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TP Defences in Court
Hans Lammerant’s Stated Case
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ARGYLL & BUTE DISTRICT COURT
Clerk: SUSAN MAIR
Telephone No. (01546) 604146
Fax No. (01546) 604377
E-mail address: mailto:mail@legalservicesabc.demon.co.uk
KILMORY
LOCHGILPHEAD
ARGYLL
PA31 BRT
DX No: 599700
Our Ref: GDDCH/NR3959
Your Ref:
30 November 1998
Mr Hans P M Lammerant
14 Keizervest
9000 Ghent
Belgium-28
Dear Sir,ARGYLL AND BUTE DISTRICT COURT AT HELENSBURGH PROCURATOR FISCAL - YOURSELF
AND ANOTHER APPLICATION FOR STATED CASE
I refer to your recent application for a stated case in connection
with the above complaint which proceeded to trial on 10th November
1998. I enclose herewith the draft stated case for your consideration.
I would advise you that you have a period of 3 weeks in which to intimate
any proposed adjustments. Accordingly, the last date by which I should
receive your proposed adjustments will be 22nd December 1998. Please
note that if you have no adjustments to propose, you must intimate
that fact to me by 22nd December 1998 otherwise your appeal will be
deemed to have been abandoned.
Thereafter, a hearing on the proposed adjustments to the draft stated
case will require to be held. Normally, the statutory requirement
is that the hearing should be held within I week of 22nd . December
1998. However, you will appreciate that it would perhaps be unreasonable
to hold the hearing during the Christmas and New Year season. I would
therefore propose to apply to the Sheriff Principal for an extension
in the period for holding the Hearing. Given that you may require
to travel from Belgium to attend the hearing, I would assume that
you would wish the hearing to be held in early January 1999. Please
do not hesitate to contact me if you require clarification on any
of the above points.
Yours faithfully
Deputy Clerk of Court
If phoning please ask for: Mr G Dagleish
GDMR3904Mov98IN THE HIGH COURT OF JUSTICIARY AT EDINBURGH
STATED CASE
IN CAUSA
HANS PETER MICHAEL LAMMERANT
APPELLANT
against
THE PROCURATOR FISCAL AT DUMBARTON
RESPONDENT
1998
IN THE DISTRICT COURT OF ARGYLL AND BUTE AT HELENSBURGH
CASE
for the Opinion of the High Court of Justiciary at Edinburgh
stated by Mary M McGugan, Justice of the Peace
in
HANS PETER MICHAEL LAMMERANT, residing at 14 Keizervest, Ghent, Belgium
APPELLANT
against
CHRISTOPHER C DONNELLY, The Procurator Fiscal at Dumbarton
RESPONDENT
The appellant was charged with two contraventions of Section 52 (1)
of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant
was alone charged in charge I that on 16th August 1998, without reasonable
excuse, the appellant wilfully or recklessly destroyed or damaged
the perimeter fence of the Ministry of Defence Base, Royal Naval Armaments
Depot, Coulport by cutting part of the said fence. In charge 3, the
appellant was charged along with his co accused, Hanna Jarvinen, that
on 18th August 1998, without reasonable excuse, the appellant wilfully
or recklessly damaged or destroyed the perimeter fence of Her Majesty’s
Naval Base, Clyde by cutting part of the said fence in the area of
Camera 33, Perimeter Fence.
The case first called in Court on 19th August 1998 when the appellant
who was in custody at the time, pled not guilty to both charges (I)
and (3). The trial diet was fixed for 10th November 1998. The appellant
was granted bail subject to the standard conditions. On 10th November
1998, the appellant was represented by Mr Costello but Mr Costello
withdrew from acting on behalf of the appellant after the appellant
indicated that he wished to represent himself. The appellant maintained
his plea of not guilty to both charges and the case then proceeded
before me on that date.
I found the appellant guilty of both charges (I) and (3) as libelled.
1 fined the appellant £20.00 in respect of charge I. I also fined
the appellant £20.00 in respect of charge 3 and ordered him to pay
compensation of £250.00 to H.M.N.B., Clyde in respect of the damage
which the appellant had caused. I allowed rite appellant a period
of 6 months in which to pay both fines and the compensation.
I found the following facts admitted or proved:-
I. At about 1.10 pm in the afternoon of Sunday, 16th August 1998,
Constables Morag Stewart and Steven MacLean of Strathclyde Police
based at Glasgow were both on duty in uniform outside the Royal Naval
Armaments Depot at Coulport, Dunbartonshire. 2. The two Constables
both saw the appellant, Hans Peter Michael Lammerant who was approximately
8 - 10 metres away from them, cut the perimeter fence line, close
to the southern gate, near the roundabout, with a set of bolt cutters.
