Case No: T20037041T20037044

T20037045

 

IN THE CROWN COURT

AT BRISTOL

 

 

The Law Court

Bristol

 

Date: 12th May 2004

 

Before :

 

THE HONOURABLE MR JUSTICE GRIGSON

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-A PREPARATORY HEARING

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Between :

 

 

 

Regina

Prosecution

 

- v -

 

 

Philip Pritchard Toby Olditch Paul Milling  Margaret Jones Josh Richards

Defendants

 

 

 

 

 

 

Prof M Shaw QC, Mr M Ellison, Mr P Blair(instructed by CPS) for the Crown

Mr A Jennings QC Prof V Lowe and Miss AMacdonald (instructed by Stokoe Partnership, 646-648 High Road Leytonstone London E11 3AA) for Mr Pritchard and    Mr Olditch

 

Mr J Lewis QC Prof V Lowe Mr J Knowles and Mr Hines (instructed by Stokoe Partnership) for Mr Milling and Miss Jones

Mr H Charlton and Prof V Lowe(instructed by Stokoe Partnership)for Mr Richards

Hearing dates : 26 to 30th April 2004

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DRAFT JUDGMENT

Mr Justice Grigson :

 

1.         All parties agreed that these three cases satisfy the criteria for holding a preparatory hearing under the provisions of Section 29 of the Criminal Procedure and Investigations Act 1996.  Each indictment raises complex issues of law which it is necessary to resolve so that the real issues to be decided by a jury can be identified.  The conduct of each case by both Prosecution and Defence will be materially affected by the resolution of these issues.  I am satisfied that it is appropriate to order that this is a preparatory hearing under Section 29 and do so.

The Defendants and the charges they face

2.         Margaret Catherine Jones and Arthur Paul Milling face a count of conspiracy to cause criminal damage contrary to Section 1(i) of the Criminal Law Act 1977.

3.         It is not disputed that on the 13th March 2003 they gained entry to RAF Fairford and caused damage to a fuel tanker and some trailers.

4.         Toby Edward Oldham and Philip Michael Pritchard fact two counts: Count one alleges that they conspired together to cause criminal damage contrary to Section 1(i) of the Criminal Law Act 1977.  Count two alleges that, without lawful excuse on the 18th March 2003 they had articles in their possession which, they intended to use to destroy or damage property within RAF Fairford.

5.         Again, I understand it will not be disputed that on the 18th March they gained entry to RAF Fairford and had with them, inter alia, bolt cutters, a chisel and tubes of super glue.

6.         Josh Richards is indicted with attempted arson (count one) and in count two, having articles in his possession without lawful excuse, intending to use them to destroy or damage property within RAF Fairford in a way he knew was likely to endanger the lives of others, contrary to Section 3(b) of the Criminal Damage Act 1971.

7.         On the 18th March 2003 he was found within the perimeter fence of RAF Fairford in possession of pliers, cigarette lighters and containers in which was a mixture of petrol and washing-up liquid.

The Defences,

8.         Each Defendant seeks to rely upon three defences a) duress of circumstance b) lawful excuses under Section 5(2)b   of the Criminal Damage Act 1971 and c) the prevention of crime under Section 3 of the Criminal Law Act 1967.  Each Defendant seeks to question the legality of the use of armed force against and in Iraq.  I quote from the Defence Skeleton argument on Justiciability.

“The Defendants’ case is that the attack on Iraq was an unlawful act which they were attempting to prevent.”

Justiciability.

9.         The first purpose of the hearing before me has been to determine  whether the legality of the action taken against Iraq in March 2003 is justiciable in a domestic court.

10.       I have already indicted, having heard extensive argument that I intended to rule that this issue was not justiciable in a domestic court.  Having done so, I then heard argument as to the legal consequences of such a decision.  I now give my reasons for finding the issue non justiciable and set out what, in my judgement, the legal consequences are. I made plain in the course of the hearing that I was not prepared to consider the consequences of my rulings of law on the facts of each case even on the basis of the most favourable assumptions of fact made in favour of the defence.  I regard such a course as wholly undesirable as I do not believe one can ever properly anticipate the facts of any given case save when all parties are agreed as to these facts.

11.       The Defence have submitted that it is premature to consider the consequences of my ruling and that it is only after the evidence has been concluded that I should do so.  If I were seeking to apply the law as I find it to be to a ‘best defence case scenario’ then I should agree.  As I have said, I am not doing that.  It is necessary to consider the impact of my ruling on justiciability on the three specific defences because it directly affects of evidence and disclosure.

