The Lord Justice General
The Lord Justice-Clerk and Lord Commissioners of Justiciary
Answers
for
Second Respondent
in causa
Petition
of
The Right Honourable, The Lord Hardie
Her Majesty’s Advocate
quoad
Lord Advocate’s Reference No1 2000
Under and in terms of Section 123 Criminal Procedure (Scotland) Act 1995
Dated: 28th September 2000
McCourts
(a) Admitted that three persons including the second Respondent were indicted for trial in the Sheriff Court at Greenock on an indictment containing the four charges contained in the Annex to the Petition of the Lord Advocate hereunder. Admitted that evidence was led by the Crown in support of said charges and that no submission was made that there was no case to answer.
(b) Admitted that the evidence established inter-alia that second pannel did the acts alleged in the Indictment being motivated thereupon by and carried out in furtherance of her opposition to nuclear weapons and in particular to the Trident weapons system. Quoad ultra denied. Explained and averred that the Second Respondent had a level of understanding of the long-standing political and legal positions taken by the United Kingdom Government quoad its Trident 2 Nuclear Submarine Fleet such as to reveal to her the constant mortal dangers which those positions presented to herself, other people and the environment. She opposed the United Kingdom Government’s actions in relation to its Trident 2 Nuclear Submarine Fleet on both moral and legal grounds, namely that the threat or use of nuclear weapons by the United Kingdom was criminal under customary international law. She had done what she could when she could to bring those dangers to the attention of the United Kingdom Government in order to alleviate the said dangers but to no avail. In that regard she inter-alia had meetings with high ranking officials in Denmark during which she raised the said moral and legal objections and urged them to take such action as they could at Danish Governmental and United Nations levels. She also together with others wrote to inter-alios successive British Prime Ministers, Scottish Lord Advocates and others who ignored her protestations. It was against that objective background that she intervened in the ways set out in the Indictment.
(c) Admitted that on behalf of the pannels there was tendered the evidence of Professor Francis A. Boyle, Professor Paul Rogers and Ms Rebecca Johnson. Admitted that the Procurator Fiscal objected to the admissibility of the evidence which it was sought to lead from said witnesses, inter alia on the ground that it is incompetent to lead evidence as to a question of law. Admitted that the Sheriff repelled said objections and allowed the evidence to be led. Admitted that the evidence given by said witnesses referred inter-alia to the Advisory Opinion of the International Court of Justice of 8th July 1996 on the legality of the threat or use of nuclear weapons. Quoad ultra denied. Explained and averred that the said witnesses each spoke to a range of issues within their expertise and not only to the said Advisory Opinion. Only Professor Boyle was held out as an expert in international law, which he is. Neither Professor Paul Rogers nor Ms Rebecca Johnson were held out as experts on aspects of the development and current content of international law in relation to nuclear weapons although each of them said they tried to keep abreast of the matter.
Besides being a highly qualified and widely respected academic in the field of international relations Professor Paul Rogers is the only civilian adviser to the Supreme Allied Commander Nato Forces (Atlantic) and is therefor in a unique position as a civilian to provide evidence from the pinnacle of that field, which he did. He was well aware of the Advisory Opinion of the International Court of Justice issued on 8th July 1996.
From her work as a United Nations Permanent Observer in New York and Geneva Ms Rebecca Johnson is also if not in a unique position then certainly among a small group of people who have daily contact with United Nations Ambassadors, Foreign Ministers and others in positions of influence at that political level. She listed the countries which regularly make official and unofficial protest in the United Nations at being threatened by inter-alios the United Kingdom’s deployment of its Trident 2 Nuclear Weapons Fleet. She emphasised how these protests were often delivered to her personally as an intermediary for onward unofficial transmission to inter-alios the British and American UN Diplomats. She also spoke to being present on 8th June 1999 at a meeting in Geneva attended by inter-alios Pakistani and Indian government officials wherein the said threats were being heatedly discussed. She gave evidence that the situation amounted to extremely serious political tension in the world caused inter-alia by the deployment of the United Kingdom’s Trident 2 Fleet. The fact of that meeting and some of its content made headline news around the world. She was similarly well aware of the Advisory Opinion of the International Court of Justice.