Constables Stewart and McLean went over to where the appellant was
standing. Constable Stewart warned the appellant that he was committing
an offence and if the appellant did not desist in his actions, he
would be arrested. However, the appellant continued to cut the perimeter
fence and was arrested by the two police constables.
3. The perimeter fence line was the property of the Royal Naval Armaments
Depot, Coulport, Local Authority Area of Argyll and Bute. The appellant
had not been given permission by the owners of the perimeter fence
line to cut the perimeter fence line.
4. The appellant cut one strand of the section of the perimeter fence
line and in so doing caused damage to the perimeter fence line.
5. It was the intention of the appellant to cut the perimeter fence
and the appellant’s actions were wilful. The appellant’s intention
was to cut a hole in the perimeter fence line so that he could gain
access into the Royal Naval Armaments Depot at Coulport.
6. The appellant did not have a reasonable excuse for his conduct
on 16th August 1998.
7. When the appellant was cautioned and charged with vandalism, he
made no reply.
8. At about 1.40 am of Tuesday, 18th August 1998, Constable Terence
Reid of the Ministry Of Defence Police was on duty outside the perimeter
fence of H.M. Base, Clyde in the Area of Camera 33, when he saw 2
persons, the male person being the appellant, Hans Lammerant and the
female person being the co-accused Hanna Jarvinen. Constable Reid
went over to the appellant and his co accused and took hold of them.
9. When Constable Leslie Greenaway of the Ministry of Defence Police
arrived at the scene, he saw his colleague, Constable Reid, had hold
of both the appellant and his co accused.
10. The two Constables both saw the appellant, Hans Peter Michael
Lammerant, apply pressure to the bolt croppers.
11. The perimeter fence line was the property of Her Majesty’s Naval
Base, Clyde, Local Authority Area of Argyll and Bute. The appellant
had not been given permission by the owners of the perimeter fence
line to cut the perimeter fence line.
12. The appellant made cuts in the section of the perimeter fence
line and in so doing caused damage to the perimeter fence line.
13. It was the intention of the appellant to cut the perimeter fence
line and the appellant’s actions were wilful. The appellant’s intention
was to cut a hole in the perimeter fence line so that he could gain
access into Her Majesty’s Naval Base, Clyde.
14. The appellant did not have a reasonable excuse for his conduct
on 18th August 1998.
15. When the appellant was cautioned and charged by Constable Reid,
he made no reply.
16. The appellant was then taken to the prisoner processing centre
within the police station in the Clyde Naval Base where the appellant
was searched. An eclipse hacksaw blade was found on the person of
the appellant.
There were two Crown witnesses with respect to charge I, namely Constable
Morag Stewart, aged 30 and Constable Steven MacLean, aged 27 who were
both Police Constables with Strathclyde Police based in Glasgow. With
respect to charge 3, there were 2 Crown Witnesses namely Constable
Terence
Reid, aged 48 and Constable Leslie Greenaway, aged 49 who were both
Ministry Of Defence Policemen based at H. M. Naval Base, Clyde at
the time of the offence narrated in charge 3.
Constable Stewart stated that on Sunday, 16th August 1998, she had
been on duty in uniform, along with Constable McLean, outside RNAD
Coulport and at about 1,10pm, while on the footpath, she had observed
a male person whom she identified as the appellant, cutting a section
of the fence with a set of wire cutters. The incident had happened
a couple of metres from her. Constable Stewart had asked the appellant
to desist in his course of action but the appellant continued and
was arrested. The appellant made no reply when he was cautioned and
charged with vandalism. He was thereafter taken to Maryhill Police
Station. Constable Stewart confirmed that the appellant had caused
damage to the fence.
Constable McLean stated that he was on duty with Constable Stewart
in the vicinity of RNAD Coulport on Sunday, 16th August 1998 and at
about 1.10pm, while outside the perimeter fence he had seen a male
person, whom he identified as the appellant, cutting the fence at
the southern gate near the roundabout. The appellant was approximately
8-10 metres from where Constables McLean and Stewart were standing.
Both Constables McLean and Stewart immediately went across to the
appellant and Constable Stewart advised the appellant that he was
committing a defence and that if he did not desist he would be arrested.
The appellant continued in his actions and he was arrested. The appellant
made no reply when he was cautioned and charged with vandalism Constable
McLean confirmed that the appellant had caused damage to the fence
with the set of bolt cutters. Only I strand of the fence had been
cut by the appellant because the two Police Constables had prevented
the appellant from cutting any more strands. In cross examination
by the appellant, Constable McLean claimed that there were a few other
people in the neighbourhood.
Constable Reid stated that he had been on duty on Tuesday, 18th August
1998. In the early hours of the Morning, just before 1A0am, while
on patrol of the perimeter fence of HM Naval Base, Clyde, he was directed
to go to the area of camera 33 where he had observed 2 persons, I
male and I female whom he identified as the appellant, Hans Lammerant
and his co accused, Hanna Jarvinen in the area of camera 33. They
were quite a distance away but he reached them in about a minute.
