LORD ADVOCATE’S REFERENCE
P E T I T I O N O F
THE RIGHT HONOURABLE LORD HARDIE
HER MAJESTY’S ADVOCATE
in terms of
Section 123 of the Criminal Procedure
(Scotland) Act 1995
MONDAY, 9th OCTOBER, 2000 MR. DI ROLLO: My Lord, the situation in relation to this case is the three Accused were indicted for trial at Greenock Sheriff Court, there were four charges in the Indictment originally, Charge 1 a charge of malicious mischief, Charge 2 attempted theft, Charge 3 was a charge of malicious damage and Charge 4 was a charge of malicious damage or in the alternative, theft. Now the case proceeded before Sheriff and Jury at Greenock and the second charge was withdrawn by the Crown after the end of the Crown case and then there was Defence evidence.
LORD PROSSER: I haven’t quite discovered when that was, was it at the conclusion of the Crown case or was it…
MR. DI ROLLO: I am told, that isn’t correct. My understanding it was certainly withdrawn by the Crown some time after the end of the Crown case.
LORD PROSSER: The matter was dropped.
MR. DI ROLLO: And the situation was that the Reference then obviously deals with Charges 1, 3 and 4. I would invite the Court to forget about the alternative in Charge 4 in the sense we are dealing with charges of malicious damage and for the sake of simplicity, not to address the Reference to the alternative.
LORD PROSSER: Does that mean the question of theft is to assist in any direct sense, as far as the Crown is concerned.
MR. DI ROLLO: There will be reference to Denner which is a theft case.
LORD PROSSER: But you are not seeking to answer that.
MR. DI ROLLO: Not particularly, just to look at it from the point of view of malicious damage. My motion is of course to answer questions posed in the negative my Lord.
The first thing I would like to do is identify what it was the Court was asked to do at Greenock at the end of the Defence case, and before speeches. In my submission it is important that this Court is aware of what stage the case had reached, because in order to answer the questions it is of importance to determine precisely where the trial had got to. So at this stage my Lord I just simply want to identify to the Court what it was the Sheriff was asked to do.
LORD PROSSER: Can I interrupt, something I perhaps should have said before in light of what I said. If there would be a point as the Crown make their submission at which one as it were runs into a particular point which was a matter of objection and the like, I don’t think we expect intervention each time it comes up, it will be taken there is a standing objection as it were on the basis of what has already been submitted on matters waiting to be resolved. So really if Counsel feel there is something which has come out of the blue different to what was discussed, by all means.
MR. DI ROLLO: The situation, as far as my understanding, the trial proceeded between the 26th of September to the 20th of October 1999. The Sheriff directed the Jury to acquit each of the three Accused. How that situation came about appears to be at the end of the Defence case and before the speeches the Sheriff was invited to acquit the Accused. The Crown case had been presented and had concluded and there had been no submission of no case to answer, and at the end of the Defence evidence, it can be seen from the transcript of the closing stages of the trial at Page 104D to 105D and 112B to C and 113B, that the Sheriff was invited by Counsel for the Second and Third-named Panels to acquit all three Accused, and the First-named Panel who was representing herself associated herself with that, and that is at 114A to B. The Crown’s response to that was to oppose that motion I would submit, and indicated their view of the matter was it was for the Jury to do that, and that is at 125C to D.
LORD PROSSER: Yes but the Crown surprisingly did not oppose it on the basis that was not the proper way to deal with it, the Crown did not say, “If you as Sheriff think there is no case to answer then you shouldn’t do anything at all, this is just at this stage, you should wait until you have heard submission to the Jury, and then perhaps ask”, they did not take that line at all.
MR. DI ROLLO: The Crown did not say that to the Sheriff.
LORD PROSSER: No, I think you said that is what should have happened but it did not happen.
MR. DI ROLLO: Indeed, that’s correct. There was some discussion what should happen in the alternative to Charge 4, it was accepted at one stage by Counsel for the Second-named Panel the alternative would have to go to the Jury and the Sheriff appeared to agree with that, but then later on Counsel for the Third-named Panel said, the case should be, as he put it, “knocked out”, and that is Page 141B to C, and the Sheriff agreed with that.
LORD PROSSER: There is nothing wrong with this submission being made to the Sheriff.
MR. DI ROLLO: Indeed.
LORD PROSSER: There is nothing wrong with people at that stage suggesting there is no case.
MR. DI ROLLO: That is called an old-fashioned submission, that is what it is known as, there is nothing wrong with Counsel submitting, or asking the Court to specifically give directions. The Sheriff’s reasoning for her decision is contained at 147F to 152B, that is her articulated reasoning at the time, given at the trial I should say. She has obviously had a chance to reflect on matters and has made certain other remarks in her report, but what she said at 147F to 152B is in my submission what she has given as the reason for the decision that she made and I think it is worth simply going through that passage to try to identify what was going through her mind in reaching the decision that she did, and that is 147F to 152B. Parts of the transcript unfortunately haven’t necessarily been recorded, everything that was said, due to the tape recording.
LORD PROSSER: Yes, my impression, they are all gaps that one can see pretty much guess what was said.
MR. DI ROLLO: Yes, “When I say the President said ’I cannot emphasise that the inability of the Court to go further than the form of pronouncement at which it has arrived cannot in any way be interpreted as a half open door to recognition of the legality of the threat or use of nuclear armaments.’” which I think is a reference to the International Court of Justice. “I have also looked at the way the judges voted at the end in reaching their final enigmatic conclusion which was pointed to by Mr. Mayer and where it seems there was a majority of judges voting against the use of nuclear weapons. And again for the avoidance of doubt what I’m going to do is to quote, for the avoidance of doubt, I’m going to quote what Ronald King Murray said on Page 132 in the journal referred to by Mr. Mayer. And I think I would have to say that I found this article in the journal very helpful given the status of Ronald King Murray. What he said about the final opinion was, turning to the certain matters on which the judges were equally divided until the President’s casting vote, the Court’s decision was to the effect that the threat or use of nuclear weapons is unlawful under all circumstances except possibly one last resort, self-defence to avoid annihilation, to have a balanced view of the grounds on which the judges decided. It must be noted that three of the judges dissented, took an exactly opposite view to the other four dissenters. Four considered that nuclear threat or use was not unlawful as a general rule, the other three in contrast considered nuclear threat or use to be always unlawful. It follows that an absolute majority of the Court, 10 out of 14, a two-thirds majority, judged that threat or use of nuclear weapons is entirely illegal or generally illegal subject to one possible exception, that is a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.
Now, I have the invidious task of deciding on the question of international law here and it relates to nuclear weapons and I do so with great diffidence being only a fairly junior Sheriff without the wisdom and experience of those above me and in the knowledge that the repercussions could be far-reaching. But when I became a Sheriff I took an oath which demanded to acting without fear or favour in interpreting the law and as the point of international law has been raised here I have to answer it. I take comfort from the fact that I do so in the full knowledge that there are other higher courts who can rectify any mistake I may probably be making. So in the absence of anything other than the ICJ opinion which Court considered all the relative law referred to, referred to by Counsel and Miss Zelter, having regard to what was said in the article by Ronald King Murray, already referred to, and in particular that part relating to treaties and conventions which concludes with the words, ’These then are the principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that insofar as they consist of international customary law they are part of the domestic law of this country’, and having listened to the evidence of Professor Boyle and taken into account all the evidence relating to facts and circumstances relating to this case from him and others, particularly those called as experts and in the absence – and this is very important – in the absence of any expert contradictory evidence from the Crown, I have to conclude that the three accused ladies in front of me in company with many others were justified in thinking that there Britain in their use of Trident not simple possession, their use and deployment of Trident allied with that use and deployment at times of great international unrest, coupled with a first strike reservation policy and in the absence of any indication from any government official then or not, that such use fell into a very strict category suggested by the International Court of Justice in their opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other States and as such is an infringement of international customary law.
I think following on from that, although it was not touched on this morning, is the three Accused took the view that if it was illegal and given the horrendous nature of nuclear weapons, that they had an obligation in terms of international law, never mind morally, to do the little that they could to stop the going about the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the objection per se. It follows I think that if I consider that Miss Zelter, Miss Roder and Miss Moxley were justified in the first leg of their defence, namely the international law defence, and had given that as their principal reason for their actions, that the Crown has a duty to rebut that defence. They have not done so and accordingly I uphold the three Defence submissions to the extent that they relate to the charge of malicious and wilful damage.” And then further down the page she says, “Accordingly it now falls to me I believe formally to instruct the Jury that they should acquit all three Accused of those charges that relate to wilful and malicious damage.” and at Page…
There was then a discussion of what should happen to the alternative in Charge 4 and it was suggested it should not be treated in any different way. And then when the Jury returned she indicated to them at Page 174A to C, “I have decided that for legal reasons relating to the evidence in respect of the remaining charges these should not now go before you for consideration”, that is what she says at Page 174, A to B, “I therefore direct you to return a verdict of not guilty in respect of each of the Accused in respect of these remaining three charges, 1, 3, and for the avoidance of doubt, Charge 4 in its entirety.”
LORD PROSSER: If on behalf of accused persons the matter is raised, as this was at the end of the Defence case, and if the Sheriff is willing to tell them what her conclusion is on that, and if her conclusion is that acquittal is appropriate, does one really have to go… (several words indistinct)… knowing full well that the Sheriff is then going to say to the Jury, “I direct you to acquit”, which is what she did here, just as if she acquitted. I wonder if that matter, I wonder if we have to go through the speeches of the Crown and the Defence if in fact the decision has been taken and intimated, outwith the presence of the Jury. Why can’t she proceed directly to direct the Jury to acquit.
MR. DI ROLLO: My Lord, I say as a reason there, the law was set out in Kemp.
LORD PROSSER: It doesn’t seem to be of consequence if what happened is what was going to happen.
MR. DI ROLLO: If the Sheriff considers…
LORD PROSSER: She could have heard what was said to the Jury before giving a final form of direction. Anyway that is the kind of point you are covering.
MR. DI ROLLO: In any event that is what happened, she made a ruling and that is what she did.
My Lord, dealing with the reasoning aspect of it, in my submission it is critical to try and identify from that what perhaps arises from the reasoning which she has adopted. What she says is the Accused were justified in thinking that Britain’s use and development of Trident allied with that use and deployment at times of great international unrest, coupled with a first strike reservation policy and in the absence of any indication from any government official then or now that such use fell into a very strict category suggested by the ICJ in their opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other States and as such is an infringement of international customary law. The three Accused took the view that if it was illegal and given the horrendous nature of nuclear weapons that they had an obligation in terms of international law, never mind morally, to do the little they could to stop the going about the deployment and use of nuclear weapons in the situation which could be construed as a threat. Now that is why she says she has reached the decision which she has and she has relied up, she says, in the absence of anything other than the ICJ opinion, she is having regard to what was said by Ronald Murray in an article in a journal. She is, having listened to the evidence of Professor Boyle, taking into account all the evidence relating to facts and circumstances relating to the case from him and others, particularly those called as experts, and she is presumably there referring to Professor Boyle and the two other experts, Johnston and Professor Rogers, and your Lordships have those transcripts and they are important I think according to her in the absence of any expert contradictory evidence from the Crown.
LORD PROSSER: At Page 150, the bit you quoted going on to 151, “They were justified in thinking” is the words, “They were justified in thinking Britain in their use of Trident was not simple possession but use, deployment” and so forth, unrest could be construed. So the Accused are justified in thinking these things could be construed as a threat and as such an infringement of international customary law. But do we know whether the Sheriff herself was finding that these matters amounted to a threat, and moreover that threat was in fact an infringement – I don’t mean in fact, I mean was actually. She seems to leave it there, at the level of what the Accused could reasonably think, rather than saying it is her own conclusion as to the matter of law.
MR. DI ROLLO: Certainly in that passage.
LORD PROSSER: She goes further, I wonder actually is it useful to look at what was obviously a relatively short statement of her reasons, we do have the advantage of her full report. Is it important to look at what she said at the time.
