TP Defences in Court

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19 June 2001

Dear Ms Zelter Review of Convictions

I refer to your application to the Scottish Criminal Cases Review Commission regarding your convictions of 9 September 1998 at Helensburgh District Court. This letter sets out the Commission’s provisional view on your application, but you are invited to make further representations to the Commission, on the present grounds for review, as you see fit in the light of the contents of this letter.

Firstly, it may be helpful if I set out the powers of the Scottish Criminal Cases Review Commission. It was established on 1 April 1999 and has power under the Criminal Procedure (Scotland) Act 1995, as inserted by section 25 of the Crime and Punishment (Scotland) Act 1997, to refer a case to the High Court for review of conviction or sentence. The grounds upon which the Commission may refer a case are that it believes that a miscarriage of justice may have occurred and that it is in the interests of justice that such a reference should be made.

The Commission has fully examined the matters which you have raised. The outcome of these enquiries is that it remains to be persuaded that there are any grounds which justify referring your case to the High Court.

The following paragraphs set out the Commission’s understanding of your case. Background

On 22 September 1998, following trial at Helensburgh District Court, you were convicted of two charges of vandalism in which it was alleged that you cut a perimeter fence at Her Majesty’s Naval Base (HMNB) Clyde without reasonable excuse. You were also convicted of a further offence under the Military Lands Act 1892 in which it was alleged that you had entered HMNB Clyde, a protected military area, without authority.

You were admonished in respect of all three charges.

You freely admitted in evidence that the reason why you had committed these offences was in order to gain access to the base for the purpose of disarming a nuclear submarine. Such an objective formed the basis of the "Trident Ploughshares 2000" campaign of which you are a leading member.

Following your conviction of these offences, in 1999 you were tried, along with two co-accused, on indictment at Greenock Sheriff Court on charges of malicious damage to a naval vessel moored at Loch Goil. The jury was directed by the sheriff to find you and your co-accused not guilty of all charges insisted upon by the Crown. Following your acquittal, the Lord Advocate referred a number of points of law arising from the case (and which also have a direct bearing upon the issues raised by you in the present case) to the High Court for its opinion. The Court has now delivered its opinion on these matters. Crown case

The following details have been obtained from the stated case produced in respect of your appeal.

The Crown led evidence from two police officers, Constable John Keenan and Sergeant John O’Rourke, both of whom on 13 August 1998 observed you cutting the perimeter fence of the base with bolt cutters. The bolt cutters, which were decorated with the words "peace and love", were taken from you and produced by the Crown at trial. Both officers identified you as the person they had observed and also confirmed that the cutters were those used by you.

In cross examination, Constable Keenan confirmed that two other people had been with you at the time of your arrest and that he was aware of the Ploughshares 2000 campaign. He also confirmed that he was aware of the "Tri-Denting It" handbook which you had produced as part of the campaign.

Evidence was also led from Det Sergeant Peter Cassidy who, following your arrest, had cautioned and charged you. He said that in response you produced a pre-prepared written statement (of which there are no details in the stated case).

In cross examination, Det Sergeant Cassidy confirmed that he was aware of the Ploughshares campaign and that this advocated safe, non-violent, open and accountable methods of protest.

In respect of the remaining two charges, evidence was led from a number of officers who confirmed that on 20 August 1998 they had observed you and others cutting the perimeter fence of the case. They also saw you enter the base and proceed to cut the razor wire inside the perimeter fence. You were thereafter arrested within the protected area of the base. All officers concerned identified you as the person they had observed.

In cross examination, one of the officers was asked detailed questions about the "Nuremberg Principles" but this line of questioning was disallowed by the magistrate on the grounds that, as a junior officer, he should not be asked to comment on such matters. Questioning concerning whether the day to day running of the base was disrupted by your actions was also not permitted by the magistrate. Defence case

In evidence, you did not dispute the Crown case but emphasised that you had acted peacefully, non-violently, accountably, reasonably and had given plenty warning to the authorities of your intentions. You carried out these acts because you believed that major international crimes were being committed inside the base and that you had a right and a duty to prevent these crimes from taking place and to protect yourself and others from imminent harm. You explained that your intention was to penetrate the fence and to then disarm a submarine by causing damage which you claimed would not pose a safety risk.

