primary justification for recognising a defence of necessity is a humanitarian one, and he goes on to give examples of other learned authors who have told us that a tacit admission of (inaudible) against some of the greatest evils that have failed them as well as a measure of his moral obligation even in extremis, and that comes from Hall’s general principles of criminal law.
The second point the learned author makes is that it may well be, and I shall demonstrate this I trust by reference to certain developments in America, that someone who commits a crime out of necessity is acting as society would wish him to. Now it’s an important preface to this line, my lady, to say that the judges of the High Court who have considered the defence of necessity and nowadays I can include amongst them Sheriff Gordon in his temporary capacity. Generally speaking dealing with the case in front of them envisage a little more but don’t go into all treaties about possibilities for mankind as a whole. That in my submission leaves the door wide open for the defence of necessity to be judicially developed, perhaps by your ladyship.
My lady, I do want to draw the court’s attention to the first case which I trust your ladyship will have after the article in the bundle which is Reid v. McLeod. For the purposes of the notes we are reading from the CD rom version of the Scots Law Times, 1967 Reports, page 70, in which the High Court of Justiciary under Lord Justice Clerk Grant and Lord Wheatley who was to become Lord Justice Clerk, dealt with the statutory offence and the question of reasonable excuse. Now as your ladyship has reminded Mrs. Zelter we are not in the realms of Statute in this case, however there are certain general principles which the court should keep in mind, particularly with respect to charging the jury, and I refer your ladyship to page 2 of this report where the report of the learned Sheriff is narrated and Item 2 on page 3 is stated as the onus in these circumstances fell on him to prove lawful authority or reasonable excuse. Lawful authority or reasonable excuse. The standard of proof being in my view that the balance of probabilities. That in my submission is the correct test because in a Scottish criminal trial the accused doesn’t have to prove anything, let alone beyond reasonable doubt, that is to confuse the defence and the prosecution roles, and that statement by the learned Sheriff is nowhere criticised by their lordships and in my submission is self-evidently correct.
Page 4 of the case report at the second paragraph from the top is in terms of Lord Justice Clerk Grant who says in the fourth line of the second paragraph, “I think that the only general proposition which can be laid down in regard to ’reasonable excuse’” which is put in quotations, is that each individual case must be judged on its own particular facts and circumstances. I do not think it is possible to lay down (inaudible) general rules applicable to classes of persons, whether they be taxi-cab drivers, bank messengers, security guards or vulnerable shopkeepers with a cosh below the counter. Thus as the Appellant’s counsel frankly admitted one must for example have regard to the nature of the offensive weapon.
Well, my lady, for the purposes of this case I would turn that last phrase on its head to say one must have regard to the nature of the offensive weapon one is trying to prevent from being used in the commission of a crime, and lastly my last word on this case is to point out that on page 5 back there in 1967 we find that one of the counsel for the Crown was none other than someone called Donald Murray.
My lady, the next case which I would cite is that of Earnshaw v. H.M. Advocate, 1982 SLT 179. This case shan’t occupy the law, I merely point out that five lines from the bottom of the first paragraph we find the same text of balance of probability applied to reasonable excuse. Reasonable excuse in my submission can be for these purposes, these and only these purposes, equiperated to lawful authority as the court puts it, or perhaps a lawful authority would be a right under international law. If an accused satisfies you on a balance of probability that he had a reasonable excuse that is enough for you to acquit him on this charge.
My lady, it may be a matter of judicial comment in this case, I don’t know, but that this test upon the Crown in these types of cases which in my submission does not connect by the Crown. This submission could not have been made until the end of the evidence because the test in every case of this type once the defence which I am discussing is raised, it is for the prosecution in every case to negative it. By the thrust of my friend the learned Fiscal’s cross-examination was the other way. He did not in my submission seek with all three accused and their supporting witnesses to negative the defence which I told them we were going to rely upon early in his own case. That is a serious flaw in the way in which the Crown dealt or failed to deal with the defence case.
Your ladyship has given certain indications about the facts concerning necessity to the jury and the last substantive paragraph of this case would support that indication in private. The High Court saying expressly that the issue should be left to the jury, that’s the last substantive paragraph before the quotation. We merely decide that in this case we are not satisfied the trial judge should not have left the issue of these motions to the jury.
Your ladyship has mentioned and I have alluded by reference to irate shopkeepers to the case of McDougall v. Ho. I would only say two things about this case cited for the notes, my lady, I brought along a photocopy copy of the case report from the Scottish Criminal Case Reports but it doesn’t give me the exact citation (inaudible) your ladyship is well aware of the case in any event.
The Lord Justice General in that case begins his speech at page 202 but the substance of it is to be found in the back page, 203, and early in the second paragraph three lines down the court deals once again with the comment which I have raised about the way in which the prosecution has dealt with our case, and says “The critical issue in the trial was, however, whether it had been established by the prosecution that the act was committed without reasonable excuse”. The court seems to think it obvious that’s what the prosecution has to do, and indeed it is a critical issue in that case. Echoing the words of Lord Justice Clerk Grant, after the reference to the case of Galaxo and Copeland the court says “Let us examine the approach of the learned Advocate Depute. We are not satisfied that the judges had asked themselves the wrong question because in our reading of their note what they did was to examine the excuse offered by the Respondent and ask themselves objectively whether it had been demonstrated by the Crown that the excuse was not a reasonable one in all the circumstances” — all the circumstances. We trip the phrase “all the circumstances” off our tongues a lot in court but this is a case in my submission which reminds us that there are circumstances with which we have perhaps never dealt before and we have to look at all the circumstances.
The court touches then on the question of what citizens can do lawfully at the bottom of the Lord Justice General’s opinion and discussed arresting people, keeping them to hand, but saying that we do not consider that this case was any guidance on a question of principle, so in my submission McDougall v. Ho on questions of principle with which we’re concerned here doesn’t advise us. The commentary — I’ll be corrected if I’m wrong about the author of it — Criminal Case Reports from 1985 but I seem to recall it was Sheriff Gordon in those days — says that the reporting of this case is not then suggested it affords any guidance on questions of principle. In fact it must say that because that’s just what the court said. It is reported because it involves an interesting situation and as an example of the need for the Crown to disprove the reasonableness of an excuse where that defence is to admission and links the statutory position with the incident position by querying whether the result would have been the same if the Crown had been content to charge the common law crime of malicious mischief which is exactly what we have here.
The question that is left is an open one, but in my submission the answer would be the same, and the reason for that is where a citizen comes to court, points to a link expressed or contructed under international law and says “I was acting lawfully”, there is an evidential onus upon the Crown to disprove that and the Crown didn’t do that.
My lady, the next case in the bundle is that of McGregor and Jessop and that is to say that it was a case involving impossibility to physically provide a specimen and for my purposes I cite it in the case of completeness but have no other mention to make of the case because it doesn’t in my submission assist your ladyship on this occasion. It is there — it was once again the drunk driver situation as is the next case in the bundle McAulay v. Owen Thomas, 1990 SLT, page 323 again a drink driver case, a question of reasonable excuse and as I have already conceded to your ladyship it seems there would be common knowledge to those of us who prosecute and defend in the criminal courts that 90 odd per cent of these reasonable excuses are nothing of the kind, they’re trumped up. I don’t want to be unfair to anyone who might have had one sustained, but 90 odd per cent of them are.
I need hardly mention the next case, Murray v. O’Brien, 1994 SLT 1951 because your ladyship has already indicated that it’s of the trials of the facts, in this case the justice, that the court held that it was for the justice to determine. I interpret that as the trials of the facts whether a reasonable excuse is justice and so on. So that is cited as another example of the trials of facts in the case of necessity, of reasonable excuse.
The next case is almost identical, Duncan v. Norman, 1995 SLT 629, similar in character and development it’s a statutory offence, drink driving, reasonable excuse, virtually does not assist us a jot.
I trust — your ladyship may or may not have Cribben v. Friel, the next case. That’s a mistake on my part. It was originally relevant to someone else’s case but it’s not relevant to this case, and that brings me to Moss v. Howdell.
Moss v. Howdell, 1997 SLT, page 792, is the latest and highest word on the defence of necessity so far as I know. A glance at the number and height of the cases cited in this case shows us that both English and Scottish law was considered. That is not surprising because the argument in this case was essentially a philosophical one, the facts being an unremarkable question of driving at speed believing the passenger to be seriously ill, that not being the case and whether an alternative course is open to an accused not involving an offence.
As has been said the defence per se was open but in the facts of this case closed to the accused because the court held that he could have followed an alternative course. However, the court took the opportunity to look at the way in which the defence added up and began by dealing with a crisp observation by Lord Wheatley. That was the kindness in my submission, and at page 4 of the report, original page No. 784, my lady, a convenient starting point is the crisp observation of Lord Justice Clerk Wheatley, as your ladyship may remember Lord Justice Clerk Wheatley was well known for making crisp observations, and the court has been kind on this occasion in laying that observation to one side.
Turning to the equivalent defence in English law called duress, and mentioning Hume’s commentaries where the author goes through a range of cases in which arguments have been put forward that an accused person should be acquitted because he acted under compulsion of various kinds. Hume did not say which kinds of compulsion nor what might drive one to compulsion. Hume could hardly have envisaged nuclear weapons. One thing which emerges in Scots law as known to Hume was caution in admitting such kinds of defence, naturally any system of jurisprudence would be. Nonetheless he does recognise in certain situations a defence of this type may be made out in situations of great caution or extensive danger in time of war or rebellion where the forces of law are being overpowered.
Well, my lady, where several diplomatic or ambassadorial sources mention directly with the field reference or cajoled or it’s known that they have come under the kind of pressures which Miss Johnston told us about yesterday. It is we with the benefit of hindsight who are able to link what Hume was talking about where forces of law, Hume no doubt meant the forces of law of this country, but forces of law have been overpowered. That in my submission is exactly what the threat or use of nuclear weapons does to foreign powers, it overpowers them for mistakes. And individuals may be forced to do things for their self-preservation. Baron Hume was talking — I forget exactly — but a very long time ago, he then applied a similar approach to situations of less extensive (inaudible) take possession of someone and compel them to take part in a criminal adventure and so on and then a discussion about (inaudible) and there may even be situations although not so common now as formerly of the most specially and private sort of violence which shall be judged by the same rules. Special and private — the whole way in which we have heard about the deployment and threat of Trident in my submission fits perfectly into the specially and private sort of violence which was imagined by the great mind of David Hume, the nephew.
My lady, the next paragraph is an informative Minute of discussion about Hume admitting that the defence may be open (inaudible) that circumstances mentioned that the ordinary conditions of the law regulate the society. This is I think a somewhat difficult plea that can hardly be serviceable in the case of a trial for any attrocious crime unless it has the support of these qualifications.
Now, Hume is talking about the accused committing attrocious crimes but says nevertheless the defence is open if certain criteria are met, and these are an immediate danger of death or grave bodily harm, that’s one. A different one is inability to resist the violence whatever that may mean, inability to resist what as my learned friend the Fiscal says can one person do against the violence posed by Trident. A backward and an inferior part in the perpetration I think that means whether you do it another way, and the disclosure of the facts as well as restitution of the spoil, (inaudible) in the kind of language which Hume was used to using, on the first safe and convenient occasion.
I think this is the other way round from the argument being advanced on behalf of the accused in this case saying they did what they could when they could. Hume seems to envisage that you can’t do the attrocious crime if you can get out of doing it on the first convenient occasion, as I read that, my lady.
Now, the court dealt with the certain false gloss put on Hume’s words, then at the bottom of page 5 your ladyship will see in the block box at the bottom the page numbers are mentioned. What Hume envisages is a situation where a third party threatens the accused with death or serious injury if he does not commit a particular offence or participate in a criminal adventure. And the accused commits the offence or participates in the adventure in the context of duress as the English call it. In such cases the threat is directed at compelling the accused to commit a particular offence or to participate in a criminal adventure, but in other cases where that is not the purpose of the threat the accused may commit a particular offence in order to escape from an immediate threat of death or serious injury. Now that has resounding parallels for the scope of the offence in this case. (Inaudible).
