High Courts Of Justiciary, Edinburgh, 12th September 2000
These notes were taken by Liz Crocker in shorthand and typed up the following week – they are the only notes we have as the Court is refusing to allow an official record to be made.
Hearing was sent down for an hour but was actually over two hours from 10.30 to 12.45a.m.
Present were:- Lords Allanbridge, Prosser and Mclean on the bench with Lord Prosser chairing;
Simon di Rollo for the Crown advised by Alistair Brown;
Angie Zelter – 1st Respondent, John Mayer for 2nd respondent and Aidan O’Neill for 3rd Respondent;
Gerry Moynihan – amicus curiae.
Opening words were lost in the confusion but judge Prosser asked that everyone introduce themselves, starting with Zelter.
Mayer:
Yes. Your Lordships will notice that behind me sit two ladies. One, your Lordships, on the left is Ulla Roder. To her left is an interpreter of the Danish language who was the interpreter for Miss Roder at the trial throughout and who has interpreted for Miss Roder on other occasions.
Judge Prosser:
I am just wondering if she should be sworn in. Has she appeared before this court?
Mayer:
She has not appeared here, my Lord.
Judge Prosser:
I am just wondering if you should be sworn in. You just acknowledge this. (Interpreter sworn in.)
Mayer:
My Lord, I appear on behalf of Ellen Moxley who is the third accused in the case.
Moynihan:
I appear as an amicus curiae and I will sit here – for simply lack of space – if that is convenient to your Lordships.
Di Rollo:
My Lord I appear on behalf of the Crown. As I understand it, we have a petition on behalf of Miss Roder. That is the matter that is now before the court, as I understand it.
Judge Prosser:
That’s one of the matters before the court. I think that was what the hearing was fixed for. Since then there was a Reference from Miss Zelter to raise a particular matter and it seems sensible to raise it. I do not know whether they are two separate hearings, but, if it is satisfactory to everyone that we deal with that as part of the hearing, I think we are having some application about the functions of your role.
Moynihan:
Yes, the answer to that will determine what my function is in relation to the application.
Judge Prosser:
So, those are related matters today.
Moynihan:
I think it would be sensible, in my submission, to deal with this first …
Judge Prosser:
Before the Nobile Officium?
Moynihan:
… because it gives rise to the question whether to hear from me on other matters.
Judge Prosser:
Any objections to the order of matters? So, you will go first – but you were raising a point with me.
Zelter:
Shall I stand up?
Judge Prosser:
I don’t think we mind. It’s normal and its easier to hear (inaudible) to but we would not expect that.
Zelter:
The first matter I want to deal with is that my note taker is having difficulty hearing everyone’s voices. Can she come down?
(Note taker stood up whilst Miss Zelter made her application. Permission was granted for the note taker to sit near the front of the Court. While the note taker was finding somewhere to sit, submissions continued.)
If the Court does not wish to do that then I need to have a tape for my own notes because she may not get there and I would prefer there was an official transcript because this could well go to Europe.
Judge Prosser:
I suppose it depends on what the position is. Does any other Counsel have any position on this?
Di Rollo:
My Lord, I have to say that I do not see there is any reason for the proceedings to be taped in Court. It is unprecedented in an Appeal Court and the proceedings at a Lord Advocate’s Reference and it is my submission that it would not be suitable for the Court. There is no basis on which the Court can tape the proceedings. It is never something that has been done before and I suggest that there is no reason for it to be done in this case.
Zelter:
Could I say, your Honour, one thing. I would not like to pre-empt something that any other Counsels would say in the Nobile Offiicium especially as they have not been asked to put their case forward so, if I am getting in their way, and pre-empting their submissions …
Judge Prosser:
I think that can happen in proceedings. If that happens we can go back.
So far as the tape recording is concerned, we are satisfied it would not be better to depart from the normal proceedings. What is going on here is that statements as to the law are being made and in those circumstances we are not satisfied that there is anything to depart from the norm.
Can I say that makes unofficial recording inappropriate.
Zelter:
Is that just today? Yes?
Judge Prosser:
Yes.
Now, as it were, the basis for your application was the letter. I don’t know whether the other Counsel’s received copies?
Zelter:
I had sent copies but I don’t know if they received them.
It’s the letter of the 15 of the 8 and it was a motion that said. ’In the light of the fact that Lord Rodger had to recuse himself due to a conflict of interest, all previous orders made by him are invalid including his personal appointment of Mr. Moynihan and thus the Court is requested to rescind all the previous orders’. [Ref. By letter to Clerk of 15/8/00]
Lord Justice General Rodger, who presided on the bench at the first procedural hearing, had been a Lord Advocate in the past and on several occasions expressed clear views on issues central to this case
For instance on 14th May 1992 and on 4th August 1992 in letters he signed to Dr.Chapman he said he was ’satisfied as to the legality of the activities at Faslane and Coulport’.
I have a copy of what I am saying. (Zelter then handed up 3 copies for the Judges).
He refused to institute an independent judicial enquiry.
I am half way down the second motion.
Judge Prosser:
Yes, I see. We have dealt with the earlier points. Thank you.
Zelter:
He refused to institute an independent judicial enquiry to look further into the matters raised and merely repeated the official government line. He could not therefore meet the test of objective impartiality.
Moreover, as a former Minister, supporting criminal weapons of mass destruction he is potentially open to the charge of having been a party to a criminal conspiracy. There is thus a clear conflict of interest.
For these reasons I asked that Lord Rodger should disqualify himself from the bench.
For these reasons also the rulings that he made at the first procedural hearing are also suspect and should be rescinded.
I would therefore like to address this Court on issues which are important to the LAR Hearing and which I have a right to do under Section 123 of the Criminal Procedure (Scotland) Act 1995.
Judge Prosser:
At this moment can I ask, first of all: may I take it there is no objection on behalf of any party to the Court in the way it is constituted today?
?:
I have no reason to object.
Judge Prosser:
You have no reason to object to the Court – the way it is set out?
Zelter:
In relation to the amicus curiae?
Judge Prosser:
No, the existing Court.
Zelter:
The only thing is in relation to the Amicus curiae and elsewhere I have put forward the view that the Lord Justice General, as it were, should remove himself due to a conflict of interest.
Judge Prosser:
I have to say, I don’t understand that. I don’t think it has ever been the intention that the Lord Justice General would preside at the hearing as it will be.
I was certainly approached a long time ago to see if I was available on a Monday – because it would be a week long hearing – and my understanding is that there is no question of bias or actual conflict of interest. It is just it is constituted differently on different occasions. The intention is that on a future hearing I will be in the Chair, as I am today, but, if I am ill, someone else will do it. So, I think there is a mis-understanding as to how you see it. It is not the Lord Justice General. That is not the intention. In so far as the future hearing is concerned, it won’t be him – so far as one knows – so that seems rather water under the bridge. I appreciate your points about the bias, but are there any points about the future, given that it is not going to be …
Zelter:
I raise these questions because we were never given an opportunity to discuss it in the Court and (inaudible) we were not privy.
Judge Prosser:
I appreciate you making that point. The fact is that it is not going to be him and therefore any problem over who the Court may be, whoever it is, I think is water under the bridge.
Zelter:
Well, as long as we don’t find someone who has supported in the past criminal policies.
Judge Prosser:
If you were to think that was a basis of objection to the Judge you would say at that point but the question arises whether that was a conclusion for someone who has no legal background.
Zelter:
It is difficult to have advanced warning.
Judge Prosser:
I am sure it will be possible to obtain in advance the Judges who are intended. I think it is, indeed, pencilled in who they are because it was intended that I be the Chair. I think I had better not go on my memory but it would be easy to find out who the other two were.
Zelter:
Because I live in England, could I ask the Court to give me plenty of notice.