Further explained and averred that further evidence was led on behalf of inter-alios the Second Named Pannel. Judge Ulf Panzer who is the Presiding Criminal Judge for the City of Hamburg gave evidence to the effect that, in his Judicial Opinion formed after much investigation over many years, citizens had the right to personally intervene within their domestic law when their government was acting in constant violation of customary international law. In his case he and over a hundred other Judges successfully intervened o prevent the threat or use by the German government of Pershing Missiles. Following that intervention the said missiles were removed by the German government in accordance with customary international law. He explained that the legal basis of that intervention was the Nuremberg Principles as unanimously adopted by the United Nations in Resolution 95 (1). In addition expert evidence was led from Professor Jack Boag emeritus Professor of Physics at London University and a former Chairman of various United Nations Committees on the effects of explosion of nuclear weapons. He explained about the indiscriminate and mass destructive nature of nuclear detonation. He was emphatic that the United Kingdom was placing the people of the world in constant danger by deploying said weapons. He spoke graphically about the sword of Damocles. The evidence of both of said witnesses were included within the Sheriff’s Report and formed part of her reasoning. Similarly the pannels gave evidence about their right under international law to intervene in order to prevent indiscriminate mass destruction amounting to Genocide. Said evidence formed part of the Sheriff’s reasoning and is essential to proper adjudication by the court.
(d) Admitted that at the end of the defence case it was submitted on behalf of the pannels that the Sheriff should direct the Jury to acquit the pannels. The Report by Sheriff Gimblett and the actual submissions are referred to for their whole terms. Admitted that on behalf of the second pannel a detailed submission was presented which inter-alia focused upon the different stages of development of the law of Necessity in Scotland, England and the United States. Quoad ultra denied. (e) Admitted that the Sheriff, on the basis of the said submissions, held that the accused had acted without the criminal intent required for the constitution of the crime of malicious mischief and directed the Jury to acquit the pannels of the charges of malicious mischief. Quoad ultra denied. Explained and averred that the defence for the second pannel had been from the outset of the trial that she acted wilfully but not maliciously. Further explained and averred that the Sheriff also ordered the acquittal of all three pannels on the alternative Charge 4 of theft.
Skeletal Answer to Questions of Law:
Question 2 (1)
First point is that there doesn’t seen to be a rule of evidence on the point – hence the Lord Advocate’s question.
Second point is that leading expert evidence is routinely done in England in criminal courts to rebut the Necessity defence. Leading such an expert has long been a requirement of Scots law but it was not done at the Greenock trial. [see Moss v Howdle 1997 SCCR 782 per Lord Justice General Rodger]
International Law is a special case. IL has very different sources from domestic law. IL is made in a wide variety of authoritative places. Although drafted mostly on foreign soil IL, because it is a civilising force and not a destructive one, it applies in all countries in the world for the benefit of all peoples of the world. See Statute of the ICJ Art 38
Both criminal and civil Courts quite properly require to be taken through statute and case law. It cannot be presumed that the Judge knows all the law from every Scottish source. That is so even where the Judge has, as a politician [Lord Advocate or Solicitor General], proposed and, or, voted upon legislation or decided the authority cited in any instant case. Therefor if the court cannot be presumed to know all Scots Law then, just like English domestic law or any wider system of jurisprudence, it can’t be presumed to know the wider IL. As when deciding the law of another place, the court requires to have expert evidence which can be tested by counsel and the Court before being satisfied as to (i) what is the law of that place, and (ii) how is it applied to any instant case.
