Sheriff Gimblett’s Report on the Greenock Trial
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL
THE LORD JUSTICE CLERK AND LORDS COMMISSIONERS OF
P E T I T I 0 N
THE RIGHT HONOURABLE THE LORD HARDIE
Her Majesty’s Advocate
in terms of
Section 123 of the Criminal Procedure
(Scotland) Act 1995
The Evidence for the Crown
The admitted Actions of the Accused
The Background of and Defence stated by each of the Accused
Legal argument on Relevancy and Competency
The Supporting Witnesses
Argument as to the relevancy and possible competency
Professor Boyle’s Evidence
The evidence of Judge Ulf Panzer
Professor Paul Rogers
Legal argument on relevancy relating to Professor Rogers
The Evidence of Professor Rogers
The Evidence of Professor John Boag
The Evidence of Rebecca Johnson
Crown Objection to Relevancy
Miss Johnson’s Evidence
The Procurator Fiscal – Mr Webster
On 26 September 1999 and after sundry procedure Angela Zelter, Bodil, Ulla Roder and Ellen Moxley appeared before me for trial at Greenock Sheriff Court. You will have the Indictment before you but briefly all three were charged with (1) On 8 June 1999, on board the vessel known as Maytime moored in Loch Goil near Lochgoilhead, Argyll, wilfully and maliciously damaging the vessel by scoring windows on board Maytime with a glass cutter and attempting to drill a hole in one of the windows; (2) All three attempting to steal two inflatable life rafts from the vessel, removing the life rafts from their mountings and deploying them in the waters of Loch Goil; (3) All three maliciously and wilfully damaging equipment fixtures and fittings on board Maytime; (4) All three maliciously and wilfully damaging inter alia a quantity of computer equipment, fax machines and various other miscellaneous items, and thereafter depositing the items in the water in Loch Goil whereby they became waterlogged, useless and inoperable; alternatively, that they stole the above equipment, removed the items from Maytime and deposited the items in the waters of Loch Goil.
The first of the ladies, Angela Zelter, chose to represent herself. She was adamant that she wished this to be. Ms Ulla Roder was represented by Mr Mayer, Advocate, and Ms Ellen Moxley by Mr McLaughlin, Advocate.
Evidence for the Crown was led from the following:- Thomas O’Brien, Scenes of Crime Officer, Strathclyde Police Identification Bureau; Detective Sergeant Peter Cassidy, Ministry of Defence Police CID Clyde, HM Naval Base Clyde, Faslane, Gareloch; Robert Thompson, Clearance Diver, c/o Northern Diving Group, HM Naval Base Clyde, Helensburgh; Fraser MacKenzie, Ministry of Defence Guard, Defence Evaluation Research Agency, Loch Goil; PC Donald Blair, Clyde Marine Unit, HM Naval Base Clyde, Faslane; PC David Paton, Clyde Marine Unit, HM Naval Base Clyde, Faslane; Karen Gardner, Ministry of Defence Police, Royal Naval Armaments Depot, Coulport; DC Hazel Brooks, Ministry of Defence Police, CID Clyde, HM Naval Base Clyde, Faslane; Iain Christopher MacPhee, Barge Manager, Defence Evaluation Research Agency, Loch Goil.
For the defence, evidence was led from Ms Zelter, Ms Roder and Ms Moxley; Professor Francis Boyle, College of Law, University of Illinois, USA; Dr Paul Rogers, Professor of Peace Studies, University of Bradford; Judge Ulf Panzer, Hamburg, Germany; Professor John Boag, Edinburgh and Ms Rebecca Johnson, London, presently working in the field of nuclear energy, arms control and international diplomacy as Managing Editor of a Publication, “Disarm Diplomacy”.
Contrary to what the media might have thought (they did not attend the trial until the very last day), with the exception of one of the local journalists who usually left after one hour or so at the start of each day – (his departure usually coinciding with the next legal argument), this trial was not concerned with the possession of nuclear weapons on which of course your Lordships had issued a decision on 23 July 1999 in the case of Helen John v. PF, Dumbarton. The three ladies on trial were well aware of your decision in that respect and this became apparent early on in the trial. I was also fully acquainted with your decision having obtained a full copy of the decision prior to September. What was at issue in this trial was the state of mind of the three ladies and their understanding of international law as it related to the threat and use or deployment of nuclear weapons in Trident submarines in the months leading up to June 1999 and early June 1999 itself. The trial related to their understanding of international law based not on what fellow peace protesters or fellow members of Trident Plowshares 2000 had given them in a haphazard or inaccurate manner or from a one sided point of view but, particularly in the case of Ms Zelter and Ms Roder, on an in-depth study of international law, customary law ad bellum and in bellum at University and personal contact, and not just fleeting contact, with inter alia eminent Professors of international law, a fairly senior judge in Germany and colleagues and editors/authors of research papers, journals and periodicals, not necessarily written from “a peace protesters” point of view. With the exception perhaps of Ms Moxley who, and I may be wrong, probably relied very heavily on information which she totally trusted and relied on from her two co-accused, the women had attended many conferences, and seminars and corresponded and met with officials at the highest levels in their respective countries and indeed in other countries. Relying on the information they had gathered from all sources these three women had formed an unchallenged, sincere, unshakable view not just of the illegality of the use of nuclear weapons, except perhaps where the very survival of a country or state is at issue, but of the threat and what is perceived by many countries and states to be an ongoing threat of use of nuclear weapons by certain states and countries including the U.K, at a time when international relations in certain parts of the world were extremely unsettled, and where no good reason could be seen or had been given, though requested, on why such perceived threats were necessary. The trial also concerned the women’s unchallenged, unshakable belief and indeed fear of the Sword of the Damocles they saw suspended above the head of various peoples in the world, the hair attached to the sword capable of being cut either by the use of one nuclear weapon fired from a Trident submarine, or some awful cataclysmic accident which would affect not just people in the most horrendous ways, but the environment in general. These three women in their respective ways had done everything possible which they could think of to try and bring about disarmament of nuclear weapons. In the early part of 1999 as international relations became more unsettled, and possibly some months before that, they decided that it had become vitally necessary to do something that might be breaking the law but which could ultimately be justified in preventing or helping to prevent a much greater crime, which action was to be intimately connected with nuclear weapons as carried on the Trident submarines, even if it meant long periods of imprisonment for themselves. They were determined to do all they could to try and avert a nuclear disaster which all three felt and no doubt still felt could be imminent if things are not changed. What they did, they felt, was minuscule in comparison to the disasters which could befall countries including neutral countries in times of war if nuclear weapons were to be used or indeed in times of peace if there was to be a nuclear accident, never mind the damage to the environment. In their informed and considered opinion based on teaching, review of the law and research over a number of years, and in company with many others from all walks of life which included international lawyers and academics of the highest standing, the use, deployment and threat of use of nuclear weapons is illegal except in the rarest of circumstances. What became clear relatively early on in the trial was the question of mens rea in the particular crime of malicious and wilful damage, or, put another way, the state of mind of the three ladies on the day in question and whether there was res causa.
As a secondary defence they had an esto case of necessity.
The trial was fraught with problems and legal arguments. It took place over nineteen days. It did not however run from day to day without break. Nor did each day normally start on time. There were horrendous difficulties at the start as the bus which brought the three ladies from Cornton Vale travelled around other Courts including Glasgow before finally coming to Greenock. There were complications also in that the three ladies did not arrive back at Cornton Vale sometimes until late in the evening and then they were returning to Court the next day exhausted, particularly Ms Zelter who, unrepresented, had to prepare for the next day. Ms Roder developed health problems at one point and it was with difficulty that she managed to obtain medical assistance. She also had mild hearing difficulties and her command of English was not good enough to enable her to follow the trial without interpreters who fortunately were excellent. There were also bureaucratic and administrative problems initially in that there appeared to be no proper facilities or even a table on which Ms Zelter could place her productions, the Sheriff Clerk expecting her to work from the dock with her McKenzie friend, and sit in the dock leaning approximately 2 1/2 – 3 feet forwards to a narrow shelf when writing. Fortunately that problem was solved when it was agreed that Ms Zelter and her friend should sit at the table with counsel. There were minor problems also as the Disability Act came into force during the course of the trial and, not surprisingly, there were members of the public with disability who asked for arrangements to be made so that they could hear the trial, again arranged, but in the face of mild but understandable hostility from members of the Sheriff Clerk’s office who thought, probably rightly, that they were being “tested”. In fact, however, although there was a considerable public presence including a Buddhist nun tapping a regular intermittent drum beat outside the Court for most of the early days of the trial, and a number of members of the public sitting listening intently to the trial, the public were no problem at all. Only on the last day when the three ladies were acquitted did I become aware of what might have been a more lively element in the company of a gentleman with “a semi punk haircut”, but even those people were no trouble.
I mention this My Lords, because I would not wish you to think that what we were dealing with were what is often thought of, probably quite wrongly, as an unwashed, immature, sometimes blinkered and ill-informed group of peace protesters who in the cause of peace, and without perhaps really giving the matter considerable thought were happy to commit minor acts of vandalism knowing full well that they would be unlikely to get anywhere near the Trident submarines or the nuclear stores or any installation closely connected with Trident submarines and the nuclear warheads.
The three ladies on trial at Greenock are all members of a Group called Trident Plowshares 2000. This is a totally different organisation from the Peace Protesters Camp. They are much fewer in number, by and large probably older and more mature, more educated, and above all whatever they do is done with three thoughts in mind; it must be safe, non violent, and the members have to be accountable for their actions. You are probably fully aware of all this, but I cannot assume that this is so.
I did not know how you would wish this report to be framed but in an effort to give you the full background what I propose to do is to let you have a narrative of the evidence, and the legal arguments that took place, not just at the end but through the trial and my rulings thereto. I apologise for the delay in letting you have my report, but the only transcript of the trial I have is of the final arguments, and with a request for a report arriving at a time when Dunoon Sheriff Court was extremely busy and is still so and with it being impossible until recently to get any writing time, it has taken me a long time to read carefully through my notes and indeed the productions, which has been complicated by the fact that one of my notebooks and my copy productions were mislaid in Greenock Sheriff Court together with all my copy productions until comparatively recently. I have given headings to various sections of the report and, where I thought it might be helpful, I have also given the date and times of legal arguments should you consider it necessary to refer to the recording of the arguments or evidence.
The Evidence for the Crown
None of the Crown evidence was really in dispute. I would refer your Lordships to five Joint Minutes of Agreement dated 27 September 1999 and one Joint Minute of Agreement dated 6 October 1999. You will note that this last Joint Minute related to an agreed value of all the items removed from the barge known as Maytime. If the three ladies had not been acquitted that last Joint Minute would have required to be amended to take account of the withdrawal by the Crown of charge 2 relating to life rafts. The five earlier Joint Minutes covered the
evidence of DC John Glass of the Ministry of Defence Police who took photographs of two life rafts, the evidence of DC Stuart Chambers with the Ministry of Defence Police, Clyde Marine Unit based at Faslane who on Wednesday 9 June 1999 was on board a police launch Millennium in Loch Long off the Royal Naval Armaments Depot at Coulport and who found a number of items all listed scattered in but floating on the waters of the loch. He took all the items on board where they were labelled bagged and tied and thereafter conveyed by police launch to Loch Goil for delivery to Crown witness DC Guy Brown. At approximately 3.50 on Monday 15 June Crown witnesses PC Andrew Stewart, PC John Coleman both of the Ministry of Defence Police, Clyde Marine Unit were on patrol and recovered a computer monitor from the shore and on Tuesday 15 June 1999 possession of a number of other items was taken, all found lying on the foreshore opposite the mouth of Loch Goil. On Wednesday 7 July 1999 PC John Ingam with the Ministry of Defence Police, Clyde Marine Unit was on patrol in Loch Long when he saw and recovered a visual display unit lying on the beach in the area of Port Dornage. The next Joint Minute covers the evidence that would have been given by James Bell and Andrew Davidson, both forensic scientists as it related to clothing worn by the accused, and a fibre lift recovered from a cut hole in the wire cage in the laboratory on the barge known as Maytime. The next Joint Minute covered the evidence which would have been given by four finger print officers relating to impressions found on Maytime, which finger prints could be traced back to Ms Zelter and Ms Moxley, and the fifth Minute of Agreement related to a joint report by forensic scientists, Gail Connolly, and Anne Ruth Ramage, referring to boots and clothing of Ms Roder and Ms Zelter, and gel lifts taken by Crown witnesses Thomas O’Brien and Roderick McDonald. The sixth Joint Minute of Agreement related to property removed sometime between 4.30 p.m. and 11.00 p.m. on 8 June 1999 from the barge Maytime being the property libelled in charges 1 and 3 of the Indictment and, all owned by the Defence Evaluation Research Agency, the total value of that property for replacement or possible repair amounting to approximately £80,000.
The rest of the Crown evidence was as follows:- In the evening of 8 June 1999 an MOD civilian security guard, Mr McKenzie, was on duty. He was based at Douglas pier on the shore of Loch Goil. The barge Maytime owned by the Defence Evaluation Research Agency (otherwise known as DERA) was moored approximately 500 metres from the pier. At approximately 9.45 p.m. during his shift Mr McKenzie noticed a small inflatable with an engine drifting south near the barge Maytime. He thought it was odd. He made enquiries to see if contractors were working on Maytime. He then noticed movement on the barge and saw one person. That alerted him to make a number of other telephone calls, in particular to the barge master, Mr MacPhee and the site manager, Mr Mcinnes. While doing that he saw a large white object coming from the top of Maytime from the north side of the vessel. It appeared to go up and then down into the water with a splash. He also noticed small debris floating south towards the mouth of the loch. At about 10.10 p.m. he telephoned the Clyde Marine Unit at Faslane who had access to boats and they agreed to dispatch a launch to investigate. Meantime Mr McKenzie kept watch with his binoculars. He saw other movement but otherwise matters were fairly quiet until suddenly the noise increased and he could hear very loud banging metallic noises – hammering and clanging. He could not see who was making the noise. He then became aware of two persons on Maytime but he could not tell who they were or whether they were male or female. After that the police came. Mr McKenzie’s tour of duty finished at 6.36 a.m. on 9 June and when he left the police launch was still there. He had seen nobody going to the barge Maytime nor coming away again.
James Byres of the Ministry of Defence Police based at Faslane was on duty in the late evening of 8 June. He was one of the crew of the police launch Agility and at 10.25 p.m. on that day he and colleagues, Blair and McCallum, were just off Coulport in Loch Long. They received a message to go to Loch Goil. Eventually they were directed to go to the barge Maytime. On the way there they came across a Gemini, a small rubber boat, drifting in Loch Goil heading in a southerly direction with the tidal flow from Loch Goil. He also saw a number of small boxes drifting along. No one was in the dinghy, It was recovered. They pulled up alongside the barge Maytime at about 2300 hours and as they were coming alongside the Sergeant shone a searchlight on the barge and they could see three ladies on the top deck. The witness and PC Blair went on to Maytime.
The ladies came down to meet them and helped them berth their boat. When the witness and Sergeant Blair boarded Maytime they became aware as they walked around that a crime appeared to have been committed. They saw another life raft drifting in the water. A window had been scored and another looked as if it had been “battered a wee bit”. The scratches on the windows were like scores as if someone had been trying to cut their way in and the hole in one of the windows was about one quarter of an inch in diameter and looked as if it had been made with a hammer and chisel. They also noticed another life raft still attached by its painter to the barge. They also saw three bags of tools, and subsequently the bags of tools and the ladies were taken on to the launch Agility. The three ladies were advised that they were under arrest for malicious mischief. They were then helped onto the launch, taken into the cabin and when they were seated the three ladies were cautioned by the witness but made no reply. He was readily able to identify the three ladies in court: indeed Ms Zelter actually helped him by holding her hand up. Once on the launch the ladies were asked if they would like a cup of tea which the witness made for them and brought it to them. What followed was lighthearted conversation in which the ladies made no secret of doing what they had done and explained why they had done it and how they had got into the laboratory area. They also explained that they had tried to use the barge’s lifeboats to get back to the shore but had run into difficulties. A more detailed search was later made of the barge when it was noticed that banners had been placed on the barge. At about 2310 hours the witness and his colleagues were joined by two other officers in a RIB. The three ladies were eventually taken back to the processing centre at RNAD Coulport. The witness confirmed that throughout the ladies were chatty, talkative, lighthearted and totally co-operative. His account was corroborated by the colleagues who were with him. PC David Paton of the MOD Police, Clyde Marine Unit was in his RIB in Coulport on duty at about 10.45 p.m. when he was called to “an incident” in Loch Goil. He arrived at the barge Maytime at about 11. 10 p.m. approximately. He there found his colleagues. He later returned to land to pick up witness MacPhee, the barge master, and then returned to Maytime with MacPhee. MacPhee unlocked the doors to the laboratories and he, Paton and another officer entered. PC Paton thought that the laboratory looked brand new, it was so clean and tidy. There were four benches inside the door and there were pamphlets on the benches together with tinsnips or bolt cutters which were on the table. Later he saw a cage in the laboratory with a hole cut in the mesh on the cage. Apart from the pamphlets and tools on the table he could see no other moveable property. The whole place was completely clean. This witness also noticed balloons and banners on Maytime which Mr MacPhee, the barge master, asked to be taken down and that was done. The barge master asked that they be taken down as he thought that there might be press in the area and was clearly embarrassed concerning that. The witness agreed that the barge master was not a happy man; it was thought that there might have been a breach of security, and although the witness stated MacPhee showed no signs of being angry – he was “controlled” – there was “a whiff of embarrassment”. Later the witness indicated that he was given a direct order to replace the signs and banners as they had been before being taken down. The witness also agreed that anything to do with safety equipment like fire extinguishers, life jackets, a burns kit and first aid box had been left untouched. The only thing out of place was a broken mug which had contained coffee and which was lying partly under a bench and partly under a chair. Whether that had been broken accidentally or smashed to the ground was not known.
The barge master, Mr. Ian MacPhee, who was employed by DERA gave evidence that on Tuesday, 8 June he finished work at about 4.30 p.m. At the conclusion of his day’s work he locked all the external doors on Maytime. At about 10.30 p.m. he received a telephone call from Mr Fraser McKenzie at Douglas Pier and as a result of that he travelled to Douglas Pier and got there at about midnight where he was met by the MOD police. As a result of information given to him by them he went out to the vessel Maytime with two MOD police officers. He boarded the Maytime with them. The first thing he noticed was a number of banners tied on to the handrails. A hatch was opened, as was a window. All had been closed and there had been no banners on the handrails when he left. The window which was open was on the side which could not be seen from the buildings at Douglas Pier. The window had been opened from the inside. The windows were the only insecure means of entry and exit on the barge. The doors were still secure. On entering the laboratory area Mr MacPhee noticed that the padlock on the door had been tampered with. As they walked through the laboratory area Mr MacPhee noticed that all the desks and tables were clear. There was no equipment left on board. He opened all the cupboards and found nothing had been left in them. He noticed the cage to the winch room had been cut and he noticed that all the paperwork and equipment in connection with the laboratory was missing. By going through all the photographs, being Crown Production 1, he was able to point out that the carousel, which contained electrical components, was empty. Desks that had contained electronic equipment were empty and bins in a cupboard had gone. There was nothing left in the machine area. He noticed that there were photographs, documents and tools all laid on a table. Cables had been cut, switches broken off and outside other damage was noted. Apart from a hole in the window and a score on a window the arm of the crane had a chain and padlock on it. The controls had been contaminated. Later he discovered that certain manuals were missing as were other items including cabling, small components – in fact anything to do with the work being carried out on the barge. On being shown a video taken by one of the police divers he was able to point out items of equipment lying at the bottom of the loch which had been on the barge. He was also able to confirm that the tools left on the table in the laboratory area were not the property of DERA. It was later conceded by this witness and others that not all property on the barge had in fact been removed. Painters had been working on the barge and no part of their equipment or tins of paint had been touched. As mentioned above safety equipment on board had been left exactly where it was. Nothing in the galley area seemed to have been touched, or fire equipment or furniture. The only items which were missing were those items directly connected with work being carried out on Maytime. Outside the only items touched were those items like cranes and padlocks to laboratories and operation controls which clearly operated the crane and winches which, it emerged later, were used in the course of research work on the barge by lifting and lowering model submarines. Details of the damaged equipment outside can be seen in the book of photographs referred to above.
In the course of evidence it emerged that Maytime worked closely in conjunction with another barge known as Newt which was anchored a short distance away from Maytime but was capable of moving around in Loch Goil. The witness Cassidy was clearly very reluctant to state what was the purpose of the two barges and whether they were inter-linked. He stated that he was reluctant to answer questions on this because, he said, of security reasons. It was at this point that there then followed a legal argument as to whether such evidence was relevant.
Outwith the presence of the jury Mr. McLaughlin explained that for the purposes of his defence it was necessary to establish exactly what the barge Newt did and its connection with Maytime and indeed the connection between the two barges, Maytime and Newt, and Trident 11 submarines. It was critical that the defence could establish a link between the two barges and Trident. There was also in fact a reference to Newt, though not by name, in charge 3 on the penultimate line where there is a reference to “an adjacent platform”. Mr. McLaughlin explained that he did not want to establish exactly how Newt worked or cause any breach of confidentiality and he expected that Mr MacPhee, the barge master, rather than Mr Cassidy would be able to concede that there was and still is a link between Maytime, Newt and Trident. So far as he was aware there was no question of any public immunity certificate being in existence in relation to Mr MacPhee but he would wish to seek the Crown’s assurance on that and requested an adjournment which was sought and granted.
When the Court resumed, still outwith the presence of the jury, I was told a very full discussion had taken place between counsel for the defence, Ms Zelter and the Procurator Fiscal. As a result of those discussions the Crown had conceded a link in the past between Newt, Maytime and Trident and maybe in the future but the present position was not known. The Crown were willing to incorporate their position concerning that in a Joint Minute which could be read to the jury, so that for the avoidance of doubt it was accepted that Maytime was linked to Trident. It was also accepted that Mr MacPhee, the barge master, would be asked similar questions to establish the connection and that further he might be asked questions concerning information downloaded from the DERA website which had been lodged as a defence production. It was expected that Mr Cassidy the present witness would not answer further questions even if they were put again but nevertheless the Procurator Fiscal would read out the document to him. This position was acceptable to Mr McLaughlin and Ms Zelter. Mr Mayer, however, said that he wished his colleague’s question to be answered and that furthermore, while he welcomed the proposal of a Joint Minute on behalf of his client he wished to make it clear that “personal beliefs of a subjective nature” (which had been mentioned by the Procurator Fiscal) “formed no part of this defence. The defence is necessity borne of objective understanding.”. He was anxious about the jury’s last impression of the witness refusing to answer his colleague’s question on the basis of security, but I ruled that he himself had not chosen to ask the question in cross-examination and if his colleague was now agreeing to a Joint Minute with the Crown on the point and the opportunity to ask similar questions of Mr MacPhee later, then Mr Mayer was too late to insist on the witness asking Mr McLaughlin’s question. When Mr McLaughlin’s cross-examination continued the witness was again asked the same question if there was a direct link between Newt and Trident but his answer was the same. He was referred to Crown production 16 and in particular a document contained therein being an article relating to DERA downloaded from the DERA website. He was also shown another document contained in Crown production 16, namely an article in the Herald newspaper of 15 May 1999 headed “Chinese spies… Trident Stealth”. The witness refused to comment on the documents other than to say he had seen them but not necessarily read them. He did, however, confirm that he would concede that Maytime was owned by DERA, an MOD agency, and further that it was in the public domain that Maytime had been fitted out as a research laboratory to deal with submarines but other than that he was clearly unwilling to give any information concerning the link between Maytime, Newt and Trident.
When Mr MacPhee gave evidence he too was reluctant to answer questions but when the information from the DERA website was put before him he conceded the importance of Maytime in the field of techniques, that it was a research facility to develop new sonars, it was not operational in trying and testing new techniques but it would be probably fair to say that without the research done on Maytime there would never be any operational work. He further conceded that Maytime and Newt were equally important and acknowledged the link between the two. He did give further information confirming that the work on the two barges relate to acoustic in-water measurement, and Newt measured returns from targets which could be submarines. Research had included the Trident submarines but although his qualifications and expertise were in electronic engineering and he had been in marine engineering for at least the last fifteen years, his replies on other matters were evasive or occasionally to the effect that “he was not qualified to answer”. Only reluctantly at the very end, having had defence productions put to him, namely all the information downloaded from the DERA website, did he agree that acoustic research was done in connection with Trident submarines.
Before I depart from the Crown evidence I should perhaps comment on the evidence given by DC Hazel Brookes. She and Detective Sergeant Cassidy interviewed each of the three ladies under tape recorded conditions and under caution. They were also lodged as productions. Neither Ms Zelter nor Ms Roder gave a particularly full statement, indicating that there were certain questions they did not wish to answer as of course they were entitled to do. But Ms Moxley was much more forthcoming.
When cautioned and charged with malicious damage on board Maytime and given full details of that charge Ms Zelter replied “yes” and asked the officer for something be done about nuclear weapons, but unfortunately I did not catch the full reply which was quite lengthy. In answer to the charges concerning the life rafts she replied “Yes, same as before”. Ms Moxley’s replies to the same charges were (a) “I was acting legally to prevent illegal war crimes being prepared” and to the charges concerning the life rafts “We did not steal the life rafts, both of them have been recovered”. In reply to the first charge Ulla Roder replied “No” and to the second charge relating to theft “I don’t think I have stolen anything.”
In court all three ladies gave their version of what they actually did on the day in question. And before turning to the evidence adduced for the defence it might be helpful to know what they freely admitted in court to doing on board Maytime.
The admitted Actions of the Accused
Ms Zelter explained that she and her two co-accused met as a group about five months before the actual incident. After considering and rejecting other sites in connection with nuclear weapons, they decided to carry out their action in Scotland and in particular to concentrate on the barges Maytime and Newt in Loch Goil because of their very close association with the Trident nuclear submarines. The three ladies did not reach Newt on the day in question because their own inflatable had started to deflate, they had forgotten their air pump, and they could not get the two life rafts from Maytime to work. They also decided to carry out their disarmament action on the barges because they knew the submarine Vengeance had been delayed in Barrow after it had been “disarmed” by other Plowshares 2000 members earlier. They knew, however, that Vanguard would be going to Loch Goil for tests in which the laboratories on Maytime and Newt would be involved, and by going to Maytime and Newt on Loch Goil the three ladies felt they could perhaps delay the arrival of Vanguard into Loch Goil and thus prevent one quarter of nuclear arms being available for deployment in that particular submarine for some time. They were also aware that the other three actively deployed nuclear submarines in the Trident fleet needed to use the DERA laboratory on a regular basis for noise range check ups and maintenance. She referred to the full text of the statement which had been signed by all three of them making clear their aims and objectives and state of mind at that particular time and which they had left on Maytime, now Crown productions 17, 18, 19 and 20.
On 8 June at about 7.00 p.m. she and her co-accused launched a small inflatable boat from Lochgoilhead, took it to the barge Maytime and boarded the east side of Maytime. They found a window which could be unbolted from the outside and they thereby gained access to the main room on the barge. They saw that the quickest way to make sure that equipment could not be used for “illegal purposes” would be to disconnect the equipment and throw it in the loch. They took and threw into Loch Goil everything moveable which they considered was connected with the research work on the Trident submarines and nuclear weapons and whatever they could move in that connection. They cut into the heavy metal cage where the control boxes and winch mechanisms for the model submarines seemed to be situated and cut the wires in the boxes and hammered on the electrical services to make them unusable. They placed a mixture of syrup and sand and polish on the winch mechanism and then placed three banners on the barge to explain to police, security and members of the public what they were doing. They then made sure that they left the laboratory room very tidy and laid out on the tables their joint statement, video (which was not shown in court as it did not seem to be entirely relevant and related more to the history of the peace movement), their handbook known as Tridenting and various pamphlets including pictures, all of which were Crown productions. They also left some of their tools which can be seen in the Crown production No. 1 relating to the photographs. They made a careful distinction between safety and other equipment. As there had been some evidence led about a broken mug with coffee in it referred to above Ms Zelter pointed out that she made a distinction between the equipment in the laboratory and the living areas and did not throw any mug on the floor although she did see similar mugs in the kitchen. Having dealt with the laboratory they then saw a separate room outside on the barge. That room seemed to be a control room. They noticed that there were computer monitors and other equipment in that other locked room which looked as if it was part of the overall operation on Maytime. They tried to enter that room but could not cut through the padlock. They then tried to cut the glass but it was taking a very long time so they gave up. In fact they thought their time on the boat would be very limited. So, after discussion, they decided to make their way to Newt but having gone to where they had tied up their own boat and having found it deflated they realised they could not do so unless they used the life rafts on board Maytime. So they untied their own boat and let it drift away in the hope that other supporters would eventually find it and be able to make use of it. With some considerable care the ladies tried to follow the instructions for releasing the Maytime life rafts. The first one landed upside down in the water. The three ladies did not realise there were oars underneath it and thought that they could not use it. So they let it drift away. The second life raft did not inflate at all so that was unusable. They were then hungry and exhausted so they had a picnic on the top deck of Maytime to decide what to do next as by then their presence still did not seem to have been noted. As they discussed why the security was so lax especially as they had given advanced notice to the Ministry of Defence of the list of possible targets they intended to disarm, they watched the sunset. When still nothing happened they started to try and gain entry again into the control room and were just starting to make progress when the police arrived. As soon the police came within earshot they stood by the side, greeted them, told them who they were and asked them if they wanted them to come into the police launch. They assisted the police to tie up to Maytime, entered the boat and then explained everything they had done, including what had happened with the life rafts. She described the police at all times as being calm and courteous. In the boat, and on the way back to Coulport and indeed while in police custody, she and her colleagues were totally open about what they had done. Her account of what was done on Maytime was not contradicted in any way by Ms Roder or indeed Ms Moxley. Their accounts were similar. All three ladies played an equal part and all three were members of Ploughshares 2000 and had signed the same “pledge”.