The Court’s Approach

12.       I have heard detailed argument and extensive citation of authorities.  The Prosecution provided three lever-arch files of material, the Defence two, there was little overlap.  Whilst I am grateful for the assistance I have received I make it plain that it is not my intention to produce an academic treatise justifying the decision I have made.  It is not the role of a judge at first instance to review all the authorities and to rule individually on each point made by each side, where it is unnecessary to do so in order to justify his or her decision.  Where there is clear and unambiguous authority from the House of Lords or the Court of Appeal, then this court is bound by such authority and there is no benefit to this court to be derived from considering the legal, historical or philosophical reasoning behind decisions of those courts.  At this level and for the purposes of a ruling on law arising in the trial process ‘ours is not to reason why……’.  Consequently I shall not address the specific arguments advanced to me unless in my judgement it is necessary to do so.  To describe, discuss and decide upon each issue raised in the course of the hearing would be to write a book - and a substantial book.  I have determined that the appropriate way to deal with the issue of justiciability and the consequences of my decision is to set out my decision or decisions and to quote the authority or authorities upon which my decision is based in so far as it is necessary.  Further, as it is inevitable that each of my rulings will be the subject of appeal, there is simply not enough time for me to give detailed analysis of the arguments made before me.  The hearing date for these trials is June.  These arguments are a matter of record.  The skeleton arguments have been made available to the public via the press.  No doubt they will be refined and possibly expanded for the Court of Appeal.

Is the legality of the war against Iraq justiciable?

13.       The prosecution assert that it is not.  In short terms they argue that the legality of the war is a ‘forbidden area’ into which the Courts cannot go.

14.       It is sensible to begin by considering the judgement of the Divisional Court in The Campaign for Nuclear Disarmament v. The Prime Minister of the United Kingdom and others [2002] EWHC 2759 (QB) .[The CND case].

15.       The Campaign for Nuclear Disarmament sought a declaration as to 1) the meaning of United Nations Resolution 1441 and 2) that it would be unlawful for the Government to take military action against Iraq without a further resolution.  The court declined to do so.  The application failed as the court held that those issues were not justiciable.  Lord Justice Simon Brown (as he then was) at para 15 said this:

“I come, therefore, to the preliminary issues now before us: justiciability, prematurity and standing.  The principle of these, of course, is justiciability although the present question might perhaps be better formulated simply thus: should the court in its discretion entertain this substantive application?  It is of course a challenge: no decision is impugned, neither an existing decision nor even a prospective decision.  (CND must inevitably recognise that any future decision to take military action would plainly be beyond the court pursue).”

16.       If the words in parenthesis are an accurate statement of law then the argument in this case should have ended there.  It did not.  It is plain that determination of the legality of the war involves consideration of the meaning of Chapter VII of the Charter of the United Nations and the meaning of, inter alia, Resolution 1441.  These are ‘treaties’ which are not incorporated into English Law.

17.       At para 23 Simon Brown LJ said

“Ordinarily speaking, English Courts will not rule upon the true meaning and effect of international instruments which apply only at the level of international law”

He then referred to two authorities which the applicant then relied upon and which the Defence rely on here, namely R v. Home Secretary, ex parté Adan [2001] 2AC 477 and Abbasi v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598. He also referred to R v. Lyons [2002]3 WLR 1562 upon which the Respondents sought to rely and which the Applicant sought to distinguish, to Oppenheim v Cattermole [1976] AC 249 and J.H. Rayner (Mincing Lane) Limited v Dept of Trade and Industry [1990] 2 AC 418.  He referred to the two principle arguments advanced by the Respondents.

18.       At para 35 he said:

“The first goes to the courts jurisdiction to rule on matters of international law unless in some way they are properly related to the courts determination of some domestic law right or interest.  The second focuses on Mr. Ricketts’ statement and the sound reasons of national interest which he gives as to why the court should not require the Government publicly to declare its definitive view of the position in international law and, by the same token, why the court should not embark upon the same exercise

para 36. Should the court declare the meaning of an international instrument operating purely on the plane of international law?  In my judgement the answer is plainly no.  All the cases relied upon by the Applicants in which the court has pronounced upon some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law.”