Judge Prosser:
I am sure you can have that provided soon.
So, is that right: as far as the future hearing is concerned, whatever the reasons may have been for raising the worries, there is no issue in relation to the Lord Justice General. Is that the position?
Mayer:
As Your Lordship has pointed out, the Lord Justice General – whether or not there has been any conflict in the past, that remains in the past – but the Lord Justice General has not discharged himself of jurisdiction.
Judge Prosser:
I don’t understand. Please explain.
Mayer:
There is no question of Lord Rodger having discharged himself and the logic is to say …
Judge Prosser:
There seems to be a misunderstanding that he had withdrawn from matters but I don’t understand.
I understand a lay person reaching that conclusion. I can’t understand why a responsible Counsel would make that conclusion. I suspect that the reason … I don’t think it is necessary to go into that. There is no question now on bias.
Mayer:
There appears not to be.
Judge Prosser:
Then why don’t you say that and sit down.
Mayer:
There appears not to be. I am obliged.
Judge Prosser:
Well I am somewhat less than obliged.
Right, so, the point in your letter, you say, is that this is not really about the composition of the Court in future. You want this Court to look at what the previous Court did and the only point I want to say is that it is not clear to me what you think this Court could do in relation to what that Court did. You are proceeding on the basis that the three Parties here could rescind what the three of them did and I don’t think …
Zelter:
May be there is the specific point …
Judge Prosser:
I am warning you what is in my mind. It is not clear what we could do.
Zelter:
Regardless of that, one of the rulings is the role of the amicus curiae.
First of all, I would like the position of the role and then the appointment clarified.
This is motion 3.
I would like to make it clear that I have no personal knowledge of Mr Moynihan and no offence is intended.
I refer to my letters to the amicus curiae, the Crown and the Court where I have raised these issues but not been enlightened.
The Interlocutor Sheet, that I had to wait two and a half months to receive a copy of, states that Mr. Moynihan was appointed ’to act as amicus curiae’, ’in respect there has been no instruction from the first respondent in terms of Section 123 (2) (b) of the Criminal Procedure (Scotland) Act 1995’.
This is different from the letter of 11/5/00 from the Principal Clerk, John Anderson who said, ’The Court has appointed Senior Counsel to assist it in dealing with the matters raised by the Reference’.
Mr. Moynihan replied to a letter I wrote asking about his role and it is clear that he sees himself as completely independent.’
That is the letter of 11/5/2000.
I wrote another letter dated 22/7/00 to Mr. Anderson, Clerk of the Justiciary, in which I enclosed a letter from the Lord Advocate, Colin Boyd, to Austin Mitchell MP in which the Lord Advocate says that Mr. Moynihan was appointed ’in respect of my position’.
As I said then, ’It is obviously not only myself who is confused about the actual role that Mr. Moynihan will be playing in the reference proceedings. In the light of the Lord Advocate’s letter to Austin Mitchell and in the light of the court’s responsibility to clarify the role of this amicus curiae, I would like you to clarify in detail what Mr. Moynihan’s role is.
A letter from Mr. Moynihan dated 21st August stated that the Lord Advocate’s letter did not alter his understanding of his role.
It is thus clear that he is not an amicus curiae appointed to help me in any way nor to act specifically as a ’contradictor’.
There are valid arguments for the appointment of a contradictor in cases where the Court may feel the contradictory arguments may not come into full play without a competent member of the legal profession being present – but such an amicus curiae would have to be willing to work within this contradictor role, which Mr. Moynihan is clearly not willing to do.
Moreover, there are legal counsel for the two other Respondents to assist the Court, so it is not at all clear or persuasive that he can add anything else.
If Section 123 of the CP(S)Act 1995 had wanted to ensure that there would be an independent senior counsel appointed to help the Court then it would have said this and ensured that such independent advice would be present whether the Respondents chose to represent themselves or not.
In fact, it states that an amicus curiae should be appointed where there is ’no intimation under Section 2(b)’ and this could be said to actually refer to a situation when all of the respondents opt to have no legal counsel present at all to argue against the Crown – in other words where there has been no intimations by any of the respondents that they elect to be represented. In our case there are three respondents and two are represented. We have contradictors present. There has been intimation under Section 2(b). The fact that I am representing myself does not change this situation. The Section does not say that any unrepresented persons must have an amicus curiae appointed to work with them or to contradict for them. As you can see from this motion, I am perfectly capable of making appropriate submissions to the Court myself, without an amicus curiae.’
Can you deal with that first?
Judge Prosser:
I think so. Does anything arise from the other respondents that they wish to add on this?
?:
No.
Judge Prosser:
In that case, it is probably for you again, Mr Moynihan. You are the bone between two dogs.
Moynihan:
I can tell your Lordships how I would have to wag my tail if I was a dog at the circus. Perhaps that may assist.
Di Rollo:
I think it may help if I indicated what the Act says.
In my submission, the Act makes it clear that in the circumstances that have arisen here, an amicus curiae is required to be appointed and that is because the situation is that the first named pannel has elected to act personally in this case. She has not elected to be represented by Counsel and accordingly in terms of Section 123(3): ’Where there is no intimation under sub-section 2(b) above’ (that is representation by Counsel) ’the High Court shall appoint counsel to act at the hearing as amicus curiae’.
Judge Prosser:
And you are reading the words: ’Where there is no intimation under sub-section 2(b) …’, meaning by ’intimation’ the person referred to in 2(b). So it is not overcome by the idea advanced by Miss Zelter that if someone else has been intimating these things … You are saying this is a reference to section 2(b)?
Di Rollo:
Indeed. The point being that the legislation, as it is designed today, is to protect the situation where, in a multiple case – like this – it may well be that various different interests arise.
Judge Prosser:
It says the general position but it has got to cover the current situation?
Di Rollo:
It has got to cover that and one may wonder if that is why the legislation is phrased in the way it is.
As I understand it, the first Pannel is entitled to make her submissions to the Court quite independently of the amicus curiae who is appointed by the Court.
It must be kept in mind that what the Court is dealing with here is ’amicus curiae’ (which is within the confines of Section 123). The Court has been asked to answer this question.
Judge Prosser:
The word ’contradictor’ is useful. It means argument in relation to the Crown. Is that a satisfactory way of describing it?
Di Rollo:
I can’t think of a problem with that at the moment, that being ’contradictor’ is the word often used. An amicus curiae, as ’a Friend of the Court’, is designed to provide the Court with legal submissions.
Judge Prosser:
I am not a great believer in Latin. It seems to me that some of the Latin quoted (inaudible) to shift from Latin to English. To ’assist’ and ’aid’ the Court – I think that means to assist the Court but not to assist the Court in the General Contradictor Rule you described. In other words, if the amicus curiae was there and a lay person was there, what had been said could be clarified or supplemented in order to improve what was said in contradiction of the Crown. That is something that the Amicus curiae would do. Correspondingly it would not be a function of the amicus curiae to try and improve, clarify and supplement what had been said by the Crown against the Respondent.
Di Rollo:
I would not have thought so.
Judge Prosser:
Perhaps there are exceptions. Any Counsel has a duty to draw to the attention of the Court (inaudible) testimonies. Then it would be their duty to draw things to the attention of the Court favourable to the other side but generally it is to supplement and clarify what has been said of the Crown.
Di Rollo:
That is as I understand it. Also, Section 2b – the first Respondent is quite entitled to make her application.
Judge Prosser:
Quite entitled to that. I am just concerned that what the Court needs to hear is argument as well as it can on both sides. It may be that, in principle, the lay person may be able to do that. The better the lay person is, the less the Amicus curiae has to say.
Di Rollo:
One would think so. That is the position in relation to the Amicus curiae.