The Background of and Defence stated by each of the Accused
Ms Zelter was aged 48 at the time of the trial. She is a widow with two children and gave her occupation as a potter and gardener. She normally lives in Norfolk. After completing her first degree at the age of 21 she married and went with her husband to Africa. Working with her husband she quickly became involved in issues of poverty in the world, the forests of the Cameroons and she began to work in a voluntary capacity in various ways associated with indigenous peoples, forests and peace. She has taken part in many campaigns over the years in England, in Malaysia, Canada, Finland and Scotland and was quite open that she had been imprisoned in the past for what she had done. In the course of such work she met persons, one lady in particular, who had been affected by nuclear fallout as a result of tests on the Bravo Isles in 1954, and had seen with her own eyes the awful consequences in terms of illness of persons affected by such fallout. She explained that she felt she then needed more information on Nuclear problems so she decided to take a masters degree in peace studies at Bradford University where she met Professor Paul Rogers who later gave evidence as an expert witness. She carried out an in-depth study of nuclear weapons and international policies while at Bradford and became convinced of the potential danger of a massive nuclear war and, in particular, of the imminence of danger from nuclear weapons, not just from the use or threat of nuclear weapons in war but also from the danger of genuine accidents concerning nuclear weapons on which subject she had undoubtedly done considerable research and written articles. She was quite clear in her mind that the use or threat of nuclear weapons was illegal, while acknowledging as the International Court of Justice had done, that their use might just be justified if the very survival of a state was at risk. That acknowledgment, however, was grudgingly given, and while she and her two co-accused respected the decision of the High Court in the Helen John case and agreed that the International Court had said nothing about possession of nuclear weapons being illegal, she and her fellow supporters could not see the point of having nuclear weapons if in fact they could never be used. Then she explained that she felt it essential that the jury understand that at any moment an accident might occur with appalling consequences and attempted to refer to defence production H4. There then followed a lengthy argument outwith the presence of the jury as to the admissibility of the document and such evidence.
Legal argument on Relevancy and Competency
The Crown explained that the document related to alleged incidents going back all over the world from 1956 onwards and if the document was admitted it would introduce what might have happened or what may happen. He could not see that that bore any relevancy to the charges on the indictment. Mr McLaughlin said that the critical question was the knowledge in the mind of the accused in this case, not just of Ms Zelter but the other two ladies as well. Knowledge did not come from the air but through research and especially from direct influences like Professor Boyle, Professor Rogers and the understanding which Ms. Zelter, had gained through a masters degree at Bradford University. If it was relevant to mens rea, i.e. the state of mind of the accused at the time, the article which was three pages long might be helpful insofar as it related to the immediate danger in which the accused felt at the time. Mr Mayer agreed. He felt that the submission by the Crown was ill conceived. It was not the quantity of years covered by the article but what happened during those years which led the witnesses to a certain state of mind. It could not be correct only to go back to what was in the minds of the accused at midnight on 8 June and not look at everything that had led up to that state of mind. It would be an odd kind of university degree which did not provide testing of historical understanding on the subject matter and to have an intellectual appreciation of that. The understanding which the witness had arrived at on 8 June had led her and her colleagues to act in a way which was protected under international law and any objection to the witness demonstrating how she arrived at that state of understanding would pull the rug from the defence.
The argument continued after the lunch break when all parties had time to consider the matter further. Mr McLaughlin addressed me first and said that the importance of the matter was Angela Zelter’s knowledge at the material time and in that regard document H4 was relevant in its entirety. Mr McLaughlin pointed out that I had earlier ruled that the document seemed to contain a mixture of fact and supposition and that there was a degree of hearsay in the document and that part of the document might be inadmissible but some might be admissible because it would indicate the accused’s state of mind. He had now seen the document again and consulted his colleague, Mr Mayer. He found it difficult to differentiate between fact and supposition and gave examples. However, much of the rest of the document seemed to contain fact and although Miss Zelter had no direct dealings with matters contained in the document she had read about it in journals and articles. There would be experts led later who would have greater leeway to talk about matters because of their status but Ms Zelter was progressing quite rapidly to legal aspects and if she could not read to the jury her thoughts on accidents based on how accidents have happened over the years, the jury might think it was disjointed in terms of chronology of the event. So here there were some factual elements, though hearsay, and it would be more meaningful to read those parts out. Mr McLaughlin would say it was admissible hearsay. Ms Zelter was relying on media information to inform herself. Judicial knowledge could in fact also be hearsay.
There then followed an argument on hearsay evidence. Mr Mayer referred me to Field on the Law of Evidence in Scotland, the 1998 version at paragraph 15.5 – Statements regarding Physical or Mental Condition. Even if Ms Zelter were to read out what other people might have written he felt that would be covered by the exception to the hearsay rule. State of mind was the issue in the present case. As the trial had progressed the texture and the focus of the defence had become more subtle. One of the strands was the question of mens rea for malicious mischief, charges 1, 3 and 4, and the defence position was that there was no mens rea. In fact in the minds of the accused they maintained that they were justified and had res causa. So the kernel of the case and the pivoting point between the prosecution and the defence case is mens rea. Alternatively, if I was not persuaded that that was so the only way to resolution would be for the document to be subject to judicial comment line by line. He pointed out that the principal applied to both other accused and in particular his client and he felt that the matter should be ruled upon now. In all this Ms Zelter agreed.
In reply the Crown agreed that the exception which Mr Mayer had mentioned was basically correct and if that was so the article in its entirety should go before the jury. However, the court had to balance the interest of fairness to the accused and public interest because if in effect the jury were to be given every single production which it was said had contributed to the accuseds’ state of mind then the court would be delayed with a plethora of anti-nuclear propaganda and a general debate on nuclear arms.
In reply Mr Mayer pointed out that the Crown submission could be met when it considered the question of credibility – whether the jury believed Ms Zelter had really read all the documents. So public interest could be balanced by cross-examination and whether the jury believed Ms Zelter. At this point Ms Zelter pointed out that two of her productions had been withdrawn from the jury already and the remaining two were in the Crown Productions. She explained that one of her difficulties was that the mindset of “officials” was that Trident was legal. As far as propaganda was concerned it was important for the jury to realise that the remaining documents were not emotional nuclear propaganda. She herself had been studying for twelve years. In the last four months leading to the trial she had been carefully trying to make her statement as succinct as possible and drawing on as few references as possible. Her whole statement, if it could be read out, would take only one and a half hours and considering all that they were trying to prevent she considered that she had been minimal in the way she had presented her case. She had tried to cut her paper shorter but had not been able to. She pointed out that she had written the document H4 at the end of 1998 and the beginning of 1999. In her mind she was relying on three separate defences, necessity, a reasonable excuse, and upholding international law. She was not raising a defence of sincere belief.
Having heard all parties I allowed Ms Zelter to proceed and to produce document H4. I had already made it clear that I did not wish the defence to stray into areas of propaganda or sensationalism but to concentrate on the defence indicated by counsel for the other two accused, namely the question of mens rea and the mind set of the three ladies concerned which was referred to throughout the trial by counsel and Ms Zelter as “the international law defence”, so far as it related to nuclear weapons, with a back-up case of necessity. When Ms Zelter mentioned reasonable excuse, I understood that what she really meant was her state of mind and her understanding acquired over a very long period prior to 8 June which directly gave rise to her actions on that day. Furthermore she was at a disadvantage in appearing for herself, although it was obvious by then that she was receiving considerable help from Mr Mayer and Mr McLaughlin. She had agreed previously to stick to certain guidelines which I had indicated about certain information to be placed before the jury concerning propaganda and an over-dramatisation of the effects of nuclear weapons and had agreed to certain documents being withdrawn. I was not minded to put obstacles in her way which might just have precluded some part of a very reasonable defence, and certainly I did not wish her to be prejudiced if she could not give the jury her knowledge about accidents which had happened.
Ms Zelter then proceeded to outline her defence. She spoke first of all about the possibility of accidents happening with nuclear weapons and those accidents which had happened. She believed that we were all in danger because of the possibility of accidents and the difficulty of knowing when an accident might occur and the impossibility of predicting any accidents. Based on her knowledge of accidents she had a rational fear of a catastrophe. She was not alone in that fear which was shared by many others including a top U.S General Commander in Chief, General Lee Butler, who had been engaged in strategic nuclear forces including Trident 2. Professor Boyle had referred to the General whose speeches were in the public domain. In 1996, two years after he had resigned as Commander in Chief, the general explained why he had become a public proponent of nuclear abolition. He was speaking at the time to sixteen generals and she read out part of the text of his speech. There was a similar speech the text of which was again in the public domain made in February 1998 and also in March 1999. I regret that I did not catch the production number when Ms Zelter read from a document, but I think it may be part of Defence Production Reference 22, a copy of which I do not have.
She outlined all that she had done by way of peaceful legal means to bring an end to nuclear weapons. She explained how she had tried to get the police to take up her cause of what she perceived was the illegality of nuclear weapons and how she herself had tried to raise action through the courts in England but on each occasion had been denied access to that remedy. She had been given different excuses by different magistrates being either that it was not in the public interest or that it was frivolous and vexatious, or the Crown would take over the proceedings she had already raised but then drop them on the basis that it was not worth proceeding with them. She had tried a direct approach to the Attorney General but was told it was the job of the police to make enquiries about her claim. So she went to the Norfolk police and wrote to the Chief Constable who told her, that he was not in a position to do anything about international defence policies although she pointed out that there were a series of international laws which pointed to the illegality of nuclear weapons. She organised a campaign with names and encouraged local people to approach their courts in the hope that some magistrates would have the independence and courage to confront the problem. Each time she ran up against a brick wall. Fifty different approaches were made to magistrates’ courts around the country. On some occasions clerks admitted that she and her colleagues appeared to have a good case but nothing was done. Around the same time an organisation known as Pax Legalis was working along the same lines. They had been formed in 1984 and had been trying for ten years to have matters decided by the courts. Their understanding was that there was an ongoing conspiracy to commit serious crime and since the prosecuting authorities were not taking action it was their right and duty to take legal action. Pax Legalis were also of the opinion after cases had been stated and postponed that the judicial system was unwilling to interfere. Quite a few approaches had been made to the Lord Advocate on similar lines in Scotland with the same official denial. Later with others she was asked to form a charity – The Institute for Law and Peace. She began to produce materials on the law relating to peace and war laws. She attended Red Cross conferences. As part of an international law and peace delegation she went to the first gathering of lawyers and international delegates in the Hague when it was decided to make an approach to the International Court of Justice to ask for an advisory opinion on the illegality of nuclear weapons. At that conference she met Professor Boyle (later to give evidence in her trial) and Judge Ulf Panzer (who also gave evidence). The approach to the International Court of Justice was an initiative suggested by a Mr Sean McBride and taken up by a judge from New Zealand, developed into a world court project and after many problems, including a great deal of pressure from the Nuclear Weapon States who tried to stop the process, the UN General Assembly finally asked for and received the Advisory Opinion, which document, together with all the dissenting opinions was produced, being production H7. Ms Zelter stated that that information clarified the law relative to nuclear weapons, i.e. that they were generally illegal. They highlighted two principles of international law that can never be broken even in an extreme case of self-defence. Those two cardinal principles are, first that States must never make civilians objects of attack and must as a consequence never use weapons incapable of distinguishing between civilians and military targets; second, it was prohibited to cause unnecessary suffering to combatants and prohibited to use weapons causing them such harm or uselessly aggravating their suffering. Her opinion, corroborated by expert witnesses, was that no use of Trident could possibly conform to those requirements, thus they were illegal. She spoke to an article dated 20 August 1999 which appeared in the Herald which reported the release of secret papers which calculated British nuclear bombs would kill as many as three million persons in the USSR. So soon after the Nuremberg tribunal and after the holocaust she found her own government planning mass destruction of people. She said that she found it terrifying that nothing seemed to have been learnt from the past. In her view it meant that the government was and still is so devoid of humanity and imagination that it cannot work out how to defend our country in a civilised manner. In her opinion she had no doubt at all that somewhere in the recesses of Whitehall there would still be someone who had calculated how many people could die if Trident missiles were fired on purpose or by accident. That information would be classified but she felt that she could not wait for thirty years for declassification to find out. The present deployment of 144 Trident warheads could lead to the death of thirty million people including eight million children. It seemed callous and unfeeling to her to even mention that but she was in a court charged with various crimes and she saw that it was of the utmost importance to prove to the jury that her actions were lawful because they were necessary to prevent the horrendous criminal plans of her government. She felt that the present Trident policy was a war crime against humanity. Her disarmament was trying to prevent mass murder and was, therefore, justifiable and lawful.
At this point, my Lords, I should perhaps say that the above account of her views on the matter were given without emotion but as with all her evidence in a calm dispassionate manner.
She then turned to the Advisory Opinion of the International Court of Justice. She said that after the publishing of the Advisory Opinion in response to many requests, the UK government made it quite clear that it would still not disarm its nuclear weapons. She considered this in all the circumstances irresponsible, undemocratic and shameful and in her view directly undermining international law. She felt that the nuclear states were holding all the others to ransom and abusing their power. This was one of the main reasons why she worked with others to start a project based directly on observing international law – hence Trident Plowshares 2000 Peoples Campaign on Nuclear Disarmament.
Ms Zelter then went on in detail to explain how she felt that nuclear weapons were unlawful and why in particular the British Trident weapons were unlawful. She carefully spoke on the International Opinion itself and the dissenting Opinions and then outlined all the sources of international law which were considered by the International Court when issuing their Advisory Opinion. She referred to Gordon Criminal Law, 2nd Edition, Pages 419 and 834 (her Defence Reference 3) and the cardinal-principles referred to in the Advisory Opinion. She spoke of the binding nature of international law and ended by saying that she contended that it was really for the prosecution to prove that Trident was not illegal. If they could not it was arguable that she had proved one of the planks in the argument for disarming Maytime. She acknowledged that there was one possible loophole left by the International Court in their Opinion, i.e. that a country or state could possibly use a nuclear weapon if their very survival was at stake but also pointed out that the President of the International Court of Justice had said that that in no way could be interpreted as a half open door to the recognition of the legitimacy of a threat or use of nuclear weapons. She did acknowledge that the Advisory Opinion of the International Court was just that – advisory – but at the same time given the very nature of the court and the careful consideration given to the whole question of nuclear weapons, including a review of all enactments and treaties which might or did have a bearing on the matter, it must be very persuasive. I have, of necessity, given a synopsis of all that she said. Ms Zelter may be disappointed by that and I would not wish her to think that by so doing I discounted her argument in any way. If your Lordships wish to hear what she said, her evidence on this particular matter was given on 8 October and commenced at about 1600 hours, possibly later. She addressed me very fully also referring in particular to a number of her Defence Productions References 13, 14 and 17 and in detail on the Opinion itself.
On the following day she spoke of, NATO strategy and the size of the warheads. She indicated that they were incapable of distinguishing between military and civilian targets and indeed they were not intended to do so. She acknowledged that the nuclear weapons were targeted in a way to try and deter war but pointed out that if the bluff failed and the weapons were actually used there would be a mass destruction of people. She quoted from a NATO strategy document that “the purpose of Trident is to terrorise and create incalculable risks”. I do not have a note of any Defence Reference No. nor have been able to pinpoint this phrase in any of the reference numbers given by her but it is possible I could have overlooked it. In preparing this report I wondered if I had misheard her because there is a reference to the nature of nuclear weapons at Sections 35 and 36 of the IJC Opinion. In other words the whole purpose of a nuclear deterrent was to threaten mass destruction and that was criminal. She then turned again in detail to the Advisory Opinion and the individual Opinions. Following that she referred to specific facts relating to the British Nuclear Weapon System, all of which she said is in the public domain. In particular she pointed out that Scotland was home to the Trident submarines. At all times there was always one of the submarines on a twenty four-hour patrol. Each one had forty-eight warheads. Each warhead of 100 kilotonnes was approximately eight times more powerful than the bomb used to bomb Hiroshima. When one looked at the information available on the way Trident submarines were deployed it would appear that they were still principally orientated towards Russia. Again within public knowledge if one fell on Moscow three million people would die outright and there would be a massive nuclear fallout over a wide urban area. Other operational targets would seem to be the Russian nuclear submarine fleet bases. She elaborated further on this theme and the damage to the environment and said that she believed that the British Trident System was an immediate and ongoing danger to all life on the planet and furthermore a threat to international peace.
She then indicated that she believed that preparation for a war crime was in itself a crime and presented her reasoning for that in particular referring to her Production Reference 15. She then referred to the end of the cold war. The world was no longer living in its shadow. There was no longer the same threat to the UK or USA and no significant threat that she knew of to overseas territories. I should look at her Production Reference 23, the UK Strategic Defence Review, July 1998. If the survival of the UK was not under threat, the threat of Trident to others would be an unlawful threat even if the government announced that only one kilotonne of explosives would be deployed.
She then turned to the “defence of vital interest” argument, She referred to the “Rifkind Doctrine”. UK Defence Strategy: A Continuing Role for Nuclear Weapons, her Production Reference 24, which referred to what the government had actually said concerning Trident with reference to the protection of economic and oil-related interests and how Trident could be used. This was not one of the objects referred to by the International Court and therefore was unlawful. She referred to what Lord Murray, former Lord Advocate, had said in a speech given in Oxford in October 1998, being reference 25 in her productions. She referred to the crisis in Iraq in February of 1998 and the talk of a possible use of nuclear weapons at that time. She referred to a House of Commons Debate on 17 February 1998 and remarks by Robin Cook, Foreign Secretary, about what Hussein should expect if he were to use chemical weapons (Her Production Reference 26). She referred to reports on what sources from the Foreign Office had indicated, i.e. that the US response would be devastating. She referred to press briefing where it was alleged that the government had not ruled out weapons of mass destruction. She referred to an interview on Radio 4 on 18 February 1998 with George Robertson when he was given an opportunity to deny that nuclear weapons would be used but did not. What was particularly worrying was that at a time when it was hinted or suggested that nuclear weapons might be used against Hussein it was not denied that they would be used. On 17 February 1998 a Trident submarine had left at an unscheduled time on patrol for an unknown destination when it was understood that nuclear weapons were being considered. Reliable informed sources indicated that Iraq certainly perceived at that time that there was a threat of nuclear weapons being used against them. Later on in the year the Trident submarine “Vanguard” made her presence obvious in the Mediterranean by appearing in Gibraltar in the last few days of November. In her view this was the sort of situation in which failure or an accident or a misunderstanding could lead to disaster. The UK and NATO were at war with Iraq in June 1999 and still engaged in bombing raids. On 8 June 1999 Britain and NATO were at war with Serbia and Kosova. The potential for unintentional disaster was very great.
She then turned to the criminality of the British deterrent policy and said that the threat of use of nuclear weapons was also criminal which was what Trident deployment and the British Government’s reliance on that was all about. She referred to her Production Reference Number 2, Professor Boyle’s paper on the criminality of nuclear weapons to which he had already referred in evidence. She then elaborated on British crimes against peace and referred to the Nuremberg Charter and that part which struck at the planning and preparation of war crimes, and the international treaties and assurances which followed. She believed that the UK had made it clear that they had no immediate intention of eliminating its Trident system. She referred to the Strategic Defence Plans and what they specified and also press revelations and in particular a report by Alan Simpson, being Reference Number 29 of her productions, concerning new refurbishment programmes at Aldermaston costing about £150,000,000, all relating to the Trident programme. She spoke also of the collaboration between France and the United Kingdom and the USA on nuclear weapons. The continuing development of new nuclear weaponry was a flagrant breach of international law and furthermore destabilising. All this had been explained in their hand book TP2000 which had been left in the laboratory on Maytime on 8 June 1999. She explained why she left the documents that she did on Maytime. She referred to the pledge signed by her and those involved with TP2000.
When the trial resumed on Wednesday 13 October she explained how she had written to the Attorney General on 9 July 1998 sending a copy to the Lord Advocate. She went over the contents of the letter. She received no reply. The letter is Defence Production H15. She stressed that she and her colleagues had done everything to be open and accountable and they had given the government and the justiciary opportunity to right the wrongs. If the government and institutions were not willing to take responsibility for righting the wrongs, i.e. getting rid of nuclear deterrents, she and her colleagues who thought in the same way as her, as global citizens, had the responsibility to act. They were not obliged to act but they had a duty to act as long as they were safe and accountable. In September 1998 she wrote an article about TP2000 which had been published in disarmament publications, read by diplomats working for disarmament. She thought that by openly publishing and saying what was happening in the Scottish District Courts this would not only inform non-nuclear countries that there was active protest and resistance in the UK against nuclear disarmament but that such a publication would be a lawful measure to bring about disarmament. She referred to her Defence Production H16.
Ms Zelter then went on to consider a separate and independent right she claimed she had under international law to prevent breaches of international law. She called it the International Law Defence as opposed to a reasonable excuse defence. She had read and considered judgements from Tokyo and Nuremberg, which judgements she relied on and which formed part of her productions. Those judgements said that individuals have international duties which transcend national obligations and that anyone with knowledge of illegal activity and having an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent crimes. She went on to explain that she had used this defence in a previous criminal case in which she had been involved, namely in Liverpool in July 1996, at the end of which trial she and her co-accused had been acquitted. She had disarmed a British Hawkjet by causing damage amounting to roughly £1.5 million pounds. She and her co-accused had learned that it was just about to be delivered to Indonesia to be used against the Timor in connection with bombings. Previous Hawks had been used in such bombings. She contended that the jury agreed that it was morally wrong to sell arms of Genocide and against international law and had hence found her and her co-accused not guilty.
She then turned to the actual “disarmament” of Maytime by herself and her two co-accused in the present trial. Earlier in my report I have indicated what she and her friends actually did on Maytime and the reasoning behind that, i.e. that all that was damaged or destroyed was intimately connected with research on Trident submarines whose purpose was illegal.
After that she explained why she and her two co-accused had not accepted bail although originally it had not been opposed. She explained that as the courts seemed to be prejudging that her and her friends’ acts were unlawful they felt that they could not sign the bail conditions. She said the sheriff (not myself) had explained to them that if they were involved in any other Trident 2000 plans, those acts could be construed as conspiracy, and they could be committing a criminal offence. So even if they were not going to be engaged in any further “disarmament action” as in the subject matter of the present trial, they would be part of a conspiracy and therefore breaking bail which they did not wish to do. For that reason they had been prepared to spend as long as was necessary in Cornton Vale until the trial was over in the hopes that the jury would agree with them that what they did on the Maytime was not criminal.
When cross-examined by Mr Mayer she explained that it had taken her twelve years of study and many meetings over those years with international lawyers to reach the state of knowledge concerning nuclear weapons which she now had. She also spent a great deal of her time updating herself on nuclear knowledge, some of which knowledge was quite difficult to obtain particularly that relating to accidents or near accidents, information concerning which might not become available until many years later. She was, however, aware of one such incident when a Trident submarine went into a dive and was within minutes of exploding. She knew about that because one of the sub-mariners on the submarine had become so upset that he blurted out the information when on duty and it was subsequently reported in the papers, and in particular the Herald. She explained that she also got a great deal of information about such incidents and what was going on with Trident from their own community network consisting of local people both in and without the forces. Other information, especially that on the Internet was quite easy to obtain.
In trying to clarify her evidence concerning the illegality, as she saw it, of the Trident weapons Mr Mayer asked her if she was familiar with the concept of cruel excess as in a self defence situation. She replied, “Not exactly”. He outlined what was meant and then asked the question “Do I understand you correctly to say that whatever a person’s personal belief may be, people of the world have lived with war from time immemorial, won and lost and civilisation goes on, but a problem with Trident 2 was that if it is used, either whole or large parts of the world would be completely uninhabited for many years?”. She agreed with that statement and went on to say, “like the Bikini Islands” – for thirty thousand years.
Mr Mayer then asked if the whole thrust of international law, as she understood it to be, was that even during conflict it was illegal all over the world to obliterate large parts of humanity and the planet. She replied “Yes”. The next question was “So according to you there is a danger of that happening and the danger comes and goes out of Loch Goil with monotonous regularity and she replied “Yes, absolutely, yes”. The next question was “prone to accidents and mistake and even to retribution by individuals who work on Trident?” and she replied, “Yes”. “Sabotage?” “Yes, that has occurred” and she gave an example. Later she was asked if from her evidence and that of Professor Boyle, were we to understand her position concerning the UK Government since signing the Nuremberg Charter in London in 1946 to be that they were saying what they would do with nuclear weapons but were doing nothing? She agreed and went on to say that in her view the UK Government was hypocritical in saying what they intended to do but doing nothing and thereby undermining the whole situation, meaning a speedy ongoing process of disarmament of nuclear weapons throughout the world.
Ms Zelter explained that after the judgement from the International Court of Justice she wrote to the UK Government about their present stance. Indeed in the government’s preparation of the Strategic Defence Review they asked for public consultation and she personally, along with others, outlined the illegality of nuclear weapons as she saw it in conjunction with the whole of the UK defence policy. She agreed that she was met with a stone wall approach. She was asked what kind of danger she perceived that we as a country were in. She replied “Not were, but possibly now as we do not know when Trident weapons will be used but they are deployed”. She confirmed that she had learned about the size, speed, target and effect of these warheads and she also confirmed that on 8 June, according to her perception, she and the whole country were in danger. She was asked who she intended to be the beneficiaries of her actions and she replied “All of us and the whole world”.