MR. DI ROLLO: The report in my submission I don’t think is terribly helpful.
LORD PROSSER: Well maybe I better look at this then, as a matter of analysis is she holding that a, as a matter of fact it was a threat and b, that threat was contrary to the international law and as a consequence of our own law.
MR. DI ROLLO: In my submission she seems to be holding… simply dealing with the state of knowledge of the Accused and what they were justified in thinking.
LORD PROSSER: On that point.
MR. DI ROLLO: In my submission it is correct to say it is not easy to follow the reasoning of the learned Sheriff, and her report in my submission does not make the position any clearer.
It is plain the submissions that were made by professional colleagues in the case were perhaps confused, confusing, and have contained within them, and that has built up to this decision and a number of different notions which were all jumbled together and they when taken at face value, in my submission not surprisingly such submissions are taken at face value without looking at them in more detail and result in the very difficult to understand decision which was seen, the reasons are difficult to follow but in my submission…
LORD PROSSER: It wouldn’t be difficult to follow if she is saying, if she was understandably saying she thought it was a threat and the threat was contrary to international law, and consequentially it was contrary to Scots Law.
There is another chapter, whether one is justified to intervene to prevent that. Thus far it would be an understandable consequence of thinking.
MR. DI ROLLO: I am not trying to dismiss the notions that were being put forward, I am just trying to pick out the defences that were being canvassed to see if we can focus on them and analyse whether they are good or not. So picking out the possible defence I would submit what one has then is, in this case I would submit, the Defence suggesting that there was an absence of mens rea because the Accused believed that nuclear weapons were being used in a way which was contrary to customary international law. The question then is whether such a belief could be a defence, and I think Question 3 in the reference is directed towards that, and I take that first because that perhaps arises first in the Crown’s note of argument.
LORD PROSSER: You say that the Defence is formulated in that way because they believed it to be the case, well not because they believed it to be the case but because it was the case that maybe a different form of defence from mens rea, or do you think there is a mens rea point there?
MR. DI ROLLO: There is in my submission a mens rea in some of the remarks made.
LORD PROSSER: Don’t let me stop you. I wondered whether there was any more fundamental one, there was an absence of mens rea, but that may come.
MR. DI ROLLO: Certainly there is an issue about mens rea which has been raised by the Defence and one has to examine that aspect of the matter and be clear what the situation is in relation to that, that is the mens rea question if I can put it like that.
There is the mens rea question and there is then a question whether or not it was necessary to do the thing that they did. The way I formulated the issue if you like, it was necessary to do what they did to bring an end to the… sorry, the commission of the criminal act, whether under international law or not, the suggestion is by the Defence in this case I think that it was necessary to do whatever they did to prevent or bring to an end the commission of a criminal act, and that is Question 4 in the reference directed towards that.
But there also seems to be another, a third limb to the Defence that there was some, there is some rule of customary international law the effect of which was that the Accused were obliged, is the way the Sheriff put it, to do what they did, and such a rule of customary international law exculpates them from the criminal act in question in order to… it is necessary to lead evidence from the witness box to give content to the rule.
LORD PROSSER: Yes, because international law comes in really in two different ways, doesn’t it, it comes in in relation to what the Government were doing – does international law make that illegal?
But there is the other question, is there something in international law which tells us that citizens or people when faced with crime are entitled, or obliged to intervene to stop it, and there are quite different tracts of international law, you are really saying it is the second one at this point, whatever it says about weapons being criminal. Does international law tell people, oblige people to intervene to stop crime?
MR. DI ROLLO: This third limb is Question 1 and 2 in the reference. So just to be clear, we have the mens rea question then we have the necessity question and we have international law questions and what I would like to do, first of all dealing with the note of argument for the Crown in the order in which that is set out is to deal first of all with the mens rea question in relation to malicious damage, and the first proposition for the Crown…
LORD PROSSER: At some stage I wonder if someone can provide me with a better copy of the reference.
MR. DI ROLLO: The first proposition my Lord is that in a prosecution for malicious mischief, if the Crown establishes on the evidence that the Accused deliberately damages the property of another then apart from the defence of necessity the crime is complete. And in order to prove malicious mischief at common law what the Crown requires to do is first of all show property of another was damaged by the Accused and it is damaged by a deliberate reckless act.
Now it is my submission that as far as looking at the deliberate or reckless act it is enough that the Accused knew that what he did would cause damage. So in the case of Ward against Robertson in 1938 Justiciary Cases at 32, simply walking across a field of crops is enough, just the action of walking, if the person walking knows it is likely to damage the crops.
LORD PROSSER: We don’t need in this case, do we, to concern ourselves with whether recklessness is involved?
MR. DI ROLLO: No.
LORD PROSSER: Because it appears in this case it is not a question of having damaged recklessly.
MR. DI ROLLO: No.
LORD PROSSER: I think I say intention, although acts of intention have not always been deliberated upon, although in this case it was perhaps deliberate, but we don’t need to worry about recklessness, do we?
MR. DI ROLLO: Not for my part, nor do we need to address the issue of knowledge that property belonged to another person, we do not need to concern ourselves with that. It was appreciated the property did not belong to the persons who were damaging it and all that is important is…(indistinct)… it was an intentional act. Lord Justice Clerk in Ward against Robertson at Page 36, 1938 Justiciary Cases, Page 32 to Page 36, what is stated there is, “The question we have to consider is whether that is enough to justify a conviction of malicious mischief.” and this is simply walking across grass. “I confess I have not found the question free from difficulty, but the conclusion to which I have come is that this conviction cannot stand. It is not essential to the offence of malicious mischief that there should be a deliberate wicked intent to injure another in his property. I am prepared to take the case upon the footing, although it may involve some departure from the law as laid down by Hume, that it is enough if the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property or possessory rights of others. But the difficulty which arises in this case is in saying there was any fact from which the magistrate could draw an inference that the appellant acted with such indifference or disregard.
If this had been a case of a person crossing over an ordinary growing crop, I should have taken the view that the magistrate was entitled to infer, that the appellant must have had knowledge that what he was doing was something that was calculated to cause damage to the growing crop, and, if in fact damage resulted, and if the person accused was not there in virtue of any right or permission, then I think that would have been enough. The whole difficulty here is to say that the appellant had knowledge, or should have had knowledge, that by crossing this field he was doing, or even was likely to do, any damage to the permanent grass with which the field was laid down. Upon that ground and that very limited ground I am in favour of allowing this appeal. If the magistrate had found in fact that the appellant knew he was doing something likely to cause damage, or had even found in fact that the appellant knew that other people doing the same thing were causing damage to this field, as may very well have been the case, I should have been against allowing the appeal.
But, if the element of indifference is entirely absent, then it cannot be said that the appellant acted maliciously in what he did.” So it is my submission that all that needs to be shown in terms of malicious mischief is an intentional act to do the damage.
LORD PROSSER: So at that level the ordinary distinction that is drawn between one’s immediate purpose and one’s underlying motive and this is saying you are only concerned with immediat purpose… (indistinct)… you are not concerned at this stage with deciding whether there is mens rea, but of course that leads on to whether there is motive, if one can call it that because…
MR. DI ROLLO: There is obviously the defence of necessity.
LORD PROSSER: Yes, it is like a number of things in law which can justify…
LORD KIRKWOOD: And also from the passage you quoted, the second last sentence, you are not justified in re-defining malicious mischief so as to eliminate from it the element of malice or what in law may be the equivalent of malice.
MR. DI ROLLO: Precisely.
LORD KIRKWOOD: I think I have expressed the view previously in other cases, phrases such as “wilfully and maliciously” really are not frightfully helpful and raise the question whether there is disjunction of the two matters to be established and one may not be wise sticking to traditional formulations which are suggesting the two things, when they may in fact be one.
MR. DI ROLLO: I respectfully agree with that observation.
LORD KIRKWOOD: That may go with the expression “deployment and threat”. Anyway you say maliciously doesn’t really add anything to the wilful.
MR. DI ROLLO: My Lord, I also say it is not necessary to go beyond motive in this when you are looking at it at this stage.
LORD PROSSER: Beyond motive?
MR. DI ROLLO: Sorry, motivation is irrelevant in my submission, at this stage there is no need to show spite in my submission for example.
LORD PROSSER: I can’t remember, there is an example somewhere of someone who commits bigamy because he felt it was his duty to do so and he is basically saying, for mens rea normally that is not a point, it doesn’t matter – he thought he was under that compulsion, that was an extraneous compulsion, what he thought compelled him to commit a crime, but it is still a crime.
MR. DI ROLLO: Precisely.
LORD PROSSER: You say in relation to damage it is still that same ordinary mens rea.
MR. DI ROLLO: Correct, and then we come to whether or not a belief that there was an entitlement to cause the damage is now raised as an issue, is relevant in looking at the mens rea. And the leading Scottish authority on that is Clark against Syme, and this is 1957 Justiciary Cases Page 1 and that is Item C of the bundle.
LORD PROSSER: This is whether the belief is conducive with mens rea, or whether it may be a justification, notwithstanding the mens rea.
MR. DI ROLLO: Yes, Clark against Syme, Lord Justice General Lord Carmont, the situation of this case was that a farmer’s land was separated from adjoining hill grazing by a dilapidated boundary wall. Sheep from the grazings invaded the farmer’s land on innumerable occasions and caused damage there. On many occasions the farmer complained to his neighbour, but his complaints were ignored. It would have been practicable to have prevented the trespass of sheep at once by the erection of a wire fence, but neither the neighbour nor the farmer himself took steps to erect such a fence or to repair the mutual wall. The farmer finally gave his neighbour notice that, in view of the continued invasion of his property, he proposed after the expiry of three days to shoot any trespassing sheep. The invasion of sheep continued and after expiry of the notice the farmer shot and killed one. He was subsequently charged with shooting and killing the sheep. He was acquitted on the grounds that, as he had acted under a misconception of is legal rights and in an attempt to vindicate his own property, he had not acted maliciously. It was held that wilful disregard of the property rights of another was sufficient to make the deliberate destruction of his property an act of malicious mischief, and that the farmer should have been convicted.” Page 5, in the second paragraph, “I am quite unable to accept either of these grounds as justifying the Sheriff Substitute in finding the Respondent not guilty. A misconception of legal rights, however gross, will never justify the substitution of the law of the jungle for rules of civilised behaviour or even common sense.
The Sheriff Substitute indeed appears to have misunderstood the nature of the facts which require to be proved to establish the crime charged in this case. No question of a presumption of malice is involved in this crime at all. Malicious mischief either involves a deliberate and wicked intent to injure, or it may equally be established by proof of a wilful disregard or of indifference to the rights of others (see the opinion of Lord Justice Clerk Aitchison in the case of Ward v. Robertson). I accept this statement of the law as sound. If, as in the case of Ward v. Robertson it was not clear whether the appellant knew that by what he did he was doing or was likely to do damage, the Crown might fail; for the necessary wilfulness might not then be present. But in this case no such doubt could possibly arise.
The Respondent in this case acted deliberately. He knew what he was doing and he displayed in his actings a complete disregard of the rights of others. The mere fact that his criminal act was performed under a misconception of what legal remedies he might otherwise have had does not make it any the less criminal.
So far, therefore, as concerns the first of the two grounds for his conclusion set out by the Sheriff Substitute, it appears to me quite unfounded in law. As regards his second reason for finding the Respondent ’not guilty’ (namely that the Respondent’s desire to vindicate his own property for the future in the face of persistent provocation was excusable), I have found in the case no facts which would warrant any such conclusion. A desire to vindicate his own rights of property is all very well in its proper place, but when that involves the deliberate destruction of the property and the invasion of the rights of others, it ceases, in my view, to be excusable.”
LORD PROSSER: Excusable in that context, I’m not sure either in the submission or what was said, it must mean excusable at law in some way. Is that justification, notwithstanding…
MR. DI ROLLO: It seems to me it is going to some form of notional justification which again is not what I am trying to adduce at the moment obviously.
LORD PROSSER: No.
