The Lord Advocate's Reference: The Outcome

By Peter Nicholls

When England's Duke of Buckingham was assassinated by John Felton in 1628, Felton made no attempt to escape after the stabbing. Under interrogation he claimed that it was not he, but "the hand of heaven," that "gave the stroke," and that he was therefore unable physically to have done otherwise. In prison he elaborated a doctrine of law that claimed that God had stated that "whatever is for the profit of the commonwealth should be accounted lawful." Felton had support both among the intelligentsia and at more popular levels. He was celebrated in verse by scribblers and serious poets such as Ben Jonson. His transits from local prison to the Tower and from Tower to Tyburn, where he was hanged, were occasions for massive demonstrations of public support. Felton saw his act as both symbolic and effective (he had killed one of Charles I's most hated advisers), and as simultaneously legal and disobedient. James Holstun has recently analyzed these paradoxes in his discussion of violent political protest in 17th. century Britain. The ethical paradoxes of extreme political action remain with us after nearly 400 years. Fortunately, in Britain political assassinations are now rare events, and hangings and subsequent exposure of the bodies of the hanged even rarer. But dramatic and sometimes violent political demonstrations still take place and the resulting prisoners of conscience have been held in prison conditions that may not have evolved much in 400 years. One of the most recent cases was the trial of Angie Zelter, Bodil Roder and Ellen Moxley on charges arising from their "attack" on the Trident submarine support ship "Maytime" which involved, among other acts, throwing computer equipment into Loch Goil. Claiming to be acting "lawfully" to prevent the "crime" in International Law implicit in the deployment of Trident, they challenged the Crown to refute this. The Crown declining to do so, the presiding judge, Sheriff (read judge) Gimblett, ordered the Scottish jury to enter verdicts of acquittal, which they accordingly did.

Then at substantial cost to the State, the Crown engaged in a procedure peculiar to Scottish law in asking for a legal ruling on the case by appealing to a higher court for an analysis, a so-called Lord Advocate's Reference, the Lord Advocate being a kind of Scottish Attorney-General. Four questions were asked of the High Court which then met in Edinburgh. As the Lord Advocate presumably wished, all four questions were answered in the negative, the first with some reservations. We in the gallery had anticipated such negative answers, but had hoped for a deeper and more critical analysis of the problems of applying international law in domestic courts.

Lord Prosser, who chaired the hearings, was adept at getting the respondent attorneys to clarify their points and made intelligent comments of his own. His skill in the clarification of particulars however did not lead a clear exposition of the general questions. Prosser and to a lesser extent his colleagues Kirkwood and Penrose were distinctly bolder in their court than in their report, which is more deferential to authority than some of us expected. As these proceedings have evolved, one concern has been for Sheriff Gimblett - whose career may be on the line - rather than for East Anglia's Angie Zelter, a force of nature who will not need any help from us, provided she manages to stay out of prison. The outcome of the reference will not alter the present acquittals but is supposed to provide legal guidance to Sheriffs and others if future similar cases arise. "In these circumstances," say the High Court judges, "consideration of the sheriff's reasoning is ... not of the essence. ... In the circumstances, we do not find it necessary to consider these arguments and submissions, or the sheriff's reasoning, in any detail." But the trial was of the essence. The sheriff went out of her way to try to be fair to the defendants and at the same time to follow accepted judicial procedures, allowing some "evidence" regarding international law to be "led" before the jury, and taking some such evidence or advice in camera. It was, it seems to me, open to the Crown to intervene with its expertise in either situation. It chose to do neither.

The First Question posed by the Lord Advocate:

In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?

The judges stated that they were in no doubt that "in relation to evidence in the trial itself" Question 1 had to be answered in the negative. At the trial, evidence was "led" as to customary international law as it applies to the United Kingdom. The sheriff had said that it seemed to her that in addition to "non-legal" experts, it was absolutely necessary for expert evidence to be led from an expert in international law, and that whether or not it had ever been done in Scotland before seemed not to matter if she considered it essential. The judges grumble extensively that the evidence in question was "led" before the jury, and not merely before the sheriff.

A rule of customary international law, they say, is a rule of Scots law. But it is a matter for the judge and not for the jury, who must be directed by the judge, and accept that direction. The question of a jury's role may reflect the judges' traditional but undoubtedly elitist concept of the law. In the judges' world the jury is supposedly a determiner of fact rather than law - part of a class division of labor from another era. It assumes that facts and laws belong to two different universes. However, the law today is surely for the community and not just for judges to evaluate and apply or not. The boundary between fact and law has always been uncertain. Juries have historically refused to convict on the basis of a bad law, whatever the supposed "facts." Note the series of acquittals achieved by Henry Morgenthaler on charges of performing illegal abortions, acquittals which led to the law concerned being rescinded.