The parallels between the philosophical dangers for the defence is at the start of page 6 where the court respectfully adopts the reasoning of Lord Hailsham who was then the Lord Chancellor in 1987 H.M. v. Howe so the line of reasoning between Scotland and England was if I may say so brought into a straight parallel, if there is such a thing, (inaudible) on this occasion.
The Lord Chancellor is dealing with an argument that cases of duress could be distinguished from cases of necessity such as the famous case of Dudley and Stevens the two cabin boys or the two shipwrecked sailors who ate the cabin boy. The court observes that necessity arises from any other objective dangers threatening the accused. Well, in my submission although I said that the threat — that the word threat — when it comes to being used by the ICJ is threat of other nations, there was evidence that the nature of an explosion by Trident would be indiscriminate and that in my submission would cover any definition of threat to ourselves.
We heard evidence about the Chernoble accident and how it has affected countries far and wide even to this day. So the objective danger threatening the accused in my submission can be expanded given the particular circumstances of a case such as this to include a threat to the accused.
The Lord Justice General reminds us that the defences of self-defence, necessity and duress arise in the circumstances where a person subjected to an external danger and commits an act that would otherwise be (inaudible), otherwise be criminal, as a way of avoiding the arm the danger presents. In the case of self-defence and duress it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes. Now the Lord Justice General is careful not to exhaust the list of other causes, but does mention such as forces of nature, human conduct other than intentional threats of bodily harm etc.
Forces of nature, it is easy in my submission to equiperate that phrase with what would happen in the forces of nature during the explosion of a Trident missile.
At page 7 the Lord Justice General goes further than a comparison with the law of England and discusses the case of Valner v. International Railway Company and mentions that the law recognises that danger invites rescue in Scotland just as surely as in New York. So Scots law has never been so mean spirited as to confine a defence of self-defence to situations where the accused actually save themselves. It has always recognised that the defence may be available in situations where the accused act in an altruistic fashion to save a companion, cohort.
Now, Lord Justice General Rodger, not known for loose judicial language here expressly says that Scots law has never been so mean spirited as not to recognise that defences of this nature where people are compelled to act through perceived dangers etc., can arise, these defences can arise where the accused acts in an altruistic fashion to save a companion.
Now, I’m tempted to paraphrase Lord Atkin in Dorothy and Stevenson(?) discussing the question of who is my neighbour, both the ability and remoteness in that case but in this case it is proper to look at the word “companion” and construe it given that there are three nationalities of women in the dock in the widest sense. It may be said to be a long judicial leap to construe Lord Rodgers’ word “companion” to mean the whole of humanity or large part of humanity, i.e. the kind of masses which Lord Murray describes. But in the context of this case I say that is not such a long judicial leap. I say that is the only interpretation which can be placed upon that word in this case.
The Justice General continues the view according to 218 in the same way if a defence of duress is open to someone who committed a crime to try to escape immediate danger of his own life or health it should be open to someone who does the same to try to ensure that his companion escapes such danger, an illustration given by (inaudible) as he then was in Marchant in the 1989 English Case Assizes says it is particularly instructed for present purposes. We can see no distinction in principle between various threats of death, it matters not whether the risk of death is by murder or by suicide or indeed by accident. One could interpone nuclear accident. One can illustrate the matter by considering the disqualified driver driven by his wife, she suffering a heart attack in remote countryside when they get lost, the court coming down to earth with a bump as it were to give that kind of real life example where humanitarian interest would seem to supersede the order of a court disqualifying a driver. Well, that’s not so far away in principle from incident case.
Now, the court is careful at page 8 in my submission to resoundingly say that if an accused could nevertheless realistically is the word used by the court have acted to avoid the peril or prevent the harm without breaking the law, then he has no defence. Lord Justice General Rodgers says realistically. Now we’ve heard evidence in this case about the realism of how international law develops and how nation states perceive the threat of Trident, and we’ve also in response to my response to my friend the learned Fiscal’s cross-examination of the first panel heard that she tried to stand for Parliament. However — I think she may have said she tried twice, but tried at least once — but Miss Johnston told us in no uncertain terms what the realistic effect of one person standing on a single picket as it were would be upon the international community in which she works. So in my submission the key word there for the law is “realistically”.
The defence is careful if I can speak for a moment for all of us, to fill as promised to the court the kind of objective understanding and background of the realism which these women understood. So it is accepted on my part as I humbly must that the law is that if you have a legal way out you must take it, but the law recognises expressly as stated by Lord Justice General Rodger that the contest is a realistic one.
My lady, that brings me to the end of my submission on the scope and depth of the nature of the defence of necessity in the law of Scotland. I intend and make no apology for doing so to develop submissions along the line of — no, I’ll take that out — I intend to show the court what the English position is and demonstrate that it is in just as dire straits almost as we are, but that the law in America has dealt precisely with the kind of issues which we are dealing with here today, and it has taken the kind of line which I say the court should take on this occasion.
The hour is late, my lady, I tender the Production mentioned by Mrs. Zelter which your ladyship will have seen before. Although — I forget exactly the Production number of this but it was mentioned by Mrs. Zelter, if someone may help me……
SHERIFF GIMBLETT: Reference 4.
MR. MAYER: You think it was Reference 4, probably (inaudible).
SHERIFF GIMBLETT: Are you intending to speak to this tonight.
MR. MAYER: No, my lady, the hour is late. I tender the document. It may be your ladyship might get a chance to read it. I don’t intend to go through it in depth because it’s foreign, it’s not the decisions of courts. It is helpful in my submission, it is an academic survey of the ways in which courts who have had an opportunity of dealing with such cases with judge and jury have dealt with them, and from there, my lady, I would be passing to one or two passages in Sheriff Gordon’s text, and that would be my submission.
So I trust I shouldn’t be any more than, I hope, half an hour to three-quarters of an hour in the morning.
SHERIFF GIMBLETT: Well, it certainly seems appropriate that we adjourn now, apart from anything else I am quite certain the interpreter must be worn out.
That just leaves the question of the jury. Now I don’t want to hold things up in any way. Is it possible that we can make an earlier start tomorrow or is that not possible given the way the transportation problems have been.
MR. MAYER: I think the lawyers can certainly be here, my lady. The police may be able to assist the court on the logistics of transport.
SHERIFF GIMBLETT: I am thinking that given that all three of the ladies in front of us wish to hear what is being said, I would wish them to be present but it depends on them. I take it you’ve not so far managed to come before 10. That’s impossible.
MR. MAYER: Well, one morning we were here at 10 past 9, it depends on the traffic, my lady.
NEW SPEAKER: The reason it is difficult, my lady, is the Procurator-Fiscal (inaudible) on the other side of the water.
SHERIFF GIMBLETT: Oh yes, I am well aware of that and I was going ask him if it is possible (inaudible) is that right. It is difficult for you to get here before 10.
MR. WEBSTER: Well, I normally get in about half past 9, my lady, bearing in mind the time of the boats and the connecting trains.
SHERIFF GIMBLETT: Right. What about the interpreter? Can you be here slightly earlier?
THE INTERPRETER: I can.
SHERIFF GIMBLETT: May I suggest that as long as Mrs. Zelter, Miss Roder and Miss Moxley are here that if at all possible we start at say about half past 9 or shortly thereafter, but I do not wish to start without the jury and the interpreter.
Adjourned until tomorrow.
WEDNESDAY, 20th OCTOBER, 1999.
SHERIFF GIMBLETT: Now, I did say to the Jury I would be able to let them know by this morning what was going to be happening and I know you gave me an indication last night that you might be an hour or so. I am wondering, and I am only wondering, perhaps we can short circuit matters a little so far as you are concerned Mr. Mayer, because you gave me an indication that I think you would be referring to the United States law and the pattern of decisions, most of which from the papers which you have so very kindly given me, seem to be reflected in the Santa Carla (?) Law Review.
MR. MAYER: Yes, my lady.
SHERIFF GIMBLETT: Now I have read this document……
MR. MAYER: Obliged, my lady.
SHERIFF GIMBLETT: …….and knowing what you are going to be doing today I took the opportunity of reading it again and if you are going to be suggesting that the whole question of nuclear weapons should be considered as part of the defence of necessity as has been done in some of these state cases you’ll be knocking at an open door and it may therefore be more appropriate given that to curtail your remarks perhaps to a couple of paragraphs.
MR. MAYER: Oh well, I’m very much obliged, my lady, I can do that.
SHERIFF GIMBLETT: Right, because you are knocking at an open door. Having gone this far in this trial I am prepared to allow in this Court what has happened in the States so far as it is necessity, leading the Jury on the facts to consider whether looking at the guidelines laid down in Scotland?
MR. MAYER: Yes.
SHERIFF GIMBLETT: The three accused admit.
MR. MAYER: Very much obliged, my lady. In that case I imagine that the rest of my submission might take 10 or 15 minutes.
SHERIFF GIMBLETT: Yes.
MR. MAYER: I do have one or two other matters to turn to but this American line would have taken me half an hour or so.
SHERIFF GIMBLETT: Are you sure, perhaps taken slightly longer. You are not suggesting for one minute that you are using 200 words where perhaps one would suffice, but I know that you go through it with meticulous detail, which is appreciated.
MR. MAYER: I’m very much obliged, my lady. Well, in that case, my lady, I can now be quite short.
SHERIFF GIMBLETT: Now, before we go on maybe Mr. McLaughlin could give me an idea of how long he thinks he will be addressing you.
MR. McLAUGHLIN: My lady, I’m going to cover two matters and half an hour at most, I think.
SHERIFF GIMBLETT: Yes. Mr. Webster, what about yourself?
MR. WEBSTER: Well, much depends on what my two friends say, to what extent I need to reply to that. I am of course conscious that we are not dealing with submissions of no case to answer as far as I’m aware.
SHERIFF GIMBLETT: No, that seems to be the case.
MR. WEBSTER: The rest depends on additional procedure that has been…….
SHERIFF GIMBLETT: Wait a minute, Mr. McLaughlin is looking…..
MR. WEBSTER: …..tacked on to this case whereby the Defence are seeking guidance as a result of making their submissions in law to my lady as to what my lady’s position will be in what instructions will be given to the Jury in terms of the charge. So I anticipate that I’ll be going through everything which Mr. Mayer said line by line and of course much depends on what is said by Mr. Mayer and also by Mr. McLaughlin.
SHERIFF GIMBLETT: Mr. McLaughlin, on the question of the submissions of no case to answer.
MR. McLAUGHLIN: Yes, there wasn’t going to be any no case to answer submissions but the matter that addresses us on this side of the bar is obviously still the international law defence and the reasonable excuse matters but there may well be another matter which my learned friend might allude to this morning seeking a direction on the onus that the Crown have in this case.
SHERIFF GIMBLETT: I suspected that might be.
MR. McLAUGHLIN: The matter has crystallised and I think it’s only fair just to alert the Court to the fact that that would be an (inaudible) over and above asking the Court to make a direction on international law reasonable excuse. There will be another matter relating to the issue of onus in this case.
SHERIFF GIMBLETT: So we really don’t know how long Mr. Webster will be and I don’t think I can tie you down in any way, Mr. Webster because as you say you don’t know, you know what’s been said yesterday on the onus and I daresay you’ve probably anticipated that yourself, you will probably be dealing with it in short compass. I’m really wanting to know when I can send the Jury away until because it doesn’t seem to be going to take all morning.
MR. WEBSTER: That would certainly appear to be the case at present, my lady.
SHERIFF GIMBLETT: Yes, right. I am prepared I may say to give you my views on the question of international law and on what I will be saying to the Jury so far as that is concerned which might give you some indication but I’m obviously wanting to hear Mr. Webster on that particular point. (Inaudible) my opinion on what I think is not one or the other that would be improper but I’m prepared to give you an indication what I will be saying to the Jury.
