TP Defences in Court

7/5/01

Dear Professor McLean,

Thank you for your letter of 19/6/01, which set out the Commission’s provisional view on my application. As invited to do so I am now making further representations to the Commission which I hope will persuade you to refer my case to the High Court. I believe that with this letter I have done everything I possibly can to give the Scottish Courts the opportunity to remedy the miscarriage of justice. Reading your clearly stated views has helped clarify in my own mind several ways in which I believe that this miscarriage of justice occurred. I stand by the arguments that I addressed to you previously, but what follows is an attempt to articulate in somewhat different ways some aspects of the miscarriage.

Further Representations

1. In paragraphs 2 (i) and 2 (ii) of the Case Stated, the District Court completely misunderstood the nature of the onus of proof that lay on the prosecution in relation to my various defences. The magistrate compounded this by cutting off my line of questioning of the witnesses that was designed to elicit further facts supportive of my side.

Alistair N. Brown in his Criminal Evidence and Procedure: An Introduction (1996) states at p. 3 that ’The most fundamental principle in the law of criminal evidence and procedure is that the burden of proof is at all times on the prosecution. The prosecution is required to prove its case; the accused does not have to prove anything.’ Cases such as Lambie v. H.M. Lord Advocate, 1973 S.L.T. 219, reproduced in Christopher Gane & Charles Stoddart, A Casebook on Scottish Criminal Law (1988) 31, and Ross v. H.M. Advocate, 1991 S.L.T. 564 make it perfectly clear that the decision of the House of Lords in Woolmington v. D.P.P. [1935] A.C. 462, cited by Brown to support his position, is part of the law of Scotland.

I believe that my point is supported by a case which you and I have both read carefully, although we apparently disagree about its application to my situation, MacDougall v. Yuk-Sun Ho, 1985 SCCR 1999 in the High Court of Judiciary. The Commentary following the report of that case puts my present point in a nutshell, ’It [the case] is reported because it involves an interesting situation, and as an example of the need for the Crown to disprove the reasonableness of an excuse where that defence is put in issue.’ The offence with which Mr. Ho was charged is the same as that against me in this present case. He, however, was acquitted and the appeal by way of case stated confirmed that acquittal. In the body of the Judgment, the Court approves the approach taken by the justices which was to ’examine the excuse offered by the respondent and ask themselves objectively whether it had been demonstrated that the excuse was not a reasonable one in all the circumstances.’ Whether the Crown must produce some evidence negativing an excuse as part of its prima facie case, or whether I had some kind of evidentiary burden is of no moment at this juncture. The fact is that, like Mr. Yuk-Sun Ho, I gave considerable testimony on the matters relating to my defence. Moreover, I endeavoured to elicit supporting testimony from at least two of the Crown’s witnesses, especially about the close connection between my acts and prevention of the ultimate deployment of the Trident submarine. How else can one put something ’in issue’ in summary proceedings of this kind other than through my own testimony and from that of the prosecution? The Crown, as appears from the Case Stated, made no effort to attack my testimony by cross-examination. It made no effort to counter my testimony concerning my defences with any evidence of its own. The District Court cut off my efforts at cross-examination of the Crown’s witnesses relevant to my defences.

To reiterate. It would appear from the cases that at most all a defendant must do to put defences like mine in issue is to present some evidence, from that person’s own testimony, or in that of the prosecution, which raises the matter. The burden of persuasion remains with the Crown to negate the defence beyond reasonable doubt. If it fails to do so, the prosecution fails.

When it came to explain its reasoning in the Case Stated, however, the District Court seems to have assumed throughout that the burden of persuasion was on me, not on the Crown. For example, in relation to my defences of necessity and self defence (paragraph 2 (i) of the reasoning), the District Court said that it could ’see no immediate connection between the offences that the Appellant committed and necessity and self defence.’ This assumes that the matter was for me to prove, rather than the Crown to disprove. Yet I was ’proving’ it with one hand tied behind my back by the evidentiary rulings. Catch-22! Surely what the District Court would need to find in order to convict me was that the Crown had demonstrated beyond reasonable doubt that the connection was too remote. Then, on the reasonable excuse issue (paragraph 2 (ii) of the reasoning), the Court says that it did not ’consider the evidence led by the Appellant was sufficient in law to demonstrate that she did in fact have an excuse for her actions.’

Might I suggest that the onus on me was at most to raise the issue. I did. The onus then is on the Crown to demonstrate that I did not ’in fact have an excuse for [my] actions.’ The Crown did not even attempt to meet its onus.