The appellant had bolt cutters which he put on the fence and applied
pressure. Constable Reid had first seen the co accused, Hannah Jarvinen
applying pressure to the bolt cutters which were placed on the fence
and he had pulled Miss Jarvinen from the fence. Miss Jarvinen handed
the bolt cutters to the appellant and the appellant went to the fence
and started to apply pressure. The appellant was thereupon arrested
and cautioned and charged. The appellant made no reply. Constable
Reid stated that there was damage to the fence across the bottom 2
or 3 feet. Constable Reid confirmed that the set of bolt cutters (label
I) were the set of bolt cutters which were taken from the appellant.
Both the appellant and his co accused were taken to the police station
within the base.
Constable Greenaway stated that he had been on duty in the early hours
of the Morning on Tuesday, 18th August 1998. Shortly before lA0am,
while patrolling the perimeter fence of HM Naval Base Clyde, he was
directed to rite area near to camera 33. When he arrived at the scene
a male person whom he identified as the appellant, was applying pressure
to a set of bolt cutters which were on the fence. His colleague, Constable
Reid had a hold of both the appellant and the co accused. Constable
Greenaway stated that there were several cuts to the fence. Constable
Greenaway immediately restrained Mr Lammerant and took possession
of the bolt croppers which he identified as Label I. Both the appellant
and the co accused were then taken to the prisoner processing centre
which forms part of the police station in the Clyde Naval Base. When
the appellant was searched at the prisoner processing centre, an eclipse
hacksaw blade (label 2) had been found on the appellant.
There were 3 defence witnesses namely the appellant, Hans Peter Michael
Lammerant of 14 Keizervest, Ghent Belgium, Katrina Janet Drew, aged
33 of 50 Carson Street, Glasgow, William John Ainsley, aged 44 of
26 Central Street Glasgow and Frederick Starkey, aged 77 of 3 Llys-
Fammau Pant-y-mwyn, Mold, Flintshire.
In his evidence, the appellant explained to the Court that his defence
to both charges was founded on necessity and self defence, the statutory
defence that he had a reasonable excuse for his actions, the international
law defence which he contended authorises him to act in order to prevent
the commission of crimes recognised under international law and the
moral defence that nuclear weapons are illegal. A number of productions
were lodged by the appellant in support of his position, including
a written defence.
The appellant addressed the requirements for a defence of necessity
as laid out in the case of Moss -v-Howdle 1997 SCCR 215.
First of all, the appellant believed that he had acted in the face
of immediate danger of death or great bodily harm. The appellant referred
to the Advisory Opinion of the International Court of Justice as an
authoritative and comprehensive review of the effects of nuclear weapons
upon human life, health and habitat and with specific reference to
Weeramantry’s Opinion which is appended to the advisory opinion, for
confirmation of the danger of nuclear weapons. The appellant also
referred to a report by the World Health Organisation. To show that
the danger was immediate, the appellant gave 2 examples where states
possessing nuclear weapons had come close to launching retaliatory
strikes in the face of a perceived attack by nuclear missiles which
proved to be unfounded. The first incident had occurred in the United
States of America on 9th November 1979 when an exercise tape caused
the United States Command Centre displays to show a full scale missile
attack which required the United States to take emergency measures
which were only countermanded when the error became apparent following
further checks. The second incident involved the launch by Norway
of a missile near Spitzbergen on 25th January 1995 which was detected
by the Russian early warning radars. Although Russia had been notified
of the launch, the information had not been passed to the personnel
involved in early warning radar and the personnel prepared for a counter
attack until it became apparent that the missile would not hit Russia.
While mistakes might be inevitable, the state of alert which could
result in a retaliatory strike occurring in as little as 15 minutes
did not leave much room for error especially when consideration was
given to the time it had taken to recognise that there had been an
error on both occasions. The state of alert was such that the risk
of an accident was greatly increased and the effects of an accident
would render the planet uninhabitable. The appellant therefore believes
that he required to react now because to wait until an accident actually
happened would not leave him with enough time to do anything. The
appellant alleged that the United Kingdom had implicitly threatened
to use nuclear weapons against Iraq during the crisis in February
of this year.
The case of Moss -v- Howdle had indicated that it makes no difference
where the danger comes from and accordingly the dangers of nuclear
weapons and from our own Government’s defence policies could be regard
as a valid danger.
The appellant stated that his actions were intended not only to protect
himself but also other people who might be affected by the results
of a nuclear attack.