In cross-examination by the Procurator Fiscal she explained that they first decided to target the barge Maytime in February or thereabouts. They had been considering other sites but Maytime seemed the most suitable. When she was asked if she really did consider that it was correct that there was no other reasonable alternative, she replied “Yes” and that in her mind they had tried everything. When asked if it was simply to inform the government, she replied “No” because they thought that crimes were actually being committed so they went to the local police station, the local courts and they lobbied individuals including court officials. When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the word committing mass murder. When asked if she simply wrote to United Kingdom government officials, she said that she had written not just to them but to other states. The Procurator Fiscal then asked if her efforts were restricted to government and the Trident programme, would it be true to say that she was attempting to influence the United Kingdom government in relation to policies concerning Trident nuclear weapons with an ultimate aim of ridding the UK of nuclear weapons? She agreed with that but said that her action on 8 June was directly trying to prevent a crime because many people in the past had tried to alter policies but it had never worked. She confirmed that she and her colleagues had been trying everything reasonable and legal in those endeavours. She was then asked if there was not another action she could have taken. Specifically would it not have been a reasonable alternative for her and others in her organisation of TP2000 to put up candidates for Parliament. She replied that she did not think that would help because a lot of MPs had been very pro-nuclear disarmament including Robin Cook and Prime Minister Blair who had been a member of CND. She explained, however, that once these people came into power their principles changed. She herself had also stood for election on a national level as a Green candidate and specifically non-nuclear. She was not successful. She was asked about the polls against nuclear disarmament, and the figure of 78% against nuclear weapons was put to her. She replied that the most recent poll in Scotland indicated that 85% of the Scottish population were against nuclear weapons. If that were the case, said the Procurator Fiscal, would it not be reasonable for all anti-nuclear organisations to put up candidates? Her reply to that was that it was not crime prevention. On being pressed on the matter, she said that her organisation and others did have public support. In the world community the vast majority of people have said that they want to get rid of nuclear weapons, but politics don’t allow that to work. She reiterated that she was not running a political campaign – she was trying to prevent a crime. In her opinion the UK had been threatening mass murder for a number of years, and the head of justice was to some extent simply a political employee. When asked if she could choose to change government and so get rid of nuclear weapons, she replied that she did not know if a certain government came to power it would stop nuclear weapons and that was the point of people like herself trying to do things themselves. If she and her colleagues acted safely then they could be judged by peers in a court like the sheriff court in which she stood. She was aware that governments did listen very carefully, but they were simply not changing. She and her colleagues had tried to engage the political parties of our society but that was not enough. The Procurator Fiscal continued to press her on the question of getting representation in government. She explained that she was already aware that there were quite a few non-nuclear Members of Parliament in Scotland, but at a general election it was unfortunately the position that people elected people with a whole gamut of policies. She indicated that perhaps a referendum on nuclear weapons might help and agreed with the Procurator Fiscal that it was necessary to get sufficient support from the electorate, but pointed. out that even if they did, what could she or anyone do when the government failed to keep all of its promises. She was asked was it not the case like other pressure groups that TP2000 could make themselves available to the public but instead they concentrated on direct action? She replied that the Procurator Fiscal had missed the point because there was an ongoing crime and on 8 June 1999 she was trying to prevent those crimes taking place. It was suggested to her that that was really the easy way out because it would be possible for her to stand as a Member of Parliament and say “Vote for us?”. She replied that if it was that easy her organisation would have more than 143 members. In her opinion it was not an easy option. She agreed that the means proposed by the Procurator Fiscal were legal and reasonable, but so were her organisation’s ways and they had been trying the methods proposed by the Procurator Fiscal for years. It was put to her that she had ended up damaging items of property on Maytime to which she agreed. He put it to her that her intention in throwing all the various items in the loch was to make them unusable. She replied that as far as they were connected to Trident, and in her opinion they all were, that was their intention. She was asked if there were Trident submarines in Loch Goil on 8 June. She replied that there were no submarines there on that day and it would not have been safe to disarm either Newt or Maytime if Trident had been there. She agreed that she and her colleagues had tried to get into the control room on Maytime. She agreed that she had tried to cut the glass and she agreed that it had been very time consuming. She also agreed that after discussion they had decided they would try and get to the other barge, Newt. When asked if it was an afterthought that they had decided to go to Newt after they had difficulty getting into the control room of Maytime she replied that it was not and it had always been their intention, if they could, to go to Newt and disarm it, but there was always some doubt as to where Newt would be as it moved around the loch and furthermore they did not know how long they would have to disarm Maytime because of the security. They decided that as Maytime was the call facility they would disarm that barge first and then go to Newt. She conceded that on 8 June neither Maytime nor Newt were posing any immediate danger of death or severe injury to anyone, but explained that the two barges were part of a system which did impose immediate danger of death or severe injury and on that particular day (because of painting operations) they were not being used by anyone and therefore it would be safe for herself and her colleagues to go on board. Furthermore, although both were not being used on that particular date she explained that when dealing with a complex nuclear system like this the only way you could hope to bring about complete disarmament, although nuclear weapons were an immediate threat all the time, was to have a lot of people doing disarmament. There were a lot of sites but in time the whole system could be disarmed. One soldier could not win a war, but many soldiers could. She agreed with the Procurator Fiscal that by themselves Newt and Maytime posed no immediate danger, but the two barges were vital for the whole nuclear system on the submarines to work. They were essential for ongoing work on Trident and therefore needed to be disarmed. The Procurator Fiscal pointed out that there were three submarines on 8 June. Ms Zelter corrected him by saying that there were now four all laden with warheads and they were only three women and could therefore only disarm a small part, It was put to her that at least one of the four submarines would be at sea and she agreed. She also agreed that if one submarine was at sea it would be fully armed so, at the time they were on Maytime, they would not have been preventing any discharge of missiles or denuding a submarine of its cargo, to which she agreed. She also agreed that at that time their actions did not prevent one of the submarines going to sea. She explained, however, that their campaign as a whole had the capacity to disarm the system, and in their opinion, within the context of the whole, what they did could be seen as part of crime prevention. Furthermore if enough citizens pledged to continue with similar actions, eventually the whole system would be disarmed and therefore their actions were capable of crime prevention.
Obviously her actions had not denuded a submarine of its firing capability, but if the laboratory on Maytime kept the submarines in the water, she and her co-accused did carry out a disarmament action. She acknowledged that submarines were in the water which she had not touched, but her action was a bit like arresting thieves. You might only be able to arrest one at a time out of many thousands, if not millions, but that did not invalidate the point of arresting one and helping to stop crime. She totally refuted the Procurator Fiscal’s suggestion that what they did was merely a gesture. She said that from the evidence given, by Mr MacPhee we had no idea what the impact her and her colleagues’ actions would be on the submarine Vengeance. The Vengeance immediately prior to 8 June was being refitted but it still had to go to Loch Goil for its trials so it was possible that delay was caused to that particular submarine in getting it up and running, if it could not be tested. When the Procurator Fiscal asked if she reckoned by that that there had been impact on one of the submarines she agreed but said that she thought probably the most important aspect of the whole action might yet be to come because if she and her colleagues were acquitted at Greenock it would send a message to the government and then they might do something. When asked if she was suggesting that the verdict of the jury in this particular trial was more important to her organisation than the effect on Trident of her actions on 8 June she replied categorically “No”, that probably the most important thing was that, as a global citizen, she had to do all she could to prevent crime. Anything else was supportive. As an individual she couldn’t just stand and write letters. She had to do something even though it was not very large. What she did was all she could do with two friends, both safely and accountably. Any terrorist could blow up Maytime and Newt or indeed a submarine but what they were trying to do was to prevent a crime. She was asked if one of her motives was to cause embarrassment to the powers that be or the Ministry of Defence. She replied, “No”, although she acknowledged their embarrassment about the whole legal argument against nuclear weapons, but they did not do it for that. When asked if she wanted to be caught she replied that they did not but they would love a police officer to come along and say “lets try and get something done. She pointed out that many police officers agreed that members of the peace organisation, and in particular her group, had a good case but they did not know what to do about it. She said that she and her colleagues had to stay with the damage because they were accountable but what they did was not done to be arrested or to be tried before a jury, although they knew that that might be the case. Although they were destroying things it was done to stop more destruction. She was asked if it was to get publicity with a trial before a jury. She replied that that was not the point. Her and her colleagues’ arrests were just three more to add to the list. The point was something had to be done about nuclear weapons. They were there to try and prevent mass murder, and what they did was not a crime. She was asked how long Trident 2000 had been existence and she replied that the group was launched in May 1999 although a group had got together the previous summer and decided to talk to the government first because they knew it would be more difficult if they did a launch project first.
The Procurator Fiscal then turned to prior use of, nuclear weapons, apart from testing. She agreed that apart from accidents nuclear weapons had last been set off in Nagasaki and Hiroshima 55 years ago and fortunately since then they had never been used in earnest. However, there had been crises. The Procurator Fiscal referred her to the Korean war in 1951, the Soviet missile crises in Cuba in the fifties, the Vietnamese war in 1965 to 1967 and later the Iraq crises where Britain were defending their oil interests with Kuwait but no nuclear weapons had been used. She agreed with all that. She in return asked the Procurator Fiscal if he was suggesting that so far because we had been lucky they should not carry on?
The Procurator Fiscal then turned to the Advisory Opinion of the International Court and read out various parts of that Opinion for her comment. She pointed out that he had extracted and read out only small excerpts but that it wasn’t good enough just to read out small excerpts as they had to be read in the context of the whole. That was also why she had gone through the Opinion in detail the previous day when she gave evidence eventually coming to the question of self defence. She was asked by the Procurator Fiscal, if a country gave up its nuclear weapons, how could it defend itself if its very survival was at risk and if it was attacked by a country with nuclear weapons. Her reply was that conventional weapons had to be used otherwise there would be an anarchic system. She pointed out that nuclear weapons had not kept peace. In recent years there had been many wars and tides of refugees. She was asked where in the Opinion it said the possession of nuclear weapons was illegal. She referred to earlier parts of her evidence on this matter and again confirmed that the Opinion did not say that possession was illegal, but one had to look at the use and deployment of weapons as a whole. She pointed out that the court was not being asked about possession of nuclear weapons; what she was talking about was the active deployment of loaded Trident submarines. The present position was that it was possible to possess them, i.e. keep them in a store, but you could not use them. What was at issue in this trial was the active deployment and the moving them around in submarines which was seen as a threat. It was the threat of nuclear weapons which was illegal and that most other countries regarded the United Kingdom’s possession and deployment as a threat. She was asked, if the Opinion did not deal with possession, how could she draw a conclusion from something which was never said. She replied that you could draw a conclusion from the reasoning and answers given in the Opinion as a whole. At this point the Procurator Fiscal gave up.
Ms Roder was aged 45 at the date of the trial, single, divorced with two children, a boy and girl aged 18 and 21 respectively. She lives normally in Denmark and is Danish. She has no academic qualifications. She left school at the age of sixteen and worked in a bank for approximately three years. She took various courses at the bank in connection with her work. From an account of her work it seemed very similar to work which might be done by someone in her position in a building society. After her bank job she obtained employment with a building society and there she remained until about 1989. She left the building society because she was becoming aware of certain changes in her working place and society as a whole which meant that she could not carry on working there. It was not so much the politics but the way people were being treated and the cutting down of staff. She had become aware at the time of leaving of breaches of employment agreements. Contracts were being broken, people were being sacked and she was not prepared to accept the breaking of recognised rules. She then had a series of other jobs, working as a lifeguard, and latterly in social work where she started to work with older people, the homeless and the socially excluded. She enjoyed looking after people although she was not unhappy when working in the bank. Since leaving the bank, however, her whole working life had been geared to the humanitarian side.
At this point in her evidence there then followed a short legal argument about which productions the witness would be allowed to speak to. The Procurator Fiscal said that many of the documents she wished to speak to had been prepared by witnesses who were not being called and therefore not subject to cross-examination. He did not, however, object to her referring to the fact that she had read them and as a result formed certain views. He was not, however, prepared to allow anti nuclear propaganda because if the jury read them they “may lose the plot”. After argument I upheld his objection.
When Ms Roder’s evidence continued it became clear that the documents which were referred to covered a very wide range of material. Some of it was quite technical and involved such topics as NATO strategy or matters relating to strategies. It emerged that some of the documents had only been read by her while awaiting trial in Cornton Vale. She had, however, been aware of the contents of any such documents before hand but had only the opportunity of reading it in greater detail when she had had the time. She became aware of the contents of many if not all of the documents when she became involved with the peace movement in 1995 and when the French began nuclear testing again in the Pacific in the summer of 1995. She explained that she was interested in the French testing in the Pacific because she had never before been previously aware of the effects of nuclear testing and had never previously participated in peace work. In 1995, however, she was working with the homeless in Copenhagen. They gave her a leaflet. They were looking for people who could protest against French nuclear testing. She had always loved nature. She had always been interested in and liked looking at different cultures and had read about the Pacific area. She was angry when the French started their tests again. At the same time there were some people in her country and indeed around the world with no roof over their heads. She became aware of the connection between the military costs and, to her, the very irrelevant costs of nuclear testing. She was taken through documents which related to underground testing at Mururoa in French Polynesia at the time of President Jacques Chirac. She then spoke about the major atmospheric nuclear testing in 1996 and earlier tests conducted between 1974 and 1981 when 51 underground tests were conducted on the outer rim of the Mururoa atoll. She said that all those documents made her realise that many things had happened which she did not know about. So she became interested in finding out what was happening now. She started a group to publish a newsletter called “Full Stop”. It was printed as a small newspaper with information on nuclear testing, fallout, proliferation and the risks of that. She explained the content of the publication and in particular that the aim of her publication was to stop the spiraling of nuclear weapons and a general arms race. She was asked where the editorial staff of her publication obtained their information which went into the newsletter. She explained that the information came from various experts in the area, a previous government correspondent from Washington, a peace researcher, a professor based in Copenhagen University, and a Mr John Avery who at that time was living in and working at a university in Denmark. The publication was to have been produced once every two months because it was very expensive to produce. In fact, however, there seems to have been one issue only but that one issue led to a collection of signatures, a great deal of feedback and an invitation for her to meet officials at the Danish Foreign Ministry. By then she had formed a small pressure group of about 25 to 30 persons working as a group against nuclear testing. When she went to see an official from the Department of Foreign Ministry she went as a member of a group called Women for Peace. At that time the Danish peace movement was very small although it was active in other areas. She was not sure why the Danish Foreign Ministry chose to speak to her but thought that it perhaps might have been that by the time she met the official they had approximately 4,500 signatures on a petition. At that time the Danish population had much the same population as Scotland. It was a comparatively short meeting and at the meeting Ms Roder sought assurances and tried to get the minister to explain why tests were being carried out in the USA, which tests had been worrying her and members of her group a great deal. The answer she received was strange. The minister said that he had heard of the tests. He said the US were carrying out those tests to ensure that the nuclear weapons did not lie in storage rusting so that in the future they could still be safe and reliable. It seemed to be a rust prevention cure. They were not satisfied and felt that they had been made a laughing stock. So she personally made endeavours to speak to other officials at high level in other countries and in particular she managed to obtain a meeting with the Indian Ambassador to Copenhagen sometime in 1998. At that time India were talking about nuclear tests. The meeting with the Indian Ambassador came about because she wrote a letter to one of the Danish newspapers saying that she was worried that India had betrayed the principles of Gandhi. She also said that the Indian government were now on the same dangerous path as other nations but she understood that India felt that it was necessary to do the tests because they had to keep up with developments taking place in the USA and their tests. She had also said in the letter that she was saddened that women and children and populations should go needy because of the costs of those tests, especially in a country like India. A country like India should use money in other ways, i.e. to progress. The Indian Ambassador invited her to lunch. There was a very full conversation, the meeting lasting some three hours, and she was listened to very seriously. The Indian Ambassador agreed with many of her views. Ms Roder asked the ambassador to make her points to the government in India and the ambassador agreed and asked for relevant papers including Ms Roder’s News sheet which were all sent to her. After that meeting she found that she had entered a different world where she had never been before. Thereafter, she wrote to the British Embassy in Copenhagen and received a letter back from a lady called Claire Clauson their press official, which letters were produced. I regret that I am not sure of the Production Numbers and they are not within my copy productions, but I think they should be Productions 1 and 2 for Ms Roder. In that letter she referred to persons known to her in prison in Scotland who had taken part in action against the naval base in the Clyde. She had asked that they be released because they had not committed a crime. In the letter she referred to the ICJ Opinion. By that time she herself had obtained a copy of the full Opinion and had read it. She was asked if she had been satisfied with the reply from the British Embassy. Ms Roder said that she was shocked to know that the British Embassy could not take her colleagues’ release into consideration because it was not their job, and in the same letter she got an answer that the International Court Advisory Opinion was in no way binding. After that letter she continued in her campaign to obtain nuclear disarmament. On 29 April 1999 she wrote to Mr Paul Rasmussan, the Danish Prime Minister. She wrote to him because after a couple of travels abroad she had seen a very frightening situation in Europe in which Denmark had taken an active part because of their membership with NATO. She had been travelling in the Baltic States and she had seen their reaction because of the expansion of NATO. She participated in a big international conference in Warsaw. She could see clearly that it was impossible to get through to the politicians that the expansion of NATO in Europe and what was happening in Europe was causing tension, which could increase. In other words there was a new nuclear race, a new cold war with new frontiers. She did not wish a world of that kind with frontiers being built up again so she and fellow members of her group tried to agitate for other methods and solutions. She told Mr Rasmussan that NATO’s nuclear strategy – “The First Strike Policy Strategy” was illegal. It meant that NATO was threatening other countries with nuclear weapons and they were involving countries like Denmark which in itself did not wish to have nuclear power at all. She told Mr Rasmussan that he was involving Denmark in the use of nuclear weapons and might even get nuclear weapons placed within Danish borders if there was to be a war in time of crisis, She received no reply. She was not particularly disappointed. She had previously written to all groups in the Danish Parliament without getting one letter back. There were no Green Party candidates in Denmark which at the time of the trial had a social democratic government, a kind of coalition with a majority which changed although the government itself seemed to be stable. She spoke of a “Citizens’ summons” which was enclosed in her letter to Mr Rasmussan and explained how the document explained to the Danish government the ways in which they considered NATO was acting illegally. She also confirmed that she was particularly interested in the NATO strategy insofar as it involved Trident nuclear weapons. She then spoke to other documents in the bundle which covered documents produced by countries who had got together to abolish nuclear weapons and to show how it could be done. She named such countries. She also spoke to the first Strategic Arms Reduction Treaty with which she said she was familiar. She was referred to various pages of the document and in particular those parts which related to the proliferation of nuclear weapons. These were all items which she had discussed with the Indian Ambassador together with the growing risk of accidental nuclear war and the nuclear weapon states undermining the Test Ban Treaty. She stated that her knowledge of nuclear weapons was now considerably greater and she felt confident in talking with quite high-up officials about nuclear weapons and disarmament. By 8 June 1999 she felt in immediate danger. She was aware of testings in the USA in 1997, she was aware of the stockpile programme and aware of bombs of depleted uranium being used in Iraq and the Yugoslavian wars. She then turned to the cost of all the testing and referred to an article which showed that US nuclear weapons cost over five trillion dollars. She was asked about her familiarity with work being done at the Brookings Institution and the Manhattan Project. She had no direct knowledge of the Brookings Institution although she knew what it did and she had heard of the Manhattan Project which was the project which developed the Hiroshima and Nagasaki bombs. She was asked if she was aware of whether or not the Danish people had held a referendum on nuclear weapons. She was aware that there had been a referendum which, to the best of her knowledge, asked whether the Danish people wished nuclear weapons on Danish soil. She was not sure but she thought also that there was a question of whether the Danish people wished nuclear power. The response of the referendum was a clear no. She was asked if nuclear weapons had come on to Danish soil since the referendum. She replied that they had, but not officially. Recent publicity had indicated that there were nuclear weapons on merchant ships and in Greenland put there by the US. She then referred to number 11 of her bundle of defence productions and explained that she had met some of the survivors in May 1999 when she was at a peace conference at the Hague. As a result of meeting with those people and hearing first hand of their experiences she vowed to prevent Nagasaki ever happening again. She conceded, however, that by then she had become involved with TP2000 and it was not the personal meeting with survivors from Nagasaki which alone triggered off her part in the planning of the “disarmament” of Maytime.
She was cross-examined only briefly by the Procurator Fiscal. He referred to the letter that she had received from the British Embassy and she conceded that in their reply certain assurances had been given and that nuclear weapons would only be used depending on all the circumstances at the time. When asked about her part on board Maytime, she agreed that they were all three acting together and threw items into the water. When asked if she intended to damage other items and indeed those items thrown away she replied that it was her intention to make them unusable “for what they were intended to do”, i.e. assist in research on the Trident submarines. It was her intention that they should not be used again and hence that they had been put into the water. If they could be used for a better purpose other than Trident testing, she would like to see them used again. She confirmed that on 8 June there were no submarines in Loch Goil and she confirmed that the planning for the Maytime expedition might have started some five months prior to 8 June although she had been in Denmark at that time. She had been told that that was when the planning started. She became involved herself from about the middle of February 1999. On being asked why it took so long for them to carry out their disarmament action if they felt that everyone was in imminent danger she agreed that it did seem a lengthy time but as far as she was concerned in May 1999 she went to NATO first of all to try and convince and tell leaders of NATO about the international law. She returned from there on 30 May 1999 and thereafter came directly to Scotland. Notwithstanding what appeared to be a lengthy time-gap she continued to maintain that there was urgency, but to do what she was going to do she had to make preparations because of the long term consequences, She had to leave her official job, to clear out her house, and above all she did not wish to bother other people. On 8 June 1999 she could not agree with the Procurator Fiscal that Maytime was not posing an immediate danger to anyone by either death or severe injury. Maytime was part of the British Trident Nuclear System and was a link in a greater chain of different kind of actions carried out to make the British nuclear weapons function. She was asked, as was her co-accused Ms Zelter, whether what she did made any of the Trident submarines away at sea or in dock incapable at that time of firing any of their missiles. She replied that as a normal citizen she was not party to information which would tell her the answer to that question but she thought that to make the nuclear submarines able to be put to sea they had to be tested in a responsible way so that they could not be recognised by any forces. She would not say that as a normal citizen she could prevent a missile being fired. That was quite outside what she could do if they were to ensure that their actions were to be safe and reliable. She hoped that her actions on 8 June and all other actions would be a part of finally preventing a missile being fired but that they were only in the middle of that process. When asked if she depended therefore on other actions being taken by other people at other times she replied that that was the idea behind TP2000, that a lot of actions would be carried out which would prevent Trident being used. At the same time her and her co-accused’s action was not an individual action but part of trying to disarm nuclear weapons. She was asked again if she did not accept that her actions did nothing to disarm Trident and she replied “I sincerely believe that our actions prevented for a time the testing of the Trident system”.
In re-examination she was asked if there was ever a plan to sink Maytime as a barge and she replied “No”. Her highest expectations of their work on 8 June was that they hoped they could get enough time to enter the laboratory and to damage material used in the laboratory testing of Trident. When asked if she thought that her damage would be permanent she said that she thought that when they boarded the vessel they would only have ten to fifteen minutes to carry out their actions. They did not expect that three women could disarm the whole Trident system. But they were prepared according to the pledge given when they joined TP2000 to continue their actions until Trident was disarmed, and that their best hope was to delay matters in the testing of the fourth submarine which was due to come up from England. She was again referred to the letter she had received from the British Embassy which in the second paragraph on the front page stated “We wish to see a safer world where there are no nuclear weapons”. She was asked if she believed what was said there. She replied that she could not believe that there would be a disarmament of British nuclear weapons from the knowledge she had gained and which she had spoken about in evidence. She further knew that Great Britain participated in a big stock control programme which existed in the States and which tested nuclear warheads and developed new types for the use of Trident submarines in the future. Knowing that, she could not believe what was said in the letter. She finished by saying that there was no other intention in her mind on 8 June when she tried to prevent a nuclear system which she said would be used in the future.
Ms Moxley was aged 64 at the time of the trial. She has been a Scottish Citizen since 1980, although she was born in Nanjing, China. At the age of two she went to California, USA and grew up there and on the East Coast. She obtained a BA in Zoology at Massachusetts University in 1957 and since then had held down various jobs. In particular she had worked for the Marine Fishery Services in California and at the General Atomic Division of General Dynamics at an agricultural experimental station in the United Kingdom. Her views on nuclear power developed while she worked for General Dynamics. In 1972 she went with the Quakers to Vietnam. She had been a Quaker since 1967. She is a pacifist and is biased to the disadvantaged. She is a practicing Christian. In Vietnam she worked with a team of three Buddhists and three Roman Catholics in a pre-school group and while there adopted a little Vietnamese girl. At the time of the trial she was living in Perth. She settled in Scotland in 1978 with her daughter. She is a single parent. She came to Scotland to visit and realised how beautiful it was, small and independent, and she liked the way it has its own educational and judicial system. She read William Dalrymple on “Divine Law” and pointed out that the whole church in Scotland was against nuclear deterrents because it was against divine law. She outlined the work she had done in Scotland, mentioned that she had started an amnesty group in Dumfries and became part of a CND group in Stirling in 1980. In 1987 she and a 1ady called Helen Steven opened up and ran Peace House in Dunblane until 1999. During the twelve years or so they were there they had 8,000 people through the doors. She spoke of the influence of Rosa Park who began the movement for desegregation in the USA and civil resistance. She was aware all along of how a few citizens could start things moving and bring about change. She referred to the suffragettes and voting, the abolition of poll tax, and the beginnings of the abolition of slavery movement and in particular how the decision of a sheriff in Perth many years ago swiftly brought the slavery movement in Scotland to an end. She joined TP2000 in 1998 at its launch in Edinburgh. Before that she had received two courses of training in non-violence which led to her becoming part of the Turning the Tide Programme. From there she went on to TP2000 because their actions, or proposed actions, seemed in keeping with what she thought was right, namely safe, non-violent and accountable. She went on to explain that non-violence for her involved mutual respect for the person she was trying to influence, seeking ways to show how they could be wrong, thinking carefully about her motives and being a responsible citizen. She then outlined her earlier involvement with the peace movement and explained what protests she had been involved in. In all the ones she outlined there had been no violence on her part. In particular she had been involved in intercepting one of the Trident submarines in a canoe, distribution of leaflets, planting peace roses and writing endlessly to the Commander at Faslane and to the Government, from whom she received no response. She became involved with the plans to board the barge Maytime in February 1999. She had become aware that Maytime was intimately connected with making the Trident submarines acoustically invisible. She knew about this from what she had been told and because of what she had seen from the DERA website. She referred to Crown production 16, a pamphlet left by her and her colleagues on Maytime entitled “The Underwater Acoustic Factor”. She explained that when they read that, that had, boosted their view that Maytime was an integral part of the Trident system. She read out parts of that pamphlet which related both to the barge Maytime and to the sister barge Newt. She referred to the pledge which she had signed and the TP2000 handbook. She explained that this was put in their rucksacks because it outlined the defence of what they were going to do and why. She read out what she considered the relevant parts to be with particular reference to wars and the article in the Herald which related to the Chinese and noise detection and the link between Maytime and the nuclear weapons on Trident. She was asked if what she had done was a simple gesture or an attempt to disarm. She was adamant that it was not a gesture. For her it was a culmination of a long life of doing everything she could think of to highlight the danger of the nuclear system. She felt that she was really doing something and part of the 70% to 75% of people in Scotland who do not want Trident. She was asked if the Opinion of the International Court of Justice had formed a critical role in her actions. And her reply was that it certainly did because the law had to be put in action for the benefit of the people. To let it moulder in the Netherlands was no use whatsoever, they were using it to help ourselves. She explained that she supported the Word Court Project but she had been very busy at Peace House, during which time she had held one or two weeks on projects on the Opinion at Peace House. By “World Court” she meant the International Court of Justice. She was asked what her understanding was of the World Court’s decision and she replied that she felt that there some ambiguity in the final answer but that the use of nuclear weapons would be illegal because they were incapable of discriminating. For her also it was important because it commented on the threat of use of nuclear weapons. She was asked if she was aware of the Trident nuclear strategy in June 1999. She explained that she was aware of one Trident submarine on patrol at all times, that the British had refused to sign a “No First Use Programme”, that Britain was collaborating with the US to make bigger nuclear weapons through the National Ignition Facility. She was asked if she was aware of targeting policies and she replied that she had read in the papers about the targeting policy and the damage which could be caused. She thought that what was happening breached the World Court’s decision. When asked if she had any other comments to make other than that the Trident submarines and nuclear weapons seemed to be against the Court’s decision, she said that she saw it as a terrible waste of resources, people’s talent and money. Those resources should be put towards helping others especially in the third world. She was asked if she saw herself to be in immediate danger and she replied that she did as long ago as 1998 when the fourth Trident submarine, Vanguard, was first launched. To stand by now and do nothing would be somewhat akin to those who helped at Auschwitz with the incinerators. Before their action with Maytime she, Ms Zelter and Ms Roder had decided that this was a period of time when something had to be done. Vanguard was about to go ahead with sea trials in this area after its launch, NATO had accidentally bombed civilian targets in Kosovo and Serbia, there had been sorties over Iraq and there was still quite a lot of international tension. For her personally she had brought her daughter from the warzone and great poverty in Vietnam and above all she wished to save her from all that now and in particular a nuclear catastrophe. She was asked if there was no other way she could change things and she replied that she would welcome a referendum on Trident. In 1997 77% of the population in Scotland had said no; in 1999 according to a teletext poll 87% were against Trident. She was asked if she had been in touch with politicians and she replied that she had and only the day before she had received a letter from 26 members of the Scottish Parliament supporting her and her two co-accused in what they did. She was asked if what she did was a combination of Quaker tradition and the decision of the International Court which had underlined and reinforced her principles. She replied that that was the case and the World Court had given a ruling which in effect said that Trident or the deployment and threat of Trident was essentially illegal. She then went on to say that she came from another angle also and explained that she was a member of the Iona community; that theology had said that what the nuclear weapons did was morally indefensible and she elaborated on that. In effect Trident was contrary to all the principles that she held. She went on to say that she was aware that experts had said that Trident was not just another nuclear weapon but the most powerful weapon we have ever had. When asked where she intended to go from this trial, and would she do such an action again she said that the wonderful thing about TP2000 was that it was just a group of people. There were no stars amongst them and as far as she was concerned she would just get on with her private life and others would carry on. For her as much as anything else this was a spiritual issue.