Judge Prosser:
Anything else?
Moynihan:
Only one thing. I would like to check what your Lordship sees as my role. I was really only trying to see if my thinking of the role is what (inaudible)
Judge Prosser:
I have no difficulty with that.
Moynihan:
The one point I would add is that it would be my intention, other things being equal, to make a submission in advance of the hearing so that Party’s representatives can see what, professionally, I might say. What I need to say, or not, depends on the extent to which points need to be covered.
Judge Prosser:
You will wait for the skeleton arguments?
Moynihan:
No, I can exchange them at the same time as the other Parties, if your Lordships wish.
Judge Prosser:
From what I understood: if Miss Zelter presents a document (inaudible) but, from what you said then it would seem to follow that you will not need to. I was assuming you would need to see hers first before submitting yours. But then …
Moynihan:
What I am envisaging is what Miss Zelter says – in that there is a party to the proceedings, if I may call it that, who has not disclosed his hand.
I am therefore happy, on that time scale …
It makes sense that I see what the others are saying in order to see if there needs to be anything supplementary to put in, but that being so, I am content to have placed upon me an onus to put in such written submissions as I deem appropriate so that no one is caught on the hop by what I submit. It may be that I can do this within the 7 days of the hearing. I am happy to accept such a time scale as your Lordships dictate.
Judge Prosser:
What would the position be, Mr Moynihan, if you disagreed with something that is said by Miss Zelter in submission?
Moynihan:
If I disagreed, then in the written argument what I would indicate is that I would not support proposition one.
Judge Prosser:
And don’t put it forward?
It’s a sensible rule. In such an instance you would have to take very scrupulous care not to undermine her argument. That is not your role.
Moynihan:
No. What I envisage is that I would make it clear that I do not support proposition one. I would assume that perhaps one is something the Crown would seek to lock horns with Miss Zelter on. If the Crown did not lock horns, and conceded the point, I would not seek to open the point up.
Judge Prosser:
Miss Zelter. Obviously, your first proposition is that the appointee should be – whatever word you used. We have obviously not decided that, but, if the amicus curiae is there, and he is going to stay in the post, you have heard an indication now about how the role might be seen. Do you want to come back?
Zelter:
I think it is a very difficult role and easily fudged. I want it much more clear. From what Mr Moynihan said it would be very difficult for him not to undermine me. I would want an undertaking that he would not get involved in any detailed argument against me.
Judge Prosser:
I think he means that by “not support”. It is a better word to use than “contradictor”. I think you would see that as your role, not to contradict the arguments used?
Moynihan:
That is correct.
Judge Prosser:
I would have thought that if he is genuinely trying to help, from the point of view of experienced legal Counsel …
Zelter:
My arguments are: (inaudible) position then he would have to work with me. This is not something you can do a week before a hearing. This is an issue concerning the legality of nuclear weapons and people’s rights to disarm them so I don’t see how he could clearly work in the role if he did not understand where I was coming from.
The other thing is that, if the Crown is right, if he is appointed (whether there is other Counsel or not) and he disagreed with my (words missed out) then how come there was not an Amicus curiae appointed at the first hearing? Because, obviously, that set up some of the ground rules for the whole process.
So, I disagree. I think my interpretation of the Act is more accurate. I think I have said all I need to say.
Judge Prosser:
Is there anything further pending on the question of Amicus curiae and his role? Is there anything else any of you wish to add?
?:
No, my Lord.
?:
None, my Lord.
Judge Prosser:
In that case, I think, we won’t discharge that here and now but we will pass on from that to the next area – whatever that is. That area is, Miss Zelter, your point about the rescinding of the opinions of Lord Rodger, apart from his appointing the Amicus curiae. Are there any other decisions you want rescinding?
Zelter:
Yes, your Lordship.
Judge Prosser:
Is that what you want to do next?
Zelter:
Yes, if you want to skip an issue.
Judge Prosser:
I beg your pardon.
Zelter:
I also have certain objections, which I raised in several letters to the Court, including that of 14/6/00 to Mr. Anderson, Clerk of the Justiciary on the specific appointment of Mr. Moynihan himself.
That is, in a way, related to Lord Rogers.
Mr Moynihan has been an Advocate Depute in the past and thus there is a conflict of interest.
Judge Prosser:
That is true of certainly three … it is true of a very high proportion of the silks and the bench because it is a normal part of the bench and the training.
Zelter:
Coming from a different legal tradition I did not realise that.
Judge Prosser:
It is a normal part of the post of Advocate. It doesn’t mean he is Crown minded or the like.
Zelter:
I did want to raise that because my whole case rests on the illegality of certain official policies of the Government and Crown being criminal – not just criminal but concerning some of the most serious crimes known to mankind. In such proceedings it is extremely important that no-one in any way tainted with past associations with the Crown or Lord Advocate should be put forward as my amicus curiae or as an independent assistant to the Court, however much he may protest his independence.
Moreover, his ’devil-master’ is Lord Rodger, who, as you are aware, I had asked to step down from the LAR, on the grounds of conflict of interest. Moreover, he was appointed by Lord Rodger, who has a conflict of interest in this case and therefore cannot sit as a Judge in these proceedings. It would be illogical and inconsistent to allow Lord Rodger’s appointee to have a prominent part in these proceedings. I also have suspicions that Mr. Moynihan has been included purely to bolster the Crown’s arguments since he was heavily associated with the Crown. There are plenty of Senior Counsels’ …
You have just said there are …
Judge Prosser:
I think it is fairly the case that the game-keeper turns poacher. In other words, the gowns often change positions.
Zelter:
As I say, this is not personal. To put it on the record: I ask that Mr. Moynihan be removed from his appointment and that if the Court still orders an amicus curiae appointed to act in my interests that this is clarified and the person so appointed at least meets with me to discover what my interests are; or if the Court orders an independent assistant to ensure that all relevant arguments are put before the Court that the person appointed be agreed by all parties as being truly independent. Any Counsel so appointed should not have acted on behalf of the Government Crown Office or the Lord Advocate’s Office.’
Judge Prosser:
Do you want to come back on that?
Di Rollo:
No. I think the position is that an amicus curiae has to be appointed and it is a matter for the court as to what the amicus curiae’s role is.
Judge Prosser:
This is a question of who the amicus curiae is. That, of all things is something you should not be party to. That is obvious. It should not be someone you want.
Di Rollo:
Indeed.
Judge Prosser:
Mr Moynihan, is there anything you want to say?
Moynihan:
There is in so far as personal detail.
I am a former devil of Lord Rodger, and an Advocate Depute.
I had, so far as I am aware, no involvement with nuclear weapons while I was an Advocate Depute. That would come as no surprise, as the intention is to prosecute and not give advice to the Crown.
So far as my civil practice is concerned, I can recollect only one matter dealing with nuclear matters and that was an enquiry concerning Torness, when I was Junior Counsel with the Nuclear Installations Inspectorate (which is the Government’s regulatory authority) which took a neutral stance at that enquiry.
Judge Prosser:
And that is the only role?
Moynihan:
That is the only role in nuclear matters that I can recollect. Unless I can assist your Lordships further, I have no further information to add. I simply place that for your Lordships consideration.
Judge Prosser:
Yes. You want to respond to that, or proceed?
Zelter:
Proceed. The Lord Justice General …
Judge Prosser:
You appreciate he has other commitments?
Zelter:
Yes.
Judge Prosser:
You return to your notes.
Zelter:
It was an issue that was raised at the procedural hearing about the substantive issues of the amendments.
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 the long-term and severe damage to the environment.
A Lord Advocate’s Reference is a procedure where points of law that have arisen in a case can be referred to the High Court for their opinion. I am a part of the procedure because it is accepted that I have an interest in the outcome of such a Reference.