The appellant recognised that he had to show that he had no other
reasonable legal alternative to disobeying the law. The appellant
referred to the attempts by one of his witnesses, Fred Starkey, to
prosecute the Government but Mr Starkey had been unsuccessful because
of procedural problems. This indicated that the legal system did not
want to review the issues of the illegality of nuclear weapons and
therefore there were no legal means open to the appellant to bring
the matter before the courts. Obviously, it would be pointless for
the appellant to try to bring legal proceedings after a nuclear attack
had occurred given the likely results of a nuclear attack. The appellant
therefore felt that the only resort available to him was to take action
himself. The appellant also referred to the comments of Colonel Dunlap,
the United States Staff Judge Advocate of United States Strategic
Command, that people have a duty to restrain their Government from
committing nuclear aggression and if they fail in that duty, their
absolute immunity as non-combatants is undermined. Although the group
of which Mr Lammerant is a member has been in correspondence with
the British Government, no satisfactory response had been received.
The appellant then explained why he believed he had a reasonable excuse
for his action. The appellant believed that the case of MacDougall
 v- Yuk-Sun Ho 1985 SCCR 199 was authority for the proposition that
there can be a reasonable excuse whew the smaller crime is intended
to prevent a greater crime. In the appellant’s view, the deployment
of Trident is illegal under International Humanitarian Law and, even
if that were not the case, the use of nuclear weapons would be illegal
and the appellant was attempting to prevent this crime from occurring
in the future. The appellant believed that the case of Mortensen -v-
Peters 1906 14 SLT 227 was authority for the proposition that international
customary law was to be considered to form part of Scots Law so long
as there was no statute contradicting it. The Advisory Opinion of
the International Court of Justice had clarified customary international
law in relation to the threat and use of nuclear weapons and what
would be considered criminal actions under international law. By considering
how the threat or use of Trident nuclear weapons would contravene
various international treaties, including the Geneva Conventions as
well as the Nuremburg Principles, it was possible to deduce that the
threat or use of Trident constituted a crime under international law.
The fundamental problem which the United Kingdom faced was that in
the use of nuclear weapons, no distinction could be made between combatants
and non-combatants. The effect of the use of nuclear weapons would
breach several rules of international law including causing long term
damage to the environment and the appellant therefore felt that he
had a personal responsibility under international law to take action
and try to prevent the deployment, threat and use of British nuclear
weapons which was why he had acted in the way he had done on the 2
dates libelled. The British Government could no longer rely on the
argument of self defence because its own Strategic Defence Review
had concluded that there was now no danger to the very survival of
the United Kingdom.
The appellant was also of the view that there was a practical link
between his actions and the prevention of crime. His actions had been
designed to help prevent the greater crime. The aim was to get into
the bases to disarm Trident. However, in pursuing that aim, the appellant
stated that he had restrained his actions to non-violent methods.
His actions were therefore reasonable in the circumstances given that
other methods, such as legal means or political lobbying, had proved
to be fruitless.
The appellant also believed that international law authorises individuals
to act in order to prevent the commission of crimes under international
law and drew particular attention to the comments of the Tokyo War
Crimes Tribunal about the duty of individuals to act where they had
an opportunity to prevent a crime under international law. The appellant
further believed that he had a duty to take action. The appellant
also believed that the immortality of nuclear weapons justified the
actions he had taken.
In cross examination, the appellant agreed that he had been at the
perimeter fence on 16th August and that he had attempted to cut the
fence at Faslane of 18th August.
The next witness was Katrina Janet Drew who stated that she was a
lecturer in international law at Glasgow University. Miss Drew contrasted
the way the Scottish legal system approaches the incorporation of
international custom into Scots Law from that adopted by the Scottish
legal system with respect to international treaties. International
treaties would not form part of the law of Scotland until their terms
are enacted by an Act of Parliament. However, from the case of Mortensen
v- Peters, international custom would, like common law, automatically
form part of Scots law unless there was statutory provision on conflicting
terms. Provided that the defence founded upon by the appellant could
be shown to form part of customary international law, the appellant
could invoke such a defence as part of Scots law. In her view, it
was quite valid to look at customary international law when considering
the meaning of the expression, "reasonable excuse", and to take customary
international law into account when interpreting the meaning of the
expression. The Advisory Opinion of the International Court of Justice
was given at the request of the United Nations which asked whether
the use of nuclear weapons was illegal under international law. Two
main principles were applied. The first principle was that the use
of nuclear weapons must not cause unnecessary suffering and this was
to be ascertained by applying the test of what was reasonable. The
second principle was that nuclear weapons must be used in such a way
as to distinguish between combatants and non-combatants. As it appeared
likely that unnecessary suffering would be caused by the use of nuclear
weapons, their use was therefore to be regarded as illegal. Miss Drew
advised that rite Opinion was not binding on Scots law but sets out
binding principles of international law. Miss Drew did not know of
any legal authority that would suggest that the simple possession
of nuclear weapons was illegal. Miss Drew considered the Advisory
Opinion unsatisfactory in relation to the question of self defence.