MR. MAYER: From my part I’d rather not hear your ladyship for the moment until the conclusion of my submission this morning.
SHERIFF GIMBLETT: Right. I’m just saying I thought about it.
Good morning, ladies and gentlemen, now good news and bad news, I don’t know which way you look at it but I am prepared, I have to say that unfortunately we did not reach a conclusion to the legal argument last night but it seem having spoken to the parties round the table that this may well improve halfway through this morning, one would hope so, in which case we would then be in a position to continue. So what I’m going to do is to allow you to go away until say half past eleven this morning and I would ask you to please be back by then. I’m sorry to keep you coming backwards and forwards but I don’t really see a way round this at the moment and then I can give you a much better indication of what is going to happen. So (inaudible) not talking about anything, not making up your minds, not discussing things. You’re free to go but would you please be back here by half past eleven.
MR. MAYER: Obliged, my lady. My lady, I would draw up to the attention of the Court only a few matters of particular importance arising in my submission from the line of American law which I hope is a useful guide where Scots law provides none. At page 310 of the article there is a very important distinction drawn in my submission it is not a matter of mere semantics. If I can speed forward to page 314 of that chapter which begins at 310 your ladyship will see the discussion which centres on the concepts of civil disobedience and civil intervention and the distinction between the two, in my submission, is a critical one. Civil disobedience implies that the accused understands that they are breaking the law and takes or takes the law into their own hands and decides to change the law, a disobedience indeed. However, citizen of civil intervention is the line being taken in this case where citizens have the right and perhaps those who make or uphold the laws would be in the wrong. Two pages further on at 316 there begins a discussion about cases involving mainly the unfortunate firm of Lockheed who seem to be involved in the Trident missile programme — I’m looking at the case of People v Aldridge — and at 318 the judge in that case was appealed and the Appellant Court reversed the conviction for several reasons, including the following: the lower court erred when it ruled that appellants could not introduce the evidence that they needed to show the objective reasonableness of their action. All along I’ve been referring to this objective reasonableness in this case. Unless there should be any doubt about the plainness of the language at page 319 in the first paragraph in quotations it reminds us that one who does not understand the danger, that is the danger of nuclear weapons, does not understand the appellants plea and the last line of that important paragraph says it is in the light of this peril that the reasonableness of the appellants belief must be judged as judged by the jury.
My lady, at page 325 we are told in the case of the People against Jarkar (?) which was mentioned by Zelter that to the knowledge of this author that was the first occasion in America when the judge instructed the jury regarding international law as it pertains to nuclear weapons. That was in 1985, my lady, so even although the Americans have a developed line of authority on these points and we don’t, it appears that their line is just a matter of a decade behind ours. At page 330 we are instructed that in the particular jurisdiction in question an eminency is to be decided by the trials of facts. On the question of charging a jury at page 333 at the bottom of that page there is a telling quotation from none other than Albert Einstein, who so eloquently phrased the nuclear age requires a new way of thinking and in my submission that would apply to a system of jurisprudence as much as it would to political science or any other discipline.
My lady, I would point to page 335 where in the case of Ray Weller the defendant had twice run for Congress and the court having noticed that said the defendants should not have been required to convince the judge that they had exhausted all alternatives. All that was required was for the defendants to proper sufficient evidence of the elements of necessity to raise the factual issue so the jury could so find. When the court ruled as a matter of law that the defendants had other adequate alternatives it was asserting that regardless of how diligent a party is in pursuing alternatives no matter how many years have been spent in legitimate efforts to prevent harm, no matter how much democratic measures are ineffective to handle the problem the court in hindsight can find just one more alternative, just one more letter to write to the legislator that a citizen could have tried before action out of necessity. The message there seems to be that the realities of life are that one can always take one more breath, write one more letter but whether that’s realistic in particular circumstances depends on a whole circumstance but what it seems to say is that you don’t have to put off all alternatives because to do so could find one writing a letter whilst the nuclear weapon was winging its way towards you.
My lady, I would for completeness point to page 350 of the article where none other that Judge Wolfpanser(?) is mentioned. This appears to be the author’s own views in his conclusions but it’s the telling conclusion, in my submission, that Judge Wolfpanser(?) is mentioned there and the whole paragraph and the whole thrust of it is along the lines of the evidence which he gave to this court.
Very lastly, my lady, page 351 this particular author, for what he’s worth, says in that in America reasonableness is an essential concept in the necessity principle. That’s what I’ve said all along, one must act objectively from a position of understanding and not act emotionally, the floodgates do not open to anyone who may tag along with persons such as the accused here and for anyone who did tag along and who would perhaps damage a fence or sit in front of a station or anything of that ilk, bringing themselves to the attention of the summary authorities it would not clearly have the whole objective background nor the level of understanding which has been demonstrated by each accused here.
My lady, that exhausts my submission on the question of necessity and I now move on to Item 8 for my analysis which draws the distinction between acting wilfully and acting maliciously. The indictment of course uses the conjunctive between wilfully and maliciously and the Crown require to prove both elements. In my submission it’s been obvious from the outset, other than perhaps matters with emphasis and detail about acting safely in the preservation of life jackets and so on, the accused did act wilfully upon Maytime upon the dates in the indictment but in my submission the Second Panel, for whom I appear, did not act maliciously and if I may say so, although she didn’t particularly cover the point, it’s been obvious throughout the trial that that is also the position of Miss Zelter.
My lady, oh yes, I’ll leave my learned friend out, he’s perfectly capable of speaking for the Third Panel, my lady. The law of Scotland and England has, in my submission, run along very similar philosophical lines, having to say I needn’t delve into any more philosophy but I merely present for the Court’s attention what I consider to be the equivalent provisions and analyses in England to those which we know so well in Scotland. I have brought a copy of the English Criminal Law Act of 1967 and direct the Court respectfully to Section 3 thereof and in development of that section I present a photocopy of the discussion about that section by the learned author, Professor (?) Williams, whom it might be said to be the English Sheriff Gordon on criminal law.
My lady, beginning with the Act of Parliament, it is very short, 3/1 it provides a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders, that would seem to parallel McDougall and Hope for instance or suspected offenders or of persons unlawfully at large but the statute envisages immediately prevention of crime and given that it’s been perfectly obvious throughout this trial that the Defence line, or one of them, has been at crime prevention. Your lordship no doubt looking over her shoulder at what effect, if any, this case may have in other jurisdictions, particularly England will be comforted no doubt to see that Parliament has provided, indeed for the prevention of crime, so there’s nothing new in that. I needn’t take my lady through the narration underneath. I imagine your ladyship may have been, had sighted this section in the past. I merely turn to the learned author, Professor Williams in his magnum opus on English Criminal Law, the Second Edition, seems to take them, my lady, to the Second Edition before they get it right but there we are. At chapter 22.6 the learned author discusses Section 3, sets out the provision and then helpfully, in my submission it poses certain questions which lawyers might have in their minds when considering their position under that section. The first at page 494 asks a simple question: need it be apprehended that the crime will be committed immediately. No. But the force used, that is in crime prevention, must be immediately necessary, but that’s in the context of disarming a man who’s running off to commit a crime elsewhere. I would submit that what I said yesterday is the proper way to understand this case which is that one does what one can when one can after taking realistic steps to prevent the crime if one can. The author continues at 495 along exactly the same lines, in my submission, as the Americans, looks at the necessity of the force, is this again — we have to understand this in either crime prevention or arresting someone who has committed crime and look also at the question of proportionate or proportions, looking at the evil to be avoided and mentions that this is a question for valuation. Well that would be for the jury. Indeed at page 496 in the first broad paragraph the author says that in England it is the jury who make the evaluation. At page 498 the author poses the question in block text or bold text at the bottom. Suppose that an offence has been committed what guidance does Section 3 give in respect of the amount of force that I read that to mean the amount of action or type of behaviour that can be used in making a lawful arrest for a crime that is not of great gravity, aha, this you see, this would involve us with perhaps the irate shopkeepers and others whom I’ve mentioned. The crime is not of great gravity, it says the abstract principles are the same and give little help. The learned author provided for completeness the summary where in my submission the learned author hasn’t considered the question of nuclear weapons and the new way of thinking which it demands. But it appears that the law of England certainly in statutory form now has a similar provision to the common law of Scotland namely it is permissible to commit minor crime if one is engaged in either a great moral act of saving life or great damage to property or preventing a greater crime from happening.
My lady, having looked over my shoulder, as it were, to the law of England I return to the law of Scotland to Sheriff Gordon’s Criminal Law Second Edition and to the opening words in chapter 7, page 213 where the learned author reminds us that the basic principle of the common law in criminal matters, the translator may not be up with this, is that actus non facit reum, nisi mens sit rea.
SHERIFF GIMBLETT: Translate.
MR. MAYER: No act is punishable unless it is performed with a criminal mind. There is then the classic discussion on the nature of mens rea leading up on page or paragraph 7.31 to the learned author coming to the specific issue of wilfully and maliciously where he says this phrase has some more meaning. Maliciously is an ethical term which strictly speaking should have no legal meaning unless in any special case its meaning is spiteful, its meaning of spiteful is important. It is just another word for wickedly. Well, in my respectful submission that’s obviously correct. The essence of wickedness is mala, evil.
My lady, the learned author nor Parliament in its interpretation statutes and nowhere else can I find a definition, a legal definition for wicked but I’ve painfully translated or transcribed from the Oxford English Dictionary, available in the Advocate’s Library the meaning of the word wicked and under the heading headed law it provides bad immoral character, disposition or conduct; practising or disposed to practice evil. The learned author discusses the mens rea of malicious mischief which was the original charge in this case at paragraph 2203 and there is a long discussion with which your ladyship will be familiar I have no doubt. For my own purposes I don’t think it necessary to go into the discussion which is set out there up to paragraph 2212. I would prefer in concluding this submission, my lady, to return to the question of onus during a trial upon the Crown to prove beyond reasonable doubt that the accused had both mens rea and committed the actus reas, the wrongful act.
I directed the Court yesterday to the comments, well I go stronger than that, it’s the, my brain, like my computer, sometimes just crashes and won’t do anything, my lady, not the old interdictor the other one.
NEW SPEAKER: (Inaudible).
MR. MAYER: The rationality of the decision of the High Court in dealing with what has happened during the trial for wilful and malicious damage. My learned friend will address the Court and refer to a case where a distinction is made between the statutory vandalism and malicious mischief. For my purposes it’s sufficient to say that it is impossible for an accused in a Scottish criminal court to be seen by the court as both being in the right as it were, having used the causa and also at the same time on the same issue, that is the same charges, in the wrong. Where an accused pleads a right to act in the way libelled it is for the Crown upon whom the onus of proof lies throughout the trial to rebut successfully, it is not enough to raise a few questions, make an attempt, allude to the matter, the Crown must successfully, in the eyes of the judge, rebut that right or understanding. Your ladyship sees my point I trust, if one does not have a legal right but one reasonably thought one had a legal right, it is nevertheless for the Prosecution to rebut the right or the reasonableness. In my submission allusions have been made to that end but if the Crown are — sorry, take that out — but the Crown have not succeeded, they came a long way from succeeding, in my respectful submission, because the thrust of the Fiscal’s cross was not directed at that task. He seemed, in my submission, to be addressing merely the wilfulness of the actions libelled but did not address the maliciousness. Indeed he seemed to concede that the, he seemed to concede the purpose albeit he said that was misguided and he conceded the way in which the women acted and more importantly the way they didn’t act towards life belts, life lines and so on. So he did not rebut the lawful presumption required of him. That leaves at the end of the Defence case — and this is the first opportunity to say this in this Court — perhaps Miss Zelter’s opportunity was before mine, but your ladyship I trust won’t split hairs. This is the first opportunity to say that the accused having raised their right and/or reasonableness to act as they did there being no rebuttal that remains standing. In my submission and it is now my formal motion for the purposes of the tape, it is now my formal motion that your ladyship acquit the accused because not to do so firstly in my submission would be wrong in law, accused persons should not sit in a dock one minute more than the law requires but secondly not to do so, not to acquit and to allow the jury to consider the matter, would run the risk of conviction and it cannot be that accused persons are in the right in law are in the wrong in the eyes of the jury. It’s the same Court, same charges, that can’t be right, it’s legally impossible. I’m much obliged, my lady, and I regret it was more than quarter of an hour, my lady.