After the response to Question 1, the answers to Questions 2, 3 & 4 were inevitable. After a rather lengthy digression on topics related to malicious damage and the doctrine of necessity the judges return to the central question which the "respondents" wished them to discuss. Referring to a 1964 case, they state - partly as a quotation, but partly as a persistent fact - that "The best interests of the state in matters of defense were a matter for the (state's) prerogative." Of course who determines the interest of the state and who comprises the state, are by implication here clearly determined autocratically and not democratically.

The three judges then hesitate for just a moment. As had been pointed out for Ellen Moxley by lawyer O'Neill, the law has developed since 1964. There was a growing acceptance that exercise of prerogative powers was open to judicial review. But more recent cases (1985) still supposedly exclude substantive review of governmental defence policies. "National security, the defence of the realm against enemies," said Diplock in 1985, "is the responsibility of the executive, and not courts of justice. But if customary international law is part of the law of Scotland and the Government of the United Kingdom maintains a defence policy in conflict with such customary international law, how is this non-interventionist position to be maintained? The judges do not seem to do so, because they do go ahead and look at the International Court of Justice judgment on nuclear weapons and its significance for Trident in their answers to the remaining questions put by the Lord Advocate.

Damaging Property

Question 2. 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?

They analyze the International Court of Justice (ICJ) judgment, pointing out its weaknesses and uncertainties. For example, they emphasize that the ICJ noted that the substance of customary international law must be "looked for primarily in the actual practice and opinio juris of States," and that the ICJ did not "intend to pronounce (here) upon the practice known as the policy of deterrence." The ICJ noted the fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it and that the members of the international community are profoundly divided on the matter. The ICJ did not consider itself able to find that there is such an opinio juris.

The judges then harden their position by saying that in their opinion "there are two fundamental flaws in the respondents' contention that the United Kingdom's deployment of Trident is in breach of customary international law."

First, they say, "the relevant rules of conventional and customary international law, and international humanitarian law, are not concerned with ... the conduct of States in time of peace. They specifically relate to warfare." This distinction seems absurd when applied to nuclear warfare. By the time belligerence is under way everything worth talking about will be over.

Secondly, the judges acknowledge that in certain contexts the words deterrence and threat may be virtually interchangeable. But, say they, deployment of nuclear weapons in peacetime is utterly different from "the kind of threat equated with actual use in ... international law which makes both use and threat illegal."

Angie Zelter proposed an alternative format for Question 2: "Does international law and/or Scots law justify an individual in Scotland in damaging or destroying property which is being used for criminal purposes, in order to prevent those criminal actions being carried out by the United Kingdom - namely the United Kingdom's deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with H. M. Government's current defence policy?" The judges answer both versions with a "no." Customary international law never justifies damage or destruction of property - even if the UK's nuclear weapons, or their deployment, or military nuclear policies, were illegal in international law. Nor does Scots law provide justification for such damage or destruction except under the Scots law of necessity.

Question 3 and Question 4. Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft? Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person? Of course, the three judges also answered these questions in the negative. All the respondents were unhappy with the formulation of Question 4. But the case is by then "open and shut." Apart from the (narrow) defence of necessity it is never a defence that any actions otherwise criminal in character were carried out to prevent another crime.

The Judicial Summary

Prosser and his colleagues point out that "we are not persuaded that the facts of what the respondents did, or anything in the nature or purposes of the deployment of Trident, indicate any foundation at all, in Scots or international law, for a defense of justification." An exceptionally timid conclusion. Unhappy is the judge unable to speak mind or consult a conscience, if any.

My Unjudicial Summary

The judgment alters little at the "grassroots" level. It will still be left to juries to decide whether or not to convict in such cases. They have recently shown a reluctance to do so in several jurisdictions. Can UK defense policy ever be tested legally?

Strangely I find myself personally in agreement with the Diplocks of this world: these matters will in the end not be decided by courts but by parliaments. The most courts can do is to raise consciousness. A majority of the Scottish Labour Party and of the people of Scotland are opposed to Trident. So, probably, would be a majority of the governing party in the UK if they were given a free vote on the matter.

Peter Nicholls is a former president of Science for Peace, now living in Britain.

Peace Magazine Jul-Sep 2001

Peace Magazine Jul-Sep 2001, page 24. Some rights reserved.

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