Petition of Bodil Ulla Roder to the Nobile Officium
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, THE LORD
JUSTICE-CLERK AND LORDS COMMISSIONERS OF JUSTICIARY PETITION
of
BODIL ULLA RODER
To the
Nobile Officium of the
High Court of Justiciary
HUMBLY SHEWETH:
1. That there is before your Lordships a Petition numbered Miscellaneous 11/2000 being a Reference by the Lord Advocate of Scotland to your Lordships under and in terms of S123 of the Criminal Procedure (Scotland) Act 1995 praying Answers to four questions of law. In particular question 2 thereof seeks answer to whether any rule of customary international law justifies an individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons.
2. That the Petitioner is the Second-named Panel in the Indictment attached to the said Petition. She accordingly has right title and interest in these proceedings. She has elected and continues to elect in terms of S123 (2) (b) to be represented by Counsel thereat. Her defence at Trial centred upon the legality or otherwise of the said policies of the United Kingdom in deploying its Trident Nuclear Weapons System all as mentioned in Articles 1(b), (c) and (d) of the Petition.
3. That on Tuesday 4th April 2000 the High Court sat in a Preliminary Diet under the Chairmanship of the Rt Honourable Lord Rodger of Earlsferry, Lord Justice General of Scotland to determine further procedure. During those brief proceedings Counsel for the Petitioner moved the Court in terms of the written submissions and motions attached hereto in the Schedule of Productions. The Court summarily refused the motions contained therein.
4. That the Petitioner’s legal advisers have since drafted a Petition to the Nobile Officium of this Court praying inter-alia that Lord Rodger cede jurisdiction to the Lord Justice Clerk whom failing another Senior Lord Commissioner of Justiciary on grounds of his Lordship being in the position of judex in sua causam. Upon presentation of that Petition those advisers were told by officials that the Lord Justice General was voluntarily ceding chairmanship of the Court to Lord Prosser and said officials refused to accept the Petition. 5. That against the background set out in 4 above, on 28th June 2000 the Petitioner’s agents sought to renew the Petitioner’s motions before a differently constituted High Court by lodging in the usual way applicable to adversarial proceedings a Minute craving a Preliminary Diet in terms of the Criminal Procedure (Scotland) Act 1995 Section 72 and the Act of Adjoumal (Criminal Procedure Rules) 1996 Rule 9.1. Receipt of their Minute was refused by the Justiciary Department as being incompetent.
6. That notwithstanding the previous Preliminary Diet which was called By Order of the Court, the Petitioner accepts that there is no statutory or regulatory mechanism for taking such preliminary points within inquisitorial proceedings such as Lord Advocate’s Reference procedure. Accordingly she has no means within your Lordships’ Officium Ordinarium of raising the said points nor moving the said motions and is accordingly under the necessity of Praying before the Nobile Officium of the High Court of Justiciary.
MAY it therefore please your Lordships to hold that there are no means available to the Petitioner within the Officium Ordinarium of the High Court of Justiciary for raising preliminary points in connection with a Reference by the Lord Advocate under and in terms of S123 of the Criminal Procedure (Scotland) Act 1995; thereafter to allow the said notes to be considered and motions to be made thereupon before the newly constituted High Court of Justiciary; and to decern; or to do further or otherwise in the premises as to your Lordships shall seem proper.
ACCORDING TO JUSTICE
Joanna McDonald
Solicitor
Messrs McCourts
53 George IV Bridge
Edinburgh
0131 225 6555
SCHEDULE FOR SERVICE
1. The Right Honourable Colin Boyd Q.C. Her Majesty’s Advocate, Crown Office, 25 Chambers Street, Edinburgh.
2. Ms Angela Zelter, Valley Farmhouse, East Runton, Cromer, Norfolk, England the first-named panel.
3. Messrs Livingston Brown, Solicitors, Glasgow, for the third-named panel.
SCHEDULE OF PRODUCTIONS
1. Written submissions and motions for the second-named panel entitled “Notes by Mayer, Advocate for the second-named Panel”.