SHERIFF GIMBLETT: Oh, that’s all right, I expected that but you were pretty quick. Mr. McLaughlin.
MR. McLAUGHLIN: My lady. Lest there be any mistake, my lady, I would associate myself with the comments made by my learned friend and in particular the conclusion to his submission it would be my intention also to move the Court to come to the view that in this case a right and/or a reasonable excuse has been placed before the Court and accordingly an onus rests on the Crown to rebut that. The Crown have failed to do so, my lady, and accordingly the matter ought not to be allowed to go any further than that.
My lady, however if I could perhaps start my submission by saying that in this case because of the indictment the case starts and finishes with the question of malice for the sake of brevity I will refer to the authorities already quoted by both Miss Zelter and my learned friend but I would submit that in this case in law there is no malice.
My lady, if I could first deal with Gordon on Criminal Law because at the end of the day in the background there is the case of Helen John and in Helen John there was no ruling that there was a reasonable excuse and there was no ruling that there was an international law defence. In this case, in my submission, Helen John can be distinguished because I’m urging the Court that in law to form the view that there are these defences in this case and they have been made out. What is malice, my lady? My lady, my learned friend made a very good attempt and to define malice. Reference has already been made to Section 701 of Gordon but for completeness if I could read the last sentence of that paragraph after all Latin bits, and that is that mens rea can be defined amorally as “a legally reprehensible state of mine” but the test of the reprehensibility is essentially a moral one so that the inscription of mens rea is a moral judgment, my lady. So at the end of the day we are dealing with the law, legal ranks, legal definitions but behind it there is this lurking aspect of morality, in my submission. The other section quoted by my learned friend, Section 731, I do not need to go into that again other than make reference to the word spiteful, that seems to be a critical word in this context. Dealing further with my learned friend’s summary of the parts at the bottom in chapter 22, my lady, I would submit that that relates to in whole damage to property. Hume’s definition relates to someone’s, amongst other things, vindication to or right to vindicate a property situation and the cases referred to basically deal with the protection of things like turnips and the entitlement to place that fence in the right place so that if the fence is placed in the wrong place on someone’s land then he has no right to damage that fence. My lady, the law is unclear, I have to say, at page 712 in relation to this whole matter. There is an earlier case, two earlier cases which says that there is such a right and a latter case which says there isn’t. My lady, in my submission, I do not need to deal with the matter of property rights because in this case it hinges on the right of someone to do something, not to vindicate property but to stop the crime being committed. In my submission the learned author, Sheriff Gordon, doesn’t deal with the situation that we have with respect in Court today.
The case of McDougall, my lady, is the case that has already been referred to in the context of crime prevention. That is cited at 1985 SCCR 119, my lady. This gets to the critical issue of whether or not there is a shift in onus. In that case it was a summary prosecution, it was the statutory offence. The Court in that case there was no jury took the view that a reasonable excuse had been made out and that the Crown had not demonstrated that the reasonable excuse was not, or the Respondent’s excuse rather was not a reasonable one. My learned friend has quoted the passage at page 203 of that judgment and the point is that the Appeal Court said that they were not satisfied that the justices asked themselves the wrong question and basically the Crown had then failed to demonstrate that there was no reasonable excuse in all of the circumstances. The learned editor Sheriff Gordon in his commentary to that case raises the question about whether or not the result could have been the same if the Crown had been content to charge the common law crime of malicious mischief. My lady, in my submission, the answer to that has to be yes.
My lady, at the time of the framing of the original legislation into the vandalism charge, Section 78 there was a great deal of discussion about the necessity to frame such a piece of legislation because there was the malicious mischief charge in existence and a lot of people at the time thought that in effect it was duplicating a crime, it was the same crime, it was an echo of the common law crime. My lady, the matter was addressed in the case of Black against Allan, it is a very short opinion of the Appeal Court in 1995 SCCR…….
SHERIFF GIMBLETT: Could you repeat that again?
MR. McLAUGHLIN: Black against Allan, 1985, SCCR at page 11.
SHERIFF GIMBLETT: Yes.
MR. McLAUGHLIN: And the court held there it was a summary charge that the offence of vandalism was not merely an echo of the intent of malicious mischief. It then went on to deal with what the difference was, my lady, and focussed on one point and one point alone, my lady, and that was the difference between malice in relation to the common law charge and recklessness in relation to the statutory charge and attempted to distinguish between the necessary intention to establish either charge, reckless in my submission being wider than malice although it depends on the facts and circumstances of the police. It did not in any way deal with any other aspects to the statutory offence as it differed from the common law position. In my submission with that one exception of intention it stands on all fours with the common law crime.
My lady, it seems that aiming one for both solemn and summary cases there is this onus on the Crown to rebut a situation where a reasonable excuse or an international law of right arises. My understanding is that in every case in England there is at least one Crown expert for that purpose, that is the way it is tackled in England and in some cases there are lots of Crown experts because they know that this line will be adopted. In this case, my lady, the Crown knew that the line was going to be adopted from the list of witnesses, the list of productions mentions that for this jury trial and I think it’s fair to say that early on in the case, not disputing any or many of the facts that are at issue we explained the position prior to the trial starting, in my submission the Crown had notice. Now it seems that in England that is the position, in Scotland it’s summary level that’s the position yet solemn it is unclear. In my submission, my lady, it has to be the case that it follows throughout, there is no distinction at all, the onus has to shift to the (inaudible). It seems, my lady, that the accused may be prejudiced because of a level of damage caused. If it hadn’t been so much damage then they would have had the right which plainly exists under the summary procedure, in my submission my lady, that cannot be the case.
My lady, it’s not often, in fact I don’t know if another similar case has come before these courts where a situation arising out of Trident and what have you, has been (inaudible) on indictment, this may be a first. Certainly, my lady, in my submission I would submit it is the first time that the accused have presented a comprehensive defence case with eminent experts and the like. In Helen John that was a summary case and part of the problem in Helen John was that the reasonable excuse or the international law right had not been established in law, yet the appellant just went along and said I have a reasonable excuse, I have an international law right. My lady has heard expert evidence on that and in my submission it is for my lady to decide that point, at least not for the Jury. To decide basically that (inaudible) operates, in my submission it has to operate, it clearly operates, it would be in my submission a travesty if it did not, and secondly then to take the case away from the jury on the basis that a defence has been set up.
My lady, I now move to the international law defence because my lady has to be satisfied that for approval to take the case away from the jury there is enough evidence in law for this defence to be set up and if it is right then that is the end of the matter in my submission. If it is wrong then it may amount still to a reasonable excuse so from what I say from now on it (inaudible) on whether or not my lady takes the view that the Defence have set out a case. In my submission they plainly have and I may not have to go into any great detail because I think that after such evidence and the absence of a Crown witness, expert witness or witnesses to rebut that then in my submission that ought to be the end of the story. So I don’t know whether or not at this stage my lady wants to hear me on my regurgitation of the entitlement or right that accused persons to claim international law or to claim reasonable excuse at this stage. I don’t know.
SHERIFF GIMBLETT: I would like to hear what the Crown has to say though. On the other point which you have made I did wonder if it was going to be made but not knowing whether you would or not, you know I had to consider all eventualities.
Before I turn to you, Mr. Webster, I think it appropriate that I should speak to Miss Zelter because unfortunately you did not make this request, this motion, nor would I expect you to.
MISS ZELTER: (Inaudible).
SHERIFF GIMBLETT: Yes, I’m coming to that. What I was going to say that it is quite clear as all three of you and together if I can put it that way you have presented a common line of defence that if you were to ask me to consider that but it should apply to you too I would do so.
MISS ZELTER: I would like you to do that.
SHERIFF GIMBLETT: Mr. Webster, would you like time to think about this or have you already anticipated it?
MR. WEBSTER: I anticipated it in part but I haven’t had an opportunity, my lady, of looking at the last case which we referred to.
SHERIFF GIMBLETT: Yes, it’s not I don’t think in our bundle. So would you like a few minutes just to consider the position?
MR. WEBSTER: Yes, my lady. There are obviously quite a number of other points that were made during the course of the last four or five hours of submissions. I’ve no doubt my lady would also wish me to answer some of these.
SHERIFF GIMBLETT: I think it would be helpful but on the other hand I think the motion that has been made has come right to the heart of matters perhaps and it may be that at the end of what you have to say I would have some time, a little time, because I don’t know what you’re going to say, to think about it because if I am with Mr. Mayer and Mr. McLaughlin and Miss Zelter that would seem to be an end to the matter. On the other hand if I’m not it would be appropriate for you to address me on other matters, would it not?
MR. WEBSTER: That’s correct, ny lady.
SHERIFF GIMBLETT: Yes. So I’m quite happy to do with a break if I can say in the middle because there’s no point in putting you to a lot of extra work if it is not going to be necessary. Now that’s not to be construed that I have made up my mind, I have not and I wish to hear what you have to say on the whole matter. And if I am going to be for you then obviously I will wish you to address me on all the other matters that have been raised and would give you an opportunity to do so if I adjourn in the middle that is not to say you have finished what you were going to say to me. Is that helpful?
MR. WEBSTER: Yes, I would certainly welcome an adjournment at this time.
After an adjournment:
SHERIFF GIMBLETT: Now, it’s quarter to twelve now and I did say to the jury to be back at half eleven. I wonder if it would be prudent to ask them to come back at two or do you not think you will be long addressing me.
MR. WEBSTER: I don’t think I will be that long in addressing you, my lady, but obviously there may well be an opportunity for further (inaudible) by the Defence.
SHERIFF GIMBLETT: Yes. Well, I’ll tel you what, I wonder if perhaps the jury could be told that I would like them just kept just for a little bit longer if they would bear with me but I think if we’re going to go on very much longer it would be better perhaps to suggest that they come back at two. What are your views on that?
MR. McLAUGHLIN: It seems perfectly appropriate, my lady.
SHERIFF GIMBLETT: What, to come back at two or just to ask them to hang about and explain that we’re not quite finished but maybe….
MR. McLAUGHLIN: I’ve written down your ladyship that it would be a good idea that the jury be kept a little while to see what develops. I think that’s…….
SHERIFF GIMBLETT: All right.
MR. WEBSTER: Obliged, my lady. What the Defence are asking my lady to do in terms of this submission is to remove from the jury the duty to decide whether or not defences have been made out in this case subject to the ladies proper directions in law. I understood from the Defence submissions that basically what they’re saying is this: our clients have a defence in international law, in their view the Crown have not negated this defence in international law and therefore it follows that the Crown have not demonstrated that the charges of malicious mischief were committed maliciously. I understand from that that the submission present suggests that a defence of necessity has been made out and not rebutted and therefore I intend to confine my remarks to the question of the defence of international law.