I was, in fact, denied a fair trial (Article 6(1) of the European Convention on Human Rights [ECHR]) because of the court’s failure to require the Crown to adduce evidence, subject to cross-examination, about Trident’s compatibility with international law. By acting as it did, the court infringed my right to a fair trial, which includes the right to adversarial proceedings. For similar reasons, I was also denied an effective remedy (Article 13 ECHR).

The European Court of Human Rights reinforced my point about a ’fair trial’ in the recent case of Streletz, Kessler & Krenz v. Germany (22^nd March 2001). The Court held that weapons which have an ’automatic and indiscriminate effect’ violate the right to life, which is ’the supreme value in the hierarchy of human rights.’ Trident is indiscriminate. Accordingly, a ’fair trial’ requires full consideration of all the evidence, however unfavourable to the State, in order to determine whether Trident as deployed (in the light of the size of its warheads, its targeting, rules of engagement, etc) is compatible with humanitarian imperatives. Although the admissibility of evidence is primarily a matter for the national court, any restrictions imposed must not impair the very substance of the right to a fair trial.

The Convention rights to a fair trial (Article 6 ECHR) and an effective remedy (Article 13 ECHR) apply even in militarily sensitive contexts. If a State wishes to derogate from its Convention obligations ’in time of war or other public emergency threatening the life of the nation’, it must lodge a derogation under Article 15. Even then, certain rights are non-derogable (eg. Articles 2 and 3 ECHR). Article 15 implies that unless a derogation has been lodged, Convention rights (even those which are derogable) continue to apply ’in time of war or other public emergency threatening the life of the nation.’ This reinforces my point that I was entitled to a fair trial in accordance with Article 6(1), with full consideration of all the evidence, notwithstanding the military context. 2. In paragraph 2 (iii) of the reasoning, the District Court misunderstands both the type of case that comes within the jurisdiction of the International Court of Justice and the legal nature of advisory opinions.

The magistrate writes that, ’Until our country is brought before the International Court and convicted this opinion is not part of International Law or in any way incorporated into Scottish Law.’ The misunderstanding here is so fundamental as to suggest that the judge had no grasp whatever of the basic principles under which the International Court operates. How can there be other than a miscarriage of justice if the judge is so fundamentally confused?

There is first the reference to ’convicting’ the UK. Now it would be nice if there were a way for the United Kingdom to be ’convicted’ of its nuclear crimes. Unfortunately, however, the Court does not have criminal jurisdiction over anyone, including states. This is why it has been necessary to create the new International Criminal Court. Not even the new Court, however, will have jurisdiction over states. It will only be able to determine whether the individuals who operate on behalf of states have committed crimes. Any of us left after the nuclear holocaust will be able to gain whatever scant comfort there is in seeing those responsible brought to justice. In the meantime, I would submit, it remains the duty of national judges in the various states of the World to try to apply the law.

This leads to the second misconception on the Case Stated which is also repeated in your own letter at page 10 where you explain that the High Court emphasised the advisory status of the ICJ Opinion, stressing that it was not a determination of international law. This is a very confusing way of expressing the fact that as an advisory opinion it was not a contentious case. In terms of the way in which cases come before the ICJ we must distinguish between contentious and advisory proceedings. That should not be a surprise to Scottish lawyers. A prosecution in a District Court, or a claim for damages in a Court of appropriate jurisdiction is similar to a contentious proceeding in the International Court. A Lord Advocate’s Reference pursuant to Section 123 of the Criminal Procedure (Scotland) Act 1995 is akin to an advisory proceeding in the International Court. If the Reference follows an acquittal, the accused remains acquitted whatever the result of the Reference. Any points of law decided upon are grist for another day’s mill, founded perhaps on abstract and even hypothetical facts. But no one would suggest that what the High Court of Judiciary has to say on such occasion is offered on a take-it-or-leave it basis. Subsequent trial courts will try to apply it. Appellate courts will apply, distinguish or over-rule it. An Advisory Opinion of the International Court is of the same ilk. It sets out basic principles in response to a fairly general question and leaves the application of those principles to particular cases for another day.