She was cross-examined briefly by the Procurator Fiscal. He reminded Ms Moxley of the guiding principles of TP2000 and that when she and her colleagues had boarded Maytime on 8 June the electrical cables had been ripped out and other damage done. How therefore did she know that what they were doing was safe and were any of them electricians. She confirmed that none of them was an electrician but that before they did anything all the electrical supplies were cut off. She confirmed that she did intend to do the damage but to make the items which were being used directly in the research on Trident submarines unusable and irrecoverable. She agreed that she had first become involved in the project relating to Maytime in February 1999 but nothing had been done until 8 June 1999. The Procurator Fiscal suggested that that might indicate that there was no urgency in doing what they did in June. She replied that there was a great deal of urgency, but that they chose June because of the tense international situation which was happening at that time and she knew that there was a National Ignition Facility in the USA although she admitted that she did not know that shortly after their action on 8 June it was in fact officially opened. She did know, however, that the National Ignition Facility meant that new weapons were going to be upgraded so there would be even more powerful nuclear weapons. When questioned on the urgency of the matter and the long period between forming a plan and its execution she replied that all three of them had their obligations. They were responsible citizens and they all knew what their actions would entail including possibly a long jail sentence. They had to plan for that. When asked if those were more important than boarding Maytime she replied that she had been campaigning against Trident since she came to Britain and this was one thing that had to be done. She also explained that when you had three busy people from three different countries it took a long time to work out how to accomplish their action. She further explained that one of their principles is that they all work together as an affinity group. They only met in February and had to get to know each other and make sure that they would be safe. They had a lot of work to do like downloading information concerning DERA and papers had to be drawn up and signed and it did indeed take them some five months. She confirmed that there were no submarines in Lochgoilhead on 8 June. Nor were there any weapons on Newt or Maytime, but both barges were part of a complex system and the Trident submarines had to be acoustically right. It was her understanding that Maytime was very important in the delivery of nuclear weapons. She agreed that Maytime had no capability for maintaining the weapons or firing them but it was part of a delivery system without which the weapons would be going nowhere. It was a complex system although Maytime and Newt never had weapons and neither did anything to the warheads themselves. Like her two friends Ms Moxley agreed that at any one time one submarine would be on patrol at sea, but then she went on to explain that the submarine Vengeance had been launched since September 1998 and was due for sea trials. Vengeance was the fourth and newest submarine. She agreed that the sea trials would probably last five to six months. On 8 June, although one submarine was at sea, she could not say where the other two were. It was put to her that what she and her friends did in no way directly affected the firing from the submarines. She countered by saying that the submarines themselves had to be undetectable and that was the purpose of research work on Maytime. The Procurator Fiscal indicated that in effect what they did was pretty ineffectual. She disagreed and said that it was her understanding that they had delayed experiments on Vengeance. She did not know whether the submarines would be coming back to Loch Goil. What they were doing was trying temporarily to stop this system and mentioned that the submarines might, at the very least, have acoustic tiles coming off them which would need to be replaced. She was then asked if on 8 June she perceived herself to be in immediate danger of anything happening on Maytime or Newt. Her reply was that she perceived them to be an ongoing danger in a very tense international situation and if we waited for the danger to become immediate then it would probably be too late. She conceded, however, that if there was a submarine at sea it could, either deliberately or accidentally, have discharged a nuclear weapon and what she and her colleagues did on Maytime would have had no immediate effect.
On re-examination she was asked if she was aware of what was involved in disarming an actual Trident submarine. She said that she was aware of several things, namely that they were heavily guarded by guns. When asked if it would be very unlikely that three women could actually get on top of a submarine she said that it might be possible but it would be very difficult and would incur severe risks although two Liverpool women had in fact managed to do so. She did, however, consider that the system on board Maytime was essential to Trident and although they had not actually managed to press a button to delete a submarine, in all the circumstances they had done what they could.
The Supporting Witnesses
Out of a fairly extensive list of defence witnesses only four were called, three of whom were held out to be expert witnesses, and the fourth, Judge Ulf Panzer, was somewhere in between. There were arguments before and during the course of the evidence of each of these witnesses, and where the argument was substantial I have narrated it in full, although it may be that your Lordships have a full transcript of their evidence, which I do not have. The evidence of Professor Boyle, with the agreement of the Crown was interposed between that of Crown witnesses Thompson and McKenzie. This was because he was only able to be in Scotland on 1 October. It was also given in the context of there being no possible submission of no case to answer at the end of the Crown case. In other words it was conceded that there was a case to answer.
Argument as to the relevancy and possible competency
(1 October 1999 at 10.16 a.m. approx.)
The Procurator Fiscal referred me to Walker and Walker on Evidence, the First Chapter. His first submission was that as he anticipated it, the evidence of Professor Boyle was to be to the effect that he would be giving information evidence as to matters regarding nuclear weapons and their relationship to International Law. However, we were in court because there was an indictment which charged the three accused with committing certain offences on 8 June in Lochgoilhead in Scotland. The question is whether they committed the offences on that date and at that time in relation to nuclear weapons, their use, threat, possession or otherwise. He anticipated from the questions and copy documentation which he had received from the defence that Professor Boyle’s evidence, much of which was information, though expert, would be to express opinions and seek to place interpretation on the Advisory Opinion of the International Court. But it had to be relevant to the offences committed on 8 June 1999 in Lochgoilhead, Scotland. Other than one document which he had which examined various points of the judgement from the International Court, the Procurator Fiscal did not know what other questions would be asked, but he submitted ex facie that he thought he would be asked about matters not relevant to the present indictment. For example if the Crown sought to lead evidence on what the accused did or did not do on the dates or places outwith the indictment, the defence could object on grounds that it would be irrelevant. He conceded that evidence of what happened outwith the date might be relevant, but what he contended was that the witness was about to be asked about matters which had no relevance to the indictment. He conceded too that in a sense he was in a “no win” situation because if he objected too late the defence would say he was too late because he had allowed a line of evidence and had condoned it. Now the defence might say that his objection was coming too soon, but we had moved on from the opening part of his evidence which gave details of his career and started to elicit evidence. He suggested that if I had any doubts on the matter we could perhaps have a trial within a trial. All he had was the judgement of 1999 and what may or may not be made of it. The defence being advanced on the case as he saw it was one of necessity. He could not anticipate what evidence would be laid for that. If Professor Boyle’s evidence was allowed for the purpose of attempting to establish some link between the accuseds’ actions and the general international situation in regard to international nuclear weapons that would have to be seen in the light of cases of necessity. If alternatively the evidence sought to be lodged from Professor Boyle was opinion evidence as to whether or not the judgement was subject to his own opinions on it, some of which might not echo all the courts findings then he would challenge the competency of that because it was for the legal practitioners to address the bench who would then address the jury on the matter. It was for the presiding judge to decide on matters of law. If that was the line of evidence to be developed, he considered it was incompetent. It was akin to the Crown calling the Lord Advocate to trial to comment on an act of Parliament and to seek to have his opinion placed before the court on the general applicability on a matter of law, attitude or a case and whether it could be distinguished and so on, particularly so if a case sought to place a particular Interpretation on a basis of law. If the Crown attempted to do that it would never be allowed. It was for the solicitors and advocates to direct the court and then for the court to direct the jury in relation to the facts of the case and applying the law. To return to the indictment, if the Crown sought to lead evidence from a senior member of the forces or a government minister with regard to countries holding nuclear weapons, the defence could object and say what is that to do with my client who is charged with throwing overboard various items?”. The base line was the indictment and on the face of it what the court was about to hear from Professor Boyle related to an organisation set up to discuss matters of international law and its relationship with nuclear weapons. It was a million miles away from the terms of the indictment and therefore he objected to the relevancy of the line of evidence.
In reply Mr Mayer said that what had been said was irrelevant and was not what the Procurator Fiscal supposed that Professor Boyle’s evidence might be. The Procurator Fiscal’s supposition was based all on “ifs”. If the Procurator Fiscal had taken his legal opportunity to consult with Professor Boyle whose name had been on the list of defence witnesses since the continued first diet he would know what his evidence would likely be and his whole submission was ill-conceived because it was based simply on supposition and not objective understanding. He agreed with the Procurator Fiscal that all matters of law so far as the jury are concerned are entirely in the sheriff’s hands. But there were often cases where to use the Scottish vernacular “a sheriff does not know the law”. That was presumed to be the case where there was an issue of English law and it would be remiss of those relying on that foreign law not to lead an expert to inform the court and perhaps the jury on what that law was.
The defence began in what Lord Rogers might call necessity but there were many different kinds of necessity which resulted in the present case of reasonable excuse, a concept well known to these courts. It had been made abundantly plain that the defence did not rely on an emotional basis but they did rely on the their objective understanding. He went further to say that that understanding was that they had a right, not a duty, to take action in order to prevent what the law called greater harm and what might be called a catastrophe. The, Procurator Fiscal had said Professor Boyle would speak primarily to the International Court Opinion. Professor Boyle would include it but that was not what he would primarily be speaking about. It was the chronological date and time or result, possibly more than one of a long line of legal development. Mr Mayer sought to have the Professor give his opinion alone on that long line of legal development together with the way in which one might call broadly the way political science has developed over the same period of time. Most importantly he would speak about their relationship. It was not his intention to usurp the function of the court. His client and her co-accused relied upon the complete and determined independence and sanction of the law provided in the court. They did not seek to take the law into their own hands and provide the jury with their own judge. The intention that Mr Mayer had was to use Professor Boyle’s evidence as a supporting witness. He was one of a number of supporting witnesses, and his support was for his client’s understanding of the Scottish and international situation to put it at its broadest on the day in question and here and now and support her and her co-accuseds’ belief to the jury that she did not act maliciously, and if that was the case and the jury accepted that then they must acquit her.
The Procurator Fiscal had said that this was no debating chamber or talking shop. If what he meant by that was a corner shop or academic institution he was correct, but as we had heard from the police in evidence it was the accuseds’ position that they had to explain themselves to a jury in an independent court of law under the rules of law.
The nature of the findings on the indictment revealed, as did evidence so far, that the actions mentioned on the indictment relate specifically to certain activities of H. M. Government. The Procurator Fiscal could not get away from that. He could not simply read the print on the indictment and treat the case like a common vandalism case. Even, however, if he was wrong about that and the court asked him what was special about this particular case, the answer could be said to be nothing, but it was for the defence to mount a defence as they saw fit within the law towards meeting the terms of the indictment. A reasonable excuse defence charged on a statutory basis and heard in a summary court might amount to five minutes from a particular witness and perhaps from the accused herself, and most such defences were refused. But when matters became so serious as to warrant indictment, sanction for counsel and preparation with a list of witnesses from Scotland, England and wider afield, even if it were a mad reason, it might be anticipated that reasonable excuse would last longer and be more full than normal which was what was happening in the present case. He would not dream of asking Professor Boyle whether in his opinion the three women were guilty or innocent. What Mr Mayer was seeking was Professor Boyle’s opinion on whether the accused had certain rights to do that which might in due course be proved by the Crown. He deliberately did not say duties. He accepted that there was no duty lying on all of us, moral or legal, to run down to Lochgoilhead to take certain actions, but there may be a right to do so and that was a different matter.
Before sitting down he mentioned that on the list of defence witnesses there was a Mr Ulf Panzer, the presiding judge in the Court in Hamburg, Rebecca Johnson, a distinguished academic in Peace Studies from an English University and others to build, in front of the jury, the objective framework to which he had referred on previous occasions. There were many, many names which he had been given which could be placed on the defence list of witnesses with various professional qualifications to speak to the defence being mounted in the present trial. The few names chosen had been carefully chosen in what was thought to be the most succinct way of dealing with the matter.
Turning to the Procurator Fiscal’s suggestion that a solution might be a trial within a trial, Mr Mayer.said that he did not wish to give authority but it might be judicial knowledge that Lord Marnoch ran the last trial within a trial in the first big drug importation case – McNeil – and it was not a practice in law of Scotland which should continue. The evidence was admissible or inadmissible at the point of leading it. It was essential that Professor Boyle be allowed to give his evidence to enable the defence to meet the terms of the indictment.
Mr McLaughlin in his reply said that there was no need to have a trial within a trial. There were practical problems in that Professor Boyle could not be at the trial, apart from the one particular day on which they were speaking, but from a legal point of view the sheriff could determine the matter. He for his point was not arguing necessity. What they were saying was that there was a reasonable excuse, an absence of malice, and referring to the terms of international law. There was no problem with competency or relevance with the witness. In short, what the witness would be saying was that in his opinion Trident 11 was de facto illegal and could not be used for an illegal purpose. He referred me to the rubric in the accused’s pamphlet entitled “Tridenting”.
The Procurator Fiscal was correct to focus in on the indictment. The indictment used the word “malicious” but the defence said there was no malice. Professor Boyle would talk about the objective understanding which took away malice. The World Court Opinion had been referred to quickly and perhaps a more full background of Professor Boyle should be led before the court in particular of articles and books he had published and whether they dealt with nuclear weapons policy and whether in the course of his research he had had occasion to consider the legality of Trident 11 and the policy of targeting nuclear weapons, the expert material he had relied upon and the strategy connected to nuclear targeting of Trident 11. He had unrivalled expertise in that area. He would then speak about international law in general and its place in domestic law. He had come to Scotland as an expert to assist the. court in making a decision. The court was the ultimate arbiter of fact. Professor Boyle’s evidence would show how what was learnt could motivate activities.
Mr McLaughlin then turned to the recent appeal court case of Helen John. In that decision it was stated by the Appeal Court that counsel had not raised a line of authority, the court had not been referred to international law, they were in fact referred to nothing. A concession had been made concerning the International Court of Justice Opinion but the present trial was the first opportunity where that position would be disputed. Mr McLaughlin’s client and her two co-accused stated that the use and threat of use of Trident 11 was illegal in international law and it all went to make up the defence of the accused and helped to explain what they did and why.
Ms Zelter, for her part, said that she considered Professor Boyle to be competent and relevant for her defence. She could only say what she believed international law to be. She needed him, as an expert, to explain otherwise she would be dealt with in the same way as every other court had, namely she was a well-intentioned person but with no rights to defend her planet from being destroyed. She wanted to show the court that there was a whole body of law which protected her and everyone as innocent civilians.
In reply the Procurator Fiscal said that it appeared that part of the witness’s evidence at least referred to the International Court and some would relate to the applicability of international law. He referred to the analogy of counsel and English law. He said it was a matter for the practitioners to acquire a knowledge of English law and then address the court. He accepted that counsel was acting in good faith but they were wrong. He maintained there was no difference between this witness being called to give evidence as to the applicability of international law and either party leading an expert to give evidence on Scottish Law. It should properly be done by those round the table and it would therefore be appropriate for his colleagues having consulted Professor Boyle to act on his opinions. He accepted that the defence had a genuine belief in the state of the law. Necessity would become a legal defence. In the Helen John case the excuse was statutory. Necessity, if established, was a complete defence which perhaps in effect resulted in a reasonable excuse as opposed to reasonable excuse being the defence in itself. The Procurator Fiscal then addressed me in regard to the defence of necessity referring to cases, most of which related to road traffic cases. He referred to McNab v. Guild 1989 SCCR 138 followed in Moss v. Howdell 1997 SCCR 215, and in particular of the requirement and the gist of the defence of necessity if it was to be advanced, i.e. it could only be made out where a person at the material time was in danger of life or serious injury. He also referred to McLeod – v. McDougall 1989 SCCR 519, and in particular to page 524. The ratio was basically that this defence could only be made out if at the material time there was a likelihood of severe danger to self or a third party.
The Procurator Fiscal then referred to the argument which had been put forward that Professor Boyle would be giving evidence on the trail of development of weapons over a long period of time. He expanded on that and submitted that the evidence and development of the law of political science seemed to have little relevance to Loch Goil and matters on the indictment. Basically no matter what anyone had said what was proposed was that the court would be having a witness, no matter how expert, giving evidence on legal law which should be done in submissions.
I was troubled by this argument. I knew that in the normal way of things what the Procurator Fiscal said was correct. On the other hand this did not seem to be a normal case of malicious and wilful damage, and the defence was not one normally advanced. Mr Mayer and Mr McLaughlin had used the words reasonable excuse, but it was clear that they were familiar with your Lordships’ decision in the Helen John case and the defence was not simply going to be based on reasonable belief plucked out of thin air, or simple necessity. Reference had been made to the three accuseds’ state of mind at the time of their actions, and what had led to that state of mind. Furthermore, one of the accused, Ms Zelter, was unrepresented and while I could see that she was a formidable lady in many respects, not least in intelligence, I was not sure how well she would be able to address me in terms of the law. She acknowledged that herself and it was clear that she was desperate to have this witness to give evidence on her behalf, She had known him personally for some years, studied under him at university and he had greatly influenced her. Regrettably also I was not entirely sure at that stage of the trial how much I could rely on Mr Mayer and Mr McLaughlin to address me on the international law should this really be at issue. Your Lordships had been partly addressed on the issue of nuclear weapons in the Helen John case but from the report which I had read it seems that you were not addressed at length, and although I could see that you had carried out your own research, I did not know how far that research had extended. In any event, the Helen John case dealt with the possession of nuclear weapons and not the threat or use of such weapons. The case furthermore was dealt with on a summary basis with a statutory defence. It seemed to me that the defence could well be different in a trial on indictment. The issue in the present trial was I thought going to be not so much necessity but one of mens rea closely linked to necessity. I felt it to be important that these three ladies be seen to be given a fair trial which would not be open to criticism in any respect so far as I was able to achieve that. It could be that some of the evidence to be given by Professor Boyle might not be totally relevant, but it would be almost impossible to disentangle what was relevant and what might not be given the nature of the subject matter of this trial and the general background of nuclear weapons. The competency also might be questionable, but in principle I could not see why an expert in international law could not address me especially if the law was the underlying reasonable excuse in the mind of these women. It would be possible for the Crown, if considered necessary, to provide their own expert, and the Procurator Fiscal was aware that I would give such an opportunity if considered necessary. Perhaps I was wrong, but I think also I have read in press coverage of experts giving evidence in England on similar matters. Based on the above I allowed evidence so far as the defence of necessity at the time of the offence was concerned and also the law by an expert to assist me in reaching a decision. I was satisfied by the evidence already given by Professor Boyle and from the resume of his qualifications and experience, that he was indeed an expert.
Professor Boyle’s Evidence
His evidence commenced after legal argument on 1 October at approximately 12.21. His curriculum vitae and list of “achievements” and experience will I hope have been placed before your Lordships. He is a professor of law at Illinois University. He had been a licenced attorney in the USA since 1977. He had given expert evidence on nuclear weapons and international law in the USA at State and Federal level and on international law and war law in USA court martial proceedings and also in Canada. He had also been appointed Attorney of Record in connection with the war and atrocities in Bosnia – Hercegovina and had been responsible for filing the first Genocide case in the World Court. In that connection he had been honoured by the State of Bosnia, had received decorations and had been given honourary citizenship. He is a specialist in relations in international and political sciences, being one of a very small number of people with such qualifications. He is a member of the International Law Association against Nuclear Arms, which organisation he set up and which. association carried forward the idea started by a Mr Sean McBride which led eventually to the Opinion from the International Court of Justice. Inter alia he has written five books on international law and written some 55 articles. In 1983 he had lectured at the US Academy at Westpoint on nuclear deterrents and the law before 200 other experts, and had lectured in the Soviet Union on nuclear deterrents and the law, among many other achievements.
In dealing with crimes against humanity he explained how the Nuremberg Charter of 1949 had led to certain principles being applied not only here but in the United States. In particular he referred to the reference by the House of Lords in the Pinochet case in 1999 and to the principles outlined in that Charter. He explained how the Charter came to be brought about, namely Hitler’s intention to exterminate whole sectors of people including wanton devastation of cities or districts. The Nuremberg Charter dealt with the killing of people but went further in including planning, conspiracy and incitement in its principles. The principles were drawn up to prevent and deter future such conduct. He went through the principles and defined some of the words. He referred to the “you” being those people who believe that such conduct as mentioned above was going on. There would need to be a reasonable basis similar to a common law right to prevent a crime if you believed it was going on. The word “you” extended to the normal person, i.e. all citizens. All were “bound”. It would depend on a person’s knowledge, judgement and education, and what a person believed was going on. If you believed there was a war crime about to perpetrated you would have a right but not an obligation to do something about it, although a government official might have an obligation. The professor was asked if there was clear line to be drawn between members of the military and members of the public and he replied not necessarily a clear line because the obligation on an official was because he was a member of Government. Professor Boyle referred to the Hugh Thomson case where a member of the armed forces had been given a medal because he had prevented a crime being carried out by refusing to obey orders given to him by his superior officer. Professor Boyle explained that the Nuremberg principles had been incorporated into International documents like the founding document of the United Nations. He then turned to the Genocide Convention latterly codified and turned into a treaty signed in London and in particular the Genocide Convention and the Geneva Protocol and Conventions, all UK ratified. When asked what mischiefs they were designed to alleviate he said that it referred back to the second world war and the Nazi and Japanese atrocities which demonstrated the lacuna in international law concerning masses of people and the treatment of them.
He then spoke about the development of the atom bomb and the race to be first to have such a weapon. The development of the atomic bomb was completely in secret and there was no real attempt to relate that to the principles of international law at the time. After the war he explained that when thermonuclear devices were developed like the Trident warhead, many US scientists quit because they saw that such a bomb could only be a weapon of Genocide and they took the view that such a weapon would be criminal and illegal. It was put to him that that was then. We were dealing with the here and now, and, focusing on Trident II he was asked if there were any circumstances where it was considered that the possession, threat of use or actual use of the kind of warheads used in Trident II could be legal. He did not agree that a view taken in the past that such warheads were criminal and illegal did not apply now. The warheads presently used were 100 kilotonnes each and he simply did not see how such warheads could be used in a lawful manner given the power of their destruction and the fact that they were unable to discriminate. The Geneva Protocol in particular which the UK had signed and ratified said that discriminating weapons must be used. He was asked about collateral damage. He explained that that went back to Nuremberg where it was clearly said that the indiscriminate destruction of a city was criminal and pools of weapons were prohibited. The problem with Trident 11 was the indiscriminate nature of the weapon and the fact that most probably such a weapon would be used against a city. It was possible that the nuclear weapon could be used against a military target but in so doing it would kill many other people who were not there. Professor Boyle was then asked about possession of the Trident nuclear submarine with the warhead, and in his opinion would that be considered legal. Professor Boyle replied- that the problem was that what we had here was Trident 11 armed, equipped, and prepared to attack within fifteen minutes. That is what was objectionable. Some of the missiles were given to the UK from USA and others were rented from the USA, but apart from the warheads actually being stored, those on the submarines were ready to go to war from the moment they set to sea. He was asked if he had seen the British government’s strategic defence reviews and he replied that he had only seen excerpts. However, what was illegal about the way in which the UK had the Trident 11 warheads was that the World Court had unanimously ruled threat to use would be to commit a crime. It would be a threat to use the weapons in a credible and immediate fashion in fifteen minutes from either the UK or the USA. If the use of weapons was illegal then the threat to use them was illegal. He stated that the reason the United States still went ahead with nuclear weapons was because the development of nuclear weapons was done in secrecy. In fairness to the USA it started in the wartime when neither the public nor the Vice President of the USA knew what was going on until President Roosevelt died. The problem of secrecy remained a problem because it lead to a lack of accountability. He pointed out that when the International Court held proceedings on the illegality of nuclear weapons, all nations had turned up. Various scenarios for the possible use of weapons were put forward but none was agreed to by the World Court. At the same time not one country attempted to justify the use of weapons against cities or mass destruction. So any use of nuclear weapons would have to avoid violating codes of war. In the end the World. Court refused to make allowance for use of nuclear weapons against cities and even the English judge, Judge Higgins, had agreed that that should not be allowed.
He then spoke to various of his publications and papers which he had given at conferences particularly dealing with the criminality of nuclear weapons. He mentioned that he had been involved in debates with US Generals and government officials on the subject of use of nuclear weapons and had also spoken at tribunals in particular on international deterrents and nuclear law. He had submitted papers in respect of what he had said and had been questioned on them by various judges. At the time of the trial he was hoping to publish a further paper on Trident 11 and the targeting of Trident 11. He explained that he was qualified to give expert evidence in the US courts on nuclear weapons and had been certified as an expert.
He then went on to explain what exactly was international law. In particular it was not a foreign body of law. He likened it to common law in the UK and in the USA and stated that international law was applied in cases in the UK and USA as in every other country. He referred to the Pinochet case in the House of Lords. He pointed to the use made of the law also at Nuremberg, the Tokyo prosecution and today in Rwanda, Bosnia, Croatia and Kosovo and the prosecutions in the Hague for war related crimes. It was not a dead body of law.
He was asked how customary international law applied in Scotland. He again referred to the House of Lords decision in the Pinochet case where the House of Lords had said that they believed that the UK was bound by the Nuremberg principles. The Nuremberg Charter was made by judges and their judgement relating to war crime and wars against peace and humanity was considered to be a source of law binding all states in the world.
He then spoke about how communications operated between the US and UK where Trident II was concerned. He explained how decisions concerning Trident 11 were taken in Nebraska, British officials were there to decide with the US officials when the weapons would be used and what their targets would be. The technical knowledge was provided by the US. There was a right of independent veto in favour of the UK but for all practical purposes Trident 11 was seen as an adjunct of US policies. In his opinion there was a diminishment of UK sovereignty. The British strategy in the UK was a component of NATO strategy which goes to Nebraska in the United States as a single integrated operational plan. He went on to explain what he meant by that.
He was asked what would be the legal effect of asking or demanding that the British Government cease making nuclear weapons. He explained that it was clear from his researches and knowledge that there would be great difficulty with that as there was enormous opposition to disarmament in the US. He was asked if a British Prime Minister could say to a UK citizen that he would agree to cease making nuclear weapons. The professor replied that the UK had had reserved matters but technically they were so subordinate to the US that it would be very difficult to get rid of any weapons. It would be a courageous Prime Minister who would agree to disarmament because of the enormous pressure which would be put on him and as an example he referred to what had happened in New Zealand when they had decided to de-nuclearise.
He then turned to the Nuremberg Charter and the concept of inchoate crimes. Professor Boyle said that at Nuremberg at the trial it was said that another time around it would not simply be good enough to have a trial once the atrocities had been committed and effort should be made to head off the trials. In other words they were striking at criminal behaviour before an act occurred. This concept applied to all states and it was a crime to plan Genocide or mass destruction of human beings even if the public did not know about it. He was asked to give an example of an inchoate crime, and Professor Boyle referred again to the International Court who dealt with this in the context of nuclear weapons. In effect if one was planning to commit mass extermination by way of a nuclear weapon it was also illegal to threaten someone with such a weapon and illegal to threaten mass extermination. A nuclear threat was like an assault. It was like a shotgun pointed at somebody’s head but Trident 11 pointed at the head of millions of people, and from what he had read of targeting doctrine the target would be Moscow and the eight million or so people there. He had friends in Moscow and he knew that if nuclear weapons were used against them many would not survive.
He was asked if he was qualified to tell the court at what stage in Scotland did the Trident 11 submarines and weapons in them become deployed. Professor Boyle said that as he understood it some were capable of being deployed at launch because there was no capability of using them in dock in the UK now although the US could. But if they were at sea and loaded they were ready for deployment in fifteen minutes, but as he understood it even the ones in port were ready to be used. He went on to say that it was his understanding that some missiles would always be taken down for maintenance but in effect there would always be others ready for use. There were two teams of submarines at all times, one at sea and one in port. So that in effect if the order was given for their use they would be ready to carry out the order.
Mr McLaughlin in cross-examination asked Professor Boyle for his opinion concerning the difference between nuclear weapons in general and Trident. Professor Boyle replied that the question was whether any of the Trident 11 system, which is the most powerful nuclear weapon system in the world, is “an offensive first weapon”. He explained that there are plans for the first use of these weapons and stressed it was first, not a second use, and the use of even one Trident warhead in any city would be catastrophic because of its size. He stressed that it was not nuclear weapons in the abstract, but this particular weapon. Trident 11 equalled MAD, i.e. mutual assured destruction, and he could not see how the Trident system, whether in the UK or the USA or elsewhere, could be used without running foul of all international principles. He could not envisage any circumstances where this particular weapon could be used. He explained that he was not placated by the “use in self defence argument”, and even for that purpose the world court had said it would, must, comply with all the principles of international law, and Professor Boyle personally did not see how it could be used without violating those principles. He referred as an example to Kosovo where a discriminate weapon had been used and an attempt made to minimise casualties. That was a very different type of weapon system. Referring back to the opinion of the International Court of Justice he explained that there had been a discussion concerning the use of small low level nuclear weapons and the Court had reached the opinion that they could not be lawful. He read out the definition of nuclear war crimes and he then turned to the definition of various nuclear weapons. There were tactical nuclear weapons like the bomb which hit Nagasaki. And then there were thermonuclear weapons and the view had been taken that they could only be used for Genocide. He explained that the UK no longer had tactical nuclear weapons. He then referred to what are known as “low yield bombs” adopted for rogue state strategy. President Clinton in the US had said that this might be considered, but in effect a low yield bomb would have much the same effect as a bigger bomb. Professor Boyle was then asked if the way the nuclear weapon was held “i.e. in “threat mode”” mean that that was a threat, and Professor Boyle said, yes, the World Court would consider that that was a threat.