My lady, at page 660, chapter 22 of Gordon under the heading “The Mens Rea Malicious Mischief” there then appears the word “malicious” in quotes and it says “Malicious mischief can be committed only wilfully and that this means that the damage must have been inflicted either intentionally or recklessly”. I think there’s little doubt in this case that the damage was inflicted intentionally and I don’t take that to be a matter of issue. In the following paragraph under the heading “Spite” it says “It seems to have been thought at one time that malicious mischief required malice in the sense of spite against the owner of the property”. Reference is then made to a case of a William Reid charged with malicious mischief, it was dismissed as irrelevant because the damage was alleged to have been done with a view to increasing the accused’s claim for compensation against the owner, his landlord, which made it impossible to describe the mischief as malicious. Gordon says this now must be regarded as wrong. Malice in this sense is a matter of motive and there is no need to show that it was present in order to establish the crime of malicious mischief and he gives his authority for that in the case Clark v Syme 1957 Justiciary Cases, page 1 which is described and more fully on pages 661 and 662. He further refers to the case of Archibald Thomson, the charge was of malicious mischief by injuring a cow wilfully and with the malicious intent and purpose of injuring the owner in his property and estate but the conviction was only of malicious mischief without the malicious intention libelled and this conviction was sustained. So in a view from what Gordon says it is non-incumbent on the Crown to establish maliciousness in the sense of spite.
My lady, in my submission my friends submissions pre-suppose that a defence of international law has been made out and that’s it. I would certainly take issue with any suggestion that a defence under international law had been made out in terms of the advisory opinion of the International Court of Justice of 1996. Now my friend Mr. Mayer said during his submissions yesterday that the Crown hadn’t quite grasped that that wasn’t a defence position and then proceeded to refer to it in a large number of occasions thereafter. Certainly there have been witnesses who have given evidence that in their view there is a defence under the international law but it’s the Crown’s submission that there’s a requirement to establish that if that is the international law that it applies to Scottish Courts and I think that takes us to a different question because one of the cases quoted here was Mortonson v Peters which as my lady knows was tracing rolling fishing nets which in my submission in any event can be distinguished. It was a case involving whether or not the Scots law on fishing nets could be applied outwith the three mile limit which was then the limit for the territorial waters and in my submission it can be distinguished apart from anything else it is in effect the reverse side of the coin was the Crown not being allowed to apply Scots law outwith territorial waters as opposed to saying that matters of international law are binding the Scottish Courts. It’s the Crown’s submission that matters of international law either require to be adopted in terms of statute — and I’ll come to that in a moment — or to have judicial authority that they apply in this country. If one looks for instance at European Community law as an example it took the European Community Act of 1972 to apply that law to this country. Until the Scotland Act of 1998 the decisions of the European Court of Human Rights to quote the Court in the case of Alistair McLeod, the petitioner (inaudible) the decisions of the European Court of Human Rights may be of persuasive authority. Now since the Scotland Act and the link between the Scotland Act and ECHR there are certain instances in which ECHR law now applies. It doesn’t apply in England and it won’t fully apply until the Human Rights Act is brought in. Now I state that by way of example, my lady, but perhaps more importantly, if I can refer to two matters which my friend Mr. Mayer referred to the Genocide Act of 1969 and the Geneva Conventions Acts of 1957 and indeed these are matters referred to, I think they were referred to by Miss Zelter, with reference to chapter 29 in Gordon international offences where at paragraph 29.53 says “Genocides Section 1 of the Genocide Act 1969 makes it an offence to commit any of the acts specified in the schedule to that Act in acts prohibited by the Geneva” — sorry — “by the Genocide Convention 1948” and then rehearses a schedule and the Act itself says “An Act to give effect to the convention on the prevention of punishment of the crime of genocide” and then subject to the usual preamble it then says “A person commits an offence of genocide if he commits any act falling within the definition of genocide in Article 2 of the Genocide Convention as set out in the schedule for this Act”. Looking at the Geneva Convention Act 1957 again this preamble is an Act to enable effect to be given, effect to be given, the words in the 1969 Act were to give effect to certain international conventions done at Geneva on the 12th day of August, nineteen hundred and forty-nine and for purposes connected therewith. To quote my friend in his submissions this 1957 Act was the bringing into domestic law a several treaty obligation and looking at the wording of the Acts themselves an Act to give effect to the convention of the prevention of punishment (inaudible) genocide, an Act to enable effect to be given to certain international conventions. In other words, these had to be specifically introduced by statute into British law to give effect to them.
One of my friends in their submission also referred to the judgment of the Pinochet case which I think is reference No. 11, but without going into it detail I think it’s the fifth paragraph, the writing is quite small and it’s a summation of the judges, the various judges and under each judge’s picture it gives a summation of the judgment, the points said was “As acts of torture committed extra territorially did not become punishable under English law until Section 134 of the Criminal Justice Act 1984 came into effect on 29th September, 1998, any acts of torture committed outside the requesting state prior to that date are non-extraditable”. Now I read into that that because that is the date in which this Act came into force the majority of the court there held that they couldn’t extradite the general for offences committed before that date because there was no UK labelling statute giving effect thereto.
But my point, my lady, is this that it’s all very well on the one hand for various people to come along and say well here’s the international law, here’s what we see it says, here’s the excuse it gives to the accused but in my submission it either must be incorporated into UK law by statute or by judicial judgment and it seems to me that my friend’s submissions proceed on the basis that we’re all accepting and assenting to the fact that the defence of international law has (inaudible) legally. So therefore, my lady, I would submit that as I understand it the point made by my friend relates only to international law and not to the defence in Scots law necessity. I would submit that before we get to the stage which my friends I think indicated were at your ladyship would require to be satisfied that an international law defence not only has been made out but applies to the accused committing offences in Scotland and in particular on the day in question and in particular the offences on the indictment.
SHERIFF GIMBLETT: I’ll need to be satisfied that the international defence has been made out.
MR. WEBSTER: It has been made out and is applicable to offences committed within the jurisdiction of Scottish Courts and in particular the offences libelled against the accused on the day in question.
In any event I would submit, my lady, that the Crown have proven that the damage in this case occurred wilfully. We don’t require in terms of law to prove that it was carried out spitefully and in my submission it’s open to the jury as a matter of inference from all the facts and circumstances to infer that this was malicious damage and of course it’s open to the Jury on the one hand to reject any or all of any part of the Crown case or to reject all or any part of any the Defence case, these are matters of fact for the Jury and in any event, and I’m not in any sense conceding the point, even if my lady gave effect to everything, every part of the submission made by the Defence in this case, my lady will note one of the charges is libelled in the alternative and of course it’s my lady’s motion and recollection of the evidence which counts, but as I understood it from the accused there was no dispute that they not only deposited these items in the law, the actus reas, but their intention was to make (inaudible) irretrievable or unusable and that in my submission amounts to theft and the Crown do not require to prove mala as far as theft is concerned, it’s the intention to deprive the owners (inaudible) authority and doesn’t need to be the intention to deprive the owner permanently. But that submission I merely make as an aside, my lady, but not in any sense conceding the principal points made by my friends.
SHERIFF GIMBLETT: Thank you. Mr. Mayer, I wonder — I know you will be addressing me and I see you have certain documents and I presume Mr. McLaughlin will be too and I wonder if it might be kinder to the jury to indicate that they should perhaps come back at 2 o’clock.
MR. MAYER: Well, my lady, I really will be five minutes.
SHERIFF GIMBLETT: Well (inaudible). Yes, I know we are but I’m just trying to get an idea of the time taken because I don’t want to keep the jury hanging on indefinitely and it’s not just you, only if I say five becomes ten and that’s not directed at you but an inability of the legal profession should I say to estimate accurately (inaudible) quite as long as they say and even if Mr. McLaughlin takes ten minutes I don’t know how long Miss Zelter will take but that could be ten minutes if not more. I don’t know but we’re still at half past twelve.
MR. MAYER: I’m in the Court’s hands my lady.
SHERIFF GIMBLETT: Right. Well, I think what I’m going to do is ask the jury to come back at 2 o’clock, given that there are three of you and even supposing you each take five minutes there’s not an awful lot of time because I would wish to consider the matter too and so I’ll ask them to come back at 2 o’clock.
Now, Miss Zelter, you (inaudible) the motion made by Mr. McLaughlin and Mr. Mayer and you’ve heard what the Procurator Fiscal has said. Is there anything you wish to comment on?
MISS ZELTER: I think I’ll leave most of the submissions to the two Advocates. I think the only thing I want to say is that……
SHERIFF GIMBLETT: Stop, stop, stop. (Inaudible)…….Miss Zelter.
MISS ZELTER: The only thing I really want to say is that the whole point of customary international law is that it binds every single country and that although it’s good to have the Genocide Act and the Geneva Conventions Act having been incorporated directly that doesn’t mean that the whole body of international customary humanitarian law is not applicable here in the Scottish Courts and I see this point as being of huge importance in the (inaudible) situation, that countries do recognise that they are bound by humanitarian law (inaudible) and I think I’d like to leave the rest to…….
MR. MAYER: Obliged, my lady. My lady, the main point as I understand my friend the learned Fiscal was that the international law relied upon by the accused has not been incorporated into UK law. My response to that is, so what. The purpose of the Genocide Act and the Geneva Conventions Act was to give a teeth force to the authorities in the United Kingdom to deal in the ways described by the Conventions that with those who transgress gross breaches as the Conventions say. In that sense the main purpose of the Genocide Act and the Geneva Conventions Act was mechanical, not a substantive one. As Lord Murray reminds us at page 133, right at the bottom of the page, and as I submitted last night, it is to be noted that in so far as they consist of international customary law they, that’s they are part of the domestic law of this country and that’s all what the learned author sets out from St. Petersburg in 1868 through the protocol 1 of 1977 now ratified. So as I said yesterday the ratification of protocol 1 in December, 1997 gave the force of law in this country via the nature of international customary law to that protocol. That protocol outlaws preparation of planning and all that I said yesterday, so the fact that we don’t have a United Kingdom ratification of Geneva Protocol 1 Act is neither here nor there, it’s still the law. It may be that gross violation of that law would require to be dealt with outwith a United Kingdom court but that is a mere technicality by comparison with the substantive nature of the law.
My lady, the other substantive point made by my friend the learned Fiscal seems to be that he doesn’t require to prove mala, certainly not in theft. My response to that is why is the word malicious in the indictment. My friend the Fiscal says it’s redundant. I say it’s not redundant, he’s misunderstood the nature of Clark against Syme. It is not the High Court of Justiciary which has misunderstood Clark against Syme and made the kind of pronouncements ratio decidendi, it has made for instance Morse against Howdell, it’s my friend who has misunderstood. If there were any doubt about that then the ultimate master of this instance Lord Hardie and his predecessors one would imagine would have via their experts in the Crown Office identified this every day matter, wilful and maliciously comes up every day in Court and would have altered their formulation of indictments to the subjunctive word “or” instead of the conjunctive word “and” for in the field of human affairs it can only be after all of the evidence has been tested that the trial of fact could arrive at a decision as to the accused’s state of mind and what has happened and so on. The Crown can amend indictments at the end of the Crown case, it’s not in my experience the Crown’s ever amended the words “wilful and maliciously” so neither the Crown Office practice or policy rather, nor the practice of Deputes in Court seems to be concerned with the formulation of this language. I see the learned Fiscal’s difficulty, my lady. I would go as far as to say if I were him I make the same point but in my respectful submission there’s no substance in that point.
The Crown requires to prove the charges. Now I accept the fact that Charge 4 is in the alternative but so far as wilful and malicious is concerned the learned Fiscal has no substance in the submission. Obliged, my lady.
SHERIFF GIMBLETT: I take it from that, Mr. Mayer, that given that there is an alternative that his submission does not relate to that alternative.
MR. MAYER: It cannot.
SHERIFF GIMBLETT: I agree with that, yes.
MR. MAYER: It just can’t.
SHERIFF GIMBLETT: So in any event you’ve got to go to the Jury on that.
MR. MAYER: If your ladyship were with — to grant the motion then it would be a matter of decision for the Fiscal to decide in the context of the whole trial whether he insisted on the alternative to Charge 4, it would be a matter for him.
