LORD ADVOCATES REFERENCE
HIGH COURT OF JUSTICIARY
Unto the Right Honourable
The Lord Justice-General, The Lord Justice-Clerk and
Lords Commissioner of Justiciary
THE RIGHT HONORABLE, THE LORD HARDIE
Her Majesty’s Advocate
In terms of
Section 123 of the Criminal Procedure (Scotland) Act 1995
That the material facts which give rise to this reference are as follows:-
Three persons (hereinafter referred to as “the panels”) were indicted for trial in the Sheriff Court at Greenock on an indictment containing 4 charges, a copy of the indictment is annexed hereto. Evidence was led by the Crown in support of said charges and no submission was made that there was no case to answer.
The evidence established, inter alia, that the acts alleged against the pannels had been motivated by and carried out in futherance of their opposition to nuclear weapons and in particular the Trident weapons system.
On behalf of the pannels there was tendered the evidence of Professor Francis A Boyle, Professor Paul Rodgers and Ms Rebecca Johnston, all of whom were held out as experts on aspects of the development and current content of international law in relation to nuclear weapons. The Procurator Fiscal objected to the admissibility of the evidence which it was sought to lead from said witnesses, inter alia on the ground that it is incompetent to lead evidence as to a question of law. The Sheriff repelled said objections and allowed the evidence to be led. The evidence given by said witnesses referred inter alia to the Advisory Opinion of the International Court of Justice of 8 July 1996 on the legality of the threat or use of nuclear weapons.
At the conclusion of the defence case it was submitted on behalf of the pannels that the Sheriff should direct the jury to acquit the pannels. As understood and summarised by the Sheriff, that submission was as follows: “the three accused considered that Trident was being used illegally based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal… they had a right particularly given the enormity or the risks of nuclear weapons to try and do something to stop that illegality”. It was also submitted on behalf of the pannels that esto Trident was not being illegally used, the pannels were nevertheless under the necessity of trying to do something to stop the United Kingdom from continuing to implement its policies in relation to nuclear weapons.
The Sheriff, on the basis of said submissions held that the accused had acted without the criminal intent required for the constitution of the crime of malicious mischief and directed the jury to acquit the pannels of the charges of malicious mischief.
The petitioner according refers the following questions of law to your Lordships for opinion:-
In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?
Does any rule of customary international law justify a private individual in Scotland in damaging or destroying in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?
Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?
Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?
May it therefore please your Lordships to order service of the foregoing petition upon the persons designed in the schedule appended hereto and thereafter to fix a date for the hearing of the reference herein and to order intimation of said date to said persons; and upon consideration of these presents to answer the questions of law submitted for the opinions of your Lordships in the premises as to your Lordships shall seem proper.
ACCORDING TO JUSTICE ADVOCATE DEPUTE