MR. DI ROLLO: To take it to the end, “We were referred to two other authorities on the question of malicious mischief. The first of these was Black v. Laing. But in that case, which was concerned with the destruction of a fence across an access to the appellant’s garden, the Court held that the conviction should be quashed upon the ground that the appellants on the whole were justified in removing the fence, since the only access to their garden was through the gap where that fence had been erected. This case affords no analogy nor assistance in the circumstances before us today.
The other case referred to was the case of Speid v. Whyte. It was concerned with the relatively trivial injury to part of the harness attached to a vehicle, and there again the Court held that the circumstances did not warrant the conviction. But the ground upon which that conclusion was reached was that here was not in that case, in view of the trivial nature of the injury done, that degree of recklessness and wilful destruction of property which is essential to the constitution of the crime of malicious mischief. The killing of the sheep in the present case affords just that link which was missing in Speid v. Whyte.”
Now he does not overrule the previous cases but in my submission the simple proposition is the mistaken belief there is an entitlement to cause damage is not a defence. Now it is a mistake of law, of course a mistake of law does not excuse in my submission.
There are cases my Lords, in relation to mistakes of law, and as far as for example that of honest belief that someone is divorced is a defence to a charge of bigamy, that is R. against Smith, 74 Queens Bench, 354, and I won’t specifically refer to that, it is not in the Crown bundle, but I refer to that. In my submission however that is not a situation which arises in this particular case and in any event a mistake, and there is no authority for the proposition in Scotland certainly that a mistake which has been found gives rise to… that would allow for the mens rea not to be established. My Lords, it may be asserted that that proposition I have just put forward is not correct and one thing that should be clear is that if a belief about entitlement does give rise to the destruction of the necessary mens rea then any such belief would have to be based, in my submission, on reasonable grounds. An honest belief is not enough if there is no reasonable grounds for that belief.
LORD KIRKWOOD: Is honest belief in rape cases.
MR. DI ROLLO: That is the exception, in my submission, honest belief in rape cases is the exception. In all other cases, specifically in Jamieson, 1994 SCCR 186 at Letter F.
LORD KIRKWOOD: This is not in the volume.
MR. DI ROLLO: In answer to Lord Kirkwood’s point it was thought it was… (indistinct)… an honest belief is enough to destroy mens rea. The passage which is of importance in this case my Lord, is 1994 SCCR 186 Letter F, “As the trial judge points out in his report, there is ample authority that a person who claims that he acted in self-defence because he believes that he was in imminent danger must have reasonable grounds for his belief. He suggests that Meek is inconsistent with this line of authority. As the Solicitor-General conceded that there was a misdirection in this case and that a direction on the lines indicated by Meek was appropriate here, we were not addressed to any extent on this point.
We wish to say, however, that we are not to be taken, from what we have said in this opinion, as casting any doubt on the soundness of the dicta in those cases. Nor are we to be taken as suggesting that in any other case, where a substantive defence is based on a belief which is mistaken, there need not be reasonable grounds for that belief.”
LORD PROSSER: Of course, you look at reasonableness, that is one way of deciding the evidence is reliable, but it doesn’t have to be reasonable as well as honest.
MR. DI ROLLO: In my submission it has to be reasonable, has to be based on reasonable grounds.
LORD PROSSER: In any real situation it is sufficient to be honest and in deciding if it is honest one makes up one’s mind whether it is reasonable.
MR. DI ROLLO: Yes indeed. What I am saying about that, obviously if your Lordships were to accept, or rather not to accept a mistaken belief… (indistinct)… inevitably destroy the mens rea, if that is not correct then your Lordships should still find it has to be based on reasonable grounds.
LORD PROSSER: You have no real basis for that, you say it does not rely on mens rea, if it did, according to your submission, how do you know what sort of belief the Court would regard as sufficient, given you say the Court did not regard it as sufficient it would be… (indistinct)…
MR. DI ROLLO: I suppose so, if belief can be used in this particular context it has to be, I say, on a reasonable ground.
LORD PROSSER: I know you say that, you say Courts have never really considered it, because actually belief does not come into it.
MR. DI ROLLO: I believe so, yes indeed. My Lord, that is all I wish to say in relation to the first proposition at this stage of my submission, which is the proposition in a prosecution for malicious mischief if the Crown establishes on the evidence the Accused deliberately damaged the property of another. Apart from the defence of necessity the crime is complete. So that is the mens rea question in my submission. I then turn to the necessity question, the next question which I wish to address, and the first proposition for the Crown is the defence of necessity is available in relation to a charge in my submission of malicious mischief.
LORD PROSSER: You have just raised that and obviously if there is a point where the Respondents want to concede some point that is being laboured then please feel free to say so, we don’t want to waste time with things, I don’t mean minor points, but if there is significant consensus on a point please feel free.
MR. DI ROLLO: I wasn’t aware I was labouring a point.
LORD PROSSER: No but you were touching upon a point that may be agreed.
MR. DI ROLLO: My Lord, the case about necessity is Moss against Howdle and if I can just refer to that it makes it plain that in general terms necessity is in principle a defence to any crime charged, and that is 1997 SCCR Page 219. And what was before the Court was a question whether or not, to what extent the Defence – and necessity has a number of different labels and I am using the label necessity to cover everything covered by duress, coercion, and at Page 219C to D the Lord Justice General says, “A convenient starting point is the crisp observation of Lord Justice Clerk Wheatley in Thomson v. H.M. Advocate that ’A defence of coercion is recognised in the law of Scotland.’ the equivalent defence in English law is generally referred to as duress. Some indication of the scope of the defence in Scots Law is to be found in Hume’s Commentaries, where the author goes through a range of cases in which arguments had been put forward that an accused person should be acquitted because he acted under compulsion of various kinds. One thing which emerges is that Scots Law, as known to Hume, was cautious in admitting such kinds of defence. Nonetheless he does recognise that in certain situations a defence of this type may be made out.
He starts with situations of great commotion, or extensive danger, in time of war or rebellion where the forces of law have been overpowered and individuals may be forced to do things for their self-preservation. He then applies a similar approach to situations of less extensive commotion where mobs may roam around, take possession of someone and compel him to take part in their criminal adventure. Sailors captured by pirates and compelled to take part in their criminal adventures are treated in the same way. He adds, however, that ’There may even be situations, though not so common now as formerly, of a more special and private sort of violence, which shall be judged by the same rule.’ The contrast therefore seems to be between cases where there is some fairly widespread breakdown of order and cases where, even though there is no general disorder, the Accused has committed a crime as a result of being subjected to violence. Hume admits that a defence may be open in such cases, but says that in the ordinary condition of a well regulated society, ’This is at least somewhat a difficult plea, and can hardly be serviceable in the case of a trial for any atrocious crime, unless it have the support of these qualifications: an immediate danger of death or great bodily harm; an inability to resist the violence; a backward and an inferior part in the penetration; and a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion. For if the pannel take a very active part in the enterprise, or conceal the fact, and detain his share of the profit, when restored to a state of freedom, either of these replies will serve in a great measure to elide his defence.’ What Hume says in the last sentence has to be read in the light of the comments of their Lordships in Thomson, but, leaving that aside, we deduce from the passage that, although the plea of coercion may be ’somewhat difficult’, even in the case of an atrocious crime an accused may be acquitted on the ground that he was compelled to commit it – provided that certain conditions are fulfilled. Rather surprisingly, in Thomson the Court interpreted Hume’s words as showing that he would have allowed the defence to allow only in the case of ’atrocious crimes’. If that were so and his view represented the law today, then plainly the defence would not be available in a motoring offence such as the present. We are satisfied, however, that the comment in Thomson was obiter and unsound. It puts a false gloss on Hume’s words. Their plain implication is, rather, that the defence of coercion is more generally available but, in the case of atrocious crimes, it will not in practice be sustained unless the particular qualifications which he mentions are made out. It would be an odd legal system indeed which, as a matter of principle, allowed coercion to elide guilt of the crime of armed robbery, but not guilt of the offence of exceeding the speed limit. Among the qualifications which Hume mentions is that the Accused acted under ’an immediate danger of death or great bodily harm.’”.
THE INTERPRETER: Excuse me, it is far too quick, can I see it in writing, can I see it in text.
LORD PROSSER: Is there a copy for each Respondent?
MR. ANDERSON: I have a copy but it is being photocopied at the moment.
LORD PROSSER: It seems everyone is not following it, perhaps that could be done over lunch time. The reference was 1997 SCCR and it starts at Page 219 and at the moment you are at 220B to C.
MR. DI ROLLO: “Among the qualifications which Hume mentions is that the accused acted under ’an immediate danger of death or great bodily harm’. That requirement is apt to delimit the scope of the defence and to keep it within narrow bounds.
Miss Scott did not suggest that any lesser threat would do and we have found nothing in the authorities to which we were referred which would suggest otherwise. On the contrary, in McNab v. Guild the Court held that, if a defence of necessity could be advanced to a charge of reckless driving, it could be made out only where ’at the material time the appellant was in immediate danger of life or serious injury.’
A similar qualification is found in other systems. See, for example R. v. Conway. We therefore proceed on the basis that the minimum requirement of any defence of this kind is that the accused acted in the face of an immediate danger of death or great bodily harm. Miss Scott argued, however, that the immediate danger of death or great bodily harm did not require to arise out of a threatened assault by a third party. An accused should equally be acquitted if he acted to avoid danger of death or great bodily harm which arose out of a threatened natural disaster or from illness. Similarly, she said, the threat did not need to be to the accused himself.
If an accused could be acquitted when acting to avoid danger of death or great bodily harm to himself, he should likewise be acquitted when he acted to avoid such danger or harm to a companion. So, she argued, in this case Mr. Moss should be acquitted since he exceeded the speed limit because he not unreasonably believed that Mr. Pearson was suffering from a serious illness and he wanted to get him to the nearest service area as soon as possible. Plainly Miss Scott’s argument takes the scope of the defence further than is envisaged in the passage of Hume which we have quoted. But that passage does not purport to give a full description of the defence as it is to be applied in all circumstances. As the Lord Justice Clerk noted in Thomson, Hume ’plainly was not seeking to lay down any absolute rule’. So the entire law of Scotland on the topic is not set out in these few lines of Hume, though they provide an invaluable pointer to the general basis on which it rests. What Hume envisages is a situation where a third party threatens the accused with death or serious injury if he does not commit a particular offence or participate in a criminal adventure – and the accused commits the offence or participates in the adventure. In such cases the threat is directed at compelling the accused to commit a particular offence or participate in a criminal adventure.
But in other cases, where that is not the purpose of the threat, the accused may claim to have committed an offence in order to escape from an immediate threat of death or serious injury. The term ’duress of circumstances’ has been used to describe the defence of this kind of case in English law. Tudhope v. Grubb is such a case in Scots Law. The accused was charged with attempting to drive with an excess of alcohol in his blood, contrary to Section 6(1) of the Road Traffic Act 1972. He had been assaulted by three men, knocked to the ground and kicked and punched on the body. He was injured as a result. He escaped from them, but eventually found himself in his car which was attacked by the men kicking it and trying to smash its windows. The accused tried to drive off to escape them. This resulted in the charge under Section 6(1). The Sheriff held that the accused had attempted to drive in an effort to save himself further injury and that he had made a full disclosure of the facts to the police at the first opportunity. The Sheriff found the defence, described as a defence of necessity, established and acquitted the accused. (It would indeed have been enough if the Crown had failed to rebut the defence). The Crown appealed but abandoned their appeal. The Advocate Depute did not suggest that the general approach in Grubb had been incorrect.