In short, an advisory opinion is just as much a statement of the relevant law as is a contentious proceeding. In a contentious proceeding a court articulates the relevant principles and then applies them to the particular facts. In advisory proceedings it articulates the principles but leaves it for someone else to apply them in specific instances. It is offering an authoritative view of the law on the issue about which the relevant organ of the international community inquired. The International Court of Justice is the principal judicial organ of the United Nations and its judgements and advisory opinions are the most authoritative source of international law. May I repeat again the point made by Lord Murray in his address on Nuclear Weapons and the Law. After referring to what he characterizes as the ’deliberately dismissive’ approach taken to the Advisory Opinion by Sir Michael Quinlan, Permanent Under-Secretary for Defence from 1988-1992, he continues, ’It is true, of course, that under the statute of the court its advisory opinions are not binding on the parties, as are decisions in contentious litigation. But it is a fair inference that the power to deliver them was not conferred with the intention that they should be ignored. Nor is it true that advisory opinions are without authority and without effect upon international law generally. Such a pronouncement by the court is authoritative in that it embodies the collective view on a point of law of the highest judicial organ of international law, after hearing disputed contentions in full court proceedings. Furthermore the reasoned principles expressed in the court’s ruling are likely to be applied in a contentious litigation on the same subject which would bind the parties. For these reasons alone it may be unwise of a nuclear power to adhere to the Quinlan line and disregard the ICJ advisory opinion of 8 July 1996. The advice tendered by the court is there to be followed or at least to be carefully considered.’

Whose task is it to do the careful consideration? Those of us who are members of Trident Ploughshares take the position that, in the present situation of the gravity of the danger to humanity, it is incumbent upon all citizens to do so. At the very least, however, it is a matter for those who speak on behalf of the state, namely the executive, the legislature and the judiciary, to address in their professional capacities. Yes, international law speaks directly to Scottish judges. It is not enough to wait in the hope that a mythical ’someone else’ will offer a definitive ruling. I would submit that the District Court shirked its responsibility as a servant of the law by not even trying to come to grips with relevant principles of international law that are part of the law of Scotland.

That judges who decline to take their responsibilities seriously may find themselves accountable to an international forum appears from the case of U.S. v. Josef Altstoetter et al (also known as Justice Case) decided by an American Military Tribunal at Nuremberg. The lawyers and judges in that classic case were found to be complicit in war crimes and crimes against humanity. At page 1227 it explains, ’Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Jews and Poles in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws’.

For instance at page 1233, Schlegelberger who had been in charge of the Reich’s Ministry of Justice was found ’guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by the Hague Convention’. At page 1235 the activities of the Ministry of Justice were described as a ’program of racial extermination under the guise of law’. The Court added, ’We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security.’

The defendant Rothenberger was at relevant times the president of the Hanseatic Court of Appeals. As such, he participated in the perversion of the legal system. As the Court at Nuremberg said at page 1241, ’Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and not withstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the party minions, and the police. He participated in the corruption and perversion of the judicial system.’

German law was no justification, no defence. At page 1250 it states, ’This Tribunal is not concerned with the legal incontestability under German law’ of the cases against the Jews, Poles or other persecuted minorities. It also stated at page 1251, that ’the defendants are not charged with specific overt acts against named victims. They are charged with criminal participation in government-organised atrocities and persecutions unmatched in the annals of history’. The Tribunal was acutely aware that the accused jurists were enforcing domestic law that under German legal doctrine took precedence within Germany over international law. The Tribunal thus took special care to emphasise that the jurists nonetheless could be held responsible - the implication being that German legal theory was mistaken in endorsing the violation of international law if required by domestic law. At page 1220 the Tribunal states, ’The conclusion to be drawn from the evidence presented by the defendants themselves is clear. In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorised to enforce international law, Hitler’s decrees were a protection neither to the Fuerhrer himself nor to his subordinates, if in violation of the community of nations.’

I might, perhaps, add that the so-called ’complementarity regime’ of the Rome Statute of the International Criminal Court encourages states to deal with their own criminals, so that the new court will only have jurisdiction where a state is unable or unwilling to fulfill its responsibilities. An abdication by the judicial branch is not what the drafters of the Statute had in mind. 3. The Commission is wrong to be ’satisfied that the High Court did not misinterpret the provisions of international law relating to the use or threat of nuclear weapons to a degree which might suggest that a miscarriage of justice may have occurred in’ my case. The Commission itself has misinterpreted the provisions of international law. In essence, the whole thrust of international humanitarian law is the protection of civilians and innocents from the worst excesses of war. On the very simplest level international law is completely undermined if Trident nuclear weapons are somehow exempt from this.

