Press Releases & Updates 2004

The main point at issue: the defendants’ right to argue that they carried out their actions to resist an illegal war.

This morning the Appeal Court judges hearing the appeal - Lord Justice Latham, Mr. Justice Gibbs and Judge Richard Brown - ruled it is "not necessary" to consider the legality of the war in Iraq, for the accused to have a defence in law. There is no need, the judges say, even to debate whether an English court has the right to rule on government policy in the case. The judges find no "established rule" which defines the international crime of aggression by a government as being also a crime in English law. So the accused are unable to claim "preventing the crime of aggression" as the basis of their defence.

At trial, the defendants will still be able to rely on the defence of "lawful excuse." They will be able to argue from the Criminal Damage Act of 1971 that, in damaging support vehicles for B-52 bombers, or in breaking into Fairford air base to try and disable a plane, they were defending a "property, right or interest," that they honestly believed was in need of protection.

Since this defence under the Criminal Damage Act does not specify whether the action a defendant seeks to prevent must be something illegal, the Appeal Court judges again found it possible to avoid considering the possible unlawfulness of the Iraq war.

Three weeks ago, at the start of the hearing that led to today’s ruling, a four-page witness statement was submitted to the Appeal Court by Sir Michael Jay, head of the Diplomatic Service. In the statement, Sir Michael said he had been instructed by the Foreign Secretary, Jack Straw, to warn that for a UK court to express any opinion on the legality of the Iraq war would have negative effects on UK foreign relations. Any such ruling would, Sir Michael wrote, "provide encouragement" to terrorists, "weaken the Government’s hand in its negotiations with other states," and "tend to undermine the new Iraqi Interim Government."

In view of this warning from the highest levels of government, today’s Court of Appeal judgement comes as no surprise. Defendants will now discuss with their lawyers whether they have grounds to for a further appeal, to the House of Lords.

In the Court of Appeal hearing, Paul Milling and Margaret Jones were represented by James Lewis QC, and Josh Richards by Keir Starmer QC. Professor Vaughan Lowe represented Philip Pritchard and Toby Olditch.

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