MR. McLAUGHLIN: Obliged, my lady. My lady, my friend the Fiscal starts off by saying that he need not establish mala in the context of wilful and malicious. In my submission, my lady, that aspect to the phrase is critical for it to amount to a crime, without malice in these circumstances there is no crime in Scots law. If there was another crime that the Crown intended to charge the accused with then it ought to have given the Defence fair notice and indeed charged the Defence with it. Malice in my submission, my lady, is a common (inaudible) Scots law it is involved in a lot of cases and in this particular situation it is essential for the Crown to go to the Jury on anything in relation to the malicious mischief charges.
My lady, in relation to the other submissions my friend the Fiscal does not proceed to draw a distinction between summary and solemn so I take from that that there is no dispute that the onus on the premise that I am right in my submission the onus does shift to the Crown in solemn cases just as it shifts to the Crown in summary cases. As I say, my lady, it has to be on the basis that I set out either the international law right or the reasonable excuse defence. If I do then in my submission standing what’s been said or what’s not been said more accurately the onus shifts.
My lady, for completeness the reference to Clark against Syme etc., I think I made the point when I made my submissions that it deals with malicious mischief in relation to vindication of the property rights. In this case we’re dealing with malicious mischief or not malicious mischief in order to prevent a crime, my lady, just a small point that I would ask the Court to have consideration of when looking at chapter 22 of Gordon.
My lady, if I can turn now to the matter of what the Crown say that we intend to rely on and that is that what (inaudible) is contrary to the international law and as witnesses the Crown seem to have said that that is indeed the case. In fact I would recollect Professor Boyle, Professor Rodgers and Rebecca Johnston giving a view on that although the latter two relate to strategic matters and not solely international law. Professor Boyle is the person that we rely on for that but in my submission, my lady, the only way that the Crown can rebut Professor Boyle in my submission is to lead their own expert to say something like Trident II does not have any warheads on it or the submarine does not have any warheads on it or the strategic defence review says that it’s at a month’s notice to fire so therefore it’s not an immediate threat or in order to fully fire a Trident II missile you have to come back to dock to have it fitted etc. My lady, there is no expert who contradicts Professor Boyle in this case.
My lady, it would be very unsatisfactory in my submission for matters of international law to go to the Jury for them to decide. My lady doesn’t have in this case the opportunity of hearing the evidence from commensurate and qualifying eminent professors so that you can decide what international law as it relates to Trident II. She has one expert, it is for my lady to decide, not for the Jury to decide.
The other point raised from my friend the Fiscal was that it’s for the Defence to establish that it applies to Scots courts. My lady again there is no expert who says that it doesn’t, however I would pray in aid my submission that it does by firstly looking at the case that we are attempting to extinguish Helen John where the Appeal Court only a couple of months ago in deciding the question had regard to the effects of the advisory opinion of the International Court of Justice. So the Appeal Court are looking at the International Court of Justice, my lady.
My lady, as far as the binding nature of international humanitarian law goes and that is what we are dealing with here, I would adopt the submission made by Miss Zelter that it is quite clear that customary international law is binding in the United Kingdom without it having to be adopted by statute or by judicial authority.
My lady, the decisions of the war tribunals in Yugoslavia, Rwanda and Nuremburg are all customary international laws and they are binding in my submission on all states at all times. Nuremburg, my lady, wishes to base — not the ICJ, but Nuremburg — is the basis for the international law right here in this case and that is part of international customary law and it is binding in my submission. Even if we did not have that chronology of treaty from the Hague Convention during Nuremburg to the ICJ I would submit that the ICJ decision just as it has been referred to in deciding the question in Helen John is for people in Scots law and is binding if not very very persuasive. I would refer the Court again to Lord Murray’s piece, I would just leave it but I think that would amount to prejudism, I think I have to give him credit for coming up with these thoughts, however much I would like to (inaudible). At page 127 of that pamphlet, the second last paragraph, the British judge being Rosalind Higgins pointed out that 95 per cent of the court’s decisions had been implemented despite the lack of effect on (inaudible) power and secondly that advisory opinion of the court is just not to be dismissed as a matter of opinion just to be disregarded if you do not agree. Lord Murray then talks about the approach taken by Sir Michael Quinlan who at the time, the late eighties, early nineties was the Under Secretary of Defence in Britain and he deliberately dismissed the ICJ opinion basically because it says what he doesn’t want it to say, my lady, and he says that it’s only an advisory opinion and it’s not authoritative determination so that it cannot create binding international law so it can safely be disregarded in framing the defence policy.
My lady, standing what has been said by Professor Boyle in particular that is wrong. Lord Murray then talks about the strategic defence review of last year and says that the perception there is that the pronouncement of the ICJ is not binding therefore it is (inaudible). There has been in evidence, my lady, a document, where the Ministry of Defence have said that what they’re doing is not contrary to international law and particular regard was given to the terms of the opinion of the ICJ so the Defence establishment are aware of the ICJ opinion.
It is true, my lady, that obviously not all opinions are binding on the parties but Lord Murray makes a fair inference that power to deliver them was not conferred in the first instance with the attention of them being ignored. He says that at the very least it’s a (inaudible) in that it embodies the collective view on a point of law in relation to the question posed of the highest judicial organ of international law. Then he then makes the point that it would be applied perhaps in a civil contentious litigation between parties and he then includes it would be unwise to adopt the Quinlan and to disregard the opinion.
So my lady in my submission it’s customary international law Nuremburg et al, it’s different from the EEC HR, it’s customary international law Professor Boyle said is all around and if the Crown were in any way going to dispute that then they ought to have called an expert. That, my lady, is what happens in England I am led to believe. So my learned friend criticises the Defence (inaudible) when he says that we fail to establish that it applies to Scottish Courts. My lady, I think in my submission it is clear it does and Lord Coulsfield obviously had cognisance of it.
SHERIFF GIMBLETT: Are you saying that Lord Coulsfield had cognisance of it?
MR. McLAUGHLIN: My lady, the point is that it was considered by the Appeal Court before they reached their decision but for Helen John this side of the bar would seek to distinguish that on the grounds, you know, it’s not just Trident nuclear weapons possession, this is not as Trident II correct to use, you know, so we’re trying to set aside Helen John’s case but the only point of raising Helen John is that it was before the Appeal Court and the Appeal Court………
SHERIFF GIMBLETT: I know, I’ve got the point, I’ve got the point, it’s just a little while back I don’t seem……
MR. McLAUGHLIN: Sorry, sorry, sorry. My lady, even if, and I’m not conceding this for one moment, the international law defence has not been in doubt and I’m saying if it has then there is still the reasonable excuse (inaudible). My lady, in my submission can’t allow the interpretation of the law to be left to the jury. Either there is an international law defence or there isn’t, or either there is a reasonable excuse defence or there isn’t, it’s not for the jury to decide on those points and accordingly my lady in my submission answering those questions and/or in the affirmative then is agreeing there is a defence made out and accordingly I go back to the first line of my submission earlier on this morning, the onus is then on the Crown by use of experts or other means to rebut that defence.
So in effect, my lady, I suppose my motion is asking the Court to rule on the law, which is the Court’s domain and having ruled on the law to then ask the Crown if it is favourable to the Defence why have you not brought your own experts along to rebut the onus.
My lady, before we adjourned the first time round I was then about to explain to the Court why, or to sum up to explain because Professor Boyle in my submission has already done that and other witnesses have already done that but to summarise to the Court why there is an international law defence/a reasonable excuse defence but obviously if my lady is with me on this point then that would be (inaudible) but I still have to canvas that if the need arises but I would submit that my lady has enough information before her just now to make a ruling on the legal situation in relation to Trident II via customary international law which includes the world court decision.
My lady, it’s a small point but it relates to the alternative charge now. My lady, my submission is that the whole indictment should be knocked out and that includes the theft charge. My lady if I had a knife, this is not a strong point, my lady, because I’m relying on the fundamental issue, but if I had a knife and went at my friend with it and he took the knife away and ran off with it then is he guilty of theft? What is happening here is that these women are in effect (inaudible) the knife or taking the knife off the person with it so if they have a right under international law or a reasonable excuse relating to the malicious mischief defence then it would be a bit illogical for that defence not to fall right the way through to the end. I gather that taken in isolation, you know it’s difficult to, it’s not often that it relates to a theft matter but it has to be seen in the round, you know, if they’re acquitted in relation to malicious damaging these items because they have a right or a reasonable excuse then it would be very odd for them to be convicted of theft. But as I say my lady, if my lady wants that to go to the jury and it’s (inaudible) this is all I have to ask but all I can say. However, I would say that the defence goes from the start of the indictment to the end of the indictment, they’re either right or either wrong.
SHERIFF GIMBLETT: I wonder if you would perhaps give me ten minutes just to look at what I have written down and consider the matter and then I will come back and give you a decision on the international law defence because I appreciate Mr. Webster you have not addressed me, not knowing what I’m going to say (inaudible) but if you wish to address me on that other matter now please say so.
MR. WEBSTER: What I think, my lady, never indicated, depending of course on what view my lady takes and we don’t know that yet that it would possibly short circuit matters to consider this submission at this stage.
SHERIFF GIMBLETT: Yes, I think so. Thank you.
After an adjournment:
SHERIFF GIMBLETT: As has been mentioned to me it seems I’m quite clear that the defence in this case for all three accused is based on two matters, the second being if you like esto code, that is if you don’t agree with me on the first ground of defence (inaudible) on the next one. The first being that 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 I understand from Miss Zelter they do not say that possession of weapons, such weapons is illegal but the use and threat is illegal. Then again they had a right particularly given the enormity or the risks of nuclear weapons to try and do something to stop that illegality. The esto offence, if I can put it that way, was based on absolute necessity and as Miss Zelter put it in her view it didn’t really matter whether it was illegal or not the necessity was still there. It’s the principle that’s the illegality.
In considering this question because I cannot get away from it, can you hear me now?
NEW SPEAKER: Yes, thanks.
SHERIFF GIMBLETT: I have really not a great deal to go on other than what the International Court of Justice had in 1996 and indeed their opinion which is advisory and not binding but I think acknowledged at least in word acknowledged that it is authority and agreed by all at least on the face of it that very careful consideration should be given to its terms.
In reaching their opinion the International Court based their opinions on all the body of law which went before it and is carefully outlined in their opinion and that law has to an extent been canvassed in this Court also by the various experts. The opinion did not say that the possession of nuclear is illegal. Nowhere does any law say that, even our own High Court has said that the possession of nuclear weapons is in itself not illegal. Unfortunately because they had not been addressed on the law and they were simply dealing with what appeared to be an honest belief of the accused they did not go on to consider the law except so far as it related to possession, but I think in many cases, in many ways, the case of Helen John can be distinguished in this case not only do we have the defence of international law and necessity but the whole defence hinges, if I can say it this way, on the use made of nuclear weapons now and the perceived threat or threats made by the nuclear states, this is the whole question. And on that particular matter the use or threats of use I would concede that the International Court did not say that in all circumstances the threat or use of nuclear weapons was universally prohibited by either customary law or conventional international law or indeed on the other hand that there was any customary or conventional international law that authorised the threat or use of nuclear weapons. Then they issued what I think many many people consider to be an enigmatic decision and although this has been read out on a number of occasions I don’t think it does any harm to be read over again. This is at paragraph 2(?) and it reads as follows “From the above mentioned requirements that the threat of all use of nuclear weapons would generally be contrary to the rules of international law applicable in arms conflict and in particular the principles and rules of humanitarian law”.
Then it goes on to say “However in view of the current state of international law and of the elements of fact at its disposal the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a state would be at stake”. I think it is these last words which are really quite important. We do not know what they meant by the word “generally” but their final conclusion which is really perhaps what is called a non (inaudible) conclusion, that is we don’t know, would seem to indicate that the use or threat of such weapons could only be used in very tight circumstances of self defence in which the very survival of a state would be at stake. And I think read most if you like in that opinion by reading what it says by the President of the Court when he said, if you can just bear with me a minute, I had it marked and I’ve lost the page. It starts with the words “I cannot over-emphasise” and I’d difficulty finding where that was. Perhaps Mr. Mayer or Mr. McLaughlin could help me. I’d it marked so clearly and I don’t know what’s happened, I think the page has fallen out. Please forgive me. No, it was a paragraph which dealt I think with the opinion expressed that he was not giving an open door…….I don’t see it in paragraph 11, Miss Zelter.