No guidance had been given to ordinary citizens as the Opinion did
not go beyond the question put to it by the General Assembly. Miss
Drew was of the view that there was a need to establish some sort
of international crime before a citizen had a duty to act. According
to Miss Drew, this aspect of international law was quite unrefined.
The third defence witness was William John Ainsley who had a Bachelor’s
degree in both Arts and Divinity. During the 1970’s, Mr Ainsley had
served in the Black Watch. Later, he took a role in CND and had participated
in the recent Strategic Defence Review. During the course of his evidence,
Mr Ainsley was asked about rite state of readiness of British Trident
Submarines. I indicated that I thought this line of questioning was
of no value to the case. The appellant argued that the line of questioning
was necessary to prove that there had been immediate danger on the
dates libelled. It was at this stage that I indicated to the appellant
that I had believed him when he was giving his evidence and that I
had taken in what he had said. I further indicated that the appellant
did not need to have the point proved to that extent. In cross examination
by the solicitor for the appellant’s co-accused, Mr Ainsley indicated
that his knowledge of nuclear strategy had been obtained from reports
and other information in the public domain. According to Mr Ainsley,
the Trident system was on 3 days notice to fire whereas the American
and Russian systems were on very short notice to fire.
The fourth defence witness was Fred Starkey who is a member of a group
called Pax Legalis which has tried over a period of 10 years to obtain
a ruling by the Courts on the illegality of nuclear weapons. Both
rite Attorney General and the Director of Public Prosecutions had
refused him permission to prosecute the Government and the application
for judicial review of those decisions had also been refused. The
group had also been refused a summons for a private prosecution by
Magistrates.
The final defence witness was the appellant’s co-accused, Hanna Riika
Maria Jarvinen. As I had upheld the submission by Miss Jarvinen’s
agent of no case to answer in respect of charge 3, Miss Jarvinen’s
evidence only related to charge 2.
In summing up, the Procurator Fiscal invited me to convict both the
accused in terms of their own confessions. In his view, a prima facie
case had been made in respect of all 3 charges so far as they remained
before the court. The special defence of necessity did not apply when
there was not very strong evidence of a more serious offence happening.
To justify the committing of the offence, there had to be very strong
evidence of a exculpatory nature. The Procurator Fiscal suggested
that if there was the danger in the mere presence of nuclear weapons,
something would have happened long before now. The Procurator Fiscal
also noted that on page 18 of the Strategic Defence Review, there
had been a substantial reduction in the types and quantity of nuclear
weapons held by the United Kingdom. In addition, there was no war
crime being committed by the United Kingdom as there was no crime
in the mere possession of nuclear weapons. The defence argument was
therefore fundamentally flawed. The appellant indicated that he did
not dispute the facts which had been established. However, his actions
had been justified by necessity. It was quite clear that in the event
of an attack, there would not be time to take preventative action.
His second witness, Mr Ainsley had explained the state of alert. The
lack of success by Mr Starkey in bringing the question of the illegality
of nuclear weapons to Court meant that the appellant had no legal
alternative. In the appellant’s view, there was a crime going on and
the appellant’s position was founded upon humanitarian law, the article
by Lord Murray, the International Conventions and the Nuremburg Principles.
The appellant also felt that he had a moral defence in that he was
justified in his actions. Also, under international humanitarian law,
he felt that he was legally bound to act in the way that he did to
prevent the commission of a greater crime.
I considered the evidence of all four Crown witnesses to be both credible
and reliable. Both Constable Stewart and Constable McLean stated that
they had seen the appellant cut the perimeter fence line at RNAD Coulport
on 16th August 1998. Both Constables Reid and Constable Greenaway
stated that they had seen the appellant cut the perimeter fence line
at HM Naval Base, Clyde. None of the evidence of any of the four Crown
witnesses was challenged by the appellant in cross-examination. In
spite of being warned by Constable Stewart that he was committing
an offence, the appellant had continued to cut the fence on 16th August
1998. On 18th August 1998, the appellant was present when his co-accused
was apprehended by Constable Reid. The appellant had taken the bolt
cutters from his co-accused and then proceeded to cut the fence with
them. It was clear to me that the appellant’s conduct on both occasions
was deliberate and wilful. The appellant confirmed in his own testimony
that his intention was to get into both RNAD Coulport and HM Naval
Base Clyde. As he would not have been allowed entry to either military
establishment, he was therefore attempting to break through the perimeter
fences which were there to prevent unauthorised access.
Having satisfied myself that the central elements of both charges
(I) and (3) had been proved, I required to consider whether the appellant
had caused the damage on each occasion without reasonable excuse.
The appellant advanced the same defences for both charges (I) and
(3). In addressing the arguments, I recognised that the only defence
available to the appellant was that he had a reasonable excuse for
his conduct on each occasion. As necessity, self defence, international
law and morality could all possibly fall within the category of a
reasonable excuse, I felt entitled to consider the appellant’s evidence
in its entirety.