A similar defence was put forward to charges or reckless driving in MacLeod v. MacDougall and McNab v. Guild, in both of which the accused that they had been escaping from assailants. They were convicted and this Court refused their appeals on the facts, without deciding whether the defence was available to such a charge. The general approach in Grubb is, however, in line with authorities in other systems such as R. v. Willer (reckless driving to escape a gang) and R. v. Conway (reckless driving to escape police officers whom the accused believed to be potential assailants). Moreover, such an approach appears to be consistent with the requirement of our law of self-defence that a person who is attacked should take any reasonable opportunity to escape from his attackers. If the defence is available where the accused committed the crime in order to escape a threat of death or great bodily harm from a third party, we see no reason why it should be excluded simply because the immediate threat of death or great bodily harm which the accused is trying to evade arises from, say, a natural disaster or from illness, rather than from the actings of a third party. On this matter we respectfully adopt the reasoning of Lord Hailsham in R. v. Howe at Page 429C to D. He was dealing with an argument that cases on duress could be distinguished from cases on necessity, such as the famous case of R. v. Dudley and Stephens, where two shipwrecked sailors were convicted of murdering a cabin boy whom they had killed and eaten to preserve their own lives. The Lord Chancellor rejected that argument and said: ’There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is, in my view, a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.’ The passage was applied by Woolf in R. v. Conway. Since the hearing in the present appeal we have noticed that Lord Hailsham’s reasoning was also adopted by Lamer in the Supreme Court of Canada in Hibbert v. The Queen where he said: “The defences of self-defence, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defence and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes, such as forces of nature, human conduct and other than intentional threats of bodily harm, etc. Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defences.’ Approaching the matter in this way, we consider that, where an accused commits a crime in an endeavour to escape an immediate danger of death or great bodily harm, it makes no difference to the possible availability of any defence that the danger arises from some contingency such as a natural disaster or illness rather than from the deliberate threats of another. Indeed the Advocate Depute readily accepted that in principle the defence could be based on medical emergency.
So, an accused may drive dangerously in order to avoid an immediate threat of death from an incipient heart attack, or to avoid an immediate threat of death by drowning in a flood or to avoid an immediate threat of death by drowning due to the deliberate actings of a third party. For the purposes of deciding whether they afford a defence to a charge of dangerous driving, the law should regard all of these threats in the same way.
In the present case, of course, the appellant does not argue that he himself was under any threat. Rather, his argument at its highest is that he should be acquitted because he not unreasonably believed that Mr. Pearson was seriously ill and he drove as he did in order to bring him as quickly as possible to a place where he might receive assistance. In other words, the appellant exceeded the speed limit in order to try to save Mr. Pearson from the effects of what he believed to be a serious illness. Again this involves a certain development from the core case since the Accused is not escaping a danger to himself but is helping his passenger to escape what the accused not unreasonably believes to be an immediate danger.
But once more the approach is consistent with the ethos of our system. The law recognises that ’danger invites rescue’ in Scotland just as surely as in New York.” and there is reference to two cases there. “So Scots Law has never been so mean spirited as to confine the defence of self-defence to situations where the accused acts to save himself. It has always recognised that the defence may be available in situations where the accused acts in an altruistic fashion to save a companion. In the same way, if a defence of duress would be open to someone who committed a crime to try to escape immediate danger to his own life or health, it should be open to someone who does the same to try to ensure that his companion escapes such danger.
An illustration given by Simon Brown as he then was is particularly instructive for present purposes. ’We can see no distinction in principle between various threats of death; it matters not whether the risk of death is by murder or by suicide or, indeed, by accident. One can illustrate the latter by considering a disqualified driver being driven by his wife, she suffering a heart attack in remote countryside and he needing instantly to get her to hospital.’ It may be useful at this stage to dispose of the more general issues raised in the present case, before turning to consider how any defence should be regarded on the particular facts.
In the stated case the first question which the Sheriff puts to this Court is: ’Was I correct in law to proceed upon the basis that a defence of necessity could be available for a road traffic offence of this nature?’. Miss Scott submitted that this question should be answered in the affirmative and the Advocate Depute accepted that. In the light of the general considerations which we have discussed, the answer should indeed be in the affirmative provided that ’a defence of necessity’ is interpreted as referring to a defence based on an immediate danger of death or great bodily harm. The third question in the case was: ’Did I err in concluding that medical emergency is relevant to sentence only?’. Again Counsel for the Appellant and the Advocate Depute were agreed that the question should be answered in the affirmative and, for the reasons which we have given, we are satisfied that this is correct. There is much discussion in the cases and in the books about the juridicial basis of a defence of coercion or duress. Happily there is no reason even to try to add to it in this case. It is sufficient to concentrate on one point which the Advocate Depute stressed.”.
LORD PROSSER: Just a moment, Miss Zelter got up and has gone and as she is not represented I think I will need to be careful and as she is not represented we would have to adjourn.
MR. DI ROLLO: I think so my Lord.
(Miss Zelter returned to court)
LORD PROSSER: Miss Zelter, it is a technical point but it really does not work if you leave the court.
MISS ZELTER: Can I just ask if I need?
LORD PROSSER: Yes of course, but it does bring things to a grinding halt if you just leave. Do you want an adjournment?
MISS ZELTER: No I am fine now.
LORD PROSSER: In that case we will continue.
MR. DI ROLLO: My Lord, I was reading between C and D, “It is sufficient to concentrate on one point which the Advocate Depute stressed. He emphasised that, for the defence to operate, the ’coercion of duress must have dominated the mind at the time of the act and that it was by reason of that domination that the act was committed’. As the court recognised in Thomson the law of England is to the same effect. So, in the context of a driving case Lord Justice Woolf held that the defence could arise only ’where the Defendant was constrained by circumstances to drive as he did to avoid death or serious bodily harm to himself or some other person’. Where the defence applies, an accused ’has control over his actions to the extent of being physically capable of obtaining from the act. Realistically, however, this act is not a ’voluntary’ one. His ’choice’ to break the law is no true choice at all; it is remorselessly compelled by normal human instincts.” and there is reference to Perka against the Queen giving the majority opinion of the Supreme Court of Canada.
LORD PROSSER: Is this narrating the submission to the Court, or is it the Court itself saying?
MR. DI ROLLO: I think that is the Court itself.
LORD PROSSER: Concentrating on one point which the Advocate Depute stressed such and such and such and such. And then further down the page Miss Scott did not dispute this.
MR. DI ROLLO: It seems to me the A.D.’s submission seemed to be certainly not disagreed with by the Court. “It follows that the defence cannot apply where the circumstances did not in fact constrain the accused to act in breach of the law.
Again the point is focused in another passage from the judgement in Perka at Page 251 to 252. ’Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists ’necessity’ as a defence, providing the wrongful act was not ’avoidable’. The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of ’necessity’ and human instincts.” and the consideration of how the facts of this particular case apply to necessity, and the particular facts in that case as your Lordships will appreciate, that case involved someone thinking they had to act in that manner because their passenger was in distress and in the particular circumstances necessity was not available in that particular case on the grounds that the Appellant could have prudently followed an alternative course of action which would not involve committing a offence.
LORD PROSSER: Is it clear whether one sees it with the eyes of the person, the individual, or whether one is concerned with one of the passages where it says “normal human instincts”, in other words they say there is no real choice. Does that mean that anyone would have done it. What was done was what anyone would have done, normal human instinct. Or is it enough to say, “I know a lot of other people would have acted like that but I saw no alternative to me doing it.” I mean when you first said he could not do otherwise, although a lot of people would say he could, but no doubt the compulsion for him was absolute.
What is being said here, is it a kind of matter which the Court, or law would accept is what anyone would have done, or is it enough that the individual felt they had no choice, although lots of other people would have?
MR. DI ROLLO: I would submit that anyone, the law must have its view as to whether anyone would do it.
LORD PROSSER: So that is where the word “choice” comes in and it has really to be seen as so extreme it is not seen as a choice situation at all, rather than a choice which the individual feels they have to make as it were…
MR. DI ROLLO: That’s correct of the case in Perka.
LORD PROSSER: Yes, normal human instinct.
MR. DI ROLLO: To be constrained to do it is the notion, there is no true choice, the distinction between justification and excuse, really it is concerned with that, but as I understand it, I would submit what we are concerned with is it is someone constrained to do what they do, whereas they have in reality no choice.
LORD PROSSER: So it is not a choice the individual feels forced to take but it is almost simply a reaction that anyone would have.
MR. DI ROLLO: Indeed that is what I say. So in trying to address the note of argument and the reference to that, to put it in general terms, and I would accept in general terms in cases of malicious mischief necessity is available, and in the case of Farrell against Marshall, that is just an example of how that may arise.
LORD PROSSER: Perhaps before we rise, in Moss against Howdle some of the passages quoted there seem to be a jump or switch between talking about immediate danger and immediate threat. Now is this of significance, in other words, I think I understand what an immediate danger is, that something is actually going to happen without a lapse of time. Does an immediate threat both mean threat of immediate death, and if so death is the immediate danger. I noticed the phraseology changed between immediate and immediate danger, I just wanted to point that out before we left that case. Anyway we will rise now.
After an adjournment for lunch
MR. DI ROLLO: My Lord, I think I had exhausted what I had to say in respect of Item 2 of the second proposition in the note of argument for the Crown and I was moving on to the third proposition which in my submission is the defence of necessity is available only in very limited circumstances indeed. And it is important I think to distinguish between when it should be left to the Jury to consider and when it should be taken away from the Jury altogether. It may be important to consider that, but what I am about to address the Court is for the defence to be available, and by that I mean left for the Jury’s consideration, the evidence must be capable of showing that the accused had no real choice when the crime was committed. I submit that the circumstances must be capable of showing that the accused was constrained to break the law, there was no choice in the matter.
LORD PROSSER: It is in a sense, to break the law as it would otherwise apply.
MR. DI ROLLO: Yes.
LORD PROSSER: I see, what you mean is it is justification for an otherwise criminal act.
MR. DI ROLLO: Yes and the evidence must be capable of showing the action was remorselessly compelled by normal human instinct, as it is put in the case of Perka, in Moss against Low it seems to be as far as Perka is constrained. There are certain passages in that which I would wish to draw to the Court’s attention, Perka is Item G in the Crown bundle. The facts of the case I won’t trouble your Lordships with but essentially what happened was a load of cannabis was being imported, according to the accused, to the United States in a boat, but the boat got into trouble and as a result of an emergency they had to unload the cannabis into Canada. That was the defence in the case, the necessity it was said was required in relation to the crime charged. The Canadian Supreme Court deals with a number of observations, or makes a number of observations about the defence of necessity and I want to draw the Court’s attention to a number of passages in the report, the first passage I want to draw to the Court’s attention is at Page 251 Letter G to H “In Morgentaler, supra, I was of the view that any defence of necessity was restricted to instances of non-compliance ’in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible’. In my opinion this restriction focuses directly on the ’involuntariness’ of the purportedly necessitous behaviour by providing a number of tests for determining whether the wrongful act was truly the only realistic action open to the actor or whether whether he was in fact making what in fairness could be called a choice. If he was making a choice, then the wrongful act cannot have been involuntary in the relevant sense. The requirement that the situation be urgent and the peril be imminent, tests whether it was indeed unavoidable for the actor to act at all.
In LaFave and Scott Criminal Law one reads: It is sometimes said that the defence of necessity does not apply except in an emergency – when the threatened harm is immediate, the threatened disaster imminent. Perhaps this is but a way of saying that, until the time comes when the threatened harm is immediate, there are generally options open to the Defendant to avoid the harm, other than the option of disobeying the literal term of the law – the rescue ship may appear, the storm may pass; and so the Defendant must wait until that hope of survival disappears. At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. The requirement that compliance with the law be ’demonstrably impossible’ takes this assessment one step further. Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists ’necessity’ as a defence providing the wrongful act was not ’avoidable’. The question to be asked is whether the agent had any real choice: could he have done otherwise?