In cross Ms Zelter asked if there were any limits to justify self defence. Professor Boyle replied that at the World Court the UK and US had conceded that even if you were acting in self defence you had to obey the rules of war. He referred to the Geneva Conventions, the Nuremberg Charter and others, to which the UK was party or in agreement, and when asked by Ms Zelter if there were any intransgressible rules which must be obeyed he referred to the Opinion of the World Court. The UK was now a party to the Geneva Protocol and there was no way in his opinion that the Trident 11 system could be used without breaking the rules.
Ms Zelter then asked if the UK in defending its vital interests such as oil, could use nuclear weapons. Professor Boyle explained that the same argument had been used at Nuremberg. That argument had been totally rejected.
Ms Zelter then asked him to comment on the illegality or legality of using small nuclear weapons as a warning shot. Professor Boyle explained that both the UK and US had tried to convince the International Court of Justice that that would be lawful but they were not successful.
Ms Zelter then asked if there was an ever present danger to human life while nuclear systems were here and he replied that in the US there was because there were accidents and mistakes and he gave examples. He commented on the work of Paul Bracken on the control of nuclear weapons. Paul Bracken had pointed out that most people believed that weapons are held on a fail-safe system. Bracken had pointed out that there was no fail-safe system for these deadly weapons and there was an ever present threat to human life while nuclear systems were here. He drew the attention of the court to a very recent nuclear accident in Japan.
He was referred again to the Opinion of the International Court and asked if research in nuclear weapons could be justified. Professor Boyle replied that he could not see that the International Court had justified that and explained. In particular he pointed to Gorbachev’s offer to denuclearise which came to nothing because President Reagan in the US wanted Star Wars. He saw this as a breach of the Nuclear Non-proliferation Agreement.
Ms Zelter then asked, if the government in the UK said that they were not breaking the law, could that justify ordinary citizens refraining from acting. Professor Boyle replied that that was the argument given before Nuremberg when people were told that the government were just carrying out their domestic law. It was clear as a result of the Nuremberg trials that a country could not plead the domestic law argument.
When being cross-examined by the Crown he was asked first of all if in effect he was against all nuclear weapons. His reply was that it depended on the circumstances and the devices involved. He would need to know the weapon, its yield, the target and performance, but that he would have a difficult time conceiving of circumstances where any nuclear weapon could be used lawfully. He had absolutely no reservations, however, about Trident 11. In his opinion no nuclear weapon with a capability of mass indiscriminate destruction could be legal. They were illegal in whatever state throughout the world they were to be found. The Procurator Fiscal asked him if the World Court had said that they were illegal in all circumstances, and, Professor Boyle replied that they did not answer that because they said they had insufficient factors to work on to answer the question. The Procurator Fiscal then referred to particular paragraphs, namely paragraph 105.2.B of the opinion and asked Professor Boyle for simple yes or no answers to his questions. On and on each occasion Professor Boyle reverted to other parts. My Lords, if you have no transcript the cross-examination by the Crown commenced at approximately 15.21.
The Procurator Fiscal continued by asking Professor Boyle when nuclear weapons had last been used apart from testing and Professor Boyle replied that it would be 55 years ago. He was then asked how many states in the world held weapons of mass destruction. He explained that the states were UK, US, China, Russia, France, India, Pakistan and possibly Israel. There was no evidence yet that Iran and Iraq had them and reminded the court that all the Soviet Republic’s weapons had been turned over to Russia. The Procurator Fiscal put to him that nuclear weapons had been a deterrent during the past 55 years and because they are there they are never used. Professor Boyle replied that he was aware of that argument but that he did not agree with the argument. There then followed a series of questions and answers on the use of the nuclear bomb in Japan in 1945 one of the justifications being given that it was because of all the casualties in Okinawa. Professor Boyle replied that he had written a study on that particular proposition and having looked at the matter carefully felt that it was propaganda put forward to justify the use of the bomb. When asked if it was likely the US would have used the bomb if the Japanese had had a bomb Professor Boyle replied that there was evidence to suggest that the first atom bomb was intended to be used against the Germans and after their surrender it was used on Japan. The Procurator Fiscal said that no other bomb had been used because of its deterrent effect. Professor Boyle’s reply was to the effect that that was only by the grace of God and there had been confrontations between the US and the USSR.
When re-examined by Mr Mayer he was asked if it was the case by absolute majority of judges in the World Court that the use of nuclear weapons was illegal or generally illegal. Professor Boyle pointed out that one could not read parts of the Opinion on their own without reference to the whole, and he read out paragraph (I)C of the final dispositive to the court.
The evidence of Judge Ulf Panzer
Preliminary Legal Argument (13 October 1999 – 14.21)
The Procurator Fiscal’s argument was against the relevancy and competency of Judge Panzer’s evidence. He was mindful of my rulings concerning Professor Boyle. He respected that decision but Mr Mayer had indicated on 8 October when discussing the availability of Judge Panzer that Judge Panzer would speak to matters of international law as they applied to the constitution of Germany. He was, however, claiming no academic expertise in international law which was presumably why he had been chosen to complement or corroborate the evidence of Dr Boyle. It was said that Judge Panzer was a practitioner when he had backed the involvement of citizen’s rights in Germany where those rights stem from international law. He indicated that the witness was equivalent to a sheriff. If the Procurator Fiscal’s notes were correct then this witness claimed no expertise in international law and such expertise as he had related to international laws in Germany, so the Procurator Fiscal felt that he should flag two possible objections on the line of evidence. Firstly if the witness has had no academic expertise on international law he would object to questions which required an expert opinion as in the case of Professor Boyle. Secondly if the witness was going to give evidence as to how international law applied to German law he would object on grounds of relevancy because if there was a question of international law in the present case and such international laws derived from the international judgement it would be a matter for legal submissions to the court with reference to the law of Scotland. There could be legal argument with reference to English cases which could be persuasive, but if the jury heard how international law was applied in Germany and in particular applied to the activity of persons in Germany that would be irrelevant so far as the present case was concerned.
In reply Mr Mayer stated that no one had ever attributed academic expertise to this witness. He was a practising judge and he would speak to certain documents which were about to be put before him – instruments of international law – which as Professor Boyle had said applied here as anywhere else, i.e. in Germany. This witness could lend a European context to the evidence of Professor Boyle especially in case the jury thought that Professor Boyle’s evidence was heavily USA orientated. Judge Panzer would speak to the rights which arise in respect of a private citizen and how such rights arise in Copenhagen, New York and Greenock, It was thought also he would speak directly in support of evidence given by Ms Zelter on the effect of an individual’s actions using these rights which stem from the instruments of international law. The Procurator Fiscal had not objected to Ms Zelter’s evidence that citizens can perceive rightly or wrongly that they have these rights and, after taking certain other steps, could exercise these rights. The witness’s competence came from his legal experience in a European jurisdiction particularly as developed by his understanding of international law. Judge Panzer had to apply European law or take it into account when dealing with everyday cases so in that respect we were not tied to the law of Germany which, taken in isolation, might be seen as irrelevant. He wished to make it clear that it was vital for his client’s defence that Judge Panzer gave evidence.
Mr McLaughlin stated that for his point of view it was not his intention to elicit from him anything concerning international law because Professor Boyle was an accredited expert and he was the person to address those matters. However, Judge Panzer was relevant because of his own experience in acting as one of the founder members of International Law Association referred to by Professor Boyle, and Judge Panzer would explain the history of that where at conferences Professor Boyle and other experts explained the Treaties. Judge Panzer would explain why he was involved in a public protest against nuclear arms produced in Germany and the rights of citizens – in that country. He would explain the end result, i.e. as a result of his activity and a number of other judges’ activities against the Pershing 11 nuclear system. Eventually those weapons were deemed to be illegal and had to be removed, and so they were removed from German soil. Judge Panzer’s position was analogous to the position of the three accused. Judge Panzer might in his evidence touch on principles of international law, but no more than that.
Ms Zelter had nothing to add to that said by Mr Mayer and Mr McLaughlin.
The Procurator Fiscal explained that the rights of those citizens and how they arose in various countries was all very well but if Judge Panzer was just going to speak on how those rights arose in Germany that went to a question of relevancy and he could not see how it related to the charges in the present case. So what the rights of the accused in Germany might be was irrelevant. What was relevant was international law as applied to Scottish Law and as it applied to this case. So if the court were to hear of Judge Panzer’s movements in Germany some years ago, in his opinion it would have no relevancy in the present case. In due course the jury would be referred to Professor Boyle’s evidence on international law and how it applied to Trident, the rights of the accused, and the illegality or otherwise of Trident.
Mr McLaughlin pointed out that the Procurator Fiscal had cross-examined Ms Zelter herself about her involvement on Maytime and her effect on a massive scheme of things. That was a particular line adopted by the Crown and he and his colleague intended to rebuke that. There was a theory in this country about the part an individual can play and this is proof that what that particular witness said was not pie in the sky. So Judge Panzer could speak to and advise the jury that sometimes small actions taken by individuals can indeed affect things. So in that regard it rebutted the suggestion made by the Procurator Fiscal himself that what took place on Maytime on 8 June was of absolutely no consequence. It also struck at one of the important aspects of this case which relates to the credibility of the witnesses and strengthened the credibility of Angela Zelter if she could point to others who had done what she was trying to achieve.
My decision was that evidence from Judge Panzer should be restricted to matters as outlined by Mr McLaughlin and as it related to the credibility of the witnesses.
Judge Panzer was asked first of all to refer to production number 14 for the second panel. He confirmed that he recognised the titles of the documents which were treaties made under international law but he explained that all the basic documents relating to the international law of war, of which the Nuremberg Charter was one had been outdated since July 1998 and all the Nuremberg principles had been rephrased in the documents emanating from the Rome Treaties to which the UK had been a signatory. He also confirmed that since then there had been a number of conferences and protocols which were a little hard to follow piece by piece but that an International Criminal Statute had gathered all of them together and that approximately a year or two from the date of the trial that Statute was going to be the only document to be read.
It was made clear to him that he would not be asked for his opinions concerning the documents which had been placed before him but that he would be asked about his personal experience in Germany on the relationship between citizens rights and their action in relation to nuclear weapons. To set that in context counsel said that he wished to ask about the Pershing 11 weapons which were nuclear weapons on German soil but before he would ask such questions he wished confirmation that when judges in Germany took up appointment they would take an oath. Judge Panzer agreed and then gave a very brief description of how the German law was set up, namely that the constitution was the basic law and then there was the criminal code and statute law and that it was his duty to uphold all the law including European law. He was then asked if counsel was correct in thinking that Judge Panzer and some other judges in Germany some years ago in their duties of upholding the constitutional law took the legal view that the constitution of Germany was not being upheld by the government.
Judge Panzer replied that it was not only a question of their constitutional law but a whole body of law and international law which was part of German law because their constitution said so. He explained that all internal laws had to be interpreted in the light of international law. Some years ago he and fellow judges saw their government acting unlawfully by agreeing to allow the USA to deploy Pershing and other missiles on German soil. They considered that it was a violation of their internal sovereignty because the German people would be at the mercy of the USA and President Reagan so far as the weapons were concerned. They had a special provision in the German constitution. When asked what steps he and his fellow colleagues took about the government decision concerning Pershing and Cruise missiles, Judge Panzer explained that they were in a predicament because as judges they could not become involved in politics, but at the same time they seemed to be working for a government who in their opinion was violating the law. They decided they could not keep silent. They felt they had to let themselves be heard by the politicians and the public – by those who could remove the missiles in question. It was in 1981 that NATO decided to deploy Pershing and Cruise missiles in answer to the deployment of Russian and the East German State missiles. He agreed with counsel that at that time the soviet satellite states were pointing “first strike” nuclear missiles at the West and the West had decided to use Germany to point weapons back at them. Accordingly as a first action the German judges started with a peace conference Basel and invited leading scholars in the field of international law to explain the law in this specialist field to the delegates. Thereafter a summary of the submissions was sent to every member of the German Parliament. After that the judges organised an old fashioned demonstration which approximately 250 judges attended. Nothing happened. There was no reporting and the government did nothing. They did not even receive an answer. They then took a whole page in one of the leading national newspapers and 554 judges signed a statement saying that the weapons in question were illegal and unconstitutional. Four of his peers were reprimanded and the fact noted on their personal files. Their colleagues appealed and their appeals went to the court which dealt with civilian rights and the constitution. The court decided that you could not exempt judges from human rights and freedom of speech and they issued a legal opinion that their actions could not affect their jobs as judges. What they were doing was giving a legal opinion so there was no violation of their oath as judges. The reprimands to the judges were withdrawn. A second peace conference was organised. They invited Philip Berrigan, one of the leading figures in the USA Plowshares movement to speak to them. He indicated that it was simply not enough to use their voices to do something to enable them to be heard. Seven hundred judges met to try and find out who would be willing to go and join a blockade at Mutlangen. Twenty judges including himself were willing to go. The blockade was organised by Judge Panzer. He was on the Judges Council at the time which met once a year to discuss common vocational problems and how it affected criminal causes etc. At the blockade all 20 judges and their bus driver were arrested. They were subsequently prosecuted and convicted. They were charged with the offence of coercion under section 240 of the German Penal Code. He explained the meaning of the word coercion, i.e. if you force someone to do something or indeed not to do something. The force used, however, must be violent and the aim must be reprehensible like malicious or evil mischief. At the trial the judge had to consider whether the judges sitting peacefully on the road were being violent. Their aim to stop the illegal actings of their government was considered to be reprehensible because the trial judges considered that “psychological violence” had been used. They were fined a considerable amount, approximately two thirds of their monthly income. Many others also were charged and Mutlangen became a symbol of resistance. Altogether there were nearly 1100 guilty verdicts and most of the defendants including the judges appealed so the court was blocked with about 800 cases. A small proportion were acquitted because new facts had come to light but for about 98% the original decision was upheld. He explained also that prior to the appeals the judges were asked if they would agree to the cases against them being dismissed if the fines were paid to charity. They felt they could not agree to that because to do so would be tantamount to accepting their guilt. Four years after conviction their appeals had still not been heard. Then the judges turned to article 6 of the European Court of Human Rights and pointed to the undue length of time which had been passed between the commitment of the crime and the court proceedings – five years. What happened then was that their cases were dismissed without an opportunity to argue their appeal. By that time the missiles had gone and the witnesses in their trials had returned to Arizona and that was it. Judge Panzer said that the missiles had been moved by the American Military. He thought probably because of the cessation of the Cold War. He could not say for definite that it was his protest. He went on to say how difficult a step it had been for him and his colleagues but then they realised that their fear of the missiles was greater than their jobs. They were also conscious of the “bad tradition” from which German judges came. In the past judges had obeyed the law from the Reich. In the cloak of judges they had committed the most cruel crimes. So in the consciences of most judges there was some guilt. He had asked his parents what did they do to prevent the war and the third Reich in the Jewish Holocaust. They had told him they could do nothing. Judge Panzer himself did not wish his daughter to say: “Why didn’t you do anything?”. He felt that he had the obligation to uphold the law as well as the right to do so. As an ordinary citizen he felt he had the right to resist the illegal acts of his government and as an individual he felt he had an obligation.
In cross-examination Mr McLaughlin asked him to confirm that between the blockade at Mutlangen and between the disposal of his appeal the missiles were removed from German soil which he did. He was also asked to confirm that he said he thought the reason was that the Cold War had gone and he replied “Yes”. He was asked to comment on the amount of publicity as a result of the blockade which he had mentioned earlier and he replied that there had indeed been a great deal of publicity of their action on television. It had been broadcast nationwide at the time of the campaign leading up to national elections.
In cross-examination by Ms Zelter he was asked if he thought that citizens’ actions like his contributed to the thaw of the Cold War, and he replied that he would hope so but that she would need to ask Gorbechev. He did think, however, that the peace movement had contributed to Gorbechev thinking of ways to restrict nuclear weapons.
There was no cross-examination by the Procurator Fiscal.
Professor Paul Rogers
Professor Rogers is the Professor of Peace Studies at Bradford University and has been since 1992. He has been involved in peace studies for 20 years. Bradford University is the largest centre in the world for peace studies and students come from some 25 countries, some from the military. Having completed their courses they go on to a wide range of posts. Professor Rogers has written or edited about 15 books and various articles on nuclear weapons. His “Guide to Nuclear Weapons” had reached four editions in the 1980s and he later published an encyclopedia on weapons and their control. He lectured at the RAF College through the 80s and more recently at the Joint Services Command at Brackley. Two years ago he was asked to speak to the senior command of NATO. He had also given evidence at the House of Commons Select Committee and had given evidence as an expert in three Crown courts in England and in magistrate’s courts. He had appeared in News Night with Jeremy Paxton and was generally considered to be an expert on British nuclear weapons, international weapons and British defence policies. When asked if he was able to speak on the composition of weapons there was a Crown objection relating to relevancy on what was anticipated to be a particular line of evidence.
Legal argument on relevancy relating to Professor Rogers
The Procurator Fiscal said that his first base was the indictment relating to malicious mischief or alternative charges of theft. He pointed out that I had already admitted evidence outwith the immediate libel concerning international law, defence and also Judge Panzer supporting Ms Zelter’s credibility. At this particular stage of the trial we seemed to be taking a new departure and in terms of what had already been taken in productions 4 and 5 for the third panel, it would appear that we would be about to hear about matters relating to nuclear weapons, British defence policy, international relations, the British Armed Forces with particular reference to nuclear make up. In particular he referred to defence production number 4 and that if he did not object to the general line at this stage he could be accused of having acquiesced in allowing it. Production 5 related to the deconstruction and reconstruction of the Cold War. It referred to the origin of the Cold War amongst other things, the strategic nuclear positives of powers, and the development and tactics of nuclear weapons. It might also include the nuclear experience of Cold War crises. He noted that the productions contained information on British Nuclear Forces, their targeting policy and the conclusions arising therefrom. On the face of things it did not appear to be related a great deal to international law. I should look carefully at the libel and he recited it. The defence appeared to be introducing international policies which ex facie could be considered outside the bounds of leading international law and the IJC Opinion. The accused were not charged with any offence in relation to a Trident submarine or Trident warheads or missiles, just damaging or removing certain property from a barge which had in the past and may well in the future provide facilities for a number of vessels including the Trident submarines. Even on that basis the Procurator Fiscal felt that the evidence was irrelevant. He outlined his understanding of the defence given so far at its highest which seemed to be at best they were hoping to delay the deployment of a fourth submarine. In that scenario why did the jury need, and why would it assist the jury to hear about the Cold War and defence policies etc. The accused were not charged with any offence relating to warheads and therefore, given that defence, the offences themselves and what the accused themselves had said all other opinion was irrelevant. The jury were not here to judge a nuclear policy or the Cold War and Trident itself was not on trial. There was a distinct danger in his opinion that the jury might lose the plot and emotions might come into play. I was referred to the relevant sections on Walker on evidence.
In reply Mr McLaughlin said that the evidence was relevant because it was necessary to give some way to establish the mens rea of the accused. The accused did what they did, not in a vacuum, but in the light of researches and influences in their lives. Some of that had been covered by Professor Boyle when he dealt with the question of international law, but some related to the functioning of the British nuclear programme. It was important for the defence that the case of Helen John was distinguished. In that case Lord Coldsfield said counsel had not referred him to a line of authority to say that possession was criminal under Scottish Law. The Trident system was not in a vacuum (sic) but on a submarine in constant use around the globe and could be triggered instantaneously. This witness could speak to the de facto position concerning the British nuclear system and defence policy. He was the best person to do this. He had spoken to the “Top Brass” in British Military Services and NATO. As well as speaking to the threat of the system he was also speaking to the system of targeting, the infringement of neutral rights, the environment and also the Nuremberg Charter. This witness knew how the nuclear system operated. His researches were in the public domain and the accused was aware of them and because of what he had written about and spoken about the three accused had formed a view as to the legality of their actions. He had also carried out researches on accidents, The witness was an accident expert and could give the broader picture for the potential for accidents. He would talk about the dangers involved in what was referred to as “the threat element”. He was also able to speak on the whole position of strategy as a threat. His evidence would tie up with the Nuremberg principles and the ICJ Opinion. If the defence were not allowed to lead this particular witness they would have no one in authority to speak to all matters before the court – as in the Helen John case. It went to the heart of the whole matter and also to the question of “evil intent”. It also went to the heart of the indictment. The evidence to be given by Professor Rogers would not be a wandering through everything and anything to do with the British Nuclear System. Professor Rogers would be able to tie in international law evidence through the operating of Trident 11. He was not just an international law expert. His evidence would be different. In other words if we simply had Professor Boyle’s evidence alone that would not relate to Trident 11 today. Turning to the Helen John case, that was a destruction of a perimeter fence but we had to be realistic. In the present case this was not a case of three vandals trying to breach something but coming as close as they could get to Trident 11. They were much closer to the whole matter than simply cutting a fence. All the same it was part of the same integral system.
Mr Mayer adopted every word of the above and added that Professor Rogers evidence supported not just the credibility of the accused but the reliability of the accused and their understanding of the position relating to Trident 11 on 8 June. He felt that it was central to all the tests under Scottish Law in the realm of necessary actings, but for the minute he would wish to show that the actings of the accused were based not just on international law but objective understanding, not emotional impetus, not from provocation of others or incitement to commit a crime on others. In fact, if the jury accepted the international law line and they accepted the whole objective line on which international law formed a part there was no actus-rea. So the two elements required for the commission of the crime in Scots Law would be absent. Pains had been taken by Ms Zelter and Ms Roder to demonstrate that on 8 June they were not acting on a whim or emotional impetus but on a decision taken by them that it was their view that it was a reasonable decision based on reasons which flowed from their objective understanding. Both accused had been allowed to present that defence. This witness would either support that understanding or not but the court having allowed them to present their defence, they must now be allowed to lead experts and lead in support of their earlier stated defence. He referred to what he detected as a note of scorn in the Procurator Fiscal’s submission referring to extraneous matters. However, what we were dealing with was historical facts in which the professor was uniquely versed and those facts pointed directly towards certain military positions which in his submissions affected unknown numbers of people in this country and abroad.
Ms Zelter explained that Paul Rogers had been one of her lecturers and over the years she had relied on his expertise and under his tutorage she had realised how complex nuclear weapons and disarmament could be, and he would speak to that. She reminded me that when she was giving evidence I had not allowed her to put forward at any length any testimony concerning accidents and she did not argue that more forcibly at the time, though she had written about the accidents, because she knew that Professor Rogers was going to be speaking to the whole question of threats, including accidents, which everyone was still under according to her view. But her major defence was under international law which she contended gave her a right to prevent international crimes. She felt that it was necessary to bring evidence to show what the nuclear system was and its effect and she had to prove that objectively to show that a crime was being committed, so that she could then show that her acts were trying to prevent that crime.
In reply the Procurator Fiscal said that Mr McLaughiin had indicated that part of his defence would be how other countries saw the nuclear weapons position in the UK. The corollary of this argument would be the acceptance on the part of the accused of the importance of disarming and that might give some credence to the idea that what they were doing was a gesture. But the major plank of his argument had not been addressed and the question was one of relevancy. It had to be accepted that the accused’s actions from their evidence was at best to carry out partial attempts at disarmament. That fell to be distinguished from direct action which had as an objective the disarmament of Trident 11. What the accused was saying was that what they did was part of a broader campaign before Trident could be disarmed. In considering the arguments put before me it seemed to me that if it was accepted by the jury that Professor Rogers had been very largely instrumental in forming the opinions of the accused and in particular Ms Zelter, and if her understanding of the whole nuclear system and the criminality thereof was formed directly as a result of what she had learnt from him directly, then it had a definite bearing on the question of the mens rea at the time the acts were carried out on 8 June. Furthermore at this stage of the trial and the defence I could see a pattern emerging or if you like a plan whereby each of the defence witnesses was speaking to a particular aspect and in part the whole aspect of the whole problem of Trident 11 and its weapons and the threat or use of those weapons, and what constituted the threat or deployment of those weapons. For example I could see that Judge Panzer was talking about the rights under international law of a citizen. He was also giving evidence that international law applied to him and his colleagues in Germany as elsewhere. Having heard all his evidence it seemed that perhaps some of his more personal reasons for doing what he did could perhaps be said, strictly speaking, to be irrelevant, but not necessarily in the context of mens rea of the accused. Professor Boyle for his part was speaking directly to the law on nuclear weapons and the effect and interpretation of the Opinion from the International Court of Justice. From what I had been told by counsel in the present argument Professor Rogers seemed to be taking that argument further, and what he might have to say could very well have a bearing on the whole question of the reasoning or logic behind the three ladies’ actions. While some of the evidence might be irrelevant I was not prepared to take the chance of excluding something which with hindsight could have assumed considerable relevance but which I had not allowed to be spoken of. More particularly Ms Zelter had assured me that she knew Professor Rogers personally, and all things considered I thought it right and proper that he should be allowed to give evidence, although I might have to explain to the jury, in due course that parts might not be relevant to the present case. On the other hand it might all have been relevant. However, I did agree with the Procurator Fiscal that there was a risk that emotions might come into play which might have affected the jury. That was a risk, however, which I felt I had to take and deal with in my charge, because of the very emotive nature of nuclear weapons and their effects, which are almost certainly within judicial knowledge. I did not think, however, that there was a danger of the jury losing the plot as the Procurator Fiscal put it. So I warned counsel and Ms Zelter that I did not wish if at all possible to allow evidence to be given in such a way that the emotions of the jury might be unduly affected. Perhaps I should explain that there had been attempts, probably totally unwittingly, by Mr Mayer to “dramatise” some of things which the witnesses had said which I had not felt appropriate at the time and on which I had given him a mild warning. He was perhaps just playing to the gallery but I felt he had slipped over a little too far on one or two occasions.
Professor Rogers was asked if from his experience he was qualified to explain to the jury the present nuclear weapons system in the UK in 1999. He replied that in 1999 there was one nuclear weapon, namely Trident. There were four nuclear powered missile submarines, one of which was under construction. They operated from Faslane on the Clyde and each of them would normally carry sixteen Trident D5 missiles. Those missiles had a range of up to 5000 miles. As far as the warheads were concerned, if one took a single submarine, each missile could carry six warheads of 100 kilotonnes each and each could have separate targets. The Hiroshima Bomb had 13 KT of TNT, so the true answer was that one Trident warhead was roughly equal to eight times the size of the Hiroshima bomb. The UK government had announced that the submarine would be loaded with 48 warheads as a maximum. They could, however, carry more.
He was then asked the difference between Trident I and Trident II. He explained that the present system was Trident II. The United States had developed Trident in two forms. Trident I was the first and is still employed by the USA. Britain was going to use Trident I, but when they were building the submarines they decided to go for D5 or Mark II so the submarines only had D5 and those were the missiles that they were carrying now. He was asked if he was an expert and he replied that he was an expert in current nuclear defence policy. In relation to nuclear policies he explained that the UK maintains its nuclear force and plans to do so until general nuclear disarmament. The nuclear forces are primarily related to NATO for operations by NATO in conjunction with the USA, the dominant force. The UK can use the weapons separately, but with some difficulty, because the system is American. He was asked whether NATO had abandoned its first strike policy and he replied that they had refused to adopt a no first strike policy. He explained that there are public documents in the public domain which say that the UK would use nuclear weapons first. He had seen them. They were not hard to come by, and he had quoted from them in the documents produced at the commencement of his evidence, namely defence document H4, a note he wrote on British nuclear forces and H5, another article he wrote entitled “Learning from the Cold War – Nuclear Confrontation”. He also referred to comments he had made to the select committee in the 1980s which had been quoted in Hansard. There had been no change in policy since. He was asked if he was aware of phrases “strategic and sub-strategic nuclear weapons”. He explained that in the context of Trident submarines were loaded as he had explained. However some may be loaded with smaller warheads. Until 1998 Britain had missile submarines and bombs, the main one, WE177, was on air vessels. Britain had now decided to use the larger ones, as on Trident, and some of the smaller warheads.
He was asked about the practical affect of one of the weapons being exploded. He explained that the smallest had a yield of between five and ten KT, that being close to the size of the Hiroshima bomb. That was the smallest yield. So even the smallest was a weapon of mass destruction.
When asked if he was familiar with how Trident was deployed he replied that he was. There were some changes underway but at any one time one of the submarines would be at sea with warheads in a relatively remote area. When four submarines are available there will always be one at sea, one in readiness while two others can be refueled or repaired. Britain had maintained this policy with Polaris and Trident for over forty years. He was asked if he knew how the Trident missiles were used. He explained that much information on this was from the public domain. The weapons could be targeted in a matter of minutes. Britain did not have a permissive active link, a safety risk link as in the USA. So in the UK there could be a yes or a no to use but in the submarine two members had to agree to fire. He agreed with Professor Boyle that fifteen minutes preparation time was probably right because it was known that older models took thirty minutes only.