MR. MAYER: My lady, the passage is quoted by Lord Murray in his article at page 131 in the penultimate paragraph, “These somewhat enigmatic passages are the Court’s collective answer to the question put. The President of the Court expressed an important caveat on the interpretation of that answer. He stated ’I cannot over-emphasise…….”.
SHERIFF GIMBLETT: Exactly it. Thank you very much, Mr. Mayer.
Yes. I am (inaudible) when I say that the President said “I cannot over-emphasise that the inability of the Court to go further than the form of pronouncement at which it has arrived cannot in any way be interpreted as a half open door to recognition of the legality of the threat or use of nuclear armaments”. I have also looked at the way the judges voted at the end in reaching their final enigmatic conclusion which was pointed to by Mr. Mayer and where it seems there was a majority of judges voting against the use of nuclear weapons. And again for the avoidance of doubt what I’m going to do is to quote, for the avoidance of doubt, I’m going to quote what Ronald King Murray said on page 132 in the journal referred to by Mr. Mayer. And I think I would have to say that I found this article in the journal very helpful given the status of Ronald King Murray.
What he said about the final opinion was turning to the central matters on which the judges were equally divided until the President’s casting vote the Court’s decision was to the effect that the threat or use of nuclear weapons is unlawful under all circumstances except possibly one last resort self defence to avoid annihilation, to have a balanced view of the grounds on which the judges decided. It must be noted that three of the judges dissented took an exactly opposite view to the other four dissenters. Four considered that nuclear threat or use was not unlawful as a general rule, the other three in contrast considered nuclear threat or use to be always unlawful. It follows that an absolute majority of the Court 10 out of 14, a two-thirds majority, judged that threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception, that is a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.
Now, I have the invidious task of deciding on the question of international law here as it relates to nuclear weapons and I do so with great diffidence being only a fairly junior Sheriff without the wisdom and experience of those above me and in the knowledge that the repercussions could be far reaching. But when I became a Sheriff I took an oath which demanded to acting without fear or favour in interpreting the law and as the point of international law has been raised here I have to answer it. I take comfort from the fact that I do so in the full knowledge that there are other higher courts who can rectify any mistake I may probably be making. So in the absence of anything other than the ICJ opinion which Court considered all the relative law referred to, referred to by counsel and Miss Zelter, having regard to what was said in the article by Ronald King Murray, already referred to, and in particular that part relating to treaties and conventions which concludes with the words “These then are the principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country” and having listened to the evidence of Professor Boyle and taken into account all the evidence relating to facts and circumstances relating to this case from him and others, particularly those called as experts and in the absence — and this is very important — in the absence of any expert contradictory evidence from the Crown, 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 a first strike reservation policy 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 customary 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 that 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 objection per se. It follows I think that if I consider 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 damage.
I agree with the comments put forward so succinctly by Mr. McLaughlin after his colleague Mr. Mayer had spoken concerning the word “malicious”. I am of course aware of the statement referred to in Gordon’s Criminal Law and I won’t repeat the Latin but simply the transaction “No act is punishable unless it is performed with a criminal mind” and therefore no act is punishable under the law of Scotland if it is performed with no criminal intent. I have heard nothing which would make it seem to me that the accused acted with such criminal intent.
Accordingly it now falls to me I believe formally to instruct the Jury that they should acquit all three accused of those charges that relate to wilful and malicious damage, that is Charges 1 and 3. That leaves the alternate charge in Charge 4 and in fact I think I would for completeness sake I would have to acquit the three accused in respect of the first alternative of Charge 4. So that leaves the second alternative and I would wish the Procurator Fiscal to consider his position there in the light of Mr. McLaughlin’s remark, if he has not already done so, to address me if necessary and let me know how he wishes to proceed in respect of the second alternative of Charge 4.
Now, before I do that and before I stop, bearing in mind the three ladies before me had many friends and supporters in Court and outside who may take this decision as an open door for further action which may be against the law. May I say that if anyone else takes such action they do so at their peril. The law is not clear on nuclear arms. I may be totally wrong and if it goes to appeal I may not be upheld by those above me.
Furthermore, every case depends on the whole facts and circumstances. What I have said is said in very special circumstances of this trial. The evidence led and what happened on board Maytime and the expert evidence led or not led, not least if it relates to international law and the world wide situation of tension in the world in the months immediately before June ’98 and at that time. That is my decision.
Mr. Webster, that leaves us with the second alternative.
MR. WEBSTER: My lady, I would wish a little time to digress my lady’s decision and also the ramification of it before intimating what my position is in Charge 4. Particularly given what my lady has said about possible appeal, whatever action I take may or may not relevant or later considered by others to be.
SHERIFF GIMBLETT: Yes. How much time would you like?
MR. WEBSTER: Well, given that, depending if I go a certain way we’re going to be finished anyway and given if I’m not, we don’t, we’re talking about at least myself and probably others addressing the Jury on the alternative charge tomorrow then I don’t think there’s any harm in asking my lady for about half an hour because it’s by no means a simple……
SHERIFF GIMBLETT: If you would like (inaudible) I have no objection. I think this is something that will require a bit of thought and perhaps some advice, I do not know.
MR. WEBSTER: It’s not the sort of situation one can have immediate reaction to. Obviously if the charges that were left were extremely minor charges then bearing in mind the previous timetable of this case, if I can put it that way, the Crown could easily and does on occasion adopt, but given what we’re left with certainly in terms of possible value, is an insubstantial charge, I think it’s a matter where I know we do need to consider my position, particularly if there was any consideration of any question of a review, given my lady’s decision.
SHERIFF GIMBLETT: Ladies and gentlemen, I’ve brought you back because it seems that although one part of the argument before me has been resolved there is still other matters to be considered and I don’t want you hanging around any more.
We had hoped perhaps that everything would be disposed of today as far as the arguments were concerned, but that’s not possible and the Crown has asked me for a little bit more time to consider certain matters and if necessary to address me and I have agreed to that. So you are free to go, but would you come back tomorrow and I give you the usual warning, please do not discuss this trial or anything you have heard, or anything to do with the subject matter.
I think, Mr. Mayer, I understand what you’re saying but I think I would like a (inaudible) before I say anything further.
MR. MAYER: Yes. I was concerned with perhaps a piece of procedure might not have been followed, that’s all.
SHERIFF GIMBLETT: Yes. Well, I think if Mr. (inaudible) agrees with me as the legal argument is not yet over it would be inappropriate for me to give an opinion.
MR. MAYER: I’m entirely in the Court’s hands.
SHERIFF GIMBLETT: Mr. Webster, I understand you would like a little more time…………(inaudible).
MR. WEBSTER: Apart from anything else, my lady, as I’m possibly inclined to be at the moment, I do intend to address the Jury on Charge 4, the alternative, in view of what my lady has said they’ll be certain obviously alterations to what I will be saying to them. It may in effect cut down what I’d be saying to the Jury.
SHERIFF GIMBLETT: Yes, but we are proceeding with the alternative.
MR. WEBSTER: That’s my view at the moment, my lady.
SHERIFF GIMBLETT: Yes, right. Mr. McLaughlin.
MR. McLAUGHLIN: My lady, two matters. The first one is valuation of what is left on the indictment…….
SHERIFF GIMBLETT: The Joint Minute……
MR. McLAUGHLIN: …..the Joint Minute but that was a global valuation for what was in the sea and what was left on the (inaudible) but broken and unreparable so I don’t really know what the value is in this case now, vis-a-vis the alternative Charge 4, we need to try and work that out I suppose. The other point…….
SHERIFF GIMBLETT: At the end of the day it may not make an awful lot of difference but I understand what you’re saying.
MR. McLAUGHLIN: My lady, the other point is what can be said to the Jury in the speeches?
SHERIFF GIMBLETT: Sorry what……?
MR. McLAUGHLIN: What can be said to the Jury in the speeches from a sense of — I don’t want to be pulled apart having spoken to the Jury by the Court because I may have said something inappropriate but what I intend to say to the Jury is that your ladyship has dealt with the other charges on the indictment and has found in this particular case on the international law argument the accused were justified. Would that be okay, my lady? Because I want to develop that by using the same logic I used to my lady before lunch. I basically want to say, you know, that (inaudible) justified to do that then everything that happened on Maytime carries with it a sort of justification argument.
SHERIFF GIMBLETT: Yes. I think on that perhaps Mr. Webster may have something to say as well.
Mr. Webster, I don’t think you should make a decision immediately, this argument is not finished which is why I did not say to the Jury that the charges on which they stand acquitted, I didn’t tell them that this time because the argument as I understood it is not over, you might have wanted to reply on the second alternative.
MR. WEBSTER: Yes, as I understand it my lady has reached a verdict on 1 and 3 on the first alternative.
SHERIFF GIMBLETT: That’s right.
MR. WEBSTER: And as I understood it the argument in relation to mens rea and malice was restricted only to the charges of malicious mischief.
SHERIFF GIMBLETT: That’s right.
MR. WEBSTER: And I didn’t understand……
SHERIFF GIMBLETT: I think that was considered by Mr. Mayer that as far as the theft was concerned it’s rather different, isn’t it, there’s no question you know of malice attached to it.
MR. McLAUGHLIN: My lady, my (inaudible) that it doesn’t sit comfortably that perhaps the acquittal on the malicious mischief charges and they’re acquitted on those and if the Jury convict on the alternative, the fourth alternative then on one view of this perhaps that conviction is inconsistent with the other acquittals and there have been cases where the Appeal Court have determined that the conviction being inconsistent with the acquittals has to fall so I’m worried about the logic of it and when I go home tonight to write my speeches I just wonder what I can say and what I can’t say.
SHERIFF GIMBLETT: Yes, I understand and that is why I thought the argument was not quite finished as far as Mr. Webster was concerned because he was considering his whole position and it might have been that he would not be proceeding with it but on the other hand he may have been and I understood was as a reserve of your second part of the argument that if it affects 1, 3 and the first alternative of 4 there would be something similar to be said about the second alternative.
MR. McLAUGHLIN: Yes, my lady. On basically being if I’m justified in taking a shotgun from someone and intending to use it and running away with that shotgun I’m justified. I’m justified throughout and I can’t really be charged with theft of that shotgun, that’s the inconsistency.
SHERIFF GIMBLETT: I understand what you’re saying but I don’t think Mr. Webster has addressed me on that particular point (inaudible) second alterative of Charge 4.
MR. WEBSTER: What my position briefly, my lady is that you said the alternative on Charge 4 is in a different position with regard to the other charges because the mens rea is different and the question of malice which my friends argued and the effect on that of the defence in international law and the effect which my lady has canvassed with regard to expert evidence from the Defence and not from the Crown and I would submit that applies only to the malicious mischief charge because of the — I of course have to respect the Court’s decision on this matter and start from that premise but this centred around the question of the malice and the legal definition of malicious which I think was developed as to be from Gordon as to mean wicked and that the submission made was on that basis but, well I resisted that submission for other reasons which my lady has obviously rejected and I would also resist the submission made by my friend who would suggest I am entitled to address the Jury with regard to the second alternative in respect of Charge 4.
SHERIFF GIMBLETT: Yes. But I think there may be some point in Mr. McLaughlin’s submission that if they were justified, shall I say in doing, using that in quotes, what happened in respect of Charges 1 and 3 in the first alternative of 4 using the analogy that he gave would the same not apply to 4 and it’s on that matter that I thought you so wished to address me having thought about the matter but if that is your argument then clearly I will deal with that. We were restricted to 1, 3 and the first alternative of 4 when I came to the decision which I did, because you haven’t had a chance to address me………
MR. WEBSTER: Well, in that case I would wish to consider my friend’s point further along with other points that I wish to consider.