Is there a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of ’necessity’ and human instincts.” And there is another passage which I draw the Court’s attention to when the judge draws together I think his conclusions as to the definition of necessity, Page 259 Letters B to G, “It is now possible to summarise a number of conclusions as to the defence of necessity in terms of its nature, bases and limitations: (1) the defence of necessity could be conceptualised as either a justification or an excuse; (2) it should be recognised in Canada as an excuse, operating by virtue of Section 7(3) of the Criminal Code; (3) necessity as an excuse implies no vindication of the deeds of the actor; (4) the criterion is the moral involuntariness of the wrongful action; (5) this involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure; (6) negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity; (7) actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle; (8) the existence of a reasonable legal alternative similar disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law; (9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; (10) where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.” And I think in Moss against Howdle the Lord Justice General indicates the distinction properly raised in issue. In relation to Perka finally at Page 260 there is another passage at E to G, “The summary of conclusions with regard to necessity in the foregoing section indicates that for the defence to succeed, an accused’s actions must be, in the relevant sense, an ’involuntary’ response to an imminent and overwhelming peril. The defence cannot succeed if the response was disproportional to the peril or if it was not ’involuntary’ in the sense that the emergency was not ’real’ or not imminent or that there was a reasonable alternative response that was not illegal.”
LORD PROSSER: When you use the word “emergency” there, which I take to mean something which does emerge, when there is a continuing hazard, or whatever, and time has passed and perhaps various steps have been taken and time goes on passing and the hazard is still there, would that still give rise to the necessity when in the past one has not had recourse to this step but has tried other steps, or is it always envisaged it is something one is suddenly faced with?
MR. DI ROLLO: It does seem to be on the basis that has been considered so far it is something that emerges in that way, it is something which emerges, rather than a continuing…
LORD PROSSER: Because in some cases, the other way round, the risk of death is let’s say in an hour, and if you then drive for forty minutes the risk wasn’t in that sense immediate, there wasn’t going to be immediate death. If one could foresee really they had to be in hospital in an hour and you drive for forty minutes, then it might be the case. Perhaps it is slightly complex, how dire an eventuality has to be.
MR. DI ROLLO: It does need to be, in my submission, immediate, that is at the moment in this sense it has to be there, I suppose immediate threat would be a continuing one in theory but the effect doesn’t go away, but it must be an immediate, imminent threat.
LORD PROSSER: And of course what is perhaps niggling my mind is if one can consider the danger separately from the action in question, conduct which would otherwise be criminal, because normally the step you take which is going to be justifiable or foreseeable, the steps you take presumably is normally seen as something that will avert the risk and prevent it, stop it for good.
MR. DI ROLLO: Yes indeed. The way it is put in the note of argument, the accused must have reason to think the acts will have some way of removing the seen danger, there must be causal link.
LORD PROSSER: You have to look at what you do, as well as trying to avert and it must be something that relates to averting it in some way.
MR. DI ROLLO: The situation is there is a case contained in the note of argument called Berrigan and I think that is the question, causal link arises in that case. There does seem in this case, in my submission for instance, there is no I would submit connection between what was done to property on a barge and the removal of the perceived danger arriving from the presence of submarines in the Atlantic, or whatever, there couldn’t possibly be, what was done here couldn’t possibly have any prospect of removing the foreseen danger I would submit. And in my submission if for no other reason that is fatal to the defence of necessity. The cases have also dealt with immediate danger of death and grave bodily harm, though not necessarily the accused, and Moss against Howdle has in contemplation the accused companion, seen to be somebody in close proximity to the person who would otherwise be breaking the law. As the Lord Justice General puts it, necessity requires an intervention means it is inevitable then that as a defence. But in my submission there does not seem to me to be an authority for the proposition he is entitled to go beyond, either one’s self, or someone who is within the kind of close proximity.
LORD PROSSER: Suppose I was in the Government Headquarters of some super power and I saw a person of authority press a red button, about to press it and I know that that is directed at let’s say some huge city in the heart of some other super power and what you are talking about is normal human responses, and let’s say… (indistinct)… I would have thought the normal human response would indeed be to knock his hand away and stop that happening, would it not?
MR. DI ROLLO: Well my Lord…
LORD PROSSER: Assuming it was… (indistinct)… it is a question of who is my neighbour, who is my brother, and if it is sufficiently destructive, and the answer might be everyone would.
MR. DI ROLLO: My Lord, I would be pointing out the cases.
LORD PROSSER: Well we haven’t had to face that magnitude of damage, it comes into the category of death and so forth, why should it have to be personal if the threat was general.
MR. DI ROLLO: That is perhaps a logical, more practical example.
LORD PROSSER: Indeed that may be right, it needn’t be close to you in any personal sense but if it is going to be catastrophic to some part of mankind it seems a potential area.
MR. DI ROLLO: It is, all I am saying is I don’t think there are any examples, but if one looks at Moss against Howdle it talks about the person or his companion, it doesn’t go beyond that. As I indicated, the accused must have perceived danger.
In my submission, in this case it is my submission that the Court need not have legitimately left the defence of necessity available for the Jury’s consideration. There was in my submission in the evidence, not sufficient evidence of immediate danger of death… (indistinct)… even if that is wrong it wasn’t established that there was no other means of avoiding it before the accused committed the acts libelled. And the cases in my submission require that all other means must be exhausted. And on one view, taken to its logical conclusion, if your Lordships were to say in some way there was no choice to what they were doing, one would be saying that they had no legal remedy apart from committing the act of malicious damage.
In a sense it would be saying that the Court would sustain some remedy that had them entitled to do what they had, which would inexorably mean the Court were declaring nuclear weapons were unlawful. Those kind of remedies have not been explored on the evidence for example, but there is no question it does what is required a defence of necessity, but all other means must be exhausted.
LORD PROSSER: It is fair to say the Sheriff in her approach looks rather at phrase all other means available to these three individuals had been exhausted. Now suppose that is… (indistinct)… have all other means available to everyone been exhausted, the simple case, one might get the citizen trying to prevent something which would normally be prevented by the police. If in fact there is a group of ten policemen five yards away does the citizen, does necessity awaken as an argument for the citizen or not, I don’t know, or can they still say this was an immediate risk, I was entitled in terms of necessity to stop it in terms of someone else could have done it without question of crime.
MR. DI ROLLO: My submission is for anyone in the kind of situation we are talking about, they must satisfy the Court that they had no, they were constrained to do what they were doing.
LORD PROSSER: There is one factor in there which would have to take into account as it were that perhaps someone else might do something, I am just trying to think around the thing. You are trying to put it simply and I’m sure that’s right. Certainly the Sheriff lays great emphasis on the fact these people had exhausted all the things they might be expected to do. That is a separate question, let’s assume that. Does that mean they can then say necessity, there was nothing more I could do to stop it.
MR. DI ROLLO: Well I envisage a situation where it has to be there was nothing more that anyone could do, in my submission.
LORD PROSSER: It is just part of the argument when someone says there is nothing more I could do, it depends on your measure, there were lots of things other people could have done and could still do and she called on them to do it, the police, the Lord Advocate, whatever, it would be all right if other people said “I am not doing anything”, if the conditions for necessity were otherwise met.
MR. DI ROLLO: I don’t for the moment wish to agree with that.
LORD PROSSER: It is just the difference between an individual saying “I have done all I could” and whether that is enough, the difference between that and being able to say it was otherwise impossible to prevent it.
MR. DI ROLLO: I will move on.
LORD PROSSER: Yes, I am not asking for a response, I am just saying there may be these things.
MR. ANDERSON: My learned friend has referred to the nature of the actions to prevent the incident occurring at one point.
LORD PROSSER: This is the point surely which he is making in his submissions and you will get a chance when your submissions are being made.
MR. DI ROLLO: My Lord, the third submission, the other point I was going to make following on from what I had said… (indistinct). The next proposition my Lord, apart from the defence of necessity, it is not a defence to commit a crime to prevent the commission of another one, and that is the authority of Palazzo against Copeland which is either G or I depending on which index your Lordships are working from. My Lord, it is a very short report, a short case, 1976 Justiciary Cases Page 52, and Lord Justice General Emslie… The facts were an accused person in the early hours of the morning discharged a shotgun in the air in a residential area to try to stop a breach of the peace being committed by a number of unsavoury and drunken youths in the vicinity. Some of the youths ran for shelter and were put into a state of fear and alarm. It was held “the act of firing a gun into the air in an urban situation at that time in the morning was calculated to be likely to put lieges in general in a state of fear and alarm, and a man may not commit an offence in an attempt to stop another offence being committed.” and in the opinion of the Court on Page 53 about two-thirds of the way down, “The findings show that the Appellant had been caused trouble before by youths who had damaged his property and that in course of the breach of the peace some of the drunken youths were shouting abusive expressions in the direction of his premises. The proposition was that an act which is committed to stop a breach of the peace ought not to be regarded itself as a breach of the peace.
While the proposition is attractive, however, we regret to say that we cannot give effect to it in law. Undoubtedly a gun was fired in the air in an urban situation in the early hours of the morning. Undoubtedly certain lieges, however undesirable they might have been, were put in a state of fear and alarm. But more importantly, the act of firing a gun in the air in an urban situation at that time in the morning was calculated to be likely to put lieges in general in a state of fear and alarm. In these circumstances the fact that the Appellant’s motive was the sound one of trying to stop a breach of the peace is irrelevant. The fact that the only persons put in a state of fear and alarm were those committing the breach of the peace is equally irrelevant. A man may not take the law into his own hands. Furthermore a man may not commit an offence in an attempt to stop another. In the event, as the case shows, what the appellant did, did not end the fracas outside his premises, and it might be thought to have aggravated an already unsatisfactory situation. In the whole matter, while we have considerable sympathy for the Appellant, we have no alternative but to answer the question in the case in the affirmative.”.
LORD PROSSER: As you say, that is really the central defence.
MR. DI ROLLO: And then even if the defence of necessity is available it is in my submission for the Jury to determine whether it should be acquittal.
My Lord, I have set out in detail what the position is in relation to that, I have already had some discussion about it and I simply want to make a point in passing that that is what the law is, as it is understood by the Crown, and it is not controversial I don’t think and requires no answer from your Lordships, in my submission, the law about the matter is quite clear, and the authority is Kent 1950, as your Lordships of course will be aware if the Crown withdraws a charge, or there is acquittal as a result of a no case to answer then it is the judge who acquits, it is the judge acquits, not the Jury, but otherwise any acquittal has to be from the Jury.
LORD PROSSER: I hear what you say but at the moment I cannot see how this point relates to any of the questions. As I indicated I’m sure there are all sorts of questions which relate to them which produce a clearly definite answer to this question.
MR. DI ROLLO: It is something which I had to say something about and it is there, that is what I wanted to do in relation to that.
Moving on then my Lords, what I have said about necessity is as far as the Crown is concerned what I have submitted then is the requirements of necessity are very stringent and in my submission for a number of reasons did not apply in this particular case is the Crown submission.
If I can turn now, having dealt with necessity I would now like to deal with the question of customary internal Law and what I would like to turn to is Questions 1 and 2 in the Reference, at least those are the areas we are in, in relation to that. And as I indicated what the Defence may have been arguing before the Sheriff was that there was some rule of customary international law the effect of which the accused were justified, or under an obligation to do what they did and such a rule exculpates them from an otherwise criminal act, an act which otherwise would be criminal. Now that I think is the proposition that was being advanced.
LORD PROSSER: It was not the second one, the first proposition is deployment and threat were criminal as a matter of international law, and from that, only if they are criminal under international law you are entitled, or bound to act.
MR. DI ROLLO: What I was first going to deal with was how one goes about ascertaining what the content of customary international law is.
LORD PROSSER: In other words, is this criminal, is the citizen entitled to intervene.
MR. DI ROLLO: Yes. And what I am turning to deal with, how is it one discovers what the international law rule is, and as far as the note of argument is concerned, and I assert, in the Scottish criminal courts it is Scots Criminal Law which has to be applied, and there is authority referred to which is McMillan against McConnell 1917 Justiciary Cases Page 43, that is clearly the proposition I would submit it is appropriate Scots Law has to be applied.
LORD PROSSER: Can we have the reference again.
MR. DI ROLLO: McMillan v. McConnell 1917 Justiciary Case 43, Page 47.
LORD PROSSER: In a way that is not controverted.
MR. DI ROLLO: Because they say the international law is Scots Law and therefore that is what they have done.