The Commission says ’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.’ This is the wrong emphasis. The only conceivable exception to the finding of general illegality is a possible in extremis exception. In other words, at best (from your point of view), there is only one conceivable exception.

What the ICJ said in para 2E of the dispositif was that it could not conclude ’definitively’ whether threat or use would be lawful or unlawful in an extreme circumstance of self-defence. Indeed, in para 95 the ICJ says it does not have sufficient elements to enable it to conclude ’with certainty’ that use would necessarily be at variance with international humanitarian law. The way in which the ICJ expresses itself implies that it leans in favour of illegality. The following passages indicate that even in extremis, any threat or use of nuclear weapons is likely to be unlawful.

  The ICJ held, at para.79, that the ’fundamental rules (of humanitarian law) are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’ (emphasis added).
  The ICJ specified, at para.105 2E, 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’.
  The ICJ also envisioned, at para.94, no circumstances in which the use of nuclear weapons would be compatible with international law saying ’none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the ’clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield weapons’.
  The ICJ acknowledged, at para.36, the ’unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come’.
  The ICJ refers, at para.95, to ’the principles and rules of law applicable in armed conflict at the heart of which is the overriding consideration of humanity’ and states ’In view of the unique characteristics of nuclear weapons, ... the use of such weapons in fact seems scarcely reconcilable with respect for such requirements’ (emphasis added).

In conclusion, the ICJ Advisory Opinion, as a whole, gives a strong presumption of illegality. Of the fourteen Judges sitting, ten determined that the use of nuclear weapons would generally be unlawful. Further, six Judges were of the view that all uses of nuclear weapons would be per se unlawful.

What the respondents in the LAR proceedings did was to point out (this was done most clearly by Gerry Moynihan QC) the dishonesty that the nuclear weapon states engaged in when they forced the ICJ to include in their determination of international humanitarian law some theoretical small, clean, nuclear weapon that might be able to be used in a discriminating and controllable manner. This was done even though none of the nuclear weapon states possess any nuclear weapon small or clean enough to be used in accordance with the intransgressible rules of international humanitarian law. This, as Moynihan said, put a spanner in the works and led to a determination that had to be reconciled with such theoretical but non-existent nuclear weapons. Hence the problems we are now facing. What we did, in contrast, at the LAR hearing was to insist that the rules of international humanitarian law be applied directly to the specifics of the UK Trident system that exists in reality and is deployed at all times with a conditional intent to use 100 kiloton nuclear warheads. We have never ever been presented by anyone (not even a member of the military, government official, or witness in court) with any evidence as to how a 100 kiloton nuclear warhead could ever be used against a military target, even in an extreme circumstance of justified self defence, in such a manner as could satisfy the intransgressible principles of international humanitarian law. 4. In the same section, I have problems with the Commission’s statement that ’the ICJ’s conclusion ... does not support your contention that the UK Government’s policy on Trident is illegal in terms of the law applicable in peacetime.’ It must be remembered that I presented evidence at the LAR Hearing from Hansard debates of the bombing raids that were still continuing over Iraq. I argued that we had been in a continual state of armed conflict for some years and were in one now. Thus the arguments about peacetime were not relevant - we were not in a time of peace. This remains true to this date.

However, even if we were in a time of peace, it seems to me that your draft (and the relevant parts of the answers of the Court on the Lord Advocate’s Reference on which it is based) mis-characterizes the principles of international humanitarian law. Your draft suggests that my submissions in the Lord Advocate’s Reference had ’appeared to ignore the fact that the rules of conventional and customary international law are concerned only with regulation of the conduct of states in times of armed conflict and not in times of peace.’

Since your draft is at this point summarizing the decision on the Lord Advocate’s Reference, you might want to add the word ’relevant’ after ’the’ and before ’rules of conventional and customary international law.’ The High Court was not making such a sweeping suggestion as you indicate. The vast majority of rules of modern international law have nothing to do with armed conflict - they relate to the law of peace. The High Court was evidently referring to the laws of Geneva and the Hague, not to the whole body of international law.

While what you say would then be an accurate summary of what the High Court said, I should like to put on the record my belief that paragraph 95 of the decision on the Reference contains some propositions that the High Court may later find it expedient to revisit. Several international lawyers whom I have consulted do not agree that there is any such ’fact’ or that the International Court was intending to make such a point in its dispositif paragraph E in the Nuclear Weapons Advisory Proceedings. The laws on homicide and other assaults to the person have application earlier than the point where the victim is having her throat cut. Self defence, or intervention by a Good Samaritan or the police, may be justified much earlier. Indeed, the laws on attempts, soliciting, preparation, conspiracy, assault as opposed to battery, threatening and the like, are all about behaviour short of the completed breach of the law. Humanitarian law is surely like that too.