While I gave careful consideration to all the points made by the appellant,
I believe that his arguments were flawed in several respects.
First of all, the appellant conceded that even if possession, the
threat or the use of nuclear weapons are crimes under customary international
law, if there is a United Kingdom statute which conflicts with customary
law in this respect then, in Scots Law, the statutory provisions will
prevail. The expenditure for the Trident Nuclear Weapons programme
would have required authorisation by statute and it appeared to me
that I must assume that Parliament was therefore giving its consent,
in principle, to the use of nuclear weapons as a deterrent. I therefore
felt that there was a specific conflict with statute and therefore
the area of customary international law relied on by rite appellant
could not be considered to form part of Scots Law. The fact that certain
aspects of the Geneva Conventions had been incorporated into the law
of the United Kingdom did not, in my view, imply that Parliament had
intended that all future statutory provisions should always be seen
as complying with the Geneva Conventions and other international treaties.
I was not satisfied that the Advisory Opinion of the International
Court of Justice necessarily represented an exhaustive statement on
international law in relation to the threat or use of nuclear weapons.
In her evidence, Miss Drew believed that it might, in certain circumstances,
be possible for the United Kingdom to use nuclear weapons in self
defence. It appeared to me entirely possible that it could still be
lawful under International Law for the United Kingdom to possess nuclear
weapons. If nuclear weapons could be used in self defence, the proposition
that the threat or use of nuclear weapons was illegal under international
law required to be qualified to that extent. I therefore felt that
it was unsafe for me to consider that it was now settled in international
law that the threat or use of nuclear weapons was automatically illegal.
I also took account of the fact that the appellant was relying on
an Advisory Opinion rather titan a case in which a State had been
tried and convicted for possessing nuclear weapons. Although the appellant
stated that the Strategic Defence Review did not now envisage a threat
to the very existence of the United Kingdom at the present time, it
was clear to me that there must always remain the possibility that
circumstances may change and accordingly there might be legal justification
in international law for the United Kingdom retaining the Trident
Nuclear Weapons system.
I was not satisfied that International Law automatically permits an
individual to decide what activities might contravene international
law and then take such actions as that individual considers appropriate
to prevent the perceived illegal activities occurring.
I did not accept the argument that the appellant had acted out of
necessity. I was not satisfied that the state of alert for the United
Kingdom’s nuclear weapons system could be construed as an immediate
danger. While I appreciated and recognised that accidents might occur,
tile examples cited by the appellant suggested that there were procedures
in place to minimise the risk of nuclear weapons being fired in error.
I was also not satisfied that reasonable legal alternatives were not
open to the appellant. Although correspondence with the British Government
might not have achieved the result desired by the appellant, the Strategic
Defence Review indicated that the United Kingdom had reduced its nuclear
weapons capacity. I was not convinced that an unscheduled patrol by
a submarine which might be carrying nuclear weapons made the use of
nuclear weapons more likely in August 1998. I was also not prepared
to accept that the appellant’s argument that as he had a moral defence
for his actions, this amounted to a reasonable excuse in Scots Law.
I accept that I curtailed the evidence of both Mr Ainsley and Mr Starkey.
From his own evidence, Mr Ainsley accepted that he had no special
knowledge or expertise of nuclear weapons or nuclear strategy but
relied on information which was in the public domain and his observations
of naval manoeuvres at Faslane and Coulport to draw conclusions on
the risk of nuclear weapons. It was at the point when Mr Ainsley was
going to describe the movements of the submarines and the possible
state of alert that this might indicate that I interrupted his evidence.
As the 2 offences with which the appellant was charged related to
statutory vandalism, I did not feel that line of evidence was particularly
relevant. I did indicate to the appellant that I was quite happy to
accept the evidence he had given as to the reasons for his actions
the appellant confirmed to me that the evidence of both witnesses
would have been on the same points previously covered by the appellant
in his evidence. I do not believe that in closing this line of evidence,
the appellant was prejudiced in his defence. After all, even if the
appellant had been wrong about the level of danger, he could still
be said to have had an honest belief if he relied on the opinions
given by Mr Ainsley. The evidence given by Mr Starkey related to legal
proceedings in England. As the loci specified in the complaint are
in Scotland, a decision by an English Court on the legality or otherwise
of nuclear weapons could not be considered binding on Scottish Courts
and any legal procedure that applied in England would not necessarily
apply in Scotland. I would also point out that the appellant was given
the opportunity ask any other questions of Mr Starkey but the appellant
indicated that he had no other questions. There is no suggestion in
the application for a stated case that the appellant wished to elicit
further evidence which might have had a material bearing on whether
he would have been convicted.
I believed that in considering what amounted to a reasonable excuse
for the purposes of Section 52 (1), 1 should interpret the expression
in a way which would reflect how the expression is normally used.
While international law might be a factor to take into account when
considering criminal acts designed to prevent slavery or genocide,
I did not accept that it was applicable in the present case.