You referred in evidence to a number of productions including a handbook detailing previous accidents involving nuclear weapons in the UK and elsewhere. You also made reference to an Advisory Opinion of the International Court of Justice (ICJ) which you claimed is an authoritative expression of customary international law binding on all states including

Scotland. You argued that the Advisory Opinion is authority for the view that the UK Government’s policy on nuclear weapons is contrary to international humanitarian law and therefore illegal.

The court was also referred to the "Tri-Denting It" handbook referred to above; a statutory declaration by Keith Miller Forrester-Paton which confirmed your long held belief in the illegality of nuclear weapons under international law and the many ways in which you had tried to persuade governments and other authorities to disarm their weapons and uphold international law; a collection of letters written to organisations, political figures and members of the judiciary attempting to persuade them to disarm nuclear weapons and several testimonies from people who have suffered the effects of nuclear weapons.

In summing up your defence, you read from a prepared statement which contained legal argument on common law defences of necessity, self defence, the statutory defence of "reasonable excuse" and a defence based upon international law. Details of these defences are given below. Necessity

In support of your defence of necessity you relied upon the case of Moss v Howdle (1997 SCCR 215) in which the High Court clarified the scope of this defence. The following is a summary of the principles of that case and your views as to how they support your own defence of necessity.

1. The minimum requirement of a defence of necessity is that the accused acted in the face of an immediate danger of death or great bodily harm.

You argued that the above requirement was met in your own case due to the effects which the use of nuclear weapons have had upon human life, health and habitat. In particular, you claimed that radioactive material is being leaked routinely and that, consequently, the environment is becoming steadily contaminated. You pointed to a specific example of this involving a Russian space probe carrying 2.5 pounds of plutonium which crashed to earth in northern Canada on 21 April 1964. This, you claimed, is known to be the cause of the massive global increase in lung and breast cancers. You explained that the Vortex military space command satellite, which was destroyed in a failed launch recently, may have contained as much as 20 pounds of plutonium. You claimed that further missile warning satellites were due to be launched and that these are connected with the UK’s Trident system. You also referred to the possibility of an accidental launch of nuclear weapons and claimed that you are in immediate danger from this also.

2. That where an accused commits a crime in an endeavour to escape an immediate danger of death or great bodily harm, it makes no difference that the danger arises from some contingency such as a natural disaster or illness rather than from the deliberate threats from another.

You argued that in your own case the danger in question arose from the UK Government’s policy on nuclear weapons.

3. That the defence of necessity is open to someone who commits a crime to ensure that his companion rather than he himself escapes such danger.

You claimed that your actions in attempting to gain access to the naval base were carried out with a view to saving people in other countries who feel threatened with the mass destruction which might occur if one of the warheads from a Trident submarine is used.

4. That in order for the defence of necessity to be available, an accused must have no alternative course of action available to him other than to commit the offence.

You argued that you had no reasonable alternative to breaking the law. You and millions of others had attempted over the last 50 years to persuade governments to disarm their nuclear weapons. In particular, you had extensively lobbied, lodged petitions, demonstrated and conducted vigils. As these attempts had proved unsuccessful, there was in your view no effective way of ridding the world of such weapons than by safe and non-violent direct disarmament. Self defence

This defence, you argued, was open to you on the basis that you are entitled to defend your right to life and that as your attempts to do so are "gentle, open, accountable, safe and non-violent", these were reasonable when seen in the context of the threat of mass destruction. Statutory Defence

Although you did not dispute that you had damaged property belonging to another, you argued that you had a reasonable excuse for doing so.

In support of this defence, you referred to the High Court’s decision in MacDougall v Yuk-Sun Ho (1985 SCCR 1999) in which it was held that the justices hearing the case at first instance were entitled to acquit the accused of a charge of vandalism on the basis that the Crown had not displayed that his excuse for doing so was unreasonable. The accused in this case had damaged the windscreen of a car because he wrongly believed that the occupants were responsible for damaging his shop and wanted to prevent their escape.

You argued that the central element of this case was the accused’s sincere (although mistaken) belief that he was preventing the perpetrators of an unlawful act from escaping. Applying this principle to your own case, you argued that your actions were directed to prevent the unlawful threat or use of nuclear weapons.