Re Civil cases see Maxwell’s Practice of Court of Session p665
Trendtex v Bank of Nigeria [1977] QB 529 per Lord Denning at p553-4., LJ Stephenson at 569-71., LJ Shaw at 578-9.
IL applies all over the UK but the court needs assistance as to (a) where it comes from, (b) the present state of IL and (c) how it applies to the instant case.
Response to Question of Law 2 (2)
Approach :
A. Demonstrate that a Crime in terms of Art V1 Nuremberg Charter is being committed by UK Govt’s deployment of Trident 2.
see:
Nuremberg Principles – especially ‘Crimes’ under Art 6,
UN Resolution 95(1),
Adoption of the Nuremberg Charter as International Law by the UN International Law Commission in 1950,
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 per Lord Denning at p553-4., LJ Stephenson at 569-71., LJ Shaw at 578-9.
Recent approval of the Nuremberg Principles as International Law in Regina v Bow St Mags ex Parte Pinoche Ugarte [1999] 2 W.L.R. (HL) per Lord Browne-Wilkinson et al.
For completeness see: Operation Dismantle Inc et al. v The Queen et al. 18 D.L.R. (4th) 481
B. Demonstrate how the state cannot claim immunity from suit by claiming (i) that deployment of the Trident 2 fleet is an act of policy performed in the course of its relation with other states and (ii) therefor ‘an exercise of sovereign power’ and (iii) thus an assertion of lawful authority for taking such action.
see:
Attorney General v Nissan 1969 All ER [House of Lords] Vol 1 629
Mortensen v Peters 1906 8F.(J) 93 ., 14 SLT 227
R v Secretary of State for the Home Dept ex P. Brind [1991] 1A.C. 696
C. Demonstrate
(i) the nature of the crime – indiscriminacy, wanton destruction of civilian population,
(ii) it’s extent and
(iii) how it places people in ‘constant danger’
see:
the evidence of Professor Francis Anthony Boyle, Professor Paul Rogers, Rebecca Johnston and Judge Ulf Panzer (Panzer not transcribed) and, importantly, Lord Murray’s Article.
D. On the basis of the above facts; build up Scottish Criminal Law on the principle of Civil Intervention from Hume on Crimes to Moss v Howdle :- as distinguished from Civil Disobedience, which is always illegal.
E. Demonstrate why and how the principle of intervention applies to those in ‘constant danger’ from accident or active deployment of Trident 2 and thus when all civil remedies have been exhausted, civil intervention as an ultimate personal act to prevent a government committing an ongoing Crime Against Humanity cannot be criminal because although the act is wilful it is not malicious. Such an act is in fact not an act of crime but rather an act of crime prevention.
Response to Question of Law 2 (3)
Any ‘belief’ based on subjective or emotional grounds is no defence at all in a Scottish criminal court. One must reasonably apprehend real imminent or constant danger and have taken all reasonable steps within the law to alleviate it. [Moss v Howdle per Lord Rodger]
[Helen John case – whilst decided without argument and suffering from unfounded concessions is correct not to open the floodgates to any mindless element who may wish to join in with those who have objective understanding of the political and legal positions]
Response to Question of Law 2 (4)
The question presumes that an act committed to prevent a greater crime which would itself otherwise be a crime remains a crime even when the act is done on good civic grounds. The fallacy of this is that an act done intending to prevent crime means the original act has no founding mens rea and therefor cannot itself be a crime. Generally speaking all civilised systems of jurisprudence allow the use of reasonable force to prevent crime. [English Criminal Law Act 1967 S3 etc Glanville Williams’ Criminal Law – and – Scots law ‘Danger invites rescue’ etc from Moss v Howdle per Lord Justice General]
Pleas – in – Law for the Second Respondent
That the Court ought to answer the first question of the Petition in the affirmative.
That the Court ought to answer the second question of the Petition in the affirmative.
That the Court ought to answer the third question of the Petition in the negative.
That the Court ought to answer the fourth question of the Petition in the affirmative.