High Court of Justiciary
Notes by Mayer, Advocate
for the second pannel
in causa
Lord Advocate’s Reference No l 2000
Preliminary Diet 4th April 2000
Matters arising:
1. The complete transcript of the trial of Her Majesty’s Advocate -v- Zelter & Ors ought to be available for use before the High Court; because (i) Throughout the trial various rulings were made by the sheriff which affected the evidence that could be led and the ways in which it was led and cross-examined (ii) Throughout the trial various legal rulings were made upon which defences and submissions were allowed and the ways in which these could be presented (iii) These rulings materially affected the whole legal landscape from the beginning of the trial to its conclusion. Only by accurate reference to the whole proceedings can the particular case giving rise to the points of principle raised in the Lord Advocate’s questions be fully and properly understood and Answers to the Petition drafted.
2. Answering the Lord Advocate’s question 2 must involve knowledge of (i) the ways in which the United Kingdom possesses nuclear weapons. It will be submitted that there is no such thing as ’mere possession’ of a fleet of Trident 2 Submarines each armed with Live and Targeted Delta 5 thermonuclear warheads and each capable of launching 48 x 100Kilotons of nuclear explosive 1. (ii) the United Kingdom’s ’…action in placing such weapons at locations within Scotland 2., and (iii) the United Kingdom’s policies in relation to such weapons.’ It is respectfully submitted that the Judges of the High Court of Justiciary cannot be expected to have personal knowledge sufficient to decide the foregoing matters without the benefit of expert assistance. A fortiori counsel cannot be expected to assist the Court without said expert assistance. It is known that certain high ranking organisations such as the World Health Organisation would welcome the opportunity to present useful information. (By Resolution 46.40 the WHO, being conscious of its obligations under international law, made a Request to the International Court of Justice for Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict: which Request the International Court of Justice in Article 32 of an Opinion of even date with it’s Advisory Opinion [8th July 1996] to the United Nations refused to opine on grounds of vires in making the Request) It is therefor further respectfully submitted that the Court ought to remit all issues of fact and international law arising from question, 2 to one of its number to Inquire into these matters and Report, always providing counsel with an opportunity to make submissions thereupon before this Court gives further consideration to question 2.
3. It is respectfully submitted that the Court ought to consider the questions raised in the Petition in the light of EC Law including the European Convention on Human Rights. The Court ought also to consider whether the points raised at 2 (i) (ii) and (iii) supra involve a breach of EC Environmental Law. The Court ought ex-proprio-motu before further considering question 2 to refer a question of law to, firstly the European Court of Justice on the environmental issues arising from 2 (i) (ii) and (iii) supra and secondly, to the European Court of Human Rights on the fundamental question of whether the said acts or policies are a breach of the European Convention on Human Rights.
4. It is respectfully submitted that the Court ought to order that the whole submissions and Opinions of the Court in all future sittings of this Court and all related proceedings be recorded for the future assistance of the Lord Advocate et al.
Advocates’ Library
John Mayer, Advocate
Parliament House
Edinburgh
1. P. Bracken, The Command and Control of Nuclear Forces 212 (1983)., Prof F.A. Boyle, Nuclear Deterence and International Law, p 100. 1999.
2. This de-facto amounts to deployment contrary to Article 6 of the Nuremberg Principles which led to the Nuremberg Charter which itself was adopted by the UN in Resolution (95). There is no doubt that such deployment amounts to planning, preparation, etc and use of such weapons would ’wantonly destroy cities, towns or villages’ etc and is therefor criminal under international law. It is to be noted that in so far as these provisions form part of international customary law, they are part of the domestic law of this country. [Lord Murray, Nuclear Weapons and the Law, Journal of Medicine Conflict and Survival Vol 15 126-137 (1999) Frank Cass Publishing, London p133]