In support of your argument that the threat and/or use of nuclear weapons is unlawful you relied upon the provisions of customary international law which you argued bind Scots law. Specifically, you referred to the Advisory Opinion of the ICJ referred to above in which the court stated that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular, the principles and rules of humanitarian law". Although the ICJ was of the view that the use of nuclear weapons may be justified "in an extreme circumstance of self defence", the President of the court stated that this "cannot in any way be interpreted as a half open door to the recognition of the legality of the threat or use of nuclear weapons".

You argued that as the UK government has publicly recognised that the country currently faces no significant military threat, its present deployment of Trident submarines carrying nuclear warheads is an unlawful threat in terms of the Advisory Opinion. International law defence

You argued that the terms of the Advisory Opinion along with the general provisions of international law places every citizen under a duty (or at the very least gives them a right) to prevent war crimes and that therefore your actions to gain entry to the naval base were lawful. This duty required that such steps as were reasonable and necessary must be taken to prevent war crimes and other violations of international humanitarian law. Such a duty, you maintained, took precedence over the domestic law of any state, including Scotland. Stated case

The stated case produced in connection with your application for leave to appeal contains a brief indication of the approach taken by the magistrate to the questions raised by your defences to the charges.

Although the magistrate accepted that nuclear weapons were inherently dangerous and that accidents had occurred in the past, he could see no immediate connection between your actions and the defences of necessity and self defence and considered that your actions were too remote from any meaningful definition of these defences.

With regard to the statutory defence, the magistrate considered that the evidence led by you was insufficient to demonstrate that you had an excuse for your actions. He did not accept that the defence policy pursued by the UK Government was criminal unless and until the ICJ determined it as such. No person, in his view, had the right to invade defence establishments or damage property therein.

The magistrate also rejected your defence based upon international law and considered that the ICJ Opinion was simply of advisory status. He did not consider that the Opinion was part of international law nor that it was in any way incorporated into Scots law. Appeal

Your application for leave to appeal against your convictions was considered by a single High Court judge on 24 November 1998 and was refused. The reason for this decision was as follows:

"The reasoning set out by the Justice in support of his rejection of the defences put forward is sound and there is no arguable ground of appeal."

Your appeal against this decision to three judges was refused on 8 December 1998.

The Advisory Opinion of the ICJ

As substantial reference was made in your defence to the Advisory Opinion and as the terms of the Opinion feature strongly in the High Court’s determination of the points referred by the Lord Advocate following your acquittal at Greenock Sheriff Court, the Commission considers that its terms should be set out in some detail. General

The Advisory Opinion was issued by the ICJ on 8 July 1986 in response to a request by the United Nations General Assembly for an opinion on the question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"

The approach taken by the ICJ to answering the question was to identify the existing principles and rules of international law, interpret these and apply them to the issue of nuclear weapons. Accordingly, the Opinion is an interpretation of the relevant rules and principles of international law existing at that time. These rules and principles are derived from the United Nations Charter, the law applicable in armed conflict and any specific treaties on nuclear weapons which the ICJ considered relevant. In analysing these various sources the ICJ also kept in mind the unique characteristics of nuclear weapons and, in particular, their destructive capacity. The Opinion

The ICJ first considered whether there was any prohibition on nuclear weapons in the United Nations Charter. Paragraph 4 of Article 2 of the Charter provides that all member states shall refrain from the threat or use of force against any other state. This general prohibition is, however, qualified by Article 51 which recognises the right of every state to defend itself in the event of an armed attack. The ICJ found that the Charter neither expressly prohibits or permits the use of any specific weapon, including nuclear weapons.

The ICJ also observed that although many treaties had been established over the previous two decades for the purpose of limiting the acquisition, deployment and testing of nuclear weapons, none had resulted in a general prohibition of the type encountered with chemical and bacteriological weapons. Although two specific treaties (the Treaties of Tlatelolco and Raratonga) existed which prohibited the threat or use of nuclear weapons by or against contracting parties, many of the ratifying parties (including the UK) had qualified their commitment by issuing declarations which allowed them to reconsider the position in the event of an act of aggression against them.