Indeed, the whole point of regarding certain threats as illegal is that there may not be actual hostilities when the threat takes place. I think Her Majesty’s Government would probably regard a specific threat by Saddam Hussein to attack Tel Aviv with a nuclear weapon in certain circumstances as illegal, even in the absence of actual hostilities. It might well regard such a threat as an occasion to join in punitive action. Current attempts by the allies to rid him of his weapons of mass destruction or those which cause unnecessary suffering surely have some connection to a belief that what he might do further down the road could well be illegal, even though there were no current ’hostilities’. Were he to arm all his troops with dum-dum bullets tomorrow, I doubt that Her Majesty’s Government (HMG) would be talking about ’simple deployment’ or ’mere possession’ and yet there is no treaty that specifically bans the possession of such weapons. HMG would regard his actions as a threat that had to be dealt with, by force if need be. My position is that the current deployment of the Tridents is such that any actual use would involve a breach of humanitarian law and so the threat to do so is equally unlawful. It would be a sterile legal system that closed its eyes to and did not try to deal with inchoate, preparatory, crime.

In any event, ’the law applicable in peacetime’ includes human rights treaties binding upon the UK, which enshrine the right to life and the prohibition of inhuman treatment. Article 15 of the European Convention on Human Rights provides that there can be no derogation from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), even in the event of a public emergency threatening the life of the nation. The European Court of Human Rights has repeatedly held that the prohibition in Article 3 is absolute, even in the most difficult of circumstances such as the fight against terrorism or crime. Under Article 1 of the Convention, the Contracting Parties must secure those rights and freedoms to everyone within their jurisdiction. There are similar provisions in the International Covenant on Civil and Political Rights. The references to ’lawful acts of war’ in Article 15 of the ECHR implies that there are such things as unlawful acts of war which reinforces the point that there are limits, even in time of war.

In the recent case of Streletz, Kessler & Krenz v. Germany (22^nd March 2001), the European Court of Human Rights held that the homicide convictions of former GDR officials responsible for the GDR’s border-crossing regime did not violate the ECHR. In the course of its judgment, the Court said that recourse to anti-personnel mines and automatic-fire systems, because of their automatic and indiscriminate effect [emphasis added], violated the GDR’s human rights obligations. The Court referred to ’the pre-eminence of the right to life in all international human rights instruments’ and stated that a State practice such as the GDR’s border-crossing policy, which flagrantly infringed human rights and especially the right to life, could not be described as ’law’ for the purposes of the Convention. The Court held that the applicants’ acts were not justified by the exceptions in Article 2(2) of the Convention since the deaths were not the result of a use of force which was absolutely necessary. 5. It should be noted that on 14/5/01 in a letter addressed to myself from Robin Johnston, legal officer of SCCRC, it was stated that the SCCRC had decided some time previously to delay consideration of my case until the outcome of the LAR following my acquittal for charges at Greenock Sheriff Court. It should further be noted that the SCCRC, in your letter of 19/6/01 to which this is a reply, relies heavily on the LAR Opinion which it appears to agree with.

However, I submit that the LAR Opinion has made some serious and fundamental errors in law which are now affecting decisions in the lower courts. This is leading to a growing number of miscarriages of justice as citizens continue to nonviolently insist on their right to life as a consequence of which they are being found guilty of crimes.

The Trident Ploughshares (TP) campaign, to which you refer in your letter, has pledged to continue its nonviolent, safe, accountable, nuclear disarmament work. To date, over 120 trials have already been completed - the vast majority of which have led to convictions. There are a further 157 individual TP cases that have been allotted court dates (up to 18^th October) and there are several hundred more awaiting dates. This confrontation between people and state which ends up in the courts is not going to go away. It is essential that the High Court review the matter.