He was asked if he was aware of the concept of nuclear weapons as deterrents and what his views would be if it was put to him that since Hiroshima and Nagasaki there had been no nuclear missiles fired in anger because of the concept of deterrents theory. He replied that he did not think that you could say that because of that theory. Most analysts said that we were very lucky that there had not been more incidents. A fundamental difficulty with such weapons was that they were nuclear. Other deterrents could fail but the consequences would not be cataclysmic which would be the case with a nuclear weapon. There were dangers of having weapons always ready to fire, as opposed simply to being kept in store. He referred to events that had happened that very week, the military coup in Pakistan, and he had no doubts whatsoever that India had raised forces. In 72 hours the political situation had gone from relative calm to relative tension. After the Cold War Americans and Norwegians had large scale rockets to study aspects of the Polar atmosphere. They decided to launch a rocket. As was usual a message was sent to Russia but it had not been received when the rocket was launched from an area where the USA had deployed nuclear weapons. There was a mistake as to the identity of the rocket and as a result plans were activated and the Russians were ready to retaliate with nuclear weapons. Fortunately there was a twenty minute flight time from Norway to Moscow. Checks were made and the danger was averted at the last minute. He then referred to the Cuba crises. It was also now known that the Soviet States and the USA had misjudged each other considerably. That had been learnt in joint discussion between the USA four years ago. He referred to other incidents, namely a major incident in relation to Britain and NATO, This was in 1982 when the Soviet had their SS2s, and NATO had their Pershing and Cruise missiles. Because of the Russian situation there was huge tension. All that information was now in the public domain and he gave details of that information.
He was asked about targeting under the NATO umbrella and whether Britain could target independently. He gave evidence on the history of the deployment of nuclear weapons by the UK with NATO. He referred to the Falklands war and probably also in December 1998 when a Trident submarine was seen at Gibraltar during the Kosovo war. At the height of that Russia was very antagonistic to NATO and went back to targeting the NATO facilities. At the same time the Daily Telegraph reported that a submarine had unexpectedly left Faslane. It was all very unusual. In his opinion from the information he had gleaned it was meant to send a signal. It was a sudden, immediate response to changing circumstances and there was sudden tension as a consequence. There was a possibility also that a new crisis could arise in Iraq because there were bombing raids almost every day. He was asked what he meant by “sending a signal” and he replied that it indicated that we had the capability and intention to use nuclear weapons. He was asked how the Falklands were relevant and he replied that there was evidence from a sufficient number of sources to be sure that a number of Royal Navy ships sailed to the South Atlantic with tactical weapons on board, i.e. the smaller nuclear weapons. Most of the weapons were then taken off and put on to the Regent, not in the war zone, but prior to that the weapons had been active on the ships. More worrying was that there was information to say that Polaris was within range of Argentina in case the Falklands went wrong. There was a declaratory policy but the reality is that it was deployment policy which was in use even where there was no war. He stressed that there was abundant information concerning that. He explained also that NATO had considered using East Poland as a base for nuclear weapons and the Russians regarded that as threatening. At present the Russian economy was in dire straights. Their military forces were just a shadow, so as a result they felt vulnerable to a NATO influence and possible interference. That might only be a perception but it became one of the contributory factors in the Kosovo war and at that time NATO was on the defensive. As far as Trident was concerned, the Russians regarded that as an integral part of the NATO forces.
It was put to him that there could be a limited use of Trident II. Professor Rogers pointed out that the previous Prime Minister Major had said only two nights before that if Iraq used bacteriological weapons, Britain’s response would be massive, i.e. nuclear weapons. That could be the only response. But even if these smaller weapons were used and used in a limited way they would not distinguish between military targets. It was a dangerous illusion also because if one weapon were to be used the threshold would be crossed and one could only anticipate an escalation. In his view not even sub-strategic nuclear weapons could be used. Even if used at sea there would still be a risk and he referred to the tests which had been carried out in the past causing radioactive fallout encircling the globe even slightly. That happened even with the civil tests.
He was asked if even the smaller bomb would cause unnecessary suffering to civilians and the forces. Professor Rogers referred to radiation sickness and to effect of a very recent incident in Japan.
He was asked if a Trident II explosion would infringe the rights of neutrals. He explained that in all probability because of the fallout there would be effects beyond the neutral boundaries and referred to the effects of Chernobyl. The larger Trident weapons would cause massive damage but there would still be considerable damage with the small ones.
He was then asked about the risk of nuclear accidents and he referred to defence document H5 and his article on that subject. He explained that information put together by him came primarily, so far as the West was concerned, from information in the public domain. Less was known about Russia but he commented that there were several parts of the Arctic Ocean heavily contaminated. He then went on to comment on what had happened at Windscale, now Sellafield, in particular in 1957 and an incident which had happened in 1956 where there was an incident with a B47 bomber which failed to rendezvous, which was believed to have crashed although it and the weapons it was carrying were never recovered. There was also an incident in Suffolk where there was an accident but fortunately the weapons failed to explode. He then listed other accidents which had happened and ended by saying that there was an ever present threat of accidents.
He was asked if some of the “leading lights” in NATO were anxious and he nodded and said that what was significant was that some former very high officials of NATO, now in retirement, had adopted an anti nuclear approach. He gave the name of Robert McNamara and gave further information concerning that. He went on to say that the most recent example was that of General Lee Butler, the former head of the US Strategic Command who since retirement was the best known proponent of an anti-nuclear world.
Professor Rogers was then asked if the way the Trident weapon system is held and deployed by Britain had a deteriorating effect on international relations. He replied that in his opinion it did. There had been moves recently throughout the world to get a non-proliferation treaty. The core problem was Article VI which encouraged Russia, UK and USA to go progressively to nuclear disarmament. There had been some limited progress but those states had failed to go any complete way and they did not intend to do so. Other states were saying that this was hypocritical. This was the argument that India was putting forward. He then went on to say that as a result the world is no safer now that the Cold War is over and we were moving into a multi-system world with all weapons.
He was asked if he was familiar with civil resistance. He replied that he was because of his academic research, but some of his experience on this subject came from members of his staff. He agreed that civil resistance had the power to effect change. He gave examples of this from Poland, the Baltic States, the end of the Marcos regime in the Philippines, and the very recent demonstrations in East Timor which had forced the government to change its policies. In the UK he cited the example of the Anti-Slavery Campaign where a small group, by campaigning, lobbying parliament, carrying out civil disobedience, being taken to court and being later acquitted, were largely responsible for changing the entire mind of the country.
Mr Mayer then asked the professor if he was familiar with the document Defence Production 8 which was shown to him. He said that he was familiar with the general terms of the document, namely that it was a request from the White House in the USA to the Senate seeking to ratify the Test Ban Treaty. Professor Rogers agreed with Mr Mayer that the President of the USA was considered to be the most important man in the world, but that although the latter had been signed by him and sent to the Senate for their approval, it only came into force if there were sufficient signings and ratification. If that did not happen it would have very little impact. He agreed that the document and the Test Ban Treaty had been the subject of a discussion on the news the previous night.
In cross-examination by the Procurator Fiscal he was asked if it was in public knowledge and within his knowledge that a fourth submarine was still in dock. He replied that he was not sure but he was certain that it was not fully deployed. He agreed that after its launch it would have to be fitted out and as a nuclear submarine before it was deployed, it would have to undergo sea trials. The time from launch to readiness for sea trials was generally between six and eighteen months. He explained that that was an informed opinion only because the actual knowledge might not be in the public domain. He could not say when the fourth nuclear submarine would be launched.
He was asked how many countries had nuclear arms. He replied that five had declared, namely the US, Russia, Britain, France and China. Two other countries had carried out nuclear tests and were considered to be either nuclear capable or about to be, namely India and Pakistan. One country was undeclared but presumed by everyone to have a powerful arsenal of between one hundred and two hundred weapons. He was asked why he used the word “declared”. The witness explained that it was a term used where a country admits to having weapons for use and declared for treaty obligations. When asked if that allowed for countries to have the capability of weapons but not tell anyone, he replied that Israel was a case in point, and referred to the crisis in 1973 and the Yon Kippur War. He referred also to South Africa, but early in the 90s that country decided to go for total nuclear disarmament and got rid of their nuclear arms. When asked if there were other likely countries to have or to be close to having nuclear weapons, he replied that Pakistan and India were accelerating their programmes and there were countries which had nuclear ambitions namely North Korea, Argentina, Iran, Brazil and others. In 1995 Argentina and Brazil decided to stop competing with each other. Three or four of the States of the USSR had carried out nuclear tests and all had nuclear weapons on their territories when they split from Russia. They decided to give up their nuclear weapons and gave them to Russia. Later they had second thoughts because of their worries on nuclear action in the war in which NATO and Serbia were involved, but had decided not to re-acquire them.
The Procurator Fiscal then turned to the issue of verification and, in relation to Iraq, how contentious the issue was. He asked if countries could have the capability for nuclear weapons but others would not know about it. Professor Rogers replied that that would be possible, but it would be very difficult for a country to develop nuclear weapons to completion without being stopped because of Satellite connections. As far as Russia was concerned he thought that the passage of weapons back to them was done openly, but it was not an area which caused worry to NATO. In Kazakhstan there had been an open handover to the US. As far as India was concerned anyone would assume that India was on full alert at this particular time. South Africa had invited inspection, however, to confirm their dismantlement.
He was then asked if on any day a new crisis could arise. He agreed with that. He also confirmed that it would not necessarily involve NATO or Russia. There was a long running crisis between India and Pakistan. He also agreed that there was always the problem of potential escalation between the nuclear and non-nuclear countries. He also agreed with the Procurator Fiscal that there could still be problems of an environmental nature where nuclear power plants were concerned as in Chernoby. It was put to him, therefore, that if the UK unilaterally gave up nuclear weapons we would still not be out of the wood, to which the professor replied that the Procurator Fiscal was not quite right in that assumption because if a single country like the UK gave up its weapons, that would be the biggest single boost to others to consider doing the same. He did agree, however, that that would not be the end of the matter because of countries like India. In political terms, however, it would be a big boost because there were many states who had no nuclear weapons who could have developed such weapons but had not done so, and there were many states working towards nuclear reduction. The Procurator Fiscal pointed out that things change and if there was another dispute, another state could start up a nuclear weapon programme. The professor agreed, but pointed out that that proposition was true because if a country such as the UK had such weapons, it was difficult to argue that another country should not have them.
The Evidence of Professor John Boag
Professor Boag is the Emeritus Professor of physics at the Cancer Research Institute. He has
a string of qualifications almost if not as long as Professor Rogers’ and Professor Boyle’s. For a while he studied under Albert Einstein. He had published widely over the years mainly on the radiological effects of nuclear weapons and radiation measurement. He was asked if he considered himself to be a leading expert on scientific issues connected with the effects of radiation which comes from nuclear weapons. He replied that he did but his colleagues in the field did also. In addition to writing and lecturing he had also given expert evidence in a court in Sweden. At this point the Crown raised another objection.
Legal Argument 15 October 1999 at 14.41 hours
The Procurator Fiscal made it clear that his objection was along the same lines as that given earlier in the day in respect of Professor Rogers but he submitted that the position with the present witness could be differentiated from the last witness. In relation to Professor Rogers’ evidence this morning Mr McLaughlin had said that one of the reasons why we should hear his evidence was because his expertise on nuclear weapons and the way they could be employed could cast light on their “threat” as opposed to “possession”, and that was related to the ICJ Opinion. Relying on Defence Production 3 for the accused, Ms Moxley, and the information given above concerning the professors career it would seem that he would not be speaking to matters of international law or the deployment or threat of nuclear weapons, so there would not be the same link as the present circumstances on the indictment. The Procurator Fiscal understood that Professor Boag would be speaking to the medical effects of radiation and nuclear attack. At the end of his treatise he made remarks about deterrents. What we were dealing with in the present trial were the charges on the indictment and defences of international law and necessity. This witness seemed to be taking the matter one stage further and in his view there was a very clear danger that if the jury heard his evidence they really might be liable to lose the thread and decide the case on matters other than the law. If there was laid before them graphic detail there was a clear danger that the trial would be decided on matters of emotion.
In reply Mr Mayer said that in light of my earlier ruling he had informed the witness as an officer of court about not going into graphic detail and he had no intention of making the evidence unduly emotive for the benefit of the jury. Professor Boag was a scientific expert. Professor Boag was the first scientist to be called by the defence. He would be speaking to the effects of a nuclear explosion as matters of fact which international committees have reported on, but he was qualified to speak also on the imminence of danger from a scientific point of view. He was the best evidence the defence could bring to speak to these matters, and was highly qualified to do so.
The central plank of the Procurator Fiscal’s submission was that the evidence of Professor Boag had no link to the case in hand as the other experts had. However mens rea or the lack of it, is set in an objective background, the framework which is created by international law, conflict of international relations and now getting down to the practical effects of these missiles on people which stems from the threat or use of nuclear weapons. If there were no threat the ICJ would have sent the Articles back to United Nations, but there was not only the Opinion of the Court but dissenting Opinions which were peppered with the question of effects because only with a fuller understanding of the effects could one comprehend why international relations may be as they are and why the United Nations was so concerned to know whether the threat or use of nuclear weapons was illegal or otherwise. Therefore the link to the defence case is the essential matter of understanding of the magnitude of the warheads, and from a scientific point of view what can happen when these things go off accidentally or intentionally or inadvertently. Without the scientific evidence the evidence of the other experts would be meaningless because from an evidential point of view the effect of a nuclear accident might be said to be de minimis. The professor would be speaking to matters well outside judicial knowledge. The witness would be explaining about the particular weapons carried by Trident and the effects of nuclear attack including loss of life. He would also be speaking to the question of nuclear deterrents but his main point would be the imminence of danger from a scientific point of view. Professor Boag followed logically from the context of the other experts. So far the evidence had only been theory but this man would be speaking to practice.
That argument was fully supported by Ms Zelter who felt that he was a vital witness to her defence. In particular she wished him to speak to the effects of the use of nuclear weapons. In reply to the Procurator Fiscal who said that he thought that the Opinion had considered the effects, she replied that the effects had not necessarily been discussed in the Opinion.
My notes on what I actually said are lacking, but I regret to say that I think I might have not made as clear a decision as I should have done. My notes simply say that evidence was allowed insofar as it was relevant at the time on 8 June, which really was vague in the extreme if that is all I said. In fact, in writing this report and with hindsight I think his evidence was a clear and necessary part of the defence, and in my wish not to have the jury led astray by the horrors of the effects of nuclear weapons which might take their minds away from the issue at hand I might have restricted somewhat the questions which were asked of this witness. Given my ultimate decision, the matter is perhaps somewhat academic, but having read the Opinion and the individuals’ Opinions from the International Court of Justice, and looked at the productions lodged by the Crown, mainly those produced by the accused themselves when they left the Maytime which showed very graphically the effects of a nuclear explosion, it seemed to me that this witness’s evidence could be somewhat restricted. I did not wish to noble the defence in any way, but at the same time I did recognise the danger which the Procurator Fiscal had highlighted concerning the jury.
When the witness returned Mr Mayer explained that he wished to restrict his questions to the issue of danger from Trident II nuclear weapons. He was asked if he was an expert in that particular area and the witness replied that in the area of danger from nuclear weapons he was. Mr Mayer said that the word “imminence” cropped up when reading about the dangers from nuclear weapons and for the avoidance of doubt he asked the witness what was meant by the word “imminence”. The witness replied that he had given a great deal of thought to that now and in the past, and it meant “very immediate”. It meant “hanging over one” as defined in the Oxford Dictionary as in “The Sword of Damocles”. He was asked to explain the legend of Damocles and the Sword, which he did. Mr. Mayer put it to him that the legend reminded all of us that we may have been, even if we did not know it, and may still be in great danger, and the only thing between us and the danger is a single hair which could break at any time, or alternatively not break for a long time. The professor agreed. Mr Mayer then asked him if when he was doing his high-level committee work in the 1980s he required to inform himself about the deployment of nuclear submarines. The witness replied that in 1982 or 1983 they were not so far advanced so they had not considered submarines. The weapons were mostly in ground based silos but there were numerous accounts that accidents had occurred. Sometimes warheads had been ejected. Sometimes warheads had been dropped from cranes. He pointed out that security systems were made as safe possible but where there were human beings in charge there was always a risk of danger. As an example he stated that who would have thought that the operators at Chernobyl had switched off the safety systems because it was more convenient to do so. There was then evidence given as to the safety systems installed with nuclear weapons and the back-up systems. It was in fact simply good engineering practice to install safety systems. Nevertheless there had been one occasion when a nuclear missile had been dropped from a B52 bomber in North Carolina which bomb was in the megaton range. The Hiroshima bomb was 13 KT so a megaton would be sixty times bigger. When asked what happened he replied that when the bomb was dropped it was found that six of the seven safety systems had failed but the bomb did not explode because one of the safety systems remained. He was qualified to speak to these matters because of his experience. He confirmed that he was a fellow of the College of Electrical Engineering. He agreed with Mr Mayer that the last of the seven safety systems could be likened to the single hair holding up the Sword of Damocles. He also went on to say that the bomb had not been dropped on purpose. He had been studying the danger and imminence of danger since 1945. In 1945 the issue was very alive but people were not so alive to the issue today.
He was then asked to explain what was meant by the National Ignition Facility. He explained that it was a new experimental set up, a laboratory in the United States where the hydrogen “dedicated” bomb was developed. The new National Ignition Facility had opened on 11 June 1999 and because of the Test Ban Treaty which provided for a complete test ban on the ground or in the air the Facility would be reproducing artificially by laser the conditions in an exploding bomb. The purpose was of course so that scientists could study new ways and new weapons. Such studies did not seem to be contravening the Test Ban Treaties. The witness was asked when the building of the new Facility commenced, and how long it had taken to build it. He did not know. He was, however, able to say that physicists and engineers worked there. As a leading physician he was asked if he could assist in the time scale of how long before its opening of 11 June it would take to build such a laser to assist the physicists. The witness explained that the laser was not complete on 11 June 1999 when the Facility opened in part only, but it was an enormous metal shell and so it could have taken five to ten years to build it. He was then asked if as a scientist he would expect that the National Ignition Facility although in America, would have an international input. He replied that both France and Britain had contributed to the costs so that they both had some input. He expected therefore that Britain would want something back, i.e. scientific expertise from the Facility.
He was then asked if in his opinion the Trident nuclear weapons presented a danger. He replied that we were in imminent danger as long as the submarines were patrolling the oceans. He did not know if a submarine was patrolling the oceans on 8 June but he imagined so. In cross-examination by the Procurator Fiscal the professor was asked if we had all been in that same danger since 1945. The professor replied by saying that the danger has increased because the size of nuclear weapons had also increased.
The Evidence of Rebecca Johnson
This lady was aged 45. She obtained a degree in philosophy and politics at the University of Bristol in 1977. She then went on to take a degree at London in International History and Relations in the Far East after spending a number of years in Japan. Since then she has been working in the field of nuclear energy and in the field of arms control and international diplomacy. From 1988 to 1992 she was the international co-ordinator on Nuclear Test Ban Treaties and presently she is the managing editor of a journal entitled “Disarmament Diplomacy”. This journal is the foremost journal in her field on negotiations on diplomacy relating to disarmament. It is taken by diplomats round the world especially in Geneva, New York and Vienna which was where she did most of her work. She regularly attended conferences where there were diplomatic missions. She explained that there were two kinds of conferences. The first dealt with negotiations on armed treaties – the Test Ban Treaty from the beginning of negotiations until 1994 to 1996 and she continues to follow that Treaty. She went on to explain about the ratification of various treaties. The second type of conference which she attended related to the Nuclear Non-Proliferation Treaty, in short NPT, concluded in 1968. Since then, however, there had been many different meetings among the 187 countries round the world who signed and ratified that Treaty and she had been involved in those meetings for the last decade. She had recently published in journals for the United Nations, for the Swedish Journals and in the “Bulletin for Atomic Scientists”. Recent publications included one to do with the USA non-ratification of the Test Ban Treaty. In 1998 she was asked to comment by India and Pakistan on the tests. One of the areas on which she had particular expertise was the day to day working of countries in relation to the ICJ Opinion. At this stage there was yet another objection raised by the Procurator Fiscal.
Crown Objection to Relevancy
The Procurator Fiscal realised that he could be premature in his objection. He had heard about her expertise though he did not know for whom she worked. It was clear, however, that her area of expertise was in politics and philosophy all of which might be interesting but the first base of this case on relevancy was the indictment. We now seemed to be moving into an area of international arms control and the performance of various governments. This lady was a scientist not a lawyer and therefore she was not really able to comment on the ICJ Opinion. He could not see the relevancy of countries not having complied with the Non-proliferation Treaty. The three accused were charged with carrying out damage on a research vessel which inter alia dealt with Trident. The defence had given him a copy of the witness’s statement and C.V. and that seemed to be split under various headings. He listed these as (1) the decision to deploy Trident; (2) Britain’s international and treaty obligations concerning nuclear weapons. (He conceded that there might be some relevancy in that but it would seem to him to be pretty thin); (3) aspects of policies in Britain which undermine the NPT; (4) nuclear targeting and doctrine (in his opinion this had already been touched on but would seem to be irrelevant); (5) British co-operation with United Nations and France; (6) nuclear fuel cycle and (7) nuclear testing. He felt that the court should bear in mind the position of the accused when they gave evidence. Ulla Roder said the best she hoped for was to delay testing in Lochgoilhead of a Trident submarine. He could not see how any of the titles above could fall into any of the categories allowed by myself as sheriff on which evidence could be given.
In reply Mr Mayer said that he could appreciate the Procurator Fiscal’s difficulty about taking objections when he could. In his opinion, however, the witness was entirely relevant. Having consulted with her that morning, of the seven headings mentioned he would not be developing any argument in points 5, 6 and 7 which he agreed was “too far away”. But the central propositions concerning the relevancy of this witness were firstly that she was the editor of “Disarmament Diplomacy” in London and secondly she would speak to the nature of the objective effect of facts on 8 June. She would be speaking to the central issue of the perception by foreign governments of threats by Trident. She spent her time on the workings of governments at the very top level since the ICJ Opinion had been issued. Furthermore she would speak to the realities of what was meant by the President of the Court when he addressed the matter of tightening up some of the treaties mentioned, given the development nature of international law. The witness was, in his opinion, expertly and uniquely qualified to speak from an independent view point on a separate matter which the Crown had raised in cross-examination of Ms Zelter, when he had asked her why she did not stand for Parliament and try to change things from within. This witness would speak to the realities of how Trident came into being and which policies have been in force during its lifetime and what was in force on 8 June 1999. She would also speak to the relation of those policies to perceptions of other nations as to the threat of nuclear weapons. Furthermore she would also speak to the essential support systems required by Trident some of which were supplied by DERA including Maytime. She was also well qualified to speak to the targeting of British nuclear weapons. In addition she was also able to speak in as much depth as one could on the whole issue of the dealings between the nuclear fraternity and the rest of the world. Mr Mayer was prepared to restrict his line of questioning in the above regard but above all he was trying to demonstrate the relationship between what the accused indicated were the reasons for their actions on 8 June 1999 and the legalities or illegalities of nuclear weapons. The Procurator Fiscal had raised the question of deterrents with Professor Rogers and this witness could furthermore speak to that. Furthermore there had been no objection when Professor Boag spoke about the National Ignition Centre. Miss Johnson could speak in depth about that particular facility. Also, having been allowed to lead Professor Boyle and reference having been made before the jury on a number of occasions to the ICJ Opinion it was proper and relevant to lead a witness who could explain the practicalities of what was meant at certain given points of the Opinion. So from her evidence about the state of concern at top level on 8 June she was there to support all other expert witnesses and rebuttal of the issues raised by the Crown.
Mr McLauchlin adopted his colleague’s argument. Each of the witnesses formed a critical part in the construction of the defence. This was a stark contrast to the Helen John case where the court did not have evidence before them and he referred me to Lord Coulsfield’s Opinion again. This trial was not about mere possession but threat and use of Trident II. Concerning targeting, this was the closest the accused could get to Trident because Maytime dealt with sound, sonar effects and the tiles on the submarines. There was therefore a link between what happened on 8 June and the whole of the Trident programme. At S103 of their Opinion the ICJ had said critically referring to Article VI of the Treaty on the Non Proliferation of Nuclear Weapons, that the obligation to bring good faith into bringing about nuclear disarmament was “an objective of vital importance to the whole of the international community today”. Britain was operating a laboratory system on the barges Maytime and Newt which researched and designed advancements in the Trident programme and that flew in the face of the World Court position. This witness could speak to that and compare it with the Test Ban Treaty which was in contradiction to laboratory testing. The witness had been tracking the ICJ Opinion from 1996 and could say how Britain had failed to live up to the requirements of the ICJ Opinion and also the way Britain had failed to live up to the Treaties concerning testing in contradiction to various Test Ban Treaties.
The accused came from an objective background. They felt that they had a right in law and under international law. The documents to be referred to were in the public domain and the accused were greatly concerned by the way in which nuclear policy was going. So the evidence to be given would fit in neatly with the picture that the accused had of the legalities or illegalities and criminality of nuclear weapons, not just after the 1996 ICJ Opinion but before.
The two chapters which the witness would be speaking to were those dealing with NATO and British policies. Firstly there were indications that Trident was considered to be “threatening”. Secondly by using them or threatening to use them there was a breach of the Nuclear Proliferation Treaty. The jury should hear the evidence so that they could work out whether there was a threat to use them. Concerning nuclear targeting and the way in which it happened, the recipient’s feeling of what was a threat, the witness could talk to matters such as value targeting, e.g. TV stations, the importance of threatening such targets, and in the context of that she would also mention Moscow. The accused had read all about this and it was critical where the question of mens rea was to be considered or indeed the lack of it. The evidence went to the mental state of the accused and would give the jury the opportunity to hear from an expert about threats and, in that context, targeting and how that breached international law and made Trident II contrary to the ICJ Opinion.
Ms Zelter concurred with all the above. She was using an international law defence and she wanted to show the crime they were trying to stop. She needed the witness to explain how the current UK deployment of Trident II, and in particular its deployment on the 8 June, was perceived by Prime Ministers of nations as a threat. Their action on 8 June was part of a long process trying to implement the ICJ Opinion which needed to be implemented and which 95% of states were doing. This witness could speak to the perception of other states of international law. In response to the Procurator Fiscal she pointed out that international law covered aiding and abetting, planning and maintenance of the whole system, not just submarines and Trident II. The much wider category included Maytime. The present witness had also influenced Ms Zelter personally about the ever-present danger with the ever-present deployment of the Trident system. Ms Zelter explained that she had consulted with Miss Johnson widely to ensure that their plans were in accordance with international obligation and she was also the means whereby Ms Zelter and her colleagues could keep in touch with the ramification of crises as they arose like Kosovo, Iran and others, all of which were in her mind on 8 June.
In reply the Procurator Fiscal said that all three had referred to the perception of leading governments on the question of nuclear weapons and if evidence of that were to be led it would be hearsay.
So far as the testing was concerning he felt it was irrelevant because there was no suggestion that Maytime was testing nuclear weapons – it only did research.
The Procurator Fiscal went on to say Mr Mayer had said that the Crown and the defence had made many references to the ICJ Opinion but he pointed out that the Crown had no option because the evidence had been led by the defence. So far as the witness’s purported standing with Parliaments was concerned he did not see how she could be more expert than Ms Zelter or any other member of the public.
So far as the realities of the President of the International Court who spoke to tightening up the regulations were concerned, he could not see what this had to do with the indictment. If the witness was not a solicitor she could not add to the terms of judgement.
The realities of how Trident came into being were irrelevant as it was already in being on 8 June.
So far as the policies in the earlier days of the Trident life were concerned he continued to challenge the relevancy of that.
With reference to Maytime and established support systems, given what we had so far heard and given that the witness was not a scientist, the Procurator Fiscal would suggest that she could not give such evidence.
So far as targeting was concerned he challenged the relevancy of that because the ICJ Opinion took that into account as well as the capabilities etc.
She would be speaking of the whole balance of nuclear availability and the rest of the world and he challenged that. Finally, in relation to the ICJ Opinion, if her evidence was to be relevant, she would have to speak to matters of legitimate interpretation which she was not qualified to do, and as to why it should be tightened up was irrelevant.
At this point Mr Mayer asked if he could have a final word on the question of hearsay evidence. He pointed out that as an expert she would be excepted from the normal rule and that seemed to be agreed.