I therefore found the appellant guilty of both charges as libelled.
I then had to consider the appropriate sentence. The Procurator Fiscal
indicated that the appellant had no previous convictions. The appellant
had not been detained in custody from the date of his first appearance
in Court. The cost of repairing the damage to the perimeter fence
at H M Naval Base, Clyde was £1.044.71. The Procurator Fiscal did
not have any information with regard to the cost of repairing the
damage referred to in charge I. In mitigation, the appellant indicated
that he earned £40.00 per month from a part time job and had expenses
of about £20.00 per month. The appellant indicated that the reasons
for his actions had already been dearly developed in his evidence.
In my view, both offences were committed in open defiance of the law.
On the first occasion, as narrated in charge I, the appellant had
been given the opportunity to desist from his actions but had chosen
not to do so. The occurrence of the second offence so close in time
to the occurrence of the first offence appeared to me to indicate
that the 2 offences were not isolated incidents but part of an ongoing
course of criminal conduct. After the commission of the first offence
on 16 August, the appellant could have been in no doubt that a repeat
of his behaviour in cutting the perimeter fence would lead to him
being arrested and charged. I therefore viewed the commission of the
offence on 18 August 1998 to be the more serious of the 2 offences.
I also noted that the offence had occurred at the time when his co
accused was being arrested. The appellant had taken tile bolt cutters
from Miss Jarvinen and was clearly trying to take advantage of the
fact that the attention of the 2 police officers would be directed
towards detaining Miss Jarvinen. The fact that the appellant had an
eclipse hacksaw blade on his person indicated to me that the appellant
had prepared himself to cause damage to the fence. I also took account
of the fact that Constable Greenaway had to restrain the appellant
and take possession of the bolt croppers which indicated to me that
the appellant would have continued to damage the fence but for the
timely intervention of the two police officers. The appellant, in
his evidence, clearly stated his intention to get into the bases to
disarm the nuclear weapons system although he had chosen to break
in rather than attempting to blow up the bases. It also appeared to
me important that compensation for the damage caused should be paid
by the appellant even if I would then require to lower the fines being
imposed in respect of each charge to take account of the limited income
available to the appellant. I considered that a compensation order
for £250.00 was appropriate in the circumstances because, on the basis
of the evidence which I heard, the appellant could not be considered
to have been solely responsible for the damage and also having regard
to his limited income. Having regard to the circumstances in which
both offences occurred, I believed that the appellant should, in addition,
pay nominal fines of £20.00 in respect of each charge. I may have
made reference to five people being involved in the commission of
charge 3. I believe that this was an oversight on my part and possibly
arose because I had also heard evidence in relation to charge 2 where
5 people were alleged to have been in the R.N.A.D. Coulport. I confirm
that in deciding my sentence, the principal factors I took into account
were those which I have referred to in this paragraph. I did hear
evidence from Constables Reid and Greenaway as to the extent of damage
to the bottom of the perimeter fence which was greater than the cutting
of a single strand of wire.
The questions submitted for the opinion of the Court are:-
I. On the facts stated, was I entitled to hold that the appellant
did not have a reasonable excuse in law for his conduct? 2. On the
facts stated, was I entitled to convict the appellant? 3. On the facts
stated, was the sentence I imposed in respect of both charges I and
3 excessive?
This case is stated by me,-----
To : George Farebrother .geowcpuk@gn.apc.org
Subject: Re: Legal: TP2000: details of Faslane Case.
Thank you, George, for the decision in the Lammerant case, recently
at the Argyll & Bute District Court. I have a few brief thoughts on
the substantive part of the judgment - these are provisional; if you
get other comments from interested parties maybe we could combine
& refine our arguments, and circulate the resulting ideas to the tp2000
list’? Best wishes, Glen.
I. ’First of all, the appellant conceded that even if possession,
the threat or the use of nuclear weapons are crimes under customary
international law, if there is a United Kingdom statute which conflicts
with customary law in this respect then, in Scots Law, the statutory
professions will prevail. The expenditure for the Trident Nuclear
weapons programme would have required authorisation by statute and
it appeared to me that I must assume that Parliament was therefore
giving its consent, in principle, to the use of nuclear weapons as
a deterrent. I therefore felt that there was a specific conflict with
statute and therefore the area of customary international law relied
on by the rite appellant could not be considered to form part of Scots
Law.’
I don’t think that the Trident programme was established by statute
at all; in fact, the only parliamentary votes relevant to Trident
would be the acceptance of the Budget which makes an outlay for Trident,
probably explicitly, through the allocation to MoD expenditure. At
first glance this might seem to prop up the argument of the court
by relying on the doctrine of parliamentary sovereignty; i.e. since
parliament endorses Trident it must be valid in all UK courts. But
this line of reasoning makes a nonsense of past precedents on, not
to mention the very existence of, judicial review (at least on reviews
of government programmes with any expenditure). For through the budgetary
vote parliament allocates funds to all government programmes; if the
court’s line if reasoning is to be followed, no government programme
could be questioned in UK courts - clearly this is ridiculous. International
law is incorporated into Scottish law in so far as it is not in conflict
with any explicit statutory provision - and there is no such provision
regarding the upholding of Trident (I think).