The failure to date of the UK Courts to protect our right to life has led to our continuing civil resistance. As the Universal Declaration of Human Rights warned in its preambular paragraph three, ’[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. Preambular paragraph eight states, ’[E]very individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the people of territories under their jurisdiction’ Article 28 states, ’Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’

The lack of adequate redress from the UK authorities in relation to many decades of representations, lobbying, demonstrations, attempts to bring private prosecutions, requests to disarm all illegal weapons of mass destruction etc. etc, is not only negligent and culpable in itself but is clearly in breach of our international rights to have our grievances properly dealt with. There is a right of effective remedy in Article 8 of the Universal Declaration of Human Rights which states that ’Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’ where the undertakings of all State Parties (which includes the UK) are set down as being ’(a) To ensure that any person whose rights or freedoms as herein are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.’

Our appeals to the authorities have not led to an effective remedy. Trident and the UK Government nuclear deterrence policies have still not been examined directly and impartially. During the LAR proceedings the Court summarily refused an enquiry into the facts applicable to the UK’s possession, deployment and policies on Trident in order that there be a proper factual basis upon which to proceed. We were kept to the particular facts of the Greenock trial, the focus of which was quite different from the LAR.

We still all live in daily terror of a catastrophic accident or purposeful use of the UK nuclear weapons that are based in Scotland. We still live in shame and anguish, in a society that is daily practising and preparing mass murder (or if you prefer the more sanitized legal language - grave breaches of international humanitarian law). This is inexcusable. I am hoping that the SCCRC, at least, will tackle the root issue and enable an effective remedy to be found to our distress and ultimately help to secure for us relief from the horrifying threat to our ultimate right to life.

The major point of law - or legal question - that arises in all of the Trident Ploughshares cases, and that is wilfully being denied adequate legal investigation, could be stated as follows:-

- The use of Trident nuclear weapons would be illegal in armed conflict, because the explosive power of each warhead (100 kilotons, equivalent to 8 times that of the weapon which devastated Hiroshima) makes them incapable of use without violating international humanitarian law; and
  The UN Charter is applicable at all times: not only in times of armed conflict. In its 8 July 1996 Advisory Opinion, the International Court of Justice (ICJ) concluded [para 47]’ ’If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4 [of the UN Charter].’ UK Trident is deployed under a policy of ’stated readiness to use’ - which is what makes nuclear deterrence credible. By definition, deployment in peacetime fails to meet the ICJ criteria of ’an extreme circumstance of self-defence, in which the very survival of a state would be at stake’, even if the Trident warheads could be replaced by ones so small that they might arguably be able to comply with international humanitarian law; and
  Nuremberg Principle VI states, ’The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation... of a war... in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).’ Is the current deployment of the UK’s Trident system a crime against peace?

This question has never been allowed by any UK court to be addressed properly, we have never been allowed to call the witnesses and produce the evidence that would be necessary to directly prove that Trident is criminal. This question is considered irrelevant, or non-justiciable. It is this issue that is at the heart of the injustice and thus the miscarriage of justice that went on in my September 22^nd 1998 case, the LAR hearing and the vast majority of the several hundred TP cases. It is important to look deeper than the characterization of my actions in relation to the judiciary as being efforts to ’persuade them to disarm nuclear weapons’. The approaches to the court prior to my actions in 1998 were to seek judicial remedies for what we saw as crimes against peace and crimes against humanity. We tried every route we could find - from the ’layings of information’ at magistrates courts which is the necessary procedure for starting a private prosecution in England to the formal requests to the Attorney General and Director of Public Prosecutions to institute proceedings under the UK Geneva Conventions Act. Similar procedures were attempted in Scotland. The fact that such prosecutions of the Military, if successful, would inevitably lead to the Court ordering the disarmament of indiscriminate weapons of mass destruction did not make our acts political ones nor merely persuasive. These were serious and lengthy legal processes to try to get the UK courts to directly judge the legality of threats to use Trident.

6. As in my opinion the High Court LAR Opinion is invalid and as I have received permission from Charles Moxley to freely draw upon his article for Disarmament Diplomacy, I have in fact decided to reproduce it in full as I think it is of such relevance and high quality that it should be put before you at length. I had given each of the three Lords copies of his lengthy book entitled ’Nuclear Weapons and International Law in the Post Cold War World’. But on reading their Opinion I can only assume they never had time to read it. I would like you to consider the Moxley critique as a formal part of this letter of further submissions and have appended it to this letter.

In the light of the above further representations I submit that the High Court and the Commission have interpreted both international humanitarian law and the onus of proof within Scots law to such a degree that a miscarriage of justice has occurred and it is in the interests of justice that the case against Zelter, heard before JP Anthony Stirling, on 22/9/98, at Helensburgh District Court, be referred to the High Court to review.

In peace and love, Angie Zelter.

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