I adjourned to consider the matter and my decision was as follows:-
It seemed to me that references to what had happened pre 1996 had been canvassed in full before the International Court of Justice in depth and the appeal court in the Helen John case seemed to have recognised that. But I was prepared to allow evidence so far as it related to the ICJ Opinion on and, not necessarily in order of importance, the following:-
(1) what Britain had done since 1996 to carry out their obligation at reply “F” on the last page of the Opinion to pursue in good faith and to bring to a conclusion negotiations leading to nuclear disarmament. I was prepared to allow that because I did think it formed part or could form part of the defence of necessity as perceived by the accused taking into account why they did when they did their “disarmament” on 8 June;
(2) The question of what is perceived as a “threat”. From what I had heard it seemed to me that she was indeed an expert and had directly spoken to “world officials”. I considered that the question of what was perceived as “threats” was crucial to the question of legality of Trident and nuclear weapons, for example when is there a threat? Is it only when there are a direct threats?, and if so, when did such “threats” take place?, or could a threat encompass “perceived threat”?, although I shared some of the Crown’s reservations on that point;
(3) Any real evidence the witness could give on indication given to her by states as to whether at or about 8 June the use of nuclear weapons could be considered lawful in an extreme circumstance of self defence on which the very survival of a state would be at stake;
(4) If she had such information, was it in the public domain or passed on to Angela Zelter or her two co-accused by herself or others;
(5) Bearing in mind that for a defence of necessity to be relevant, in addition to the imminent danger aspect, what if any stimulus existed on or shortly before 8 June to prompt the three accused to act as they did (if indeed the witness was in a position to know) and more particularly how was Maytime in particular linked to the deterrent effect of Trident II;
(6) If she was able to comment on what steps the three accused could have taken other than what they did to prevent further deployment of nuclear weapons including whether or not it would have helped if they had stood for Parliament;
(7) On targeting, I was prepared to allow evidence only insofar as it was actually in existence on or about 8 June insofar as not already covered under what I would allow concerning threats;
(8) Insofar as not covered above and only as it related to “threats” or deployment as at 8 June 1999 or other matters mentioned above including the Non-proliferation Treaty, to the dedication on or about 14 June 1999 of the National Ignition Facility Centre.
For the avoidance of doubt I was not prepared to allow evidence on the realities of how Trident came into being, her interpretation of the ICJ Opinion and what I thought was referred to by the Procurator Fiscal as “the whole balance of nuclear authority and the rest of the world” except insofar as particularly mentioned in the above paragraphs.
Miss Johnson’s Evidence
Miss Johnson said that she was very familiar with the ICJ Opinion and she agreed with counsel that it had been a landmark in her field of work because one of the conclusions was unanimously adopted by the court. She then went on to explain her work with the journal “Disarm Diplomacy”. She explained that this was a think tank established in 1996 and in effect she was the head of that. Counsel read out paragraph 105 and decision “F” of the Opinion and asked her if she was a recognised expert in the kind of negotiations mentioned there. She confirmed that she was. She was asked if the court made certain findings in relation to replies “A” to “B” and whether reply “F” stood alone. She stated that reply “F” stood out because of the unanimity of the decision. She explained that she had read the Opinion twenty-four hours after it had been issued and presented to the conference on disarmament which was in plenary session. At the conference there were closed sessions which she could not attend but in the course of the sessions persons came in and out and they would tell her what was happening. The Opinion, however, was presented in an open session. She also spoke to the Resolution to the United Nations General Assembly earlier that same year. She was asked if what she was saying was that the UN resolution asked the International Court for advice and the Court, having given this advice, the United Nations were anticipating the issue of the document, i.e. the Opinion because it coincided with a conference being held on the Opinion. She said that was not the case because the conference ran from January to September so if something significant happened like the issue of the Opinion it was taken up and used in conference as a starting point by a country or as an official document. The Opinion was made an official document and was regarded as an official statement. She was then asked if when the UN sought the advice of the International Court and if it was given, would such advice be taken seriously. She replied “very seriously”, but when the Resolution went to the General Assembly on that occasion the UK voted against endorsing and accepting that that was part of the international understanding of treaty obligations. Reply “F” of the ICJ Opinion mirrored but did not exactly reproduce Article VI of the Nuclear Proliferation Treaty of 1968. She was asked if she would agree that reply “F” was a sort of call by the Court for negotiations to be pursued in good faith and brought to a conclusion. She replied that was how it was interpreted.
Counsel then turned to negotiations which had taken place and asked who had attended conferences concerning the negotiations. She explained that with the Nuclear Proliferation Treaty 187 countries were party to it and 4 were not. She explained that representatives of countries attended but not as private individuals, and about 120 to 130 attended because some smaller countries did not have the finances to attend. The conferences on disarmament which negotiated the Biological Treaty and the Test Ban Treaty had 66 members in order to carry out the negotiations but all the key countries in the international league were included. Counsel asked if a focus on what the UK had done to carry out its obligations was outlined in reply “F”. She stated that in 1996 the UK voted against that paragraph in a Resolution sponsored by Malaysia. The UK was one of 26 countries voting against it. The following year in May 1997 there was a change of government and a similar Resolution proposed in December 1997. At that time the UK said it would abstain from voting but 152 countries voted in favour of the resolution. She was asked about abstaining and what that would signify. She replied that it was interpreted as Britain accepting the validity of the unanimous Opinion of the ICJ, but the particular paragraph which they abstained from voting on was calling for further steps to be taken. So originally Britain had voted against further steps being taken, i.e. taking nuclear weapons off “first alert” – to agreeing to negotiate a treaty to ban nuclear weapons as had been done with biological weapons. By switching its vote to abstain was interpreted by other countries as the UK accepting the validity of the ICJ Opinion.
She was asked if in her opinion since 1996 the British government had entered into negotiations with good faith. She replied that they had entered into negotiations on the Test Ban Treaty but not in good faith because of the Strategic Defence Review of the British Government. In that document it had analysed its defence requirements and reported in July 1998. The document emphasised that Britain would need to rely on Trident or a similar force “for the foreseeable future”, and this particular term, used a great deal in conferences, had caused a lot of concern and criticism among the 182 countries who had joined the Nuclear Proliferation Treaty and who had said they would never seek to procure nuclear weapons for themselves. They accepted a set of legal obligations, but the five nuclear countries including the UK said that they already had the weapons so their obligation was that they in good faith would pursue negotiations, in due course to get rid of those weapons. Since then the British Government had said they would not deploy more than 200 nuclear warheads, i.e. 48 nuclear warheads of 100 KT each per boat/submarine. They were asked, but did not agree, not to have the boats/submarines under constant deployment. They were also asked to consider not to be the first to use weapons and not to be on a “hair trigger alert” of 15 minutes. They said that Trident would be on a reduced notice to fire. So there was some reduction on the warheads but in their capacity as a sub-strategic role, they would be as if “a shot across the bows”. There was in fact a reduction in warheads as a unilateral step when the new Government (New Labour) came in. They were aware of the ICJ Opinion. Requests were also made for the British Government to go further but they refused and they voted against taking additional steps. Japan called upon all five nuclear states to get together. There was an official Resolution. Another group of countries suggested a modified Resolution in 1998. The UK voted on that Resolution but particularly abstained from part 5 which would have made them go further as far as disarmament was concerned. There was arm twisting on the UK Government but Britain, France and the USA abstained from the particular part of the Resolution which would have led to further reduction of nuclear warheads and a change in policy. When asked how she knew that she replied simply “Its my job”. She spoke on a regular basis with ambassadors and people in the foreign ministries. There was mutual briefing at conferences, and then she checked out the information given to her. She then said that she published analyses in books and reports and in her journal based on the information she had received in that way. Sometimes she would give no name to where the information came from because the information was given to her off the record, and if she had revealed the names she would cease to get any information.
She was asked what would happen to her standing in this high level community if she made up comments. She said that she would have no standing at all. Diplomats read what she produced avidly because she talked to everyone and gave “the big picture”. If she got it wrong they would tell her and she would correct it.
For some time Britain had been trying to get countries to vote against any Resolutions which might oblige the five big nuclear countries to disarm. That was directly against the Opinion expressed in reply “F” of the Opinion and the Nuclear Proliferation Treaty. Pakistan had expressed grave concern at the British Government saying that nuclear weapons were essential for their security but at the same time doing their best to persuade other countries to give them up. In that connection the Bangladesh situation which pertained at the time of the trial was important because of India and Pakistan. They looked to the UK and said that they were only following their former colonial masters in relying on nuclear weapons and potential first use. India was saying to Britain “if you need them, we need them.” She was asked “What, if anything, since the ICJ Opinion had the British Government done in furtherance of the objective in reply “F”. She replied that it helped to conclude the Test Ban Treaty and Britain was one of the first to ratify that. They had reduced warheads but rejected approaches to reduce the reliance on nuclear weapons. It supported a production ban of plutonium materials but yet did not want its own stockpiles reduced.
Counsel then moved on to the topic of the perceptions amongst those with whom she dealt professionally, i.e. the foreign ministries, ambassadors, prime ministers and people of that calibre. She confirmed that she did meet most of such people during the course of her work and as such came across a wide range of opinions. She confirmed that over the last few years she had experienced such people discussing with her the idea of being threatened by nuclear weapons. Japan very often issued statements on that by reminding countries that it was the only country to have suffered nuclear bombing in time of war and it wanted to ensure that it could never happen again. South Africa developed nuclear bombs but when the new government came in with Nelson Mandela they got rid of nuclear weapons. They had also made statements saying that they were against the possession of nuclear weapons. Sweden and Ireland had also spoken out strongly, as had Egypt. Such statements had been made in open session. Other countries, however, had spoken outwith the open meeting about what they perceived as “actual threat of use”, namely Algeria because France had nuclear weapons, and other countries felt very definitely that they were being directly targeted, one such country being Malaysia. Some countries such as Japan referred to the continued possession of weapons posing a threat to them because they said they acted as invitations to other countries to acquire nuclear weapons. She was asked if she could give the court real life practical examples of an incident where countries reported to her their perception of British nuclear weapons, and she replied “concerns” had been expressed that Britain violates Non Proliferation Treaties and therefore undermines the whole thinking of continued nuclear disarmament. She also said that one week ago (from the time of her giving evidence) an Argentinean diplomat had wanted to know if Britain had considered deploying nuclear weapons at the Falklands. She could not give him an answer, However, there was evidence that in the Gulf War Britain did deploy such weapons in the vicinity, and concern had been expressed by the very ambiguous statements from both the US and Britain that if Sadam Hussein used biological weapons in the war with Iraq “he should expect to receive fullest retaliation”. The significance of that statement was that it was understood not only in Iraq by the experts but written about in Russia, as implying that nuclear weapons might be used. She was asked her opinion concerning the illegality of nuclear weapons and she commented that she thought there was illegality concerning the violation of the Nuclear Proliferation Treaty and also in relation to the ICJ ruling on the threat or use of nuclear weapons.
She was asked what significance the ICJ ruling had among the diplomatic communities. She stated that it was accepted as the authoritative legal interpretation of a number of Treaties and obligations, and because the Court had been asked to look at the issue by the United Nations, most regarded the Opinion as essentially binding.
She was asked if she had met Ms Zelter and she replied she had. She confirmed that Ms Zelter had sought her professional opinion in the past and in particular because she was going to be writing to the Prime Minister Tony Blair. She wanted to know exactly the position Britain had taken which of its legal obligations had been undertaken, and the attitude of other countries as to whether Britain had fulfilled those obligations. The witness then confirmed that Ms Zelter had been interested in understanding the current position of the British Government on the subject. Miss Johnson had given her names of publications, one of which was a report she gave for the Simpson Centre entitled “A British Prospectus on Nuclear Deterrents”. The Simpson Centre was the Washington think tank in the USA. Other publications given to Ms Zelter related to the British Nuclear position. The witness was then asked if in her professional opinion, Ms Zelter was able to understand the documents. The reply was “absolutely”. When asked what was her professional opinion of Ms Zelter’s level of grasp on the subject, she said “very high” which could be judged from the questions she asked which went right to the core of the issue. She was asked if she had been in touch with Ms Zelter in May or July or June of 1999. The witness could not remember but she certainly had been in touch with her in 1999, for what purposes she did not know other than the letter to the prime minister.
The witness was then asked if she was qualified to speak authoritatively about the kind of support, technical and political, which the British Trident programme required. She replied that she did not know how things worked but that she knew what was entailed in deploying Trident. She was asked if she was familiar with the part played by DERA and the floating laboratory Maytime in the overall structure of the British Trident Programme, The reply was that it was a fairly essential component of logistical support for Trident. When asked what she meant by that, she said that it was believed to monitor and formed part of the maintenance of the stealth of the nuclear submarines systems. Part of the reason why the laboratories on board Maytime and Newt were so important was that the submarines must remain in stealth and secrecy so that their weapons could be fired from international waters without detection. Maytime was responsible for monitoring the stealth of Trident. That was as she understood the position, but she was not a specialist in the hardware.
The witness was then asked about the National Ignition Facility in the US and she explained that the Facility belonged to the US but there was a lot of collaboration with scientists including those from Britain. She knew about the National Ignition Facility through reading documentation available in scientific journals and the laboratories themselves which held conferences, for example the National Livermore Laboratory. Most of the information was in the public domain. She was asked why in the face of treaties which the witness had told the court about and reply “F” of the ICJ Opinion the Facility existed. She explained that it existed in order to facilitate nuclear explosions banned under the Test Ban Treaties. She was asked if it would be fair to say that the National Ignition Facility was carrying out virtual testing. The answer was “no”. It carried out real testing with very minute quantities of plutonium in laboratory conditions. Explosions as such were not prohibited but the wider perception was that the purpose of the Facility was to test, design, develop and modernise nuclear weapons. Some countries had tried to get such activities banned. They were angry because they had worked hard themselves to get the Treaties through and they felt that the nuclear weapon states were using a loophole. In particular South Africa, Pakistan and India and others at a conference of disarmament had published papers about their rising concerns, not mentioning the Nuclear Ignition Facility directly by name, but what the Facility was built to do.
She was then asked about the effect that one MP in the diplomatic community might make. She explained that an individual MP had no influence. Her Institute organised parliamentary briefings and on an individual basis there was nothing an individual could do. As an example she said she had been at a seminar on nuclear proliferation near Geneva only the previous week. She had had lunch with a Foreign Office Minister who had said that he would like to do more concerning the strengthening of the nuclear non-proliferation agreements but that his hands were tied as an individual. She went on to say that at that seminar there was a general air of crisis that non-proliferation was falling apart. There were accusations from the non-nuclear states attending, namely Germany, Chile, Japan and others towards the nuclear states and their cavalier attitude towards their obligations. The said the nuclear states were undermining the non-proliferation agreements at a dangerous time internationally. India and Pakistan had had tests in 1998 and India was declaring a nuclear doctrine of its own. There were clashes between the US and China and US and Russia concerning the bombings of Yugoslavia. Nevertheless she said that it was a productive conference because it was a closed doors conference and people could talk in confidence. There was a lot of anxiety that if the governments of the nuclear states did not “get a grip”, then the whole non-proliferation regime would fall apart. She was asked if she had known an air of crisis like that before. She explained that in 1995 before and after a big conference on the Non-proliferation Treaty France had resumed testing at a time when Kashmir was going to war with nuclear capabilities. At that time other countries were saying, in particular to Britain, that their nuclear weapons should be taken off alert. The only example that Britain had set for nuclear disarmament was a reduction of weapons.
In answer to Ms Zelter’s questions she confirmed that on 8 June 1999 Britain had still not carried out its obligations. On that day also there was serious anxiety about research going on under the auspices of Stock Pile Stewardship which included the modernisation of nuclear weapons. That included the use of nuclear weapons in space and, in particular, South Africa had raised concerns about such weapons. The USA had refused to allow discussions about outer space use of such weapons.
Ms Zelter then asked her if the act of deployment of nuclear weapons was an ever-present concern and danger amongst those with whom she associated. She confirmed that that was so because maximum stealth and surprise was essential which was why research into that was so important. A missile was not recallable in flight and related to that was the Doctrine on Nuclear Operations. The nuclear states had said “it is important to have a strategy of war which can be used at any time”. There was therefore an ever-present danger. For that reason also active deployment of weapons would be perceived as a threat by other countries. Since US documents had made it clear that stealth was an essential component with the Trident weapons, there was information to suggest that other countries looking at those US documents would reach the conclusion that research was essential. The NATO generals held plans which relied on US intelligence and targeting all of which was integrated with US doctrines.
She was asked if the disabling of Maytime could be seen as part of deterrence. She agreed that she thought that the NATO generals would see it as such.
When cross-examined by the Procurator Fiscal she was asked for whom she was the International Co-ordinator between the years 1988 and 1992. She explained that she was the co-ordinator for Green Peace International in respect of their test ban campaign. She confirmed that that organisation took a strong anti-nuclear stance on power stations. So far as her own job was concerned, she explained that her Institute started in 1996 when it was registered by herself and one of the Doctors at Bradford School of Peace Studies. The Institute now had four staff and a number of consultants. The thrust of her research was into nuclear arms control and biological control. It also included land mine issues. Her Institute provided information to government participants and non-government organisations to enable them to have the level of information and understanding of the technical and political complexities of various issues so that they could lobby etc. The target would be universities, non-government committees and foreign offices. She agreed that they had aims to provide information to increase the level of democratic decision making and participation on international security arms control. When asked if it was as objective as that or did she intend to bring about nuclear disarmament, she replied that their objective was that nuclear weapons posed a great threat to survival and if people of the world had the knowledge they had on what nuclear weapons are, how they worked and how they are targeted and the problems they cause in negotiations they would work more effectively to bring about nuclear disarmament. The organisation was a research institute and disseminated information as widely as possible so that people could use it in a variety of ways to make countries accountable. She was the head of the organisation and her own personal aim was to bring about nuclear disarmament. The organisation, however, had an editor and a board of directors which included former ambassadors and professors. She was asked if her publication had clout and she said that it did but what carried real clout was the readership of her organisation because it was read by all the key ministries, She would not be asked to speak in the USA, Britain and Russia if her publication did not carry proper information. The Procurator Fiscal asked her if, besides wanting to inform, the aim of the publication was to influence people and her readers towards nuclear disarmament. She said that the purpose of her publication was to inform and create a debate. There was a readers’ page. For example they received articles with which she and her board of directors did not necessarily agree but they published them. For example when involved with the Strategic Defence Review they brought in people from the forces. He asked, so there was no part of her publication trying to influence people for or against nuclear disarmament? She replied “no”, that it was for collective international security, and their aim was to report governments fairly and not to distort information.
Turning to reply “F” of the ICJ Opinion the Procurator Fiscal asked if the UK government was moving away from endorsing and accepting reply “F” of the Opinion. The witness explained that they were against the paragraph in 1996 but in 1997 and in 1998 they had abstained. She was then asked what was the significance of Israel, Pakistan and India not being in the Non-proliferation Treaties. She explained along the lines already given but said that in particular India began testing when they were convinced that the nuclear Non-proliferation treaties were not working. It was put to her that Britain could say the same thing. She replied that this Government’s position is that we are to retain Trident or a similar system for the foreseeable future. She then went on to explain the context in which Britain began to build up a nuclear arsenal. She was then asked if Britain gave up its nuclear weapons, what about France and the other nuclear states – would they give up? She replied that if Britain were to give up or even declare it would take Trident “off alert” and not seek to replace it, it would be an enormous step. To say it would not rely on nuclear weapons would give a boost to the non-proliferation scheme because it would be seen that one of the nuclear states was fulfilling its obligations. When asked if Britain were to give up its nuclear weapons, would India?, she replied that the arguments which India gave last year (1998) for exploding weapons would lose their force. Britain’s decision in the matter was important. To make a decision to give up would have low risk in security terms but high benefit in political terms because of the prestige internationally. She acknowledged that Pakistan and India had been in dispute for years. From the people that she spoke to she could say that India had not taken delivery of weapons yet but their country was to be “on alert”.
Turning to the ICJ Opinion, it was clearly felt that there were obligations not only to act in good faith but to bring negotiations to a conclusion. She agreed that there was no time table set down to bring about disarmament of nuclear weapons but the ruling from the ICJ came 20 plus years after the Nuclear Proliferation Treaty and it was argued that twenty years could not be construed “in good faith”, and in that context it was understood by the diplomatic community that negotiations should be brought to a conclusion more quickly than in the previous year of the treaty. Russia, France, US, Britain and China had all made a pledge to negotiate in good faith on the cessation of the arms race and the disarmament of nuclear weapons. She was asked about Iraq, Taiwan, Iran and North Korea and she replied that they had also signed a pledge although North Korea tried to withdraw because subsequent verification found discrepancies. Iraq was different. They were a member of the Treaty but had violated this obligation and tried to enrich uranium under a huge mountain of secrecy. The operations were detected because the Treaty said that there should be rigorous inspection. Without the Treaty there would be no enforcement which is why it was so important because at least you could try and address violations. Israel and India were more difficult. It was not possible to send in inspectors because those two countries had not signed the Treaty. It was felt that Britain should be setting an example. It was pointed out to her that the present government had only been in power for two years and the last government for eighteen years. Was therefore her criticism against the later years and she replied that it was because the present government was aware of the ICJ Opinion. She was reminded of the three things she had said which the present government had done to comply with reply “F”, but it was pointed out that things could not happen overnight. She replied that we really did not have overnight because a warhead could be launched in fifteen minutes and there had been previous incidents. She referred to a recent launch in Norway. Furthermore in general there had been a deterioration of relations between countries as she had previously explained. In particular she referred to the accidental bombing of the Chinese Embassy. Such an incident could lead to a mistake being made. She agreed with the Procurator Fiscal that since 1945 there had been no nuclear weapons detonated in anger but there had been accidents. She was asked to relate any accidents or incidents to 8 June 1999. She replied that at about 8 June 1999 we had come very, very close to a number of situations.
Once again the Procurator Fiscal put to her that things like nuclear weapons could not be given up overnight. She replied that you had to make a fundamental commitment to do it and to draw up a policy outline and if a government said that it would still have use of the weapons for the foreseeable future, it would send out the wrong signals. If the UK government began to dismantle and seek verification and put things under lock and key, if they began to take these steps and not use Aldermaston to refurbish and carry on research, then the international community would begin to recognise, that although it can take time, a state had actually started to make a proper start. A start could take five minutes although the actual doing would take time. Countries kept asking Britain for good faith and an intention to get rid of their weapons.
My Lords, I am aware that there is a typed up transcript of the submissions which were made before me and my eventual decision all of which took place on Tuesday 19 October, Wednesday 20 October and Thursday 21 October. I hesitate simply to refer your Lordships to the transcript of what was said by Ms Zelter, Mr Mayer and Mr McLaughlin and myself, but as I am aware you are considering the various arguments which were put forward to me and my reasoning very carefully, and also in the interests of brevity and being aware that my report is already very long I intend simply to give a very brief resume of what was said. The transcript is not good. Some of what appears to have been said reads as rubbish and there are considerable gaps in the evidence, but the general propositions put forward are there in a reasonably intelligible fashion.
Ms Zelter first of all dealt with her understanding of the common law defence of coercion and necessity. She understood that this defence was based on the concept that one should not be punished when an act of breaking the law prevents more evil than it has caused. She referred to Moss v. Howdell 1997 SCCR 215, a copy of which is to be found in Defence Production 2.
She referred to the three basic requirements for that defence to be effective and went through each in turn and related it to the facts of her own case. She also referred me to her production 4 and particular cases in other countries where peace protesters had been acquitted and under what circumstances, but using the common law defence of necessity. She then went on to show (Page 9 onwards) her reasons why she did not think that she had acted wilfully and maliciously. In her view there were six elements which would prove that. These were: (1) that preventing a crime was a reasonable excuse in Scots Law; (2) that international law is relevant in Scotland; (3) that the threat and use of Trident nuclear weapons is a crime in international law; (4) that she honestly believed that that particular crime was being committed and was imminent; (5) that she really believed that there was a practical link between her action and the prevention of the crime; and (6) that her action was reasonable in the circumstances, that she had considered alternative courses of action and she could not do anything else effectively to prevent the crime.
She then went on to elaborate on these six points. In respect of the first point she cited the case of McDougall v. Ho 1985 SCCR 199 (her Defence Production 5). In dealing with the second element (commencing from page 10 of the transcript) she commented on the position of customary international law and in the course of that referred to Mortensen v. Peters 1906 SLT 227 (Defence Production 6), The Christina 1938 AC 485 at 497 (Defence Production 7) and others outlined on page 12 of the transcript. She also referred to “Principles of Public International Law”‘ by lan Brownlie (Defence Production 8). She further contended that the Advisory Opinion of the International Court of Justice was “controlling” because it was the authoritative articulation on customary international law on the legality of the use or threatened use of nuclear weapons. In particular she referred to a recent Times International Law Report of 19 May 1999, Defence Production 12, In re Immunity of Special Rapporteur, which decision indicated that national courts must take cognisance of ICJ Advisory Opinion. She also referred to the use of customary international law in the war crimes tribunals for the former Yugoslavia and Rwanda. She conceded that although customary international law was part of Scots Law, in cases of conflict with statute or precedent the statute or precedent must prevail. She made the concession because she explained that certain persons had taken the view that because the Trident programme was official and because yearly defence budgets had found amounts of money for Trident, therefore the nuclear weapons programme appeared to be authorised by Parliament. In the argument which followed she pointed out that she could find no specific Act of Parliament authorising Britain’ s nuclear programme and she was not aware of any legislation which directly authorised Trident as such. Furthermore it was her contention that Parliament had been in the past, and still was, kept uninformed about large parts of the nuclear programme.
So far as the third element was concerned, she simply referred me to the evidence which she gave during the course of the trial concerning the threat and use of nuclear weapons being a crime in international law.
So far as the fourth element was concerned she picked up the point which the Procurator Fiscal had been making or seemed to have been making to her in the course of questioning in that he seemed to be suggesting that Trident would have to be actually launching its nuclear missiles before a crime was imminent or before one could detect the danger in order to be able to prevent a crime lawfully. That made no sense to her in such a complex system and she went on to elaborate on that – Page 16 of the transcript.
So far as the fifth element was concerned she again referred to what she had said while giving evidence and to what others had said.
On page 17 she commenced her detailed argument on the International Law Defence referring first of all to the argument sometimes put forward that although a nuclear weapon could annihilate mankind it might not necessarily do. She contended that it would not be reasonable to expect that the conscience of the international community would wait on the event to see if the results of any particular use of such a weapon would be the destruction of the human species. She acknowledged that the risk of annihilation may be greater in some cases, less in others; but it was always present in sufficient measures to render the use of nuclear weapons unacceptable to the international community in all cases. She also referred to the evidence she had already given. She touched on Professor Boyle’s evidence and his paper, Defence Production 27, “The Criminality of Nuclear Deterrence” which supported her contention that it was every citizen’s right and duty to try and uphold international law and prevent war crimes and crimes against peace which is what her and her colleagues’ actions on 8 June 1999 were all about. This argument is to be found at pages 18 to 24. During the course of her observations on this particular matter she pointed to cases where individual persons had been found guilty for breaches of international law not only by committing war crimes personally but by being involved with knowledge in the sidelines of the crimes or crimes in war, against peace and against humanity. She claimed that by inference international law should authorise individuals who tried to prevent such crimes. At the foot of page 22 she referred to various dicta of the Tokyo War Crimes Tribunal which went so far as to declare “anyone with knowledge of illegal activity had an opportunity to do something about it and is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crime.” (Page 22, paragraph E to page 23, paragraph A of the transcript). She also referred to the British Manual of Military Law (Defence Production 36) where “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”. In her submission this would mean refusing to fire nuclear warheads. Her position is fairly summed up at F on page 23 of the transcript to paragraphs A and B on page 24.
After certain preliminaries relating principally to whether or not his submissions needed to be interpreted for the benefit of his client, Mr Mayer explained that he had made a written submission and that he would comment on and go through that. His submissions start at paragraphs C on page 32 of the transcript. He commented first of all on the use of the words “mass destruction” in the context of the Scotland Act 1998, Schedule 5, part 2, heading L, third heading L3 “control of nuclear, biological and chemical weapons and other weapons of mass destruction”. He then went on to deal with the word “threat” and the “conversation” between him and me is to be found on pages 36 to 40 of the transcript when he then touched on the question of deployment and “mere possession”.
At page 41 onwards, he turned to a consideration of international law as it related to the present case starting with the Nuremberg principles. In particular he referred to principle 6 and placed that in the context of Professor Boyle’s evidence. That is to be found on page 42 of the transcript, paragraphs A to D. Thereafter he outlined how international law worked in comparison for instance with directives from the European Parliament. From page 47, paragraph E onwards to page 52, paragraph B he outlined the nature of the Conventions and Treaties and Protocols since then and his contention, stated at paragraph B on page 52, was that the provisions derived from the principles of international law, derived from established custom, from the principles of humanity and from dictates of public conscience applied in this country on 8 June 1999 and there was no other law covering the position. At paragraph B to E he maintained that although the Advisory Opinion of the International Court of Justice was there and was persuasive, it was not necessary for his client, the second accused, and her two colleagues to rely upon that Advisory Opinion to find legal authority and justification for their understanding of the situation pertaining to Trident on 8 June, and their rights on that date. Those rights existed before the Opinion, but the three ladies did have the Advisory Opinion to back up their opinions and in Mr Mayer’s submission the Advisory Opinion, so far as threat of use of nuclear weapons was concerned, was entirely with the accuseds’ position. The Court was clearly against the threat of nuclear weapons. The only legal use which might exist, depending on the facts at the time, and which might afford a nation a defence for using nuclear weapons, was when it was faced, imminently faced, with annihilation. In Mr Mayer’s submission that was the only scenario which the Court envisaged and which could afford legal use of nuclear weapons, and it wasn’t certain about that because it would depend on the facts at the time. He then referred again to the article by Lord Murray based on the text of a speech delivered by him in Oxford on 15 October 1988 (Defence Production 25). Lord Murray had reminded his readers 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, but it has a genuine and growing force of its own. To ignore international law is to ignore a factor which was significant if less than conclusive in the conduct of international affairs”. (Page 54, paragraphs A and B of the transcript). He commented further on the article of Lord Murray from page 57, paragraph C to page 58, paragraph C of the transcript and also referred in passing to the evidence given by Miss Johnson and Professor Boyle.