19.       In a nutshell, the Defence case here (as I understand it) is that here it is necessary to determine the legality of the war against Iraq in order to determine the rights and obligations of the Defendants under domestic law.  The Defence argue that to decline to rule on the legality of the war against Iraq deprives them of a defence.  It follows that the court must determine the legality of that war because it engages their rights and obligations under domestic law.

20.       In my judgement this reasoning is flawed.  It assumes that a defendant has rights or obligations which are enforceable in a domestic court.  A person cannot be deprived of that which he has never had.  If the alleged illegality of the war did not and does not provide a defence the Defendant is deprived of nothing.

21.       Maurice Kay J as he then was, having referred to C.C.S.U. v. Minister for the Civil Service [1985] AC 374 said:

“…….the controlling factor in considering whether a particular exercise of prerogative power is susceptible to judicial review is “not is source but its subject matter” (Lord Scarman at p. 407).  It is also clear that there are subject matters which are, in the language of Lord Phillips of Worth Matravers MR in Abbasi, “forbidden areas” (para 106 (iii)).  The first reason why the present application must fail is that its subject matter is one of those forbidden areas.  In my judgement this is not because of an exercise of judicial discretion.  It is a matter of principle.  If it were purely a matter of discretion there would be circumstances in which the discretion could be exercised after full consideration of the substantive case.  It is because it is a matter of principle that I feel able to dismiss the present application in a preliminary issue without full consideration of the substantive case.  In the C.C.S.U case (at p.398) Lord Fraser spoke of:

“Many of the most important prerogative powers concerned with control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the law court”.

“In my judgement, this is most appropriately characterised as justiciability……..I readily accept that the ambit of the ‘forbidden areas’ is not immovable……However the authorities provide no hint of retreat in relation to the subject matter of the present case.  This is hardly surprising.  Foreign policy and the deployment of the armed forces remain non-justiciable”

22.       Mr Justice Richards J at para 57 said that the lawfulness of the Government’s ultimate decision was ‘unreviewable’ his reasons appear in para 59 where he said:

“…..the claim would take the court into areas of foreign affairs and defence which are the exclusive responsibility of the executive Government…..”  and at 59(ii)

“In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or authorise the use of armed force against a third country.  That is a classic example of a non justiciable decision.  I reject Mr Singh’s submission that it would be permissible in principle to isolate and rule upon legal issues e.g. as to whether the decision was taken in breach of international law.  The nature and subject matter of such a decision require it to be treated as an individual whole rather than breaking it down into legal, political, military and other components and viewing those components in isolation for the purpose of determining whether they are suited to judicial determination.”

23.       The decision of the Divisional court in the CND case is binding upon this Court.  Foreign policy and the deployment of the armed forces are the exercise of prerogative power and simply not justiciable.

24.       If one needed any further authority it is to be found in the decision of the House of Lords in Chandler v. the D.P.P. [1964] AC 763.  Lord Reid said at p 791:

“It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such a discretion has been wrongly exercised…….Anyone is entitled, in or out of Parliament to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of Government or otherwise no one is entitled to challenge it in court.”

25.       It must follow that if a citizen cannot challenge the legality of either foreign policy (and the declaration of war is an act of foreign policy) or of the deployment of the armed forces in the courts, neither can he take direct action to interfere with the exercise of those prerogative powers and claim that he is legally justified in so doing because the Government’s actions were unlawful.  It makes no difference that the citizen is charged with a criminal offence as Lord Hodson made plain in his judgement in the same case at p 799 he said:

“This is one of those cases which it is said raises a grave constitutional issue, for the individual’s freedom has to be weighed against the community’s right to take steps through the recognised organ of Government to defend itself

The Crown has, and this is not disputed, the right as Head of State to decide in peace and war the disposition of its armed forces and has purported to exercise this right for the safety and interests of the State.”

            Lord Hodson quoted from the judgement of Lord Parker of Waddington in ‘The Zamora’:

“Those who are responsible for the national security must be the sole judges of what the national security requires.  It would be obviously undesirable that such matters should be the subject of evidence in a court of law or otherwise discussed in public.”

Then he continued:

“It is said that all this may well be correct but that in a criminal proceeding where the Crown is proceeding against the subject different considerations apply and that the wording of the statute opens the way to the defence to show that the Crown was not necessarily right in its decision and that it’s dispositions might not be in the interests of the safety of the State.  It might be better, for example, to have the airfield elsewhere or if the country were useless as a nuclear base not to have any nuclear aerodromes.

