Notes by Angie Zelter.
Before Lord Justice General Rodger (Head of the Scottish Judiciary), Lord Weir, and Lord Reed.
AD – Docherty and Dr. Brown.
Act for 1. Zelter.
2. Mayer and McDonald for Roder.
3. Brown for Moxley.
Waiting time – 10.30-10.40
Court time – 10.40-11.40
The Lord Advocate was represented by a QC called Raymond Docherty and was advised by Dr. Alastair Brown, Senior Procurator Fiscal Depute, Policy Group.
He opened by saying that he thought the proceedings would take up to 4 days – the Lords were respectful and engaged in asking questions and listening. He said that if the first question was answered in favour of the Crown then there would be no question of hearing any evidence from any experts. There was then some debate about asking for a report from the Sheriff.
I was next and was very nervous and my manner was rather apologetic but I did manage to say the following:-
’I am Angie Zelter and am representing myself – I am here because it is admitted that I have an interest in the outcome of the proceedings. Although I have been put under some pressure to be legally represented because highly technical points of law will be argued, I have chosen to exercise my right to partake as an ordinary citizen. I see my role in these proceedings to keep the spirit and purpose of our act of disarmament and crime prevention before the court. As I am not a lawyer, and in order to expedite the proceedings I suggest the lawyers go first and I can then pick up on any points not covered. I hope that is agreeable. The points I will wish to be covered include issues about the transcript of the Greenock case, the recording of these hearings, the factual basis of answering the questions, issues around going to Europe, and the payment of my costs.
I can perhaps throw some light on the issue of the Sheriff’s report because I have already asked the Court for it. In fact I have a letter from Cumming, the Senior Assistant Clerk of Justiciary, written on 8th February 2000 stating that a report from the Sheriff had been requested and that a copy would be forwarded to me. When I rang last week I was told it would probably be ready for today – as you can see none of us have received it…’
I then sat down and John Mayer got up. He mentioned the Note he had passed up to them (attached as App.1) and tried to go through it but he was interrupted quite a bit and was never really allowed to develop fully any arguments. He submitted that neither the Sheriff nor the Judges could be presumed to know International Law and therefore International Law had to be treated as other systems of Jurisprudence. Far more supreme courts than the High Court at Scotland make decisions which could be relevant in this case. He raised the necessity to have a full and objective factual basis to enable Question 2 to be properly answered as it involves the knowledge of the ways in which the UK possesses nuclear weapons. He submitted that you could not presume that the Judges would know the policy of nuclear Weapons as implemented by our Government. He was told that maybe the court would not be able to answer the questions and if this was the case then that would be the answer to the question – that they could not answer it! It was quite obvious that Rodgers did not want to have any new evidence put before him – he did not accede to any of Mayers suggestions and certainly not to remit certain information to a single Judge. Rodgers even seemed to dispute that the LAR was an inquisitorial process. (The next day in Brian Quail’s Appeal hearing, that was put back until after this LAR on the grounds that it dealt with similar issues, Rodgers referred to the LAR as an Appeal and then quickly corrected himself!)
Ellen’s lawyer, Brown, said little after explaining that he had only recently been instructed and could not comment much but that the hearing would probably take longer than 4 days. The discussion then returned to Docherty and Rodger again.
In the light of the discussion that was carried out between Docherty and Rodgers about what evidence was allowed and what it consisted of in the Greenock trial I was really angry that the two of us (Mayer and myself) who had actually been at the trial were not even consulted, especially as there was no full transcript of the trial available for the Court. I therefore said that detailed evidence had been presented at Greenock on what the Trident system consisted of, what damage 100 kiloton weapons could do, what UK nuclear defence plans consisted of, the criminal nature of the Trident system and how other nations perceived our active deployment of Trident as a criminal threat to use nuclear weapons. It was essential that this and other evidence was available to the Court for them to answer the questions impartially. I said that we needed a full transcript and was disappointed not to have a full transcript yet. That there were already problems with the accuracy of the three days of transcript that were available and that the Sheriff herself had also complained of inaccuracies. I had not spoken for a minute before I was told to stop making a speech but I continued, though in haste, and feeling pressurised.
I went on to say: ’The Greenock trial was essentially about the right of ordinary citizens to try to prevent one of the greatest crimes imaginable – that of the use of indiscriminate weapons of mass destruction that would lead to the mass slaughter of innocent people and of long-term and severe damage to the environment… I submit that the major issue that arose from our case at Greenock and that in all fairness should be addressed by this Reference, is the question of the criminality of the present deployment of Trident nuclear missiles; and therefore I submit that this Court should also answer the following question: ’Is the UK actually in breach of international law in its deployment of the Trident system, given HM Government’s present ’nuclear deterrence’ policy?’ ‘
Rodgers said that the Court could only answer the 4 questions that had been put before it. I replied that the LA had misconstrued the case and that the full transcript was needed to show this. I then went on to ask if this was the right time and place to raise the issue of having my minimal costs paid. I was told that only the costs of Counsel can be covered.
I then went on to say that the ICJ proceedings had taken months and they had had only one general question to answer and that I therefore thought it would take much longer than 4 days to answer 4 much more specific questions that related to an actual nuclear weapon system that existed – that at the very least they should have before them in their deliberations a full copy of all the transcripts and submissions made to the ICJ. I also said that I wanted all my comments to be recorded by the court. Also mentioned that other cases were pending the outcome of this LAR, that it was, in effect, an appeal by the back door.
Rulings made by Lords were:-
The LAR hearing will be scheduled for 5 days including a Monday.
Skeleton arguments from each of the parties are to be available a week before the hearing.
The court will appoint an amicus curiae for Zelter under S123(3) of the Criminal Procedure Scotland 1995 Act to deal with arguments at hearing.
A complete transcript of the trial will not be ordered but those portions that deal with the testimony of the expert witnesses Boyle, Rogers and Johnson will be ordered and sent to all parties.
A Report from the Sheriff will be prepared and it shall include the rulings she made.
The Court will not remit the facts to one of their number.
No reference will be made to the European Courts.
There will be no order made for a transcript or recordings of the LAR Hearing.
The Court has no power to order the expenses of Zelter to be paid and therefore it will not do so.