IN THE HIGH COURT OF JUSTICIARY
LORD ADVOCATE’S REFERENCE
for the Third Respondent
to the Petition of
THE RIGHT HONOURABLE THE LORD BOYD, Her Majesty’ Advocate
in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995
(FIRST) ANGELA ZELTER; (SECOND) BODIL ULLA RODER; and (THIRD) ELLEN MOXLEY
Messrs. Livingstone Brown
1.1 The present Skeleton Argument is prepared without sight of Crown’s Note of Argument, but having seen the Note of Argument prepared by Mr. Moynihan QC, amicus curiae, and the Skeleton Answer prepared by the first respondent Ms. Zelter.
1.2 The primary submission on behalf of the third respondent that the preparation and lodging with the court of Skeleton arguments in relation to the substance of the questions in the current Lord Advocate’s Reference is premature. The third respondent submits that the court must first deal with the procedural points relative to the protection of the third respondent’s Article 6 fair trial rights all as set out in the third respondent’s Note under Rule 40.4 of the Act of Adjournal (Devolution Issue Rules) 1999. It is only once the points raised in that note have been dealt with that the court and the parties can be clear as to the substance of the issues which are properly before the court.
1.3 The present skeleton argument is therefore to be regarded as a provisional statement of the third respondent’s position.
2.1 The third respondent submits that this question should be answered in the affirmative and respectfully adopts the observations set out by the amicus curiae in his skeleton argument at paragraphs 2 to 6 in support of that position.
2.2 Further and in any event, it should be noted that by virtue of Article 6(3)(d) a person charged with a criminal offence has a specific right “to obtain the attendance and examination of witnesses on her behalf”, including the right to establish whether or not the accusation against her is well-founded in law as well as in fact.
3.1 The court should refuse to answer this question on the grounds that it is not properly raised within the present Lord Advocates Reference since it has not arisen in relation to the charges against, and trial of, the third respondent. In these circumstances Question 2 does not fall within the terms of Section 123 of the Criminal Procedure (Scotland) Act 1995.
3.2 Reference is made to the third respondent’s Statement of Argument in support of the Devolution Issue at paragraphs 3.5-3.6 and 3.9-3.10 and to the observations set out by the amicus curiae in his skeleton argument at paragraphs 7 to 11 in support of that position. In any event, the third respondent submits that the wording of the question is wholly lacking in proper specification such that the court should also refuse to answer it.
3.3 In any event, the third respondent submits that in the circumstances of the present case, this question could only be answered under reference to the respondents rights to a safe environment under Article 8 1 and to freedom of expression which is guaranteed by Article 10(1) of the European Convention on Human Rights 2. Under Articles 8(2) and 10(2) of the Convention, any interference with the exercise of these fundamental right must be, inter alia, “necessary in a democratic society” to achieve one of the legitimate aims specified. The rule of law is one of the fundamental principles of a democratic society 3. It is submitted that it cannot be interference “necessary in a democratic society” if such interference is intended to supports, facilitates or otherwise assist ex facie illegal State activity, under reference to the principles contained in Article 7 (see below).
4.1 The court should refuse to answer this question on the grounds that it is not properly raised within the present Lord Advocates Reference since it is not focussed on the issues raised in the trial and is wholly inspecific. Reference is made to the third respondent’s Statement of Argument in support of the Devolution Issue at paragraphs 3.12 and to the observations set out by the amicus curiae in his skeleton argument at paragraphs 17 to 18 in support of that position.
5.1 The court should refuse to answer this question on the grounds that it is not focussed on the issues raised in the trial and is wholly inspecific, in particular with reference to the phrase “general defence”. Reference is made to the third respondent’s Statement of Argument in support of the Devolution Issue at paragraphs 3.12 and to the observations set out by the amicus curiae in his skeleton argument at paragraphs 17 to 18 in support of that position.
5.2 Alternatively, in the circumstances of the present case, the third respondent will also seek to rely as against the Lord Advocate on her Convention rights implicit in Article 7 which incorporates into domestic Scots law, within the coming into force of the Human Rights Act, considerations derived from international law, in particular the classification of conduct as “criminal according to the general principles of law recognised by civilised nations” as set out in Article 7(2). From the travaux préparatoires to the Convention, it would appear that this provision was intended to take account of the existence of “crimes against humanity” as this concept was first articulated at the post-War Nuremberg trials 4. Article 7(2) of the Convention then directly introduces Nuremberg derived principles regarding the justifiability of conduct under national and international law.
5.3 According to the UN Secretary General’s report on the setting up of the post-1991 Yugoslav War Crimes Tribunal, rules of international humanitarian law which are beyond doubt part of customary law include those set out in “the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) respecting the laws and customs of war on land and the regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945” 5. As has been noted:
“This enumeration [by the UN Secretary General] might be taken into account when interpreting Article 7(2) of the European Convention. Although the rules mentioned here may not contain an exhaustive list of the ‘general principles of law recognised by civilised nations’ for the purposes of Article 7(2), they do give an indication of the kind of rule contemplated in this provision 6.”
5.4 Thus, if the MOD deployment and threat to use nuclear weapons can be said to be contrary to the general principles of law recognised by civilised nations, as articulated by the International Court of Justice, then this may itself be said to be contrary to Article 7(2) and accordingly any attempt to criminalise the conduct of the respondents in seeking to prevent such official criminal action would itself contravene their Article 7(1) rights since what they were doing could not be said to constitute an offence under international law 7.
2 October 2000
JOHN McLAUGHLIN, Advocate
Edinburgh EH1 1RF
AIDAN O’NEILL QC
1 Lopez Ostra v. Spain (1995) 20 EHRR 277
2 Steele v. United Kingdom (1999) 28 EHRR 603
3 Iatridis v. Greece (2000) 30 EHRR 97, at paragraph 58
4 See SW v. United Kingdom A/335-B,-C (1996) 21 EHRR 363, as noted in the dissenting opinion of Judge Loucaides. See, too, Article 38(1)(c) of the Statute of the International Court of Justice.
5 UN Doc S/25704 paragraphs 34-35
6 In Leading Cases of the European Court of Human Rights (1997) complied edited and annotated by R A Lawson and H G Schermers at 615 note 9.
7 See, too, The War Crimes Act 1991 which gives domestic courts jurisdiction to try crimes regarded as contrary to the requirements and principles of international law even when not committed at the time by a British national or within British territory.