The ICJ concluded that while those treaties which dealt with the acquisition, deployment and testing of nuclear weapons pointed to an increasing concern in the international community about such weapons, they did not in themselves constitute a prohibition. As for the specific treaties mentioned above, the ICJ noted that those states which deployed nuclear weapons had reserved the right to use these in certain circumstances and that these reservations had met with no objection from the parties to the two treaties or from the United Nations Security Council. Accordingly, it did not regard the terms of these treaties as amounting to a comprehensive and universal prohibition on the threat or use of such weapons.

The ICJ next considered a series of United Nations General Assembly resolutions which were argued by certain states to outlaw the use of nuclear weapons. It concluded that although the resolutions were a clear sign of deep concern regarding the problem of nuclear weapons and revealed the desire of a very large section of the international community to pursue complete nuclear disarmament, they still fell short of establishing the existence of an opinio juris on the illegality of nuclear weapons.

Finally, the ICJ considered whether recourse to nuclear weapons was illegal in terms of the principles of international humanitarian law (ie the law applicable in times of armed conflict). The first main principle of international humanitarian law concerns the protection of the civilian population and provides that states must never make civilians the object of attack or use weapons which are incapable of distinguishing between civilian and military targets. Its second main principle prohibits causing unnecessary suffering to combatants and using weapons which "uselessly aggravate" their suffering.

The ICJ was unable to determine whether recourse to nuclear weapons would be illegal in terms of international humanitarian law. It found that, in view of the unique characteristics of nuclear weapons, the use of such weapons seems scarcely reconcilable with the requirements that during conflict a distinction must be drawn between civilian and military targets and the prohibition of unnecessary suffering. However, it was unable to conclude with certainty that the use of nuclear weapons would be contrary to international humanitarian law in all circumstances. Furthermore, it did not wish to lose sight of the fundamental right of every state to defend itself in terms of Article 51 of the United Nations Charter. Accordingly, it was unable to reach a definitive conclusion on the question of whether the use of nuclear weapons by a state in self defence would be contrary to humanitarian law.

The ICJ concluded that the most appropriate way to put an end to the continuing difference of views between states regarding the legal status of nuclear weapons was to pursue negotiations to effect complete nuclear disarmament in terms of Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons.

The ICJ’s specific findings, as set out in the dispositif, are as follows:

1. Unanimously, that there is neither in customary nor conventional international law any specific authorisation of the threat or use of nuclear weapons.

2. By eleven votes to three, that there is neither in customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.

3. Unanimously, that a threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter and which fails to meet all the requirements of Article 51, is unlawful.

4. Unanimously, that a threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.

5. By seven votes to seven (and by the President’s casting vote) that it follows from the above mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and, in particular, the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence, in which the very survival of a state would be at stake.

6. Unanimously, that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all respects under strict and effective international control. Lord Advocate’s Reference

Background

On 27 September 1999, you were tried on indictment at Greenock Sheriff Court, along with two co-accused, Ulla Roder and Ellen Moxley. Three out of the four charges on the indictment were of malicious mischief and arose from damage caused by you and your co-accused to a naval vessel and to equipment, fixtures and fittings on board.

As in the present case, you and your co-accused accepted much of the evidence led by the Crown in support of the charges and sought to lead evidence in your defence relating to the UK Government’s policy on Trident missiles as well as customary international law. In particular, you and your co-accused sought to show that the deployment of Trident missiles by the UK Government is in breach of customary international law and is thus illegal and criminal in terms of Scots law.

After hearing submissions by each of the parties at the close of the defence case, the sheriff directed the jury to acquit you and your co-accused of all charges.

Following your acquittal, the Lord Advocate referred certain points of law which had arisen from the case to the High Court for its opinion in terms of section 123(1) of the Criminal Procedure (Scotland) Act 1995. A number of the points referred by the Lord Advocate and the High Court’s opinion on these are pertinent to the defence you pursued in the present case and to the issues you have raised in your application to the Commission.

The points referred to the High Court (in so far as these are relevant to the case currently under review) and the Court’s opinion on these, are as follows.

1. 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 at locations within Scotland or its policies in relation to such weapons?

The Court answered this question in the negative.

In addressing this issue, the Court considered whether the deployment of Trident by the UK Government is illegal as a matter of customary international law. In doing so, substantial reference was made by the Court to the Advisory Opinion, which it considered to be the foundation of your contention to this effect.