SHERIFF GIMBLETT: Right. In other words the argument is not finished in respect of Charge 4. So we will come back tomorrow at 10 o’clock.
Adjourned until tomorrow at 10 a.m.
THURSDAY, 21st OCTOBER, 1999.
SHERIFF GIMBLETT: Mr. Webster.
MR. WEBSTER: Yes, my lady. Can I just confirm that I continue to oppose my friend Mr. McLaughlin’s motion with regard to the alternative charge and that if my lady does not find in Mr. McLaughlin’s favour then it would be my intention to address the Jury and proceed to conviction quoad that charge.
The argument which I think my lady sustained in relation to the malicious mischief charges was that with malicious mischief the Crown requires to establish malice as part of the mens rea which is accepted……
SHERIFF GIMBLETT: I think……
MR. WEBSTER: Yes, I think it’s accepted, my lady, that the Crown has established that it was wilful but the submission was that as malice it be found as wickedness was the necessary mens rea for malicious mischief then the accused were in the particular circumstances of this case entitled to be acquitted on the basis of my lady’s view with regard to international law defence.
My submission so far as the alternative charge is concerned is that the mens rea in theft is not malice or wickedness in the same sense as malicious mischief but it’s an intention to appropriate and to deprive the owner of the goods. My authority, my lady, for that first of all is the Second Edition of Gordon, page 499, paragraph 14.63 where it says “The essential feature of the mens rea of theft is an intention to appropriate (inaudible) intent to detain it from the owner, theft is committed whether or not ’A’ keeps the goods for himself. It is the owner’s loss and A’s gain which is important. ’A’ must intend to appropriate the goods but this means only that he must intend to deprive the owner of them. As has been said the appropriation may take the form of destruction and may likewise consist in giving away to someone else or even in just throwing away or abandoning the goods concerned”. And then at paragraph 14.64 it says “Whether theft is committed for financial gain or for spite or for the pleasure of admiring a stolen picture or caring for a stolen child is a question of motive and irrelevant to the question of mens rea”. McDonald on the Criminal Law of Scotland Fifth Edition says at page 19 “The taking must be of intent to appropriate and to deprive the owner of the property”. On page 20 he says “It is no defence to a charge of theft that the person charged had no intention of totally depriving the owner of the article……”
SHERIFF GIMBLETT: Sorry, could you just read that again please?
MR. WEBSTER: “It is no defence to a charge of theft that the person charged had no intention of totally depriving the owner of the article”. At the beginning of the following paragraph he also says “The taking need not be for actual gain to the thief although he hides thing stolen and never use it his guilt is complete”.
Now, my lady, the item or items referred to in this charge, this is a point I made at various stages in these proceedings are the accused are not charged with the theft of nuclear weapons or any constituent or working part thereof……
SHERIFF GIMBLETT: Who’s them, Mr. Webster?
MR. WEBSTER: They are charged with stealing articles from a barge which on occasion provides a facility for research which is used by a number of vessels inter alia in the past, a Trident submarine but the items themselves have no direct use in relation to Trident’s firing capabilities and that neither (inaudible) nor Maytime, in my submission, at the material time, namely on the 8th June, presented immediate danger to life or serious injury and that the accuseds’ actions were a calculated decision brought about by the accused after at least five months of planning and deliberation.
My lady, returning to the question of mens rea my submission is that there are different considerations in relation to mens rea between malicious mischief and theft that in this case so far as the theft charge is concerned the absence of malice is in my submission irrelevant. There is no absence of an intention to deprive the owner or to appropriate that this was in fact admitted by the accused as being the intention and in my submission there is no absence of proof of mens rea of theft as has been argued in relation to malicious mischief and in my submission the terms of the particular argument advanced to my lady in relation to the mens rea in relation to malicious mischief that that particular argument can’t be distinguished given the different mens rea required for theft. That is my submission, my lady.
SHERIFF GIMBLETT: Mr. McLaughlin.
MR. McLAUGHLIN: Yes, my lady. My lady, my submission this morning is that the alternative on Charge 4 ought to be deemed by the Court to be such that it cannot go to the Jury for consideration.
My lady, I wondered about how I could address the Jury in relation to the alternative because my lady has made a ruling on the malicious mischief charges that the accused in terms of international law were justified in their actions. It created…….
SHERIFF GIMBLETT: It seemed to be justified in that their reasonableness was not rebutted.
MR. McLAUGHLIN: Yes.
SHERIFF GIMBLETT: Slight difference.
MR. McLAUGHLIN: Yes, my lady. Now, if that is the position in relation to the malicious mischief charges then in my submission it is also the position in relation to the theft charge.
My lady, the analogy that I used yesterday of the gun, if I could perhaps give the Court two other analogies. The first one is at Lochgoilhead 500 yards away from Maytime, one’s walking down the main street in Lochgoilhead and out from the shop comes an armed robber who then points the gun at you, you take the gun off him, you are justified in taking the gun off him because you are preventing a crime but what you then do is you go to the banks of Loch Goil and throw the gun into the water. My lady, in my submission it is inconceivable that that would be prosecuted as theft of that gun. It, my lady, in my view it is a direct analogy because the theft and the malicious mischief in the present case arise out of the same species facti.
Another analogy, my lady, is a person who finds out that there is a car in a remote area and there is a bomb in it and that bomb, that car and that bomb is destined for Greenock Town Centre and it will be exploded in Greenock Town Centre causing damage and death. What the person does is rips the tyres of that car to make it immovable. My lady, in my submission that is malicious mischief on the face of it but it is justified because it is attempting to prevent a crime being committed. If I go further, my lady, if in order to make sure that that car is not committing a crime the handbrake is taken off and it is rolled into the loch then my lady it is inconceivable in my submission that that could be charged as a theft of the car.
My lady, it is irrelevant whether the car is a broken down Fiat or a Lamborgini, it matters not, the value matters not. The principal at the core of all of this is the justification to prevent crime.
So, my lady, in my submission it would be inconsistent for the Jury to be, as well as inconsistent, unreasonable and ambiguous for the Jury to be asked to deal with the outstanding theft charge because it quite clearly follows on from the malicious mischief charges. Once the malicious charges are knocked out then the whole indictment from start to finish falls. What happened on Maytime that day it is either right or it is either wrong, you can’t decipher parts of that species facti and standing my lady’s ruling yesterday on the malicious mischief charges it would be my submission that it follows that my lady actually rule on the outstanding alternative charge and to remove that also from the Jury’s consideration and to acquit the accused on that one, my lady.
SHERIFF GIMBLETT: Mr. Mayer and Miss Zelter, may I assume you would be following this line and making the same (inaudible)?
MR. MEYER: Yes indeed, my lady. This line began with my submission yesterday that it is impossible in a Scottish criminal court for accused persons to be both right and wrong at the same time on the same charge. Distinction has been drawn between the two alternatives on Charge 4 but in my submission what remains is a technical difference lacking any real substance and justice. I do adopt the speech by my learned friend and have nothing to add.
SHERIFF GIMBLETT: Miss Zelter.
MISS ZELTER: I adopt the two previous submissions and just state that our intention was to prevent crime and not to deprive anyone of their property.
SHERIFF GIMBLETT: Mr. Webster, do you wish to reply?
I’m going to uphold the submissions made by Mr. McLaughlin, Mr. Mayer and Miss Zelter. While there is a difference in what is known as mens rea I accept that the alternative charge arises out of exactly the same facts but more importantly I think one has to look at the question of what is meant by appropriating. Now there can be appropriating by someone taking it and with the intention of returning it (inaudible) but the essence which I think is referred to by Sheriff Gordon in his book is that it is appropriating it to oneself and with the intention of keeping it but it is quite clear that apart from what I’ve said already this alternative charge derives from the same fact and cannot be right and wrong and one or the other but I do accept there is absolutely nothing to indicate that either Miss Zelter, Miss Roder or Miss Moxley intended to keep anything for themselves for one second, it was with the intention of disarming, if I can put it that way, and as it could have been a knife, it could have been a gun, these are the things which I have ruled were closely associated of which there is nothing to rebut, the inference that these matters were closely associated with Trident. I think it follows that there has to be an acquittal in respect of the alternative charge in Charge 4 and that the Jury should be so instructed to bring a charge of acquittal in respect of that also.
Jury returned to Court:
SHERIFF GIMBLETT: Good morning, ladies and gentlemen. I know you are in good form because I hear you laughing still, amazing after so long.
Ladies and gentlemen, you will recall that earlier during the course of this trial the Crown decided not to proceed against any of the accused in respect of Charge 2 of the indictment, so that charge was withdrawn. That left Charges 1, 3 and 4.
On these basis of these legal submissions made on the part of all three accused yesterday and today, I have decided that for legal reasons relating to the evidence in respect of the remaining charges these should not now go before you for consideration.
I therefore direct you to return a verdict of not guilty in respect of each of the accused in respect of these remaining three charges, 1, 3 and for the avoidance of doubt Charge 4 in its entirety. May I ask you if you have considered the appointment of a spokesperson to return a verdict as I have directed.
THE CLERK OF COURT: In terms of the Sheriff’s direction, may I take your verdict to be in respect of Angela Christina Zelter not guilty in respect of each of Charges 1, 3 and 4 on the indictment, by direction of the Court?
THE FOREMAN OF THE JURY: Yes.
THE CLERK: In respect of Bodil Ulla Roder, may I take your verdict to be not guilty unanimously and by direction of the Court in respect of each of Charges 1, 3 and 4?
THE FOREMAN: Yes.
THE CLERK: And in respect of Ellen Moxley, may I take your verdict to be not guilty unanimously and by direction of the Court in respect of each of Charges 1, 3 and 4?
THE FOREMAN: Yes.
THE CLERK: Thank you. Take a seat please while I record the verdicts.
SHERIFF GIMBLETT: Miss Zelter, Miss Roder, Miss Moxley, you have been found not guilty…………
THE FOREMAN: I have to record the verdict and read it back first.
SHERIFF GIMBLETT: Oh yes, of course. I beg your pardon, please sit down please.
THE CLERK: Members of the Jury, is your verdict correctly recorded as follows: the Jury unanimously and by direction of the Court, find each of the accused Angela Christina Zelter, Bodil Ulla Roder and Ellen Moxley not guilty in respect of each of the Charges 1, 3 and 4?
THE FOREMAN: Yes.
THE CLERK: Thank you.
SHERIFF GIMBLETT: Miss Zelter, Miss Roder and Miss Moxley, you have been found not guilty and you are therefore free to go. Now, please sit down.
Before anyone leaves there are some things I would like to say. Yesterday I made it clear that the courts do not normally allow a crime to be committed to prevent other crimes except in very special circumstances. There were such circumstances in this particular case and the same circumstances may not apply to anyone who carries out actions similar that were carried out in Maytime in June, if such actions were carried out in the future. So you do so at your peril, be very careful.
I would like to thank you ladies and gentlemen for all your forbearance during the last few weeks. I hope it has not been too onerous although I cannot imagine it has been too pleasant sitting in a jury room waiting, not knowing quite how long you’re going to have to wait, but I do thank you from the bottom of my heart for your very good humour which I have remarked on several times and for your help. I think all my colleagues on the bench very much appreciate your assistance as a jury. To be a sheriff or a judge, it’s a very lonely job and although you have not had to consider a verdict you might have done and (inaudible) is sometimes quite as hard almost as reaching a verdict, so I thank you very much.
There have also been two very important people involved in this trial and that is the interpreters. I think we are all indebted to you for your skill, your patience and the hard work which you have undoubtedly put in.
May I also thank Mr. Mayer, Mr. McLaughlin, those instructing them and Mr. Webster. Miss Zelter I congratulate you on what you have done, I think you have all earned our respect for the way you have conducted your defence. And I think really that’s all I have to say.