In my view the major point of law that arose in our case at Greenock, was the question of the criminality of the present deployment of the nuclear warheads on Trident submarines.
It would make a nonsense of the LAR process if this Court did not inquire into the question of whether the current deployment of Trident amounts to a criminal threat to use weapons outlawed in international law.
I therefore request that the 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?’
Judge Prosser:
Are these questions you wish to respond to?
Mayer:
For my own part, my Lord, I have never envisaged asking either the Crown or the Court to amend the questions. I am content to answer the questions as framed.
Judge Prosser:
Yes, and, of course, any question may, on the way to an answer, give rise to other questions but you are not asking for any other additional questions to be raised?
Mayer:
Not at all, my Lord. I take the view that the Lord Advocate, in terms of Section 123, does not, in fact, require a particular trial which might give rise, from specific acts, to points of principle. It does not require a public trial to raise a reference. I might be right or wrong.
Judge Prosser:
It is not a question for the Court to ask?
Mayer:
It is a matter for the Lord Advocate, and the Court can either answer the question as it is put …
O’Neill:
I have to take a different position from Mr Mayer(?) on the points raised. (Inaudible) difficulty in relation to the particular wording of the questions. I seek clarification on the amendment and the wording.
It is the first time I have seen the additional points Miss Zelter raises but I see the force of them.
My motions today will be that the Court fixes a Preliminary Diet within the next week or so in which the matter of the particular wording of the questions can properly be aired.
I understand the position of the Crown, at the moment, is that they are not willing to amend the questions on the lines we have raised.
Judge Prosser:
I am not sure. Surely it is not for the Court to take any role in the revising of the questions?
O’Neill:
It may be, your Lordship, that it is a question of the competency of the questions that are currently drafted. If I may refer to the wording of Section 123(1) which states that: ’Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer the point of law which has arisen in relation to that charge to the High Court for their opinion’. So, in other words, it is a point of law.
Judge Prosser:
You have known these questions for a long time. If you wanted to raise that, that is something you should have raised by now.
This Preliminary Diet was fixed.
O’Neill:
I am simply highlighting the point that this question, question 2, which refers to the matter of the possession of nuclear weapons, simply speaks of that in those terms. It does not arise from the particular trial which was before the Court in that it was specifically addressed by the Sheriff in her report: that pure and simple possession was not a matter which she was concerned with (inaudible) possession in relation to the Helen John case. What was of concern was the matter of threat of use and actual deployment of missiles at a particular stage … at a particular time of international crisis. So, the question, as presently worded, question 2, has already been answered in the Helen John case but it was not a question which arose from this particular case or charge.
Judge Prosser:
But very frequently it has arisen in past cases. It is important we don’t move on to the merits of the arguments. hat seems to be a point, as you say, which is already decided.
O’Neill:
Indeed it is important today that we don’t get into the merits of the matter but I think it is important that a Preliminary Diet be fixed.
Judge Prosser:
The question whether a Preliminary Diet should be fixed (if and when a request for that, in relation to the particular competencies was made) that is all dependent on whether you, in fact, make a step in that direction. It is for you, not us.
O’Neill:
I am simply anticipating what my position …
Judge Prosser:
If you don’t (words missed out)
O’Neill:
Indeed. I just take a different position from Mr Mayer. I think the Court has to look at the questions.
Judge Prosser:
That is taking matters out rather than just choosing to put a matter in. Just what suggested adjustments have been made…
O’Neill:
In relation to the Crown?
Judge Prosser:
No doubt the arguments can be put by the Crown. We don’t have to ask. It is not for us to help or hinder them.
O’Neill:
Your Lordship, that is already to take a position which is the subject of argument.
Judge Prosser:
The Crown can have a role in drafting the questions.
O’Neill:
Well the role can …
Judge Prosser:
And the Court?
O’Neill:
And the Court may have a role. That is a question that may arise and, again I don’t want to anticipate matters, but it is to be recalled that this Lord Advocate’s Reference will be heard at a time when this Court is subject to the Human Rights Act.
Judge Prosser:
Of course.
O’Neill:
And the practices of the European Convention of Human Rights.
Judge Prosser:
You are making no submission today on any of these matters?
O’Neill:
No, your Lordships.
Judge Prosser:
Then these are clouds on the horizon. Is there anything else being decided today?
O’Neill:
No, my Lord. I am just saying these are matters …
Judge Prosser:
These are matters which we could not deal with today.
O’Neill:
No, no.
Judge Prosser:
OK.
Moynihan:
May I make a point in support of Miss Zelter? It is a matter which is in relation to the Nobile Officium.
I would not support that as the appropriate procedure at which to raise an issue. Nevertheless the matter which Miss Zelter has raised is a pertinent position.
I fall into the position of Mr Mayer in that what needs to be addressed is the question of competency. I am addressing it in relation to what I think is the correct approach in this – what Mr Mayer seeks to approach in relation to the Nobile Officium. It arises directly out of what Miss Zelter and Mr O’Neill have said. It arises in relation to the formulation of question 2 and in relation to what I would suggest is an incomplete and misleading quotation from the Lord Sheriff. If I might ask your Lordships to look at question number 2.
Judge Prosser:
This is in the actual Reference?
Moynihan:
In the Reference. My Lordships, in addition to the Reference, your Lordships would also need the extract of the proceedings.
Judge Prosser:
You have to go slowly because …
Moynihan:
I know.
Judge Mclean:
Here in these papers?
Moynihan:
The Reference is the first document to deal with and then I will deal with the second one in a moment.
Zelter:
May I please make a procedural point here? Would it be better to rule on Mr Moynihan’s role here or not?
Judge Allanbridge:
I thought you were getting a demonstration of his role, Miss Zelter!
Judge Prosser:
I think, in the circumstances, subject to what my learned friend has said, I think it is a question subject to the question of competence. I would think we would rather hear what he says, although acknowledging what you say. Yes.
So, we are looking at the Reference …
Moynihan:
And also there is a transcript which is the transcript of the proceedings on the 19th to the 21st October.
Mayer:
Your Lordships, I rise to my feet. This is something which has been the subject of comment in an academic article of which I am aware and also your Lord Advocate make reference to. This is something which has not been made available to me and the Counsel.
Judge Prosser:
At the moment, Mr Moynihan is just referring us to the transcript.
Mayer:
I don’t think the transcript …
Judge Prosser:
I am sorry.
Zelter:
Could I clarify?
Mayer:
What I am saying, your Lordships, is this transcript has been mentioned in an academic article and by the Sheriff but the important point is that it is referred to by the Sheriff, but it has not been served upon those instructing me.
Judge Prosser:
Mr Moynihan, in view of …
Do you wish us to look first at …
Moynihan:
The Reference and then the transcript. I think my learned friend can share my learned friend’s, Mr O’Neill’s copy.
Judge Prosser:
Can you repeat the references?
Moynihan:
Sorry. It’s a transcript from the extract of the proceedings from the 19th to the 21st October, my Lord. If I hold it up, it’s the largest extract. I think my Lord has the evidence of 3 witnesses. This is the closing submission to the Sheriff.
Judge Prosser:
We have not had it before and I don’t know that we have had it in the papers supplied so far. Could you just say again?
Moynihan:
My Lord, to indicate, as Miss Zelter has said, and my learned friend Mr O’Neill has said, question 2, which speaks in terms of possession is not the issue.
Judge Prosser:
It is the issue?
Moynihan:
No, it was not the issue. Perhaps if I can refer your Lordships to page 2 of the Lord Advocate’s Reference, paragraph 3, Statement of Fact, 1d, there appears to be a quotation from the Lord Sheriff’s closing conclusion. If I read it there is a critical omission, which is indicated by the dots. It indicates that the quotation is incorrect. The Reference says ’at the conclusion of the defence case it was submitted on behalf of the pannels that the Sheriff should direct the jury to acquit the pannels. As understood and summarised by the Sheriff, that submission was as follows: “the 3 accused considered that Trident was being used illegally, based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal …’
Can I ask you to underline that.