In paragraphs D and E from page 58 and paragraph A of 59 he spoke briefly about the prevention of crime aspect of the defence as it was understood in common law in Scotland. On page 59, commencing at paragraph B he considered the question of necessity and elaborated his argument on that through to page 81. He referred to a number of cases and authorities, and although his exposition was lengthy and detailed it was careful and should, I think, be read carefully. Photocopies of all the cases mentioned were produced and should be readily available for your perusal, although I am certain you will be familiar with them. These were Grieve v. Macleod SL-F 1967, Reports 70, Earnshaw v. HMA 1982 SLT 179, McDougall v. Ho 1985 SCCR 199, McGregor v. Jessop 1988 Reports 712, McClory v. Owen-Thomas 1990 SLT 323, Murray v. O’Brien 1994 SLT 1051 and Moss v. Howdell 1997 SLT 782. He also referred to Hume. In the course of going through these authorities he commented on the standard of proof necessary for such a defence and the nature of any offensive weapon used, the question of reasonable excuse and any counter attack by the Crown on such a defence. He continued by looking at the observations of Hume in the following pages to the end of paragraph A on 75 and related what Hume was saying to the facts in the present case and the evidence given by Miss Johnson. The argument was further elaborated at page 75 onwards. Again he compared what he was saying with the facts of the present case.
The following day, Wednesday 20 October, after certain preliminary matters had been dealt with, Mr Mayer turned to one of a number of documents in Defence Production No. 4, all cases from the United States of America upholding the illegality of Nuclear Weapons, namely the Santa Clara Law Review, Volume 26, Spring 1986 No. 2. I had previously told him that I had read through the document fairly carefully the previous evening knowing that he would be referring to it, and for that reason it would not be necessary for him to go through it in meticulous detail, case by case as I suspected he intended to do. So he confined his remarks to what he considered to be the salient features of the Review and his submissions commence at page 91 of the transcript, paragraph B.
His first point related to the question of civil disobedience and civil intervention and the distinction between the two which he regarded as critical. The distinction between the two was outlined by him at paragraph E on page 91. On page 92, paragraph D he refers to the question of “objective reasonableness” as it related to actions taken by citizens when they sincerely believed it was necessary to intervene where those who make the law or uphold the law are in the wrong. He pointed to a line of authority which has developed over the years in the USA so far as international law as it pertains to nuclear weapons was concerned. In particular he referred to the line taken by certain judges in the USA when addressing juries and his submissions on that point are to be found at page 93 of the transcript. At page 94 of the transcript he referred to the approach now being taken in the American courts so far as the defence of necessity was concerned. He pointed out that in America reasonableness is an essential concept in the necessity principle and in particular I would direct your Lordships to page 95 of the transcript, paragraphs C to F where he drew a distinction between persons like the three accused ladies and others who simply tagged along at their back. He said “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 the summary authorities, it would not clearly have the whole objective background nor the level of understanding which is being demonstrated by each accused here”. In that connection he drew the court’s attention to the evidence given by Judge Ulf Panzer. Perhaps I could also draw the your Lordships attention to paragraph D on page 93 of the transcript where Mr Mayer quoted Albert Einstein who said that the nuclear age requires a new way of thinking, and in Mr Mayer’s submission that would apply to a system of jurisprudence as much as it would to political science or any other discipline”.
Mr Mayer then turned to the distinction between acting wilfully and acting maliciously. He rightly pointed out that the indictment used the conjunctive between wilfully and maliciously and the Crown required to prove both elements.
It was conceded that from the outset the accused had acted wilfully upon Maytime upon the date in the indictment, but it would seem clear that the second panel for whom he acted, Ms Roder, and although she did not say it herself, Ms Zelter, had not acted maliciously. He did not mention Ms Moxley who of course would be represented by his colleague, Mr McLaughlin. He pointed out that there was certain emphasis and detail about acting safely in the preservation of life jackets and so on. On page 97, paragraph A onwards Mr Mayer gave a detailed analysis of the law of Scotland and England concerning the particular crime for which the accused had been charged. He referred to the English Criminal Law Act of 1967 and Professor Williams’ commentary in his “magnum opus” on “English Criminal Law”, Second Edition, in particular in chapter 22.6 where Professor Williams discusses Section 3 of the Act which provides that 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. He went through the commentary in some detail pointing out that in his opinion Professor Williams was following along exactly the same lines as was happening in America. He conceded that Professor Williams had not considered the question of nuclear weapons and the new way of thinking which Mr Mayer urged me such a question demanded. In Mr Mayer’s opinion, however, it appeared that the law of England certainly in statutory form had a similar provision to the common law of Scotland, namely that it was permissible to commit a minor crime if one was engaged in either a great moral act of saving life or great damage to property or preventing a greater crime from happening, On page 100, chapter C of the transcript he turned to the law of Scotland as outlined in Sheriff Gordon’s “Criminal Law”, Second Edition and to the opening words in chapter 7, page 213 where the author reminded us that the basic principle of the common law and criminal matters was actus non tacit reum, nisi mens sit rea. He then referred to the classic discussion on the nature of mens rea. I would refer your Lordships to page 101, paragraphs A and B of the transcript. Mr Mayer then drew the court’s attention to the mens rea of malicious mischief which was the original charge in the present case, and in particular paragraphs 22.03 to 22.12.
Mr Mayer then turned to the question of onus during the trial on the Crown to prove beyond reasonable doubt that the accused had both mens rea and committed the actus rea, the wrongful act. He advised me that Mr McLaughlin would be addressing me in due course on the distinction to be made between statutory vandalism and malicious mischief. For his part he submitted that it was impossible for an accused in the Scottish Criminal Court to be seen by the court as both being in the right as it were, having res causa and also at the same time on the same issue, that is the same charges, in the wrong. He went on to say that it was for the Crown throughout the trial to rebut successfully the defence raised by the accused. It was “not enough to raise a few questions to make an attempt, allude to the matter, the Crown must successfully, in the eyes of the judge rebut that right or understanding” of the accused. He elaborated the argument at page 103 of the transcript from paragraph C through to page 104, at paragraph C.
He ended his submission by asking me formally to acquit the accused and not allow the jury to consider the matter and I would refer you to paragraphs C to F on page 104 of the transcript.
Before commencing his submissions Mr McLaughlin advised me that he associated himself with the comments made by Mr Mayer and in particular the conclusion to his submissions, namely that I should to come to the view that in this case a right and/or reasonable excuse had been placed before the court and accordingly an onus fell on the Crown to rebut that. He submitted that the Crown had failed to do so, and accordingly the matter ought not to be allowed to go any further. His submissions commence at page 105 of the transcript.
His first submission was that the present case, because of the indictment, started and finished with the question of malice and for the sake of brevity he referred to the authorities already quoted by both Ms Zelter and Mr Mayer. He submitted that in the present case there was no malice.
He turned first of all to Gordon on “Criminal Law” because he fully appreciated that your Lordships had already recently ruled in the case of Helen John in which case there was no ruling that there was a reasonable excuse and there was no ruling either that there was an international law defence. In his opinion that case could be distinguished from the present. There were defences in the present case and they had been made out. At page 106 of the transcript from paragraph C on, he addressed me on the question of mens rea which he submitted could be defined as “a legally reprehensible state of mind”, but pointed out that the test of the reprehensibility was essentially a moral one so that the interpretation of mens rea was a moral judgment as well. He referred to section 7.31 which Mr Mayer had already referred to, the definition of the word “spiteful” in the context of damage to property and also to the definition given to it by Hume. In his submission he felt that Sheriff Gordon had not dealt with a situation as in the present trial where the accused were trying to stop a crime being committed rather than to vindicate property rights. In connection with the onus on the Crown Mr McLaughlin referred to McDougall v. Ho 1985 SCCR 119 and in particular he stressed that the point in that case was that the appeal court had said that they were not satisfied that the justices had 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. He pointed out that Sheriff Gordon in his commentary to that case had raised 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. Mr McLaughlin submitted that the answer had to be yes. His detailed submission which looked not only at McDougall v. Ho but Black v. Allen 1985 SCCR, page 11 is to be found from page 108, paragraph A of the transcript to page 112 and the end of paragraph C. In particular my Lords I would address you to what is said by Mr McLaughlin at page 110 at C through to page 112. I particularly mention paragraph C and D at page 110 because this deals with one of the points raised by the Crown in their request for a review as it relates to evidence given by the experts in the present case. He pointed out that it was his understanding that there was an onus on the Crown to rebut a situation where a reasonable excuse or an international law of right arose, and that in every case in England there would be at least one Crown expert for that purpose, sometimes more, because they knew that the defence would be adopting that particular line of defence. In the present case he pointed out that the Crown did know that the line of the international law defence was going to be adopted. They could see that from the list of witnesses, the list of productions and furthermore early on in the case by the defence not disputing any or many of the facts that were at issue. The defence had explained the position prior to the trial starting so that the Crown had notice of what was going to happen and the line of defence. While he conceded that in solemn procedure the position might not be as clear as it seemed to be at summary level his submission was that there was really no distinction at all between the two types of case – the onus shifted to the Crown. He pointed to the fact that the accused might be prejudiced because of the level of the damage caused which had taken it from summary level to indictment. It was his view further that the accused in the present trial had for the very first time presented a comprehensive defence case with eminent experts and the like which had not been done in the Helen John case. Having heard the expert evidence in the present case it was for me to make a decision on that point and not the jury.
He then moved to the international law defence because as he said if I were to be taking the case away from the jury I had to be satisfied that there was enough evidence in law for the defence to be set up. His argument on this commences at page 112 of the transcript at paragraph D. At this point as it appeared to me that the Procurator Fiscal was somewhat taken aback or at the very least uneasy and as the particular motion had not been made by Ms Zelter I thought it prudent to find out firstly whether Ms Zelter allied herself with the motion, which she confirmed, and secondly to ascertain whether the Procurator Fiscal would wish to consider his position further which he confirmed he would particularly as a number of other points had been raised during the course of the previous four or five hours of submissions. An adjournment was granted and thereafter the Procurator Fiscal addressed me.
The Procurator Fiscal – Mr Webster
His submission on the motion of Mr Mayer and Mr McLaughlin to remove the case from the jury and to acquit the accused commences on page 117, paragraph C of the transcript. His starting point as with Mr McLaughlin, was Gordon “Criminal Law”, chapter 22, page 660 under the heading “the mens rea of malicious mischief’. He referred me to the paragraph under the heading “spite” and read out the relevant paragraph. He referred to the case of Reid and in particular that Sheriff Gordon in his book had stated that “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” citing Clerk v. Sime 1957 JC1. It was the Procurator Fiscal’s view from what Sheriff Gordon had said that it was “nonincumbent on the Crown to establish maliciousness in the sense of spite”.
Turning to the defence of international law, he took issue with any suggestion that a defence under international law had been made out in terms of the Advisory Opinion on the International Court of Justice 1996. The Crown submitted that if that was the defence position there was a requirement on the defence to establish that international law applied to the Scottish Courts and that took us to a different position because one of the cases quoted had been Mortonsen v. Peters which related to tracing rolling fishing nets. 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. In his submission the case could be distinguished. Apart from–anything else it was in effect the reverse side of the coin with the Crown not being allowed to apply Scots law outwith territorial waters as opposed to saying that matters of international law are binding in the Scottish Courts. It was the Crown’s submission that matters of international law either required to be adopted in terms of statute or to have judicial authority that it applied in this country. He elaborated further in detail on this argument and his argument in that respect is to be found at page 121 through to page 122. In other words any laws made internationally had to be specifically introduced by statute into British Law to give effect to them. Proceeding further with the same argument he referred to the Pinochet case to which reference had been made in evidence which would seem to indicate that the majority of the Court could not in that case extradite the General for offences committed before 24 September 1998 because there was no UK statute giving effect thereto. In short, he submitted that as he understood it the point made by Mr McLaughlin related only to international law and not the defence in Scots Law of necessity. He submitted that the Court would require to be satisfied that an international law defence not only had been made out but applied to the accused committing offences in Scotland and in particular on the day in question and in particular the offences on the indictment. (Page 124, paragraph C and D). In any event he submitted that the Crown had proven that the damage in the case occurred willfuly and he did not require in terms of law to prove that it was carried out spitefully. It was open to the jury as a matter of inference from all the facts and circumstances to infer that this was malicious damage and it was also open to the jury on the one hand to reject any or all of the part of the Crown case or to reject all or any part of the defence case and he was conceding not a single point. In any event even if I did agree to the submission made by the defence I would note that one of the charges was libelled in the alternative and as he noted it there was no dispute that the three accused had not only deposited the items in the Loch, the actus reas but their intention was to make them irretrievable or unusable and that in his submission amounted to theft for which the Crown did not need to prove mala.
Later when I asked Ms Zelter if she wished to comment on anything which had been said earlier, she said that she would leave most of the submissions to the advocates but what she really wanted to say was that the whole point of customary international law is that it bound every single country and although it was good to have the Genocide Act and the Geneva Conventions Act, having been incorporated directly into British Law, that did not mean that the whole body of international, customary, humanitarian law was not applicable here in the Scottish Courts. She saw that point of being of huge importance in the present situation. (Page 128 of the transcript, paragraphs A and B).
Thereafter Mr Mayer replied to the point made by the Procurator Fiscal that the international law relied on by the co-accused had not been incorporated into UK law. He explained that that in his opinion did not matter. The purpose of the Genocide Act and the Geneva Conventions Act was to give teeth and force to the authorities in the United Kingdom to deal in the ways described by the conventions with those who transgressed with gross breaches of the conventions. He again referred me to what Lord Murray had previously said, namely that insofar as they consisted of international customary law, they were part of the domestic law of the country. The ratification in particular of Protocol 1 in December 1997 gave the force of law of this country via the nature of international customary law to that Protocol. That Protocol outlawed preparation and planning so the fact that there was no United Kingdom ratification of Geneva Protocol 1 was neither here not there – it was still the law. He conceded that it may be that a gross violation of that law would require to be dealt with outwith a United Kingdom court but that was a mere technicality by comparison with the substantive nature of the law.
Turning to the Procurator Fiscal’s point concerning mala and there being no requirement to prove it, his response was why was the word “malicious” in the indictment. The Crown was maintaining that the word was redundant. It was his position and that of the defence generally that it was not redundant. He elaborated on this argument further and in particular the formulation of the indictments and the use of the word “and” instead of “or”. He did, however, concede that the alternative of charge 4 was in a different position but he did not go back on his submission concerning the wiliful and malicious damage.
In his reply Mr McLaughlin picked up on the Procurator Fiscal’s argument that it was not necessary for the Crown to establish mala in the context of wilful and malicious damage. It was his submission that that aspect to the phrase was critical for it to amount to a crime, because without malice in the particular circumstances there was no crime in Scots law.
He also pointed out that the Procurator Fiscal had not proceeded after his and his colleague’s submissions to draw a distinction between summary and solemn procedure, so he took it from that that there was no dispute that the onus shifted to the Crown in solemn cases just as it shifted to the Crown in summary cases.
He again reminded me of the point made earlier that when looking at chapter 22 of Gordon on “Criminal Law” I should bear in mind that his submission when considering Clerk v. Sime was that the case dealt with malicious mischief in relation to vindication of property rights rather than actings carried out to prevent a crime.
Turning then to what the Crown had said the defence relied on and the question of international law, he referred to the evidence of Professor Boyle, Professor Rogers, and Rebecca Johnson giving a view on that, although he conceded that the latter two witnesses related to strategic matters and not solely to international law. Professor Boyle was the witness they relied on for that but in his submission the only way that the Crown could rebut Professor Boyle was 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 is 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”. The Crown had produced no experts to contradict what Professor Boyle had said in that respect. It was his submission that it would be very unsatisfactory for matters of international law to go to the jury them to decide. I had not had in the present case the opportunity of hearing the evidence for the Crown from commensurate and qualifying eminent professors so that I could decide what international law was as it related to Trident II. I only had one expert; it was for me to decide, not the jury.
Turning to the point made by the Procurator Fiscal that it was for the defence to establish that the international law applied to Scottish Courts, he pointed out that there was no expert led by the Crown who said that it didn’t and he “would pray in aid… that it does by firstly looking at the case that we are attempting to distinguish, 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”. Further he would adopt the submission made by Ms Zelter that it was clear that customary international law was binding in the United Kingdom without having to adopt it by statute or by judicial authority. He elaborated on this commencing on page 135 of the transcript at F through to the foot of page 138. He referred again to the article by Lord Murray and also to the fact that there had been produced in evidence a document where the Ministry of Defence had said that what they were doing was not contrary to international Law and particular regard was given to the terms of the Opinion of the International Court of Justice. It seemed very clear that the defence establishment were aware of the Opinion. He conceded that not all Opinions were binding but Lord Murray made a fair inference that power to deliver them was not conferred in the first instance with the intention of them being ignored. He said that at the very least that the Opinion is authoritative because it embodies the collective view on a point of law in relation to the question posed of the highest judicial organ of international law”.
It was Mr McLaughlin’s submission that what was being dealt with in this case was customary international law “Nuremberg et al, its difference from the EEC, HR; its customary international law. Professor Boyle said it is all around and if the Crown was in any way going to dispute that then they ought to have called an expert. That… is what happens in England I am led to believe. So my learned friend criticises the defence… when he says that we fail to establish that it applies to Scottish Courts….. in my submission it is clear it does and Lord Coulsfield obviously had cognisance of it…. the point is that it was considered by the appeal court before they reached their decision, but for Helen John…”
Even if the international law defence was in doubt – and that was not conceded for one minute – there was still the reasonable excuse defence. The interpretation of the law could not be left to the jury. Either there was an international law defence or there wasn’t and either there was a reasonable excuse defence or there wasn’t. It was not for the jury to decide on those points, and in answering those questions he went back to the first line of his submission, namely the onus was on the Crown by use of experts or other means to rebut the defence. In effect his motion was that he was asking the court to rule on the law, the court’s domain, and having ruled on the law to then ask the Crown if I ruled in the defence’s favour, why they had not brought their own experts along to rebut the onus.
Turning to the alternative charge his submission was that the whole indictment should be “knocked out” and that included the theft charge. At page 141, paragraph B onwards he gave an example, perhaps as he conceded not a particularly good one of a person with a knife. Would it be theft if a man disarmed a person of a knife and then took the knife and ran away with it to prevent the crime. Would the person who took the knife be guilty of theft?
At this point I sought an adjournment to consider very carefully the argument which had been put before me. What I said thereafter commences at page 143B of the transcript, and I do not see any point in quoting that here. All that I said was outwith the presence of the jury. Your Lordships will be aware that I upheld the three defence submissions to the extent that they related to charges of malicious and wilful damage.
So far as the alternative in charge 4 was concerned – theft – I asked the Procurator Fiscal to address me further if necessary in the light of my decision and to let me know in the light of Mr McLaughlin’s remarks whether he wished to proceed in respect of that second alternative. The Procurator Fiscal asked for time to consider his position and given the hour of the day I agreed that matters would be left until the following day. Before I adjourned for the day, and being aware that there were many people in the public gallery at this point, although no press that I was aware of, I issued a warning which is contained at page 153 of the transcript, paragraph C, D, E and A on page 154.
The following day the Procurator Fiscal indicated his intention still to proceed with the second alternative in charge 4. Mr McLaughlin addressed me further on this particular matter quite rightly, that if we proceeded before the jury with the second alternative of charge 4 there would be an illogicality. He sought to address me further which I allowed. He reminded me of the analogy of the person with the shotgun, and as the Procurator Fiscal had not addressed me on this particular point I asked him to do so which he did commencing on page 161 of the transcript, paragraph C through to page 162 the following day, Thursday 21 October. His submission is to be found at page 165 through to the end of paragraph A on page 168.
Mr McLaughlin’s reply commences at page 169, paragraph A through to page 171 to the end of paragraph B. His submissions were adopted by Mr Mayer and Ms Zelter. The Procurator Fiscal made no reply and my decision upholding the submissions made by Mr McLaughlin, Mr Mayer and Ms Zelter is to be found at page 172 of the transcript, paragraph B to page 173. The jury were instructed to acquit in respect of all the remaining charges before them which they did. On this particular day I was aware that the press were in attendance in force. I issued a warning about similar actions being carried out in the future, but not in such great detail as the previous day. Nor, perhaps unfortunately, did I repeat in detail to the jury and the public the reasoning behind my decision as I had the previous day. With hindsight perhaps I should have.
My Lords, I did not reach this decision lightly. In the days immediately preceding the conclusion of the trial, and indeed on many occasions since, I have given the matter great thought, and have suffered considerable anxiety knowing the implications of my decision, not least concerning the publicity which surrounded it immediately after the trial. I was well aware of your Lordships’ decision in the Helen John case, and had read many times the relevant chapters and paragraphs in Sheriff Gordon’s “Criminal Law”, I had also read through all the cases cited to me and considered carefully the evidence given by the experts and the productions produced by the defence. I have to say that I was very sympathetic to the Crown’s position and I was torn by the conflict raised, on the one hand by the defence concerning the absence of mens rea in the wilful and malicious damage charges with the knock-on effect on the second alternative in charge 4, and the message that will be perceived by the Ministry of Defence and DERA who had sustained considerable loss as a result of the accuseds’ actions and who would appear to be escaping the consequences in law of their actions. I was also aware of the message that might be perceived by the accuseds’ many followers, many of whom would not have given such great thought to the matter and which might lead to other actions. There was a risk that these followers would not appreciate that I was not so much saying that the use and deployment of Trident weapons was illegal but that I felt that I had no option but to say so in the absence of any contrary evidence being led by the Crown. The last thing I wanted to do was to open flood gates and allow peace protesters to do what they wished, on the basis that I had acquitted the three accused before me. Equally, although I have mentioned the Ministry of Defence and DERA I was aware that there would be many members of the public who would not be able to understand how three peace protesters could cause so much damage and get away with things in their view, not appreciating that these three women for their beliefs had already spent many months in prison, and that therefore even if the matter had gone before a jury and they had been convicted, it might have been very difficult to sentence them. They would also almost certainly in many cases fail to understand the legal technicalities of my decision, especially if there livelihood depended on this particular aspect of defence policy. However, I did feel that there was considerable force in the defence arguments. In the particular circumstances of this case it seemed to me that in addition to the “non-legal” experts it was absolutely necessary for expert evidence to be led from an expert in international law, and whether or not it has ever been done in Scotland before seemed not to matter if I considered it essential. It did not seem appropriate that counsel, not necessarily skilled in international law should address me on such a vital part of the defence. I agreed with counsel that the Procurator Fiscal must have been aware of the nature of the defence, and it would not have been difficult for the Crown office to bring in counter experts. If nothing else that became very obvious from the number of so called experts and some real experts who took conflicting views in all the furore after the trial.
So far as mens rea was concerned it seemed to me that in the particular circumstances of this case the question of mens rea was very important and the cases and authorities cited were not of great assistance. It was quite clear from the unchallenged evidence that the three accused had been very particular in making sure that only those items which they considered to be closely connected with research on the sonar aspects of Trident were destroyed or damaged. The computers were intimately connected with the research work, the cranes were used for hauling submarines or model submarines from the water and the plant and equipment within the cage on the laboratory was intimately connected with the sister barge Newt. Maytime had been left spotless, the only items left by the three accused being documents and tools linking them with what had happened. I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime. That honest belief in itself was based on informed opinion, given directly to them, and more particularly their actions were carried out at a time when all three considered that they and everyone else was in imminent danger from nuclear weapons. If one looked at the question of necessity of what they did, all three, perhaps with the exception of Ms Moxley had gone to enormous lengths to try and bring about disarmament of nuclear weapons in other ways but without success. Ms Moxley was in a slightly different position in that on religious grounds, never mind anything else, she firmly believed that what she was doing was correct. She would not be the first person in history to commit what was perceived to be a crime to draw attention to the wrongful actings of others and bring about change. 1n looking at what further efforts could have been made by these three ladies there seemed to be nothing else. Suggestions put to them by the Procurator Fiscal were just that. No Crown witness spoke to the feasibility or likelihood of success of any such suggestion, and as with the suggestion that Ms Zelter should stand for Parliament, all such suggestions had been tried by one or all three accused. No questions were put to them and no evidence adduced by the Crown to show that it was not necessary to throw the computer, keyboards and terminals into the sea. Anything else they could have done must have been, would have been pure speculation, and if it had gone to the jury I would have had to warn them that they could not speculate about what else could have been done. As far as the international situation was concerned at the time the damage was committed, there was no contrary evidence concerning that, and indeed perhaps it was a matter of judicial knowledge that at that particular time in June 1999 there was great anxiety on the international scene, and indeed still is. Nor was there any evidence led by the Crown to show that there had not been serious accidents involving nuclear weapons, some quite recently. Nor was any contrary evidence led in rebuttal of Rebecca Johnson’s evidence concerning international tensions and the view held by other countries of Britain’s and other nuclear nations’ standpoint in relation to nuclear weapons. Nor was any evidence led by the Crown to explain the necessity of having Trident submarines appear in areas where they would not normally be but close to “trouble spots” at times of international anxiety and tension, which appearance was regarded by other nations as a threat. Nor was any evidence led to show that remarks attributed to various statesmen concerning the first strike policy and retaliation were incorrect. Not even any explanation had been given to the accused by the government. Quite simply, I was not prepared to wash my hands of the defence. I considered that their defence had been well made out, remained uncontradicted and unchallenged, and that further there was no mens rea. I did not regard the examples given to me latterly by Mr McLaughlin as simplistic, I also had in mind that if one believes the police when giving evidence in trials involving knives and weapons one of the most common excuses given by an accused – not accepted by the court is – “I only had it for my protection”. Even if the knife is carried for protection that it not considered a good reason even if there was some understandable reason for the person having the knife which ‘might’ go to mitigation. Likewise while appreciating that the Opinion of the International Court of Justice is simply an Opinion and only therefore advisory, I noted that that Court did hold that the protection of a country’s vital interest such as oil would not justify the use of nuclear weapons, and as in cases of self defence where ordinary weapons are concerned the court took the view that only in cases where the very survival of a nation or state was at risk ‘might’ nuclear weapons be justified. In considering the defence of necessity I was aware of all the cases referred to and further was aware of Dawson v. Dickson 1999 SCCR 698 where the defence of necessity was considered in detail by your Lordships. There seemed to be no evidence led by the Crown to indicate that on 8 June 1999 the acts committed by the three accused were committed without the coersion or duress felt by them dominating their minds. The three ladies had presented a defence showing that on 8 June 1999 they faced a conscious dilemma and in their view they had had to decide between breaking the law on one hand and saving life or avoiding serious bodily harm on the other. That view was held after full consideration of all options open to them, having in fact performed all other preventative measures they could think of and having obtained advice and opinion from many authoritative sources. I am very aware that my reasoning may be wrong, that even in the peculiar circumstances of this case mala or spite may not be necessary in a charge of wilful and malicious damage that I may therefore have made a wrong decision, but I made the decision in the full knowledge that even if I am wrong there would almost certainly be a request for a Review from yourselves who, as in the Helen John case, would look at all the facts, all the evidence, including the Opinion of the International Court of Justice and the Treaties, Protocols, and Acts relating to the matter. Although I am anxious I welcome this review and your decision on the points raised in the petition by the Lord Advocate. This is of course what I suspect the three accused and their followers also really want. You have already ruled on the question of possession of nuclear weapons and reasonable excuse in summary trials brought under statute. But the question of what is meant by threat and use and deployment has not been considered, nor has the question of mens rea been considered in such circumstances. Given the growing anxiety amongst members of the public concerning nuclear weapons in general, and particularly in Scotland and given the troubled times internationally it is perhaps right and proper that all the matters raised by this trial and those outlined in the petition should be considered. It is clear that these three ladies are not the last of the peace protesters, and they and their many followers, from all walks of life need your decision on the legal points raised and your opinion on threat and deployment of nuclear weapons and what constitutes such, possession having already been considered in the Helen John case.
Humbly reported by
17th August 2000