Prior to considering the Opinion itself, the Court emphasised its advisory status and stressed that it was not a judicial determination of customary international law. Although, in the Court’s view, the Opinion was confirmatory of the rules of customary international law existing at that time, it was not to be regarded as having changed the law. The Court considered that its function was to reach its own conclusions as to the manner in which international law should be interpreted, taking full account of the conclusions reached by the ICJ, but not necessarily being bound by these.

The Court considered that there were two fundamental flaws in your contention that the UK’s deployment of Trident is in breach of customary international law. Firstly, the submission appeared to ignore the fact that the rules of conventional and customary international law and, in particular, international humanitarian law are concerned only with regulation of the conduct of states in times of armed conflict and not in times of peace. Accordingly, the application of these rules, and the resultant possibility that nuclear weapons might be deemed illegal, will only arise when some specific event transforms the present situation into one of armed conflict.

Second, the Court questioned whether the UK’s deployment of Trident could be categorised as a "threat or use" of nuclear weapons in the context in which this phrase is used in the Opinion. The argument advanced by you was simply that the current policy of "deterrence" equated with a "threat". In support of this submission, reference was made to several features of the Trident system such as its permanent preparedness for use at a few minutes’ notice and its long term targeting of "trouble spots". In the Court’s view, however, while the two terms may in certain contexts be interchangeable, it was satisfied that the UK Government’s current policy of deployment in a time of peace is entirely different from the specific "threat" which would be illegal in terms of international customary law. The Court drew an analogy between, on the one hand, a youngster brandishing a knife at another and uttering words which suggested that he was about to stab him and, on the other, a situation in which a person may show that in some circumstances, specified or not, he would have recourse to violence against another. Despite the potential for Trident to be used almost immediately against a target state, in the Court’s view its deployment lacked the "links between threat and use, and an immediate target, which are essential to a threat" of the kind envisaged by the general prohibition contained within international customary or humanitarian law. As support for its conclusion, the Court referred to a publication entitled "Nuclear Weapons and the Law" by Lord Murray, which had actually been relied upon by you and your co-accused to support various submissions. The passage referred to by the Court is as follows:

"the [ICJ], I think rightly, proceeded on the basis that threat is equivalent to use. In this context threat means a practical warning directed against a specific opponent. So a general display of military might, such as a Red Square parade in Soviet days or a routine Trident submarine patrol, would not constitute a threat at law."

In these circumstances, the Court concluded that your contention that the UK Government’s policy on Trident is illegal was without foundation. The Court also concluded that, even in circumstances of armed conflict and actual threat, customary international law does not give the right to citizens to commit what would otherwise be criminal offences in order to stop the criminal acts of others and that any justification for what would otherwise be malicious damage must therefore be found in the domestic law of necessity.

2. 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?

The Court also answered this question in the negative. In the Court’s view an unequivocal answer to the question is provided in the case of Clark v Syme (1957 JC 1) in which it was stated that it is not a defence that a person committed a crime under a misconception of his legal rights. While the Crown accepted that there were some offences where honest belief was relevant, such as bigamy or rape, these related to the requisites for proof of criminal conduct and had no bearing upon your case.

3. 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?

The Court considered that aside from the defence of necessity, it is not a defence to a criminal charge that the actions complained of were carried out to prevent another person committing a crime.

The Court saw no substance at all in the argument that your actions and those of your co-accused were justified by the defence of necessity as defined in Scots law. In particular, the Court noted that the acts perpetrated by you were planned over many months and therefore lacked the natural or instinctive quality required to establish such a defence. Nor did the Court consider that you and your co-accused had reacted to some perception of immediate danger. In the Court’s view, the deployment of Trident showed simply that the UK has the capacity to use or threaten use of such weapons. It accepted there was a chance or possibility that Trident would be used in some situation that might emerge but did not accept that there was a basis for concluding that such a situation seemed likely to emerge. Even if such a situation seemed imminent, in the Court’s view the risk of it actually emerging must be distinguished from the risk that there would be an actual threat or use in these circumstances.

The Court concluded that the circumstances of your own case were not remotely analogous to those which provide a justification for intervention to prevent imminent danger. Moreover, the Court noted that there was not the slightest indication that the damage caused by you, and which you claimed was necessary as a means of preventing harm, could have had any impact upon the risk itself. The Commission’s Review

Your case was transferred to the Commission on 1 April 1999 from the Secretary of State whom you had petitioned on 28 January 1999 following the High Court’s decision to refuse you leave to appeal. As indicated, prior to reaching a conclusion on your case, the Commission decided to await the outcome of the Lord Advocate’s reference.