I confess that there seems to me an impossible proposition involving the court and jury in the consideration of questions of policy which have no direct bearing on the offence alleged……I am unable to accept that for this purpose any distinction is to be drawn between a civil and criminal matter…….”

26.       The decisions of the court in the CND case and in Chandler are clear and unambiguous.  The legality of the Government’s actions in and against Iraq are not justiciable.  The rights and obligations of the defendants are not and have not been infringed.  Even if they had, as I understand the judgement of Maurice Kay J and Richards J, as a matter of principle, domestic courts will not enquire into the legality of the Government’s exercise of prerogative power in the fields of foreign policy and deployment of the armed forces.

27.       If one poses the question in stark terms, namely, ‘Does a citizen have a right or obligation to commit acts which ordinarily would be characterised as crimes under domestic law in order to prevent the executive committing other and greater crimes?’ the answer is ‘no’ if the executive is exercising its prerogative powers in relation to foreign policy or deployment of the armed forces.

28.       What has been described as the erosion of the principle of non justiciability of prerogative powers, (an erosion which is amply illustrated in the cases relied upon by the Defence in their argument or justiciability,) has not touched that central core of principle namely that the actual exercise of prerogative power is not justiciable as opposed to some of secondary effects of the exercise of those powers.

The Defences

29.       Section 5(2)b of the Criminal Damage Act 1971.

This section provides an example of what may constitute a ‘lawful excuse’.  Plainly necessity and Section 3 of the Criminal Law Act 1967 provide other examples.

30.       The section does not apply to a charge involving a threat by the defendant to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the Defendant to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.

31.       Section 5(2) b states:

“A person charged with an offence to which this section applies shall,…………be treated as having a lawful excuse

b) if he destroyed or damaged or threatened to destroy or damage the property in question, or, in the case of a charge of an offence under Section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another and at the time of the act or acts alleged to constitute the offence he believed -

i) that the property, right or interest was in immediate need of protection and

ii)  that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances

iii)  for the purpose of this section it is immaterial whether a belief is justified or not it is honestly held.”

32.       A defendant has a lawful excuse if:

i)          that he acted to prevent damage to property.  This is as I understand it an entirely objective test, the question is ‘could the act done be said to be done in order to protect property?’  see R v. Hunt 66 Cr. App. R 105.

ii)         At the time he so acted he believed that property was in immediate need of protection and 

iii)        That the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances as the Defendant believed them to be.

33.       There is no requirement that the damage to property which the Defendant seeks to prevent should be the result of an illegal act.  The legality or illegality of the event which the Defendant seeks to avoid is not in issue.  Nor does the property to be protected have to have been within the jurisdiction.

34.       Mr Ellison has argued that a defendant cannot rely upon Section 5(2)b if the act which will cause the damage which the Defendant acts to prevent is itself a ‘lawful act of destruction or damage’.  By way of example he says that a defendant could not rely upon the section if, following an order by a court for confiscation and destruction of his car order the he caused criminal damage to the compound in which his car was being kept in to remove the car and prevent its destruction.  In my view he could rely upon section 5(2)b of the Act if charged with criminal damage.  He would have no defence to a charge of burglary.

35.       Reasonableness only attaches to the means adopted to prevent the damage.  It does not encompass the Defendant’s belief in the legality or illegality of the damage to property he seeks to prevent.

36.       The non-justiciability of the war against Iraq does not impinge on the defence available under this section.

Section 3 of the Criminal Law Act 1967.

37.       “A person may use such force as is reasonable in the circumstances in the prevention of crime.”

38.       It is common ground that what the Defendants did or intended to do constituted a ‘use of force’.  Equally, it is also common ground that the test of what is reasonable is an objective test but to be applied to the circumstances as the Defendant believed them to be.

39.       Lastly the circumstances as the Defendants believed them to be must be capable of constituting a criminal offence.  See R v. Baker and Wilkins [1997] Crim.L.R. 497 .

40.       The Prosecution assert that criminal offences in this context means a criminal offence in domestic law.  In my view that submission must be right.  To give an example, in some jurisdictions adultery is (or was) a criminal offence.  A defendant could not claim that Section 3 entitled him to use force to prevent an act of adultery, wherever that act was to be committed.

41.       In so far as the Defendants seek to say that the use of force against Iraq amounted to a crime, I have already ruled that the legality or illegality of the Government’s actions is not justiciable.  And in any event there is a distinction between an unlawful act and a crime.