’… they had a right, particularly given the enormity or the risks of nuclear weapons, to try and do something to stop that illegality” It was also submitted on behalf of the pannels that esto Trident was not being legally used. The pannels were, nevertheless, under the necessity of trying to do something to stop the United Kingdom from continuing to implement its policies in relation to nuclear weapons …’
Judge Prosser:
That is the ’alternative necessity’ argument.
Moynihan:
If we leave that section, the first quotation says that: ’If they were right that the use and threat of nuclear weapons is illegal.’
If I tell you what was right between that word and the word ’they’. It is 143, your Lordships.
Judge Prosser:
I don’t think we have it. Is that right? We understand that copies have not actually been provided for the Court. I think we will quote only by quoting.
Moynihan:
What I will do is quote the extract and read the totality. There are two other things: when your Lordships have seen what was decided you will see the substance of what Miss Zelter is saying. If I read out – there are 4 lines omitted in the quotation. If I come back to the beginning of the sentence: ’If they were right that the use and threat of nuclear weapons is illegal.’
It references: ’If they were right that the use and threat of nuclear weapons is illegal’ … “and as I understand from Miss Zelter, they do not say that possession of weapons, is illegal but the use and threat of such weapons is illegal.’ Then again …
Judge Prosser:
So that specifically draws a contrast between pure possession, simple possession, on the one hand and the whole role of use and threat?
Moynihan:
Threat and use.
Judge Prosser:
And so the Sheriff has understood that the issue was the use and threat, not simple possession.
Moynihan:
Yes. If I can run this through. I will pass up my copy to your Lordships.
At page 145b to c, the Lord Sheriff says “the whole defence hinges, if I can say it this way, on the use made of nuclear weapons now and the perceived threat or threats made by the nuclear states, this is the whole quotation.” So it is the use and threats.
Judge Prosser:
I suppose, in a way, it is much less clear even as it is put there. What its focus is use and threat. The additional material you have read shows that she understood very clearly the issue.
Moynihan:
The whole point is that: when you address the complete quotation from the Sheriff and question 2 you see question number 2 was not the issue at the trial. Question 2 was: ’Does any rule of customary international law justify a private 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?’ That gives the context.
I also refer you to 150 where the Sheriff makes it clear again it is the use made.
My Lord, it’s the passage at 150c to 150d which needs the most serious consideration of this Court and it begins five lines from the bottom of page 150. The Lord Sheriff says, five lines from the bottom: ’In the absence of any expert contradictory evidence from the Crown, I have to conclude that the 3 accused ladies in front of me in company with many others were justified in thinking that their 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 now that such use fell into the 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 touch on this morning is the 3 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 government / 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 principle reason for their actions that the crown has a duty to rebut that defence. They have not done so and accordingly I uphold the 3 defence submissions to the extent that they relate to the charges of malicious and willful damage.’
That is the conclusion. The Lord Sheriff concluded that the threat and possession of Trident could be construed as a threat, and, as such, was an infringement of customary international law. Now, on behalf of Miss Zelter, I would submit that, in the formulation of the Lord Advocate’s Reference, what is entirely overlooked is what the attitude of the Crown (???) to that conclusion, and is that the conclusion to be questioned before this Court?
I remind your Lordships, and this is one of the reasons for raising it, that nuclear weapons and policy pertaining thereto are not devolved matters. Accordingly, they fall outwith the competence of the Lord Advocate, so that if there was a question by the Crown of seeking to challenge that conclusion by the Lord Sheriff it falls outwith the matters and the responsibilities of the Lord Advocate. Your Lordships there is a specific paragraph in the Scotland Act that nuclear matters are not devolved matters.
Judge Prosser:
I know they are not but how does that marry into this? Why does the fact that they are not devolved have any bearing on the question to be asked?
Moynihan:
Because what Miss Zelter’s position is … She says not. But if I can formulate them in a way which I think gives rise to an issue of competency, question 2 does not address the issue at the trial.
Judge Prosser:
It does not in relation to 123. It does not arise. It is a matter of whether it is a conflict situation in terms of 123.
Moynihan:
Because the question at the trial was not mere possession but the threat or use of weapons.
Judge Prosser:
Have you not used the word ’deployment’? Is that a shorthand way of saying threat or use?
Zelter:
Yes.
Judge Prosser:
(illegible shorthand)
Zelter:
It was very clear.
Judge Prosser:
Thank you.
Moynihan:
Your Lordship, as far as the devolved threat is concerned, it is perhaps premature but what the respondents in this position are entitled to know, in my respectful submission is the (illegible shorthand) the Court is being asked to pronounce on ’necessity’? That assumption could be one of 2 things.
Is the Court being asked to pronounce on the assumption that the Lord Sheriff was correct at page 150c and d that there was an infringement of international law being committed by the United Kingdom? Is the Court being asked to proceed on that assumption? Or, the alternative: does the Crown seek to challenge the conclusion of the Lord Sheriff that there was an infringement of international customary law?
If the second position be the Crown’s position … if the second position be its position, what I draw your Lordships’ attention to is that nuclear arms policy, and a defence of nuclear arms policy, is not a devolved matter. This is where it arises from my learned friend’s, Mr Mayer’s petition.
My learned friend’s petition says your Lordships need to hear evidence on the UK policy. I would not support that as a form of procedure but what I would say is that if anyone is to make comment on the UK policy towards nuclear arms it is the Advocate General and not the Lord Advocate who has the statutory competence to do so.
Judge Prosser:
But surely anyone has a right to comment on the kind of material which is before the Court such as this? It is not to make policy decisions. There’s the evidence of the trial and one has that and one has the Sheriff’s report. We would not be hearing (inaudible) statements upon this, surely?
Moynihan:
Perhaps, if I draw back to the primary position on behalf of Miss Zelter and just ask your Lordships the question – and I accept what Mr O’Neill has said that it is not for the Court to draft the questions. Having looked at the documents before the Court and the trial transcript …
Judge ?:
The trial transcript which you keep referring to – this is an official transcript?
Moynihan:
Yes, my Lord.
Judge ?:
But the first respondent has obtained a copy of it.
Moynihan:
No, my Lord. What happened was that when I was appointed by the Court as amicus curiae I went to the Justiciary Department and asked them for access to papers. I was, your Lordship, given some papers by the Crown Office in relation to transcripts which had been obtained. I can’t now recollect from which of the two sources I got this transcript.
Zelter:
Can I give you the full story? I bought it. I copied it to some people. At the first hearing we asked for a full transcript of the trial but we only got the excerpts. (Words missed out.)
Judge Prosser:
That is why we have not got it and in fact it has not gone to Mr Mayer.
Judge ?:
And does it run to over a hundred pages of what the Sheriff said?
Moynihan:
It runs to 177 pages and, as I understand it, it’s the closing statements.
Zelter:
The list(?)
Moynihan:
The closing statements of all three.
Judge Prosser:
I don’t think we need the details of it now. You have put the point very well that what is proposed (illegible shorthand) about the threat and use. It’s a good point. It is very clear that it was not about simple possession and therefore, as you say, does question 2 say it all?
Moynihan:
And then – sorry my Lord. Then there may be consequential issues which I flag up. These are not issues for today but, on behalf of Miss Zelter, what I would say is that (in terms of Section 123(1)) in my respectful submission, question 2 (in the Lord Advocate’s Reference) does not raise the point of law which arose in relation to the charge at the trial. Accordingly, consideration requires to be given to the formulation of the question. That is not a matter on which your Lordships can, in any sense, rule today. In a sense …
Judge Prosser:
It is not for us to hear opinions that are (illegible shorthand).