The next point is if there are rights and duties flowing from rules of customary international law recognised and given effect to in Scotland then those are part of the lex fori and do not have to be proved as fact. So this is a distinction between the situation that would arise in international trite law dispute where presumably the Scots Law would be applied to the problem, whereas if there is a dispute…
LORD PROSSER: One might still have to prove a fact in order to prove what Scots Law was, one might have to prove for example some particular event occurred and one might at least notionally have to prove what the law was at a particular time.
MR. DI ROLLO: I agree it is not inconceivable there would be a subsidiary fact necessary in order to set up the law. I don’t think… there has never been a case in Scotland, and as far as I am aware in England where evidence from the witness-box has been given as to the content of customary rules.
LORD PROSSER: Maybe not, I am trying to take it on a kind of conceptual level, I can’t see why it might not be the case that the Scottish criminal law as it were defined …(indistinct)… you do go and discover some fact to see what the law was, which is quite different I think from what you say, because if it is said to be different from Scots Law then you may… (indistinct)… this isn’t that kind of problem whether Scots Law might require ascertainment of some matter of fact which at least in theory could happen.
MR. DI ROLLO: My submission is such rules are not foreign law and are not the subject of proof and accordingly trying to get the law from the witness is not competent in my submission, it is for the Court to ascertain the law.
LORD PROSSER: Suppose we said, suppose the appropriate parliament passed an enactment saying we adopt as the law of Scotland on this matter the law of England, it would seem a wee bit unlikely, well let’s say France, then we adopt and incorporate into Scottish criminal law the law of some other country, how would you then ascertain what that was?
MR. DI ROLLO: We would have to learn French law.
LORD PROSSER: A Scottish judge and Counsel would have to learn it and… (indistinct)… because Parliament would have incorporated it and it would just mean there was a whole new corpus of law we have to learn.
MR. DI ROLLO: Ask someone from Strasburg to tell us.
LORD PROSSER: That wasn’t the parallel I had in mind. You say once it is adopted it is just part of law and it may be hard to find out, or easy to find out, but that is our law.
MR. DI ROLLO: That is my submission. My Lord, the standard text is Oppenheim and it is L, Page 56 and this is the passage which deals with international law and the position in various states dealing with the United Kingdom and Page 56 refers to the United Kingdom, “As regards the United Kingdom all such rules of customary international law as are either universally recognised or have at any rate received the assent of this country are per se part of the law of the land. To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the law of nations is part of the law of the land. It has been repeated acted upon by Courts and can be regarded as an established rule of English law.
However, it is probably necessary to distinguish between the application of those rules of international law which prescribe or proscribe a certain course of conduct, and those which are merely permissive, such as a rule permitting a state to exercise jurisdiction in certain circumstances or over certain areas. The existence of such a permissive rule of international law does not necessarily mean that an English court will assume that English law will contain rules to the full extent permitted by international law.
The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from rules of customary international law will be recognised and given effect by English courts without the need for any specific act adopting those rules into English law.
It also means that international law is part of the lex fori and does not have to be proved as a fact in English courts in the same way as a foreign law; although evidence of state practice and of received international opinion is permitted in order to establish the existence or content of a rule of international law.”
When it says “evidence is permitted” in my submission it does not, at least as far as I can see, say from the witness-box, simply documents and information contained in the text.
LORD PROSSER: Well it is very important that phrase, but it appears to run against what you have said, if one reads it in one way international law is part of the law which doesn’t have to be proved as fact in the same way as foreign law, and then he says, “Although evidence of state practice of received international opinion is permitted, in order to establish the existence or content of a rule of international law.” So that is just the law. So why is one allowed to have evidence in order to show that that is the law?
MR. DI ROLLO: As I say, I think it is a distinction between a judicial decision and other things which may in this field show that there is a rule of law.
LORD PROSSER: I can understand the quotes from Lord Denning in the footnote, “For the courts to determine the rules of international law seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem.” that is not evidence, that is just the opinions, these are as it were authorities.
MR. DI ROLLO: My Lord, in the rule of court relating to human rights there is use of the word “evidence” in the context of authorities which is evidence of the decision of the Court, the European Court of Human Rights.
LORD PROSSER: I suppose if reports are not official, reports are not official. I am not actually sure what the status is of English law reports in Scotland. You just accept someone gets the book off the shelf and you accept it as an opinion in English law, so in a sense that is evidence.
MR. DI ROLLO: My Lord, there is also reference to Mann,… (indistinct)… I submit there has never been a case in which evidence has been admitted from the witness box in relation to the content of international law.
The case of Mortenson against Peters is a case which I would like to refer to which shows clearly the Court is prepared to, does not require to have evidence about the rule of international law. It did not require the rule because it applied the proposition before the Court the rule of customary international law was trumped by an act of Parliament which had been active but it did not find it necessary to find out from evidence as to what the law was.
LORD PROSSER: That flows from the doctrine of sovereignty.
MR. DI ROLLO: Yes, the relevant passage in Mortenson against Peters, my Lord it is 1906, 8 Fraser, 93, Page 100, Lord Justice General’s Opinion and it is Item N. This was a case in which a fisherman who was a Danish master of a Norweigan vessel was convicted of contravening a bylaw in the Moray Firth, in contravention of a bylaw which said it was illegal to fish in the Moray Firth. His contention was that the offence occurred outside the limit of the jurisdiction, in other words it was the jurisdiction of the customary international law, or the three mile limit, and he was outwith that, and there does not seem to be any dispute the customary international law was three miles, but the Court said Parliament had enacted fishing in the Moray Firth was illegal, then that is the end of the matter.
And the Lord Justice General said at Page 101, “It is a trite observation that there is no such thing as a standard or international law extraneous to the domestic law of a kingdom, to which appeal may be made. International law, so far as this Court is concerned, is the body of doctrine regarding the international rights and duties of states which has been adopted and made part of the law of Scotland.
Now, can it be said to be clear by the law of Scotland that the locus here is beyond what the Legislature may assert right to affect by legislation against all whomsoever for the purpose of regulating methods of fishing. I do not think I need say anything about what is known as the three mile limit.”
LORD PROSSER: It did not arise in that case, but the statement that international rights and duties of states and so forth, that would nowadays be seen as a narrow definition, wouldn’t it, the old idea it was a bad law in which states were the relevant persons, and it is more like earlier ideas that there was a law of nations which told you something about the rights of people everywhere.
MR. DI ROLLO: I accept that is a proposition in terms of this.
LORD PROSSER: It may have been all right in the context but it would be too narrow generally, you are not founding on that.
MR. DI ROLLO: No I am not. Really the purpose of citing the case is to show there was no rule at this point. As far as trying to establish what the rule is, in my submission the correct approach as set out by Lord Macmillan in Cristina, 1938 Appeal Cases 485, that is Item P.
My Lord, this is a case concerning the question of whether or not the rule of customary international law was to be applied in English law and it was held such a rule was. And Lord Macmillan whose judgement starts at 496, after dealing with the Mortenson case goes on to say at Page 497, the last paragraph on the right hand side, “Now, it is a recognised pre-requisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions. It is manifestly of the highest importance that the Courts of this country before they give the force of law within this realm to any doctrine of international law should be satisfied that it has the hallmarks of general accent and reciprocity. I confess that I should hesitate to weigh down that it is part of the law of England that an ordinary foreign trading vessel is immune from civil process within this realm by reason merely of the fact that it is owned by a foreign state, for such a principle must be an importation from international law and there is no proved consensus of international opinion or practice to this effect.
On the contrary the subject is one on which divergent views exist and have been expressed among the nations. When the doctrine of the immunity of the person and property of foreign sovereigns from the jurisdiction of the Courts of this country was first formulated and accepted it was a consensus to the dignity, equality and independence of foreign sovereigns which the committee of nations enjoined.
It is only in modern times that sovereign states have so far condescended to lay aside their dignity as to enter the competitive markets of commerce, and it is easy to see that different views may be taken as to whether an immunity conceded in one set of circumstances should to the same extent be enjoyed in totally different circumstances.”
LORD PROSSER: One should go probably further, indeed he says they then had shifted by laying aside and entering into the bargain about it, but I would have thought in recent times sovereign states have taken… (indistinct)… one has to be careful with these old cases when they do seem to be talking in terms of limits that no longer prevail.
MR. DI ROLLO: The passage which is of importance is the recognised principle, and it is the one stated in the footnote.
LORD PROSSER: It is just you were going on to read from passages as to the limit and I’m not sure it now would be significant as being so.
MR. DI ROLLO: What I am dealing with at the moment is the question of how it established the rule, and that is the passage that is of importance.
And the next case to which I wish to refer is Maclaine Watson and I will give a different citation from the one in the note of argument, it is Maclaine and Watson against the Department of Trade and Industry and it is an international tin case and there are two passages I want to make reference to in that case, it is Item Q, 1990, to appeal cases, 418, and the passage I want to refer to is at Page 512H to Page 513C.
The contention in this case was that there was some rule of customary international law which applied to the facts and that was what the Court is concerned with, and first and foremost what Lord Oliver says, “The authorities to which your Lordships were referred, which consisted in the main of an immense body of writings of distinguished international jurists, totally failed to establish any generally accepted rule of the nature contended for. Such writings as tended to support the supposed rule were in publications taking place since the affair of the ITC came before the Courts in 1986 and express simply the views of particular jurists about what rule of international law ought to be accepted. They were, in any event, unclear as to whether the liability suggested was primary or secondary, whether it was joint or several, and whether it was to be contributed to equally or in some other proportions.
It was indeed submitted that it was not only open to your Lordships but was for your Lordships’ duty to decide these points as, indeed Nourse had opined in the court of appeal. For my part, I cannot accept this. A rule of international law becomes a rule – whether accepted into domestic law or not – only when it is certain and is accepted generally by the body of civilised nations; and it is for those who assert the rule to demonstrate it, if necessary before the International Court of Justice. It is certainly not for a domestic tribunal in effect to legislate a rule into existence for the purpose of domestic law and on the basis of material that is wholly indeterminate.”
LORD PROSSER: It seems to be drawing between the ICJ and domestic tribunal. Surely if a point arose in a domestic tribunal in which it is said there was a rule of international law which had been absorbed into our own law, on the basis of what you said earlier this Court would have to decide that matter.
MR. DI ROLLO: It would.
LORD PROSSER: In that case it would make the decision which was a determination of the international law, it wouldn’t have to wait for ICJ, if it arose in this Court, and provided you were certain there was a servitude law, the domestic court would say so.
MR. DI ROLLO: In principle I don’t have any difficulty with that my Lord. There are some pretty high hurdles to get over before one gets to that stage obviously and what one has to, in my submission what has to be put to the Court first of all in precise terms is what the rule of customary international law is. LORD PROSSER: I may be reading too much into what Lord Oliver said about the idea there was an address saying this was in the ICJ, we shouldn’t be the people who determine what international law is, although if you are faced with it you might well have to, it might not go before the ICJ.
MR. DI ROLLO: Crucially in the end he says it is certainly not for a domestic tribunal to effectively legislate a rule into existence for the purpose of domestic law and on the basis of material that is wholly indeterminate.
There was another passage in relation the vast amount of written and oral material tended to obscure three fundamental principles, and that is Page 483B to C. My next submission my Lord is that there is no rule of customary international law and although it does not arise, or at least did not arise from what the Sheriff said, conventional international law prohibited the United Kingdom from possessing, or for that matter deploying nuclear weapons.
LORD PROSSER: Sorry, that point about convention, there are questions of conventional international law that arise at least in argument, I think before the Sheriff, and are you going to be dealing with that separately, or not at all, or just saying that there is opinion.
MR. DI ROLLO: My contention is there is none as far as both conventional and international law are concerned.
LORD PROSSER: In the meantime you are dealing with customary.
MR. DI ROLLO: Yes indeed. My Lord, I don’t wish to, and don’t propose to say a great deal in relation to this because my assertion is there is no such rule in a situation that the Crown can simply make that assertion and it is for others to say there is such a rule, to prove the contrary in my submission to set it up.