In reviewing your case, the Commission has taken account of the following documents: your petition to the Secretary of State dated 28 January 1999; your application to the Commission dated 16 November 1999; the stated case produced by the magistrate in connection with your application for leave to appeal; various correspondence from the High Court concerning the refusal of leave; the "Tri-Denting It" Handbook; the Advisory Opinion of the International Court of Justice dated 8 July 1996 and the Opinion of the High Court in respect of the Lord Advocate’s reference. The High Court’s decisions in the cases of Moss v Howdle, McDougall v Yuk-Sun Ho and Clark v Syme, all referred to above, have also been examined.

Although your application is framed in quite general terms, the issues you raise can be paraphrased as follows into one principle submission:

"The magistrate at your trial did not consider the central issue of your case, namely, the issue of whether nuclear weapons are illegal under international law. Had consideration been given to this issue, then it would have been apparent that the UK Government’s defence policy on Trident is unlawful under international humanitarian law and that your actions amounted to no more than an attempt to prevent a breach of this law".

The issues raised by this submission were clearly dealt with by the High Court in its opinion on the Lord Advocate’s reference. While the Commission is under a duty to consider the merits of all applications it receives, it considers that issues concerning the interpretation and application of the law, both domestic and international, are generally for the courts to determine. Although in dealing with any reference by the Commission, the High Court may hear any matter of fact or law, including any matter previously determined by it, the Commission is permitted to refer a case to the High Court only where it is satisfied that a miscarriage of justice may have occurred and that it is in the interests of justice to make such a referral. Accordingly, the Commission can refer a case in which the Court’s interpretation of the law is challenged only where it is satisfied that the law has been misinterpreted to such a degree that it may have resulted in a miscarriage of justice. The Commission would then have to consider whether a reference in such circumstances was in the interests of justice.

It is unclear whether you accept the Court’s determination of the issues raised by the Lord Advocate in so far as this relates to the issues raised by you in the present case. However, for the purposes of dealing with your application, the Commission has assumed that you dispute the conclusions reached by the High Court and that you wish the Commission to assess whether the Court’s interpretation of the relevant law may have led to a miscarriage of justice in the present case. A. Are Nuclear Weapons Illegal under International Law?

The Commission is satisfied that the High Court did not misinterpret the provisions of international law relating to the use or threat of nuclear weapons to any degree which might suggest that a miscarriage of justice may have occurred in your case.

Although certain of the minority opinions given by the judges of the ICJ on the issue were supportive of your assertion that the deployment of nuclear weapons is unlawful, in the Commission’s view the ICJ was unable to reach a definitive conclusion on the issue. It is clear from the dispositif, for example, that even the decision that the threat or use of nuclear weapons is contrary to international humanitarian law is qualified by the use of the word "generally", and also by the inability of the judges to decide definitively whether the threat or use of such weapons would be lawful in an extreme circumstance of self defence.

The Commission also considers as sound the Court’s view that there is a distinction in the Advisory Opinion between the "threat or use" of nuclear weapons and their deployment as a deterrent. Indeed the Commission notes that at paragraph 67 of the Opinion, the ICJ states that it does not intend to pronounce upon the practice known as the "policy of deterrence". In the Commission’s view, this reluctance demonstrates the distinction between on the one hand "threat and use" (on which the ICJ was content to provide its opinion) and, on the other, deterrence (on which it was not). Earlier in the Advisory Opinion, at paragraph 48, reference is made to arguments which had been advanced by certain states that the possession of nuclear weapons is itself an unlawful threat to use force in terms of Article2, paragraph 4 of the United Nations Charter (referred to at page 7 above). The ICJ explained that possession of nuclear weapons may indeed justify an inference of preparedness to use them. Indeed, in order to be effective, any policy of deterrence requires that the intention to use such weapons must be credible. However, the ICJ stopped short of asserting that deterrence amounts to a threat in terms of Article 2, and explained that this question would depend upon a number of factors, such as whether the particular use of force envisaged was directed against the territorial integrity of a state, or against the purposes of the United Nations or violated the principles of necessity and proportionality. In the Commission’s view, the fact that the ICJ focussed upon the policy of deterrence in its own right reinforces the distinction between this concept and that of "threat or use".