It may be useful to the Court to have some warning that the parties are not all at one over whether the questions should be answered. That is familiar in other fields. I do not think it is unusual.
This would normally happen at the hearing.
They are the reasons for refusing to answer that question.
Moynihan :
I think (in support of Mr O’Neill) – it is just another way of responding to the Nobile Officium – if the Crown Office is minded to reconsider the questions, in the light of the issues that are being raised by the parties, then there would be some practical benefit in the reconsideration coming to a conclusion at some point before the 9th October so that the parties could then consider the implications of the reformulated questions.
Judge ?:
What is the role of the Court?
Moynihan:
The role is to hear that a question has been raised as to the competency of the question.
Judge Prosser:
And also that we say it is nothing to do with us.
Judge ?:
It puts it in context.
Moynihan:
And the function of doing that – to put it in the context – is that, if you are minded to proceed, your Lordships could refuse Mr Mayer’s motion on the basis that the petition to the Nobile Officium is unnecessary. The issues raised in his petition could properly be raised by the parties by an application to the competency of the present Reference. That is the legal approach that I would commend to your Lordships and, I dare say, that is what my learned friend Mr O’Neill was commending. What he was suggesting – of having a Preliminary Diet at some date in the future – would be one means of putting a time scale on the Crown’s consideration of these issues, if they are to reconsider them.
Judge Prosser:
I can’t pretend I have read all the papers. I only got them recently, but, presumably, if that question were simply taken out – and there would then seem to be a reduction in time … I am wondering if it should be a Preliminary Hearing?
Moynihan:
Your Lordships, the problem about it is that: question number 2 is really the issue in this case because …
Judge Prosser:
A variant of it?
Moynihan:
Yes, a variant of it – because question 4: Is it a general defence to a criminal charge that …the commission of an offence by … person … It is so wide ranging that one could be here for a considerable period of time. It’s simply asking in general terms: Could conduct, ostensibly criminal, be justified on the basis that that crime was committed to prevent a proposed greater crime?
Judge Prosser:
It might take a very short time because usually there are lots of other ways – if you are aware of matters criminal, that is legally, to be done to prevent it being done in law than do it at your own hand on the spot.
Moynihan:
The point I was seeking to make, my Lord, was the critical question, the one that will take up time, is a variant of question number 2. In other words, the most important question is not there.
Judge Prosser:
The crux, you say, is simply not being put by the Crown?
Moynihan:
So rolling all these matters up, if your Lordships affirm my appointment as an amicus curiae those are the submissions I would make as a contradictor to the Lord Advocate in this particular matter.
Judge Prosser:
I have to say, I found it useful in the way it was brought together (inaudible) Miss Zelter and Mr O’Neill were saying in a way. Yes, in a sense we are not being asked to do something about this today. I don’t know whether you want to …
Di Rollo:
Your Lordships, I didn’t have any notice of what was being put forward other than the petition. The petition can be dealt with fairly quickly. I have had an opportunity to discuss the case very briefly in general terms and my submission is that the questions are for the Lord Advocate. It is for him to decide what questions he wants to ask the Court. It may be, having the benefit of seeing the transcript from the Sheriff, the Lord Adovocate will have to consider whether or not the question is framed correctly.
Judge Prosser:
I think in view of what was said today in Court it is important (because you won’t be involved) … it is pretty important that you are a good messenger.
Di Rollo:
Indeed. But, my Lord I don’t accept that the questions it raises need revising. I have had the opportunity to consider in detail what Mr Moynihan has said and it may well be that there is no alternation to the questions. I just want to make that clear. Indeed it has been said.
Judge Prosser:
I think, in your document, what you said … you are asking quite a lot … you are asking assurances which we cannot give on a future occasion. They arose on that occasion. We are not the same judges. So there is no way we can give assurances.
So far as ducking the issues are concerned, I would be very surprised if my reputation was one of ducking issues. As far as wanting us to be impartial, it’s the obvious pride of a judge that he is impartial. So your unease is not the kind of outfit you fear.
But, so far as the questions are concerned, I don’t think we can do that. It is for the Crown to listen. If you are right and, if they don’t alter the question – and it would appear that (as Mr Moynihan suggests) question 2 is one the Court refuses to answer – and if answers are also invited by the Crown.
I am not sure how this is going to fit in if a Preliminary Hearing is wanted. What is the date?
Zelter:
The 9th.
Judge Prosser:
I suppose it is not essential that the Preliminary Diet … Well it can’t be with us. I don’t think it is essential it’s before the original judges because it’s getting so close. It would be better that before the Preliminary Hearing the judges should have begun to understand what is at issue. Whether we can assemble the 3 judges at the actual hearing, I have no idea. But it is really the wish of all on the side of the respondents that there should be a Preliminary Hearing at which at least the questions might be finalised, possibly by ruling as incompetent, possibly by putting in one or different versions, if you were open to that.
Zelter:
No, that is not what I had in mind.
Judge Prosser:
Yes. I was just going to ask the respondents.
Zelter:
In a way this (illegible shorthand) takes us back to the procedural that the amicus curiae is not acting on my behalf.
He has raised the issue of devolution.
What I am saying is: I don’t mind how they are raised as long as I have a clear response.
On the issue of devolution, I would disagree. Whatever the British Government says about devolution issues it can’t avoid a separate judicial system in Scotland looking at whether what it is doing is criminal under international law.
I am just bringing to your attention that we do have differences of opinion which, if we talked together, we might be able to resolve. But I don’t like being told this is what I am saying.
Judge Prosser:
I get the point on the issue of talking but I can’t … The Court simply can’t open up questions which are not relevant to what is before it. Therefore it is pretty important what the actual questions in the case are, because these determine what is before the Court. However sympathetic or enthusiastic we feel, we can’t use this as an occasion to look into matters which are not within the document before us. I think it comes back to ensuring as far as possible that the questions are the best ones or the right ones. We can’t force inclusion anything that is not there and nor can you – unless its forced in the way that Mr Moynihan was suggesting. I don’t think we can do it better than that.
Mayer:
My Lord, having heard the submissions of my learned friends, I am content to consent to my learned friend Mr O’Neill’s motion.
Judge:
The motion?
Mayer:
The motion. I go along with another Preliminary Diet. Your Lordships will appreciate that the efforts within the petition are designed, as my learned friend Mr Moynihan said, to reach the same conclusion. It has been suggested by Mr Moynihan and my learned friend Mr O’Neill that, rather than seek to obtain a Nobile Officium, another route is obtained, as suggested by Mr O’Neill and Mr Moynihan. So, in that sense it makes a petition Nobile Officium … it cuts the feet from under it in that, if there is another route …
O’Neilll:
The difficulty was creating a legal means by which today’s legal hearing could be convened and it seemed, from the attitude of the judicial chancery, that we were informed(?) that a petition was necessary.
Judge ?:
(Inaudible).
Mayer:
I would prefer to reserve my position rather than abandon it.
Judge Prosser:
You won’t be asking us to deal with the Nobile Officium today?
Mayer:
No. I would be content to reserve my position.
Judge Prosser:
I would be content with that. It is almost (inaudible) in another week’s time. Of course we can’t take the thing further unless you move something and have identified what it is for …
Mayer:
That is precisely why I moved to reserve my position.
O’Neill:
I will be making an application that there should be a Preliminary Hearing in order to take up some of the points I was making.
Judge Prosser:
So we are not actually deciding there should be one or that (inaudible). I think substantial issues have been raised. How could we make this happen? (illegible shorthand.) I suppose it is true that, provided I can be made available, it is not essential that the other judges are present.