LORD PROSSER: I can understand that if we were here at first hearing, but one does not want to be too derogatory about that kind of point, if there is an issue there that is plainly going to be discussed. I don’t think you should feel inhibited from stating the Crown’s position.
MR. DI ROLLO: It is not a question of feeling inhibited.
LORD PROSSER: I didn’t think it was.
MR. DI ROLLO: It is a question of not really knowing what it is that is being said, in my submission.
LORD PROSSER: Obviously of course there was what was said by the ICJ, if you are going to come to that.
MR. DI ROLLO: I was going to refer to the ICJ. The first proposition is as far as customary international law is concerned that there is no such rule.
Now bearing in mind that what the Defence seem to have been asserting at the trial was not simply that there was some rule of customary international law showing what that position was, or that nuclear weapons were illegal, but there is some rule of customary international law which justifies, in fact obliges the accused to damage the property, the criminal act committed in this case.
LORD PROSSER: We have touched on that at various points. Firstly, is it criminal to have them, or have them deployed at least. A separate question was in relation to that… (indistinct – coughing)…
MR. DI ROLLO: Dealing with what I would submit the International Court of Justice is concerned with, which was the sort of, I accept it was a question in connection with the use of weapons, not simply possessing them.
LORD PROSSER: Do I take it you do accept under Question 2, to answer it properly one would have to say something like, to answer properly in favour of the Respondents you would have to say something like there isn’t a general criminalisation of possession, one must be more precise, if possession is coupled with use or threat, then this is a proper subject for this Court, isn’t it?
MR. DI ROLLO: It is something the Court is going to have to consider.
LORD PROSSER: That topic is not being excluded by your second question.
MR. DI ROLLO: I have no difficulty with the suggestion. The intention of the rule is threaten to use, or use nuclear weapons. The Sheriff said the United Kingdom have the use of nuclear weapons, and it is a question of the word “use”.
LORD PROSSER: But this is before this Court in terms of your second question. They say you put it too broadly.
MR. DI ROLLO: But it is very important to distinguish between possession, not a threat, and a threat to use.
LORD PROSSER: Yes, I was hoping you were going to deal with that.
MR. DI ROLLO: My submission, the important distinction which it is important to keep in mind is that the International Court of Justice in the advisory opinion as I understand it, does not question the position of legality of possession or deployment of nuclear weapons.
LORD PROSSER: I would require to be addressed on quite what it does say. You say it does not question the legality or deployment.
MR. DI ROLLO: I will come to the International Court of Justice opinion in a moment. The proposition I would like to advance to the Court is a threat of force in this context must mean the sort of thing which is envisaged by Professor Brownlie in his book on International Law and the Use of Force by States, and 1963 is the year of publication, and it is Item U, Page 364, “A threat of force consists in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.”, that is what Professor Brownlie says about threat of force.
In order to threaten someone you have to identify the person who is being threatened specifically and you have to identify what the threat consists in my submission.
LORD PROSSER: In a way it has brought to mind a much more familiar situation which is that of the ordinary crime of assault which can be constituted by threat alone, but without having my notes in front of me, it required a threat of something to be done immediately and to be capable of being carried out. In other words, if I say I am going to stab you and I have a knife and I am a foot away from you, that in itself, that threat may be an assault. Whereas if I say on Armageddon Day I am going to stab you, or on some unidentified occasion in the future, that threat may or may not be a breach of the peace but it is not assault, and equally that therefore is not kind of equiparated with use, whereas if the assault is immediately it would then be equiparated with use. I am interested in the language of threat that is being talked about, it sounds as if Brownlie is talking about threat – I am going to do X to you, whereas simply as it were carrying a knife on one and saying I am going to use this at some time would be very different. It doesn’t seem to be quite what he is saying. Is there a clearer indication how threat can be sub-divided into distant threats or immediate threats.
MR. DI ROLLO: That is the formulation which as I understand it, the definite threat in the sort of situation, the International Court of Justice, that is what they were being asked to consider.
As I understand it the United Nations Charter says it is unlawful to use force, or threat of use of force. Article (2) of the United Nations Charter provides that all members shall refrain in their international relations from the threat or use of force against the territorial integrity…” etc., and so on, threat of use of force is what we are referring to, talking about in the International Court of Justice opinion as opposed to something less well defined.
LORD PROSSER: It does cover what you would call long term threat – we are going to invade your territory in five years’ time unless in the interval you have done X and Y, that could still be a threat of the relevant kind.
MR. DI ROLLO: I think I would accept that such a…
LORD PROSSER: Well I don’t know what the time would be, six months, three months’ time, how does one know if a threat is sufficiently… I think you are saying it is enough provided it is directed against a particular person.
MR. DI ROLLO: There must be some kind of ultimatum.
LORD KIRKWOOD: If you have two neighbours and one says to the other, “I have bought a shotgun today and if that hedge isn’t gone in four weeks’ time I shall use this shotgun”, that is a threat, isn’t it.
MR. DI ROLLO: I have no difficulty with that as a general proposition. It is not simply a threat, is has to be a threat with use of force in this context. As I understand the International Court of Justice it is unlawful to make a threat with conventional weapons, as with nuclear weapons, it is unlawful to make that kind of threat.
LORD PROSSER: It is an anti-aggression, you must not be an aggressor.
MR. DI ROLLO: It is all very well to say countries feel threatened by the existence of a particular thing, that is not what we are dealing with here in my submission.
LORD PROSSER: And this does not deal with implied threat in the sense anyone who has been using force.
MR. DI ROLLO: It is an implied promise by a government of a resort to force conditional, it doesn’t have to be necessarily separated, and force is going to be the kind of force that is going to be used.
LORD PROSSER: You are referring to the United Nations.
MR. DI ROLLO: Referring to the United Nations Charter, nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs, that is Article 51.
LORD PROSSER: You are referring to Brownlie.
MR. DI ROLLO: Yes, the footnote.
LORD PROSSER: Do you say he is right?
MR. DI ROLLO: In my submission it is in the context of this view one has to try and find…
LORD PROSSER: I am not being critical, I just want to know if there is a kind of more fundamental way of discovering he is right in the report.
MR. DI ROLLO: I am not sure is the answer to that, that is the only definition of threat of force that I have been able to find. I think the International Court of Justice opinion is worth close scrutiny given the extent to which it appears to have been founded upon in this case by the Respondents. What I would propose to do now is take your Lordships through it in some detail.
There was a preliminary issue as to whether or not the Court should answer the question, had power to answer the question, which was dealt with, and it was decided it could answer the question, and I think the International Court of Justice opinion, the important part of it starts at Paragraph 20, Page 11, and I think the question my Lord which they were asked to answer is, “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”, and that is on Page 3 as I understand it, that is the question which they were specifically asked to answer.
LORD PENROSE: It is going to have to be read against the background of the narrative.
MR. DI ROLLO: That’s right, I am just going to read from Paragraph 20 onwards. “The court must next address certain matters arising in relation to the formulation of the question put to it by the General Assembly. The English text asks: ’Is the threat or use of nuclear weapons in any circumstance permitted under international law?’. The French text of the question reads as follows:” and then it says, “It was suggested that the Court was being asked by the General Assembly whether it was permitted to have recourse to nuclear weapons in every circumstance, and it was contended that such a question would inevitably invite a simple negative answer.
The Court finds it unnecessary to pronounce on the possible divergences between the English and French texts of the question posed. Its real objective is clear: to determine the legality or illegality of the threat or use of nuclear weapons.
The use of the word ’permitted’ in the question put by the General Assembly was criticised before the Court by certain States on the ground that this implied that the threat or the use of nuclear weapons would only be permissible if authorisation could be found in a treaty provision or in customary international law. Such a starting point, those States submitted, was incompatible with the very basis of international law, which rests upon the principles of sovereignty and consent; accordingly, and contrary to what was implied by use of the word ’permitted’, States are free to threaten or use nuclear weapons unless it can be shown that they are bound not to do so by reference to a prohibition in either treaty law or customary international law. Support for this contention was found in dicta of the Permanent Court of International Justice in the Lotus case that ’restrictions upon the independence of States cannot…be presumed’ and that international law leaves to States ’a wide measure of discretion which is only limited in certain cases by prohibitive rules’. Reliance was also placed on the dictum of the present Court in the case concerning Military and Paramilitary Activities in and against Nicaragua that: ’in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited’.
For other States, the invocation of these dicta in the Lotus case was inapposite; their status in contemporary international law and applicability in the very different circumstances of the present case were challenged. It was also contended that the above mentioned dictum of the present Court was directed to the possession of armaments and was irrelevant to the threat or use of nuclear weapons.
Finally, it was suggested that, were the Court to answer the question put by the Assembly, the word ’permitted’ should be replaced by ’prohibited’.
The Court notes that the nuclear-weapon States appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particularly humanitarian law, as did the other States which took part in the proceedings.
Hence, the argument concerning the legal conclusions to be drawn from the use of the word ’permitted’, and the questions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court.
In seeking to answer the question put to it by the General Assembly, the Court must decide, after consideration of the great corpus of international law norms available to it, what might be the relevant applicable law.
Some of the proponents of the illegality of the use of nuclear weapons have argued that such use would violate the right to life as guaranteed in Article 6 of the International Covenant on civil and Political Rights, as well as in certain regional instruments for the protection of human rights.
Article 6, Paragraph 1, of the International Covenant provides as follows: ’Every human being has the inherent right to life. This right shall be protected by law. No-one shall be arbitrarily deprived of his life.’
In reply, others contended that the International Covenant on Civil and Political Rights made no mention of war or weapons, and it had never been envisaged that the legality of nuclear weapons was regulated by that instrument. It was suggested that the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.
The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.
Some states also contended that the prohibition against genocide, contained in the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, is a relevant rule of customary international law which the Court must apply. The Court recalls that, in Article II of the Convention genocide is defined as ’any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group, causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to being about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.’
It was maintained before the Court that the number of deaths occasioned by the use of nuclear weapons would be enormous; that the victims could, in certain cases, include persons of a particular national, ethnic, racial or religious group; and that the intention to destroy such groups could be inferred from the fact that the user of the nuclear weapon would have omitted to take account of the well-known effects of the use of such weapons.
The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case.
In both their written and oral statements, some States furthermore argued that any use of nuclear weapons would be unlawful by reference to existing norms relating to the safeguarding and protection of the environment, in view of their essential importance.
Specific references were made to various existing international treaties and instruments. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment of ’methods of means of warfare which are intended, or may be expected to cause widespread, long-term and severe damage to the natural environment’, and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have ’widespread, long-lasting or severe effects’ on the environment. Also cited were Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the States concerned that they have a duty ’to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. These instruments and other provisions relating to the protection and safeguarding of the environment were said to apply at all times, in war as well as in peace, and it was contended that they would be violated by the use of nuclear weapons whose consequences would be widespread and would have transboundary effects.
Other States questioned the binding legal quality of these precepts of environmental law; or, in the context of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, denied that it was concerned at all with the use of nuclear weapons in hostilities; or in the case of Additional Protocol I, denied that they were generally bound by its terms, or recalled that they had reserved their position in respect of Article 35, paragraph 3, thereof.
It was also argued by some States that the principal purpose of environmental treaties and norms was the protection of the environment in times of peace. It was said that those treaties made my mention of nuclear weapons. It was also pointed out that warfare in general, and nuclear warfare in particular, were not mentioned in their texts and that it would be destabilising to the rule of law and to confidence in international negotiations if those treaties were now interpreted in such a way as to prohibit the use of nuclear weapons.
The Court recognises that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognises that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.
However, the Court is of the view that the issue is not whether the treaties relating to the protection of the environment are or not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration, which provides that: ’Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and c-operate in its further development, as necessary.’
The Court notes furthermore that Article 35, paragraph 3, and 55 of Additional Protocol I provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.
These are powerful constraints for all the States having subscribed to these provisions.