42.       In so far as a Defendant says ‘I believed the use of force against Iraq constituted a crime’ the defence is only available if the crime is one triable in the domestic courts.  A crime against peace or the crime of aggression is not triable in domestic courts.  Even if it is a crime under customary international law it does not make it a crime under English law and justiciable in domestic courts.  See the judgement of Lord Justice Buxton in Hutchinson v. Newbury Magistrates Court CO/663/00 2 122 1LR 499. ‘The English Rule’ p. 506.

43.       Under the International Criminal Court Act 2001 certain war crimes committed by individuals are triable in the domestic courts.  If a defendant believes that in the context of the use of force against Iraq an identifiable individual or individuals or group were going to commit specific offences (conduct war crimes) he would not be acting  unlawfully if he used reasonable force to prevent such an offence or offences being committed.

44.       It follows that there is a potential defence available under this head.

Necessity or Duress of Circumstances

45.       In R v. Shayler [2001] 1 WLR 2206 Lord Woolf CJ analysed this defence.  He traced its origins form Stephen’s Digest through to more recent authorities including R v. Martin (Colin) [1989 1 All. E.R.  652 and R v. Abdul-Hussain.  Albeit it appears that this analysis was not necessary to any decision the court had to make, it is an authoritative guide.  At page 2224E Lord Woolf CJ said:

“……….we extract the follow ingredients as being required if the defence of necessity is to be relied on

i)  the act must be done only to prevent an act of greater evil.

ii)  the evil must be directed towards the Defendant or person or persons for whom he has responsibility or we would add, persons for whom the activities make him responsible.

iii)  the act must be reasonable and proportionate to the evil avoided.

We make the addition at ii) to cover, by way of example, the situation where the threat is made to set off a bomb unless the Defendant performs the  unlawful act.  The defendant may not have had any previous connection with those who would be injured by the bomb but the threat itself creates the Defendant’s responsibility for those at risk if he does not give way to the threat.”

46.       The Lord Chief Justice adopted from Rose LJ’s judgement in R v Abdul-Hussain these additional requirements:  that the evil directed at the Defendant or those for whom he was responsible must be imminent, that is ‘about to happen’.  It need not be immediately about to happen.

47.       At para 57 Lord Woolf CJ said:

“……..It is insufficient for the Defendant to believe that at some uncertain point in the future harm will occur if he does not act to avoid it; he must reasonably believe he has to act now to avert harm in the imminent future.  He must believe the harm he seeks to prevent would otherwise happen, if not immediately, then at least before it could be prevented by his or her others legal action.  R v, Abdul - Hussain makes it clear the harm threatened need not be immediate but it should be imminent.  In this sense he has no alternative to yielding to the pressure in order to prevent imminent harm.”

48.       As I understand it, this is also authority for the proposition that in the defence of necessity there is no requirement that the Defendant’s will was overborne.  The Defendant must reasonably believe that he “has no alternative to yielding to the pressure in order to prevent imminent harm.”

49.       As it seems to me, for the defence of necessity to be available a defendant must show:

i)          that he committed what would otherwise be an offence of criminal damage in order to prevent an act of greater evil.  There is no requirement that the act of greater evil should be unlawful, nor that it take place within the jurisdiction.  

ii)         The greater evil must be directed at those for whom the Defendant reasonably believed he has responsibility for far whom the situation made him responsible.  It would be a matter for the jury to decide whether a defendant could reasonably believe he was responsible for the citizens of Iraq against whom their own Government had or might decide in the exercise of prerogative power to use force.

iii)        The actions must be reasonable and proportionate to the evil to be avoided.

iv)        On the facts as the Defendant reasonably believed them to be he was driven to act as and when he did to avert harm that was about to happen (see R v. Safi).

50.       Mr. Lewis submitted that in order to decide whether the defendants actions were reasonable,  the jury must decide whether the actions of the Government were lawful.  I reject this submission.  The test is a subjective one: what did the Defendant reasonably believe the circumstances to be.

51.       It is perhaps helpful to adopt the direction formulated by Lord Lane CJ in the case of Graham which was considered and approved in R v. Safi  and others.

i)          Was the Defendant or may he have been impelled to act as he did because as a result of what he reasonably believed, he had good cause to fear that if he did not so act, the bombers stationed at Fairford would kill or cause serious injury to persons living in Iraq?