Judge ?:
Personally, I think it would be very unfortunate if one did not know the questions one was having to ask. It is the lesser of 2 evils.
Judge Prosser:
It has been a rather long journey from your original track!
Zelter:
You have got to point 6.
Judge Prosser:
I don’t think … I think we have been taken away from this.
Zelter:
In a way, they’re quite simple and quick procedural issues. Basically, I would like to know how the process will operate. As you can see, there is a confusion about what documents will be before the Court. For instance, will you have all the documents mentioned in the Sheriff’s court? Can I also assume that you will have before you the basic international humanitarian law texts, like the Nuremberg Principles, Hague Conventions, Geneva Conventions and Protocols, UN Charter etc and that you will have the official HMSO Transcripts of the Nuremberg Trials? If not, should I bring the whole of the texts or just a copy of the pages I will be referring you to? And will one copy suffice in order to keep costs down?
Things like that, because every time I write to the court they say you have to decide. They can’t do that themselves.
And I would also like to request that the Court check at the end of each discussion whether any of the parties have anything else to add. I put that before the court because I was not allowed to come back on many issues at the last hearing.
Judge Prosser:
The normal procedure is – if something new comes up, you have a right to come back, but if there is nothing new then you can’t.
Zelter:
The other request is the interlocutor sheets. Quite substantial issues have been raised here. The fact that I am not allowed a tape – and I don’t know how good the notes are going to be from the volunteer note taker – but it would be useful to have a copy of the interlocutor sheets. So I would like to know whether that will happen. Can I have your assurance that I will get interlocutor or court records of what is going on?
That brings me to the request for a full recording and official transcript of the full hearing and the ruling.
As a Court of Record I request that you order a full official transcript of the hearings of the LAR, either by stenographic or electronic means. This is required by the European Convention of Human Rights. If you look at the case of Pardo v France. I have only one copy here.
Judge Prosser:
In terms of what?
Zelter:
That was a case that floundered on the fact that there was not an official transcript of the court proceedings and the implication of that …
Judge Prosser:
What?
Zelter:
Would you like to have a copy of it?
Judge ?:
We didn’t get a full reference.
Zelter:
It is written down. And I request that a full transcript, including the eventual ruling, be sent, free of charge, to each of the parties in this LAR as soon after the hearing as possible. At the very least copies of the Ruling should be provided free to all parties as soon as the ruling has been given.
My reasons are that: This is a Court of Record and an official record of its proceedings must be made for the parties concerned. I have substantial interests in the outcome of such proceedings. Also, it is a public interest case and many people will want to know what went on here (not least the Strathclyde Police and lower courts); After the Greenock case there was much unsubstantiated and misinformed discussion in the press, even by lawyers – an official record would be the best way for an informed discussion to take place; I may take this whole process further and go to Europe and an official Court Document would be essential to have in order to establish a case to be appealed.
I then would like to cover an issue that was raised at the first court which is my own costs. My own travel and administrative costs should be covered. My reasoning is as follows: I am, by statute, an equal part of the LAR. Under the European Convention of Human Rights there must be equality of arms and fairness. Everyone else in these proceedings is being paid their costs – so should I. If I have elected to be represented my legal representatives would have been paid. My costs will be much less than legal counsel but nevertheless they should be paid.
Judge Prosser:
You say that you would have been liable for legal aid. It would have been funded.
Zelter:
Not necessarily legal aid, but the Lord Advocate pays legal costs.
Judge Prosser:
Yes, I see what you mean.
Zelter:
Although not ’envisaged by statute’ the 1995 Act was drafted in the early 1990’s and was not therefore able to envisage the ECHR points. The relevant section of the Criminal Procedure (Scotland) Act 1995 – Section 123 – is silent on costs for a party. The Court is therefore able to use its own discretion.
I have an interest in the LAR, one beyond the most important and significant issue of the criminality of Trident and one which is personal. It is that the rulings made in it will effect my reputation – indeed police, prosecutors and magistrates have informed me that the LAR – or Appeal as they invariably call it – will prove that I was wrongly acquitted and am a criminal – in some ways it is seen as ’an appeal by the backdoor’. An adverse outcome may also expose me to civil liability.
I therefore submit that – the final ’determination of the criminal charge’ – and I refer here to Article 6 of the ECHR – has still not been completed, in that this LAR arises out of the Greenock acquittal and the Rulings made in the LAR will affect me; that Section 123 must be read in a way compatible with the ECHR; that although there has never been an unrepresented party in any LAR proceedings before, the High Court is entitled to create the appropriate procedures for the LAR; and that therefore you should make an order that my costs be paid and inform me of the procedure for claiming those costs.
And my final point is that for the full Hearing I would like to request the assistance of a helper, or a Mackenzie Friend, like I did at Greenock, who will be able to sit near me and help me with my papers etc. – in a similar fashion to the assistance given to other parties around this table who have solicitors to help them.
Judge Prosser:
Do the others have points arising from that?
?:
Nothing.
Di Rollo:
Lord, there was a mention of the interlocutor sheet.
In relation to the trial there is a point which I think your Lordships should be aware of – the transcript of the Reference. I think the position is that that decision has been made in relation to the (inaudible).
Judge Prosser:
As to whether it may be recorded?
Di Rollo:
Indeed.
Judge Prosser:
Well, we decided as of today.
I think the Lordships Clerk has drawn to my attention that it is a similar application to the one made … It is similar to the interlocutor sheet (illegible shorthand) but that was in relation to the future. I mis-read that. All proceedings at the Hearing (words missed out?) if this is the interlocutor sheet.
Di Rollo:
I think the application for the Nobile Officium with that petition has already been made. (words missed out) that decision should be changed.
What is being sought here is, it seems to me – I was not at the last Hearing – but a decision was made. A motion was made at that Hearing.
Judge Prosser:
The argument was that there should be a recording of the eventual Hearing.
Zelter:
But there was no substantive discussion. That was an issue that was not argued.
Judge Prosser:
So the matter has been disposed of as matters spent?
Zelter:
I would like to ask the Court …
Judge Prosser:
Then the matter has been decided?
Zelter:
I don’t think there was a substantial discussion on the matter. I certainly didn’t take part in such a discussion.
Judge Prosser:
Yes. It’s not a question …
I don’t think it is terribly suitable to try and answer just off the cuff the things you want to be told about documents.
Normally it is up to any party to ensure that the materials they want to present, have been reproduced. If there are other parties, and the like, it is still up to them to do that but I am sure the other parties will help you on that.
I don’t think it is for us to decide what you come to Court with. It is up to you to go and look it up in court libraries.
It is obviously useful not to be surrounded by piles of books but to be given prints of the relevant pages of things and the like. But it is very hard to give guidance on that. What is important is that each of the three judges has the material and – whether it is in book form or photocopy – it is essential that the judges have copies of what is being referred to. I will say don’t come and produce volume after volume of stuff that’s not going to be referred to. It’s a terrible waste of everything.
You say that the Court has answered the question whether there should be a recording and I think it sounds, historically, as if that’s the case.
Di Rollo:
Indeed.
Judge Prosser:
I am not sure that would be an absolute barrier if there was a change of circumstances or there was argument before the Court as to whether it was suitable – apart from the fact that it is abnormal or possibly unique. Is there anything you can say regarding the Crown’s interest in not recording the proceedings? There may be strong reasons.
Di Rollo:
It does require some thought. (illegible shorthand.) It does appear that it has been determined by this Court that this transcript should not be made. Apart from returning to that decision there is the question as to whether or not it is desirable to have pre-proceedings recorded. Proceedings are recorded in criminal trials for the purpose of the trial court. What benefit or purpose of recording these proceedings is, I don’t know.