The Commission also accepts the Court’s conclusion that international humanitarian law is the law applicable during armed conflict rather than peacetime. Accordingly, the ICJ’s conclusion that the threat or use of nuclear weapons is generally contrary to these provisions does not support your contention that the UK Government’s policy on Trident is illegal in terms of the law applicable in peacetime. The ICJ’s approach to this aspect of the law is made clear in paragraph 74 of the Opinion where it states that it requires to consider "whether recourse to nuclear weapons must be considered illegal in the light of the principles and rules of international law applicable in armed conflict and the law of neutrality". B. Were the actions which led to your convictionjustified in an attempt to prevent a breach international law?

As explained, the Court considered that aside from the defence of necessity, it is not a defence to a criminal charge that the actions complained of were carried out to prevent another person committing a crime. Again, the Commission does not consider that the Court’s interpretation of the law concerning this question is in error or that it can possibly be suggested that it is the source of a miscarriage of justice in your case.

In your defence to the charges, you made reference to the case of McDougall v Yuk-Sun Ho which you claimed supported your contention that you had a reasonable excuse for cutting the perimeter fence. In that case, a man who while in his shop heard two people kick and damage his door ran outside and saw someone jump into a car. The man approached the car and struck the windscreen with a brush in an attempt to prevent the person from escaping. However, there was no evidence that the people in the car, which was in fact a taxi, were responsible for the damage to the shop. Following trial, the man was acquitted of a charge of vandalism on the basis that the justices accepted that he had a reasonable excuse for what he had done. At appeal by the procurator fiscal, it was argued on behalf of the Crown that the justices should not have considered whether the accused believed himself to have a reasonable excuse but rather whether on an objective examination of the facts he actually did have such an excuse. The High Court held that the justices were correct to have examined the excuse offered by the accused and whether the Crown had demonstrated that this was unreasonable. The Court determined that the justices were entitled in the circumstances to reach the conclusion that the excuse provided was a reasonable one.

The Commission does not consider that the above case assists you in your contention that a miscarriage of justice may have occurred in your case. In giving its opinion, the High Court emphasised that the case did not afford any guidance on a question of principle and turned simply on its own facts and circumstances. Indeed, the Court was reminded by the Crown of the decision in Palazzo v Copeland 1976 JC 52 in which it was said a person is not entitled to commit an offence in order to prevent the commission of another offence. In your own case, the justice clearly considered that the evidence led by you did not demonstrate that you had an excuse for your actions and that the defence policy of the UK Government in relation to Trident was lawful.

The Court’s conclusion that your actions were not justified by necessity, as defined in Scots law, also appears reasonable to the Commission. The Commission does not accept that you acted in the face of immediate danger of death or great bodily harm. Such a situation might perhaps arise in the event that the UK Government’s deployment of Trident developed into an actual threat to use the weapons. However, as the Court highlighted, even in that situation a distinction must be drawn between the threat itself and the likelihood that Trident is in fact about to be used. The Commission also does not accept that you had no alternative but to pursue the course of action which led to the commission of the offence. Although it accepts your submission that you have tried unsuccessfully on previous occasions to persuade the authorities to disarm their nuclear weapons, this does not imply that the only course of action thereby open to you was to engage in criminal activity. In other words, the Commission does not accept that, simply because you felt that your calls for disarmament were being ignored, you were thereby compelled to commit an offence. In the Commission’s view, there were a number of alternative courses of action available to you, not least the continuation of your efforts to persuade the authorities to disarm their weapons. Conclusion

For the reasons set out above, and taking the case and the evidence into consideration as a whole, the Scottish Criminal Cases Review Commission is of the opinion that nothing has as yet been identified to suggest that a miscarriage of justice may have occurred in your case.

Based on the content of this letter we are not minded to refer your case unless you are able to present further information which might persuade us otherwise. You are therefore invited to make any further representations on the present grounds of review which you feel may be appropriate.

If you choose to do so, you should submit these representations no later than 21 days from the date of this letter.

Yours sincerely

Professor Sheila McLean

Chairperson

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