2. ’I was not satisfied that the Advisory Opinion of the International
Court of Justice necessarily represented an exhaustive statement on
international law in relation to the threat or use of nuclear weapons.
In her evidence, Miss Drew believed that it might, in certain circumstances,
be possible for the United Kingdom to use nuclear weapons in self
defence. It appeared to me entirely possible that it could still be
lawful under International Law for the United Kingdom to possess nuclear
weapons. If nuclear weapons could be used in self defence, the proposition
that the threat or use of nuclear weapons was legal under international
law required to be qualified to that extent, I therefore felt that
it was unsafe for me to consider that it was now settled in international
law that the threat or use of nuclear weapons was automatically illegal.’
The self defence argument is invalid, and can only be accepted in
law by, someone who has made only the most cursory reading of the
Advisory Opinion. As it was an Advisory Opinion & not a contentious
case; the dispositif is of much less significance than the process
of reasoning taken by the judges in their assessment of NWs. If one
looks at the separate & dissenting opinions, one finds that 6 of the
14 judges (viz. Ranjeva, Herczegh; Ferrari Bravo, Shahabuddeen, Weeramantry’,
Koroma JJ) believe that any threat or use of NWs will always be unlawful;
furthermore, 2 judges (viz. Bedjaoui and Vereschetinj argued that
although the threat or use of NWs could not be considered lawful,
the current state of international law does not enable us to confidently
assert that there is a prohibition of this nature. This reflects a
particular doctrine of international law; in which permission and
prohibition have to be established individually, & are not simply
by the demise of the other; this follows from (they, believe) the
incomplete nature of international law. In summary, 8 - a majority.
of judges believed that any threat or use of NWs could not be considered
lawful. Only, one, judge (Fleischhauer) explicitly asserted an extreme
self-defence principle: judges Shi, Oda & Higgins did not make substantive
comments on this crucial part of the Opinion. Alternatively, it could
be argued that the self-defence principle was left in the dispositif
(due to the elements of fact at its [the Court’s] disposal’ (2E),
referring back to para.94 - i.e. the court did not know how-low-yield
tactical warheads were or could be in future; Trident, despite claims
to a substrategic role, cannot be seen to have a low enough yield
to exempt it from a finding of unlawfulness.
3. ’I also took account of the fact that the appellant was relying
on an Advisory Opinion rather than a case in which a State had been
tried and convicted for possessing nuclear weapons. Although the
appellant stated that the Strategic Defence Review did not now envisage
a threat to the very existence of the United Kingdom at the present
time, it was clear to me that there must always remain the possibility
that circumstances may change and accordingly there might be legal
justification in international law for the United Kingdom retaining
the Trident Nuclear Weapons system’
An Advisory Opinion of the ICJ is the most authoritative clarification
possible of customary international law; international lawyers (and
states) draw little distinction between the findings of a contentious
judgment & those of an Advisory Opinion in an assessment of the law.
4. ’I was not satisfied that International Law automatically, permits
an individual to decide what activities might contravene international
law - and then take such actions as that individual considers appropriate
to prevent the perceived illegal activities occurring.’ Correct -
this is a matter for national courts; prevention of a crime is a defence
of Scottish law.
5. ’I did not accept the argument that the appellant had acted out
of necessity-. I was not satisfied that the state of alert for the
United Kingdom’s nuclear weapons system could be construed as an immediate
danger. While I appreciated and recognised that accidents might occur;
the examples cited by the appellant suggested that the review procedures
in place to minimise the risk of nuclear weapons being fired in error.’
I tend not to like the defendant’s argument about accidents - at first
sight, this looks only like a call for greater safety procedures.
Any weapons system will cause great suffering if a particular type
of accident occurs, but it doesn’t follow that the weapons system
is unlawful because of it. It could further be argued by the defence
that however many safety procedures are installed, Trident will still
be susceptible to accidents this is much more difficult to establish
(though I believe true) & so I tend to avoid this argument altogether.
6. Although correspondence with the British Government might not have
achieved the result desired by the appellant, the Strategic Defence
Review indicated that the United Kingdom had reduced its nuclear weapons
capacity.’ Irrelevant, as Trident still exists.
Glen Rangwala
The Graduate Attic
Faculty of Social and Political Sciences
Free School Lane Cambridge CB2 3RQ
’Tel: +44 (0)1223 334 535
Fax (shared): +44 (0)1223 334 550
Home tel: +44 (0)01223 462 187
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