Judge Prosser:
I think the general distinction that is often drawn is between evidence (in which case the implication is on the way things are said) which justifies recording and the quite different matter of legal argument which does not fall on the exact words. As you say, there is the practice of not doing it in the normal circumstances. I wonder if this might be for a Preliminary Hearing? I don’t get the impression that the Crown … I would like to hear you at the end … because it does appear to have been decided. So, I think, if there is a wish to raise that matter, can I suggest that it is raised at that Preliminary Hearing?
Di Rollo:
As I say, without prejudice to anything said, if the Court wishes the matter to be heard again, my …
Judge Prosser:
I think it would have to be addressed about how we could go back on what was decided, so that could be dealt with at a Preliminary Hearing.
Di Rollo:
A decision for that (illegible shorthand) obvious expense to the procedure.
Judge Prosser:
I think all the Court would be doing, regarding any question of transcripts, would be a quite different matter – that might be extremely expensive. All the Court would be doing would be considering whether the proceedings should be taped. It would not be a question of whether it should be transcribed at public expense. Ideally, one should. That is why it is of huge value. But there is the question raised as to whether it is required (illegible shorthand).
Di Rollo:
That is correct.
Judge Prosser:
We would need to look at that. I find it surprising that it is not a fact that all proceedings are recorded. I appreciate we are not going to resolve that today, Mr Moynihan.
Moynihan:
I am conscious that perhaps proceedings are coming to a conclusion but there is still, in my mind, the difficult question of procedure to resolve. Your Lordships have the power to put anything before your Lordships by order but, from this side of the court bar, it would appear that, presently, the only way of raising, for instance, a Preliminary Diet, as my learned friend calls it … There is no such creature in the procedure I am told. It is not a Preliminary, as in other procedures, but preliminary with a small ’p’ (inaudible).
My concern is that the procedure for raising this … My concern is that my learned friend may come into big difficulties (illegible shorthand).
Judge Prosser:
We have indicated that we are amenable to the idea of there being a hearing on an occasion in advance of the Hearing and it will be up to … If you will just let me finish. It will be up to the other parties indicating the issues they propose to raise.
O’Neill :
That is correct.
Moynihan :
What I am saying is: your Lordships may wish to indicate the way preliminary matters are dealt with in the future for this and other Lord Advocates’ References.
Judge Prosser:
(illegible shorthand)
We agree that (inaudible) in advance of a Preliminary Diet, the main Diet. We just (illegible shorthand) it is at a date in advance.
(Illegible shorthand.) A decision has to be made on the Counsel, for the Amicus Curiae. I think what we will do is we will withdraw briefly to see whether we can settle our decisions on outstanding matters.
One is the two-tier question about the Amicus Curiae – about whether there is to be one and who it is to be.
We have already indicated that procedurally we can dispose of the Nobile Officium.
We are just going to convene. It will fit in with the other matter. I have (illegible shorthand) what is going to be dealt with (illegible shorthand) Angela Zelter as it is the matter of the Amicus Curiae that is required.
Zelter :
I would like a decision as to costs and the McKenzie friend. Thank you.
Judge Prosser :
I think we can decide that. I think you can take it, yes, it will be perfectly alright for you to have someone sitting next to you in an assistant-type role.
The question of expenses or costs: Do you know if the Crown meets the expenses of representation? It does seem a bit rough if those that are represented have their expenses met but someone who is appearing on her own behalf with (illegible shorthand) fees – perhaps modest fees – meets her own outlays. Is this all a matter of discretion?
Di Rollo :
No, the provision for (illegible shorthand) of expenses are the (illegible shorthand) of the statute. Section 123(4) provides that ’The costs of representation elected under subsection (2)(b) above or of an appointment under subsection (3) above shall, after being taxed by the Auditor of the Court of Session, be paid by the Lord Advocate.
Judge Prosser:
So that’s done by statute. You have to be paid that. So if a party wants to represent themselves … Unless the Crown felt (as it sometimes does) that it is appropriate to pick up the bill – whatever that may be. I mean it happens in a variety of situations, but you are right it would be a discretionary decision. I don’t think we can order that to happen.
Judge ? :
May be it is a matter the Crown should consider.
Judge Prosser :
It would be the case, at the end of the Reference, if the decision (illegible shorthand) the Crown and in favour of Miss Zelter, the Court would have its ordinary power to grant expenses.
Di Rollo :
I don’t think so.
Judge Prosser :
In the case of a successful …
Di Rollo :
I don’t think.
Judge Prosser:
It doesn’t have specific provisions?
Di Rollo :
Indeed. There are specific (illegible shorthand) appearing in civil matters, as I understand it. Whether they are entitled to expenses, in criminal law, is a different matter. There is a specific provision here and that is the situation here. As far as the Court… What the Court has been invited to do is … what it has been asked to do …
Judge Prosser :
I think the decision is that we can’t make any order for expenses. I think the Crown do have to consider this application. It is not for the Court….
Zelter :
I could refer you to letters to the Court that say this is the appropriate forum and its in the power of the Court to do that. Both the Court and the Prosecutors have said the Court make the decision. I can get the letters out.
The other issue is the possibility that a civil case may be taken out against me. It is not just an academic exercise there. I do have an interest in this.
Moynihan :
Might I suggest that if your Lordships were minded to grant an order for costs today then, obviously, you should do so. If you are asked to award on the competency of an award of costs, might I suggest you reserve that question to the Preliminary Diet.
Judge Prosser :
And you can take it upon yourself to help the Court? You can see if there is some way in which we can consider the question of an order of expenses?
Moynihan :
Yes
Judge Prosser :
That would be extremely helpful. Very well, do that. Yes. Assuming you are going to exist … Perhaps, Miss Zelter, you will want to assist in his demise but we will think about that one!
What we have not covered is the relationship between yourself and Miss Zelter – the question of contact between the two. There is a strong advantage, in a sense, of an Amicus Curiae being wholly independent. Equally, it may be that advantages are seen … I am not sure it is for the Court to direct what should happen on that but perhaps Mr Moynihan you have a thought on how much you feel you could have contact with Miss Zelter on any aspect of the matter?
Moynihan :
Now that my role is clarified (illegible shorthand) there is obviously a practical benefit to liaising with Miss Zelter so I know the issues she wishes to make.
Judge Prosser :
There is the matter of whether that is appropriate.
Moynihan. :
Yes. It follows from the clarification of the role that meeting would be appropriate.
Judge Prosser :
So you see this as appropriate? Meeting?
Moynihan :
Yes.
Judge Prosser :
I think we have to leave that to you.
Moynihan :
I am obliged.
Judge Prosser :
I did indicate a moment ago that we would withdraw but, having had a brief word together, we are satisfied we don’t need to withdraw.
We are persuaded that this is a case in which the appointment of an Amicus Curiae was appropriate. In any event it should be done. It would not be appropriate for us to withdraw it. Even if we could, we would not seek to interfere.
As far as the identity of the Amicus Curiae is concerned, we are satisfied that the points made about Mr Moynihan are not the kind of things … We are satisfied as to the (illegible shorthand) independence of an advocate overcomes that kind of objection and therefore he is an entirely suitable person to remain in office. Therefore we won’t alter the position of the Amicus Curiae in any way.
Is there anything more we can usefully do?
Very well, if there is not, then we will conclude today’s proceedings on that basis. Efforts will be made to find an early date and none of us are going to be pernickety about which date. It will be quite hard for us to fit in an advance hearing.
Zelter :
My Lord, will there be an interlocutor sheet from these proceedings so that I will know what you say?
Judge Prosser :
Yes there will be an interlocutor sheet.
Zelter :
Can I ask that it is sent to me please.
Judge Prosser :
Thank you very much, Miss Zelter (inaudible).