General Assembly resolution 47/37 of 25 November 1992 on the Protection of the Environment in Times of Armed Conflict, is also of interest in this context. It affirms the general view according to which environmental considerations constitute one of the elements to be taken into account in the implementation of the principles of the law applicable in armed conflict: it states that ’destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law.’ Addressing the reality that certain instruments are not yet binding on all States, the General Assembly in this resolution ’appeals to all States that have not yet done so to consider becoming parties to the relevant international conventions.’
In it’s recent Order in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, the Court stated that its conclusion was ’without prejudice to the obligations of the States to respect and protect the natural environment’. Although that statement was made in the context of nuclear testing, it naturally also applies to the actual use of nuclear weapons in armed conflict.
The Court thus finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.
In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant.
In applying this law to the present case, the Court cannot however fail to take into account certain unique characteristics of nuclear weapons.
The Court has noted the definitions of nuclear weapons contained in various treaties and accords. It also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystem of the planet.
The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionising radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.
In consequence, in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict, in particular humanitarian law, it is imperative for the Court to take account of the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.
The Court will now address the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the use of force.” and as Lord Penrose indicated what I am trying to keep in mind, “The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. That paragraph proves: ’All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’
This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognises the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply to any use of force regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter.
The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of these constraints are inherent in the very concept of self-defence. Other requirements are specified in Article 51. The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality are a rule of customary international law. As the Court stated in the case concerning Military and Parliamentary Activities in and against Nicaragua ’there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’. This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.
The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.
Certain States have in their written and oral pleadings suggested that in the case of nuclear weapons, the condition of proportionality must be evaluated in the light of still further factors. They contend that the very nature of nuclear weapons, and the high probability of an escalation of nuclear exchanges, mean that there is an extremely strong risk of devastation. The risk factor is said to negate the possibility of the condition of proportionality being complied with. The Court does not find it necessary to embark upon the quantification of such risks; nor does it need to enquire into the question whether tactical nuclear weapons exist which are sufficiently precise to limit those risks: it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by the States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality.
Beyond the conditions of necessity and proportionality, Article 51 specifically requires that measures taken by States in the exercise of the right of self-defence shall be immediately reported to the Security Council; this article further provides that these measures shall not in any way affect the authority and responsibility of the Security Council under the Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. These requirements of Article 51 apply whatever the means of force used in self-defence.
The Court notes that the Security Council adopted on 11 April 1995, in the context of the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, resolution 984 by the terms of which, on the one hand, it ’takes note with appreciation of the statements made by each of the nuclear-weapon States in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons,’ and on the other hand, it ’welcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used’.
Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality.
In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a ’threat’ within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of ’threat’ and ’use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence – suggested to the e court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.
Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a ’threat’ contrary to Article 2, Paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of the State, or against the Purpose of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter.
Moreover, the Security Council may take enforcement measures under Chapter VII of the Charter. From the statements presented to it the Court does not consider it necessary to address questions which might, in a given case, arise from the application of Chapter VII.
The terms of the question put to the Court by the General Assembly in Resolution 49/75K could in principle also cover a threat or use of nuclear weapons by a state within its own boundaries. However, this particular aspect has not been dealt with by any of the States which addressed the Court orally or in writing in these proceedings. The Court finds that it is not called upon to deal with an internal use of nuclear weapons.
Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict. It will first address the question whether there are specific rules in international law regulating the legality or illegality of recourse to nuclear weapons per se; it will then examine the question put to it in the light of the law applicable in armed conflict proper, i.e. the principles and rules of humanitarian law applicable in armed conflict, and the law of neutrality.
The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorising the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorisation. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorisation but, on the contrary, is formulated in terms of prohibition.
The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect.
In this regard, the argument has been advanced that nuclear weapons should be treated in the same way as poisoned weapons. In that case, they would be prohibited under: (a) the Second Hague Declaration of 29 July 1899, which prohibits ’the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases’; (b) Article 23(a) of the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV of 18 October 1907, whereby ’it is especially forbidden…to employ poison or poisoned weapons’, and (c) the Geneva Protocol of 17 June 1925 which prohibits ’the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices’.
The Court will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by ’poison or poisoned weapons’ and that different interpretations exist on the issue. Nor does the 1925 Protocol specify the meaning to be given to the term ’analogous materials or devices’. The terms have been understood, in the practice of States, in their ordinary senses as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons.
In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol.
The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their destruction – which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use – and the Convention of 13 January 1993 and the Prohibition of the Development, Stockpiling and Use of Chemical Weapons and on Their Destruction – which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons. The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction.
In the last two decades, a great many negotiations have been conducted regarding nuclear weapons; they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. However, a number of specific treaties have been concluded in order to limit: (a) the acquisition, manufacture and possession of nuclear weapons” and then peace treaties, “(b) the deployment of nuclear weapons, (c) the testing of nuclear weapons.
Recourse to nuclear weapons is directly addressed by two of these Conventions and also in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968: (a) the Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America prohibits, in Article 1, the use of nuclear weapons by the Contracting Parties. It further includes an Additional Protocol II open to nuclear weapon States outside the region, Article 3 of which provides: ’The Governments represented by the undersigned Plenipotentiaries also undertake not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America.’
The Protocol was signed and ratified by the five nuclear weapon States. Its ratification was accompanied by a variety of declarations. The United Kingdom Government, for example, stated that ’in the event of any act of aggression by a Contracting Party to the Treaty in which that Party was supported by a nuclear weapon State’, the United Kingdom Government would ’be free to reconsider the extent to which they could be regarded as committed by the provisions of Additional Protocol II’. The United States made a similar statement. The French Government, for its part, stated that it ’interprets the undertaking made in Article 3 of the Protocol as being without prejudice to the full exercise of the right of self-defence confirmed by Article 51 of the Charter’. China reaffirmed its commitment not to be the first to make use of nuclear weapons. The Soviet Union reserved the ’right to review’ the obligations imposed upon it by Additional Protocol II, particularly in the event of an attack by a State party either ’in support of a nuclear-weapon State or jointly with that State’. None of these statements drew comment or objection from the parties to the Treaty of Tlatelolco.
(b) the Treaty of Rarotonga of 6 August 1985 establishes a South Pacific Nuclear Free Zone in which the parties undertake not to manufacture, acquire of possess any nuclear explosive device. Unlike the Treaty of Tlatelolco, the Treaty of Rarotonga does not expressly prohibit the use of such weapons. But such a prohibition is for the States parties the necessary consequence of the prohibitions stipulated by the Treaty. The Treaty has a number of protocols. Protocol 2, open to the five nuclear-weapon States, specifies in its Article 1 that: ’Each Party undertakes not to use or threaten to use any nuclear explosive device against parties (a) parties to the Treaty; or (b) any territory within the South Pacific Nuclear Free Zone for which a State that has become a Party to Protocol 1 is internationally responsible.’
China and Russia are parties to that Protocol. In signing it, China and the Soviet Union each made a declaration by which they reserved the ’right to reconsider’ their obligations under the said Protocol; the Soviet Union also referred to certain circumstances in which it would consider itself released from those obligations. France, the United Kingdom and the United States, for their part signed Protocol 2 on 25 March 1996, but have not yet ratified it. On that occasion, France declared, on the one hand, that no provision in that Protocol ’shall impair the full exercise of the inherent right of self-defence provided for in Article 51 of the Charter’ and, on the other hand, that ’the commitment set out in Article 1 of that Protocol amounts to the negative security assurances given by France to non-nuclear weapon States which are parties to the Treaty on Non-Proliferation’, and that ;these assurances shall not apply to States which are not parties’ to that Treaty. For its part, the United Kingdom made a declaration setting out the precise circumstances in which it ’will not be bound by its undertaking under Article 1 of the Protocol.
(c) as to the Treaty on the Non-Proliferation of Nuclear Weapons, at the time of its signing in 1968 the United States, the United Kingdom and the USSR gave various security assurances to the non-nuclear weapon States that were parties to the Treaty. In Resolution 255 (1968) the Security Council took note with satisfaction of the intention expressed by those three States to ’provide or support immediate assistance, in accordance with the Charter, to any non-nuclear weapon State Party to the Treaty on the Non-Proliferation that is a victim of an act of, or an objet of a threat of, aggression in which nuclear weapons are used’.
On the occasion of the extension of the Treaty in 1995, the five nuclear weapon States gave their non-nuclear weapon partners, by means of separate unilateral statements on 5 and 6 April 1995, positive and negative security assurances against the use of such weapons. All the five nuclear weapon States first undertook not to use nuclear weapons against non-nuclear weapon States that were parties to the Non-Proliferation of Nuclear Weapons. However, these States, apart from China, made an exception in the case of an invasion or any other attack against them, their territories, armed forced or allies, or on a State towards which they had a security commitment, carried out or sustained by a non-nuclear-weapon State party to the Non-Proliferation Treaty in association or alliance with a nuclear-weapon State. Each of the nuclear-weapon States further undertook, as a permanent Member of the Security Council, in the event of an attack with the use of nuclear weapons, or threat of such attack, against a nuclear-weapon State, to refer the matter to the Security Council without delay and to act within it in order that it might take immediate measures with a view to supplying, pursuant to the Charter, the necessary assistance to the victim State (the commitments assumed comprising minor variations in wording). The Security Council, in unanimously adopting Resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognised ’that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim’; and welcomed the fact that ’the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.” I will carry on, I’m not sure how far your Lordships wish to go on?
LORD PROSSER: We will go by your judgement where there is a suitable break.
MR. DI ROLLO: My Lord, perhaps the end of 62.
“Those States that believe that recourse to nuclear weapons is illegal stress that the conventions that include various rules providing for the limitation or elimination of nuclear weapons in certain areas (such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear weapons in the Antarctic, or the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin America), or the conventions that apply certain measures of control and limitation to the existence of nuclear weapons (such as the 1963 Partial Test-Ban Treaty or the Treaty on the Non-Proliferation of Nuclear Weapons) all set limits to the use of nuclear weapons. In their view, these treaties bear witness, in their own way, to the emergence of a rule of complete legal prohibition of all uses of nuclear weapons.
Those States who defend the position that recourse to nuclear weapons is legal in certain circumstances see a logical contradiction in reaching such a conclusion. According to them, those treaties, such as the Treaty on the Non-Proliferation of Nuclear Weapons, as well as Security Council Resolution 255 (1968) and 984 (1995) which take note of the security assurances given by the nuclear-weapon States to the non-nuclear-weapon States in relation to any nuclear aggression against the latter, cannot be understood as prohibiting the use of nuclear weapons, and such a claim is contrary to the very text of those instruments. For those who support the legality in certain circumstances of recourse to nuclear weapons, there is no absolute prohibition against the use of such weapons. The very logic and construction of the Treaty on the Non-Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, they contend, the possession of nuclear weapons by the five nuclear-weapon States has been accepted, cannot be as a treaty banning their use States; to accept the fact that those States possess nuclear weapons is tantamount to recognising that such weapons may be used in certain circumstances. Nor, they contend, could the security assurances given by the nuclear-weapon States in 1968, and more recently in connection with the Review and Extension Conference of the Party to the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, have been conceived without its being supposed that there were circumstances in which nuclear weapons could be used in a lawful manner. For those who defend the legality of the use, in certain circumstances, of nuclear weapons, the acceptance of those instruments by the different non-nuclear-weapon States confirms and reinforces the evident logic upon which those instruments are based.
The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefinite extension of the treaty on the Non-Proliferation of Nuclear Weapons, it emerges from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons); (b) nevertheless, even within this framework, the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council.
These two treaties, the security assurances given in 1995 by the nuclear-weapon States and the fact that the Security Council took note of them with satisfaction, testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons. The Court moreover notes the signing, even more recently, on 15 December 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear-Weapon-Free Zone, and on 11 April 1996, at Cairo, of a treaty on the creation of a nuclear-weapons-free zone in Africa. It does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of those weapons as such.”
LORD PROSSER: Would that be a suitable place to adjourn.
MR. DI ROLLO: Yes.
LORD PROSSER: Very well. 10.30 tomorrow.
Adjourned until tomorrow morning.