Loch Goil and Greenock Trial

Report of Proceedings

Sheriff Court, Greenock Sheriff M. Gimblett, and a Jury

H.M. ADVOCATE v. ANGELA CHRISTINA ZELTER, BODIL ULLA RODER and ELLEN MOXLEY

Tuesday, 19^th to Thursday 21^st October 1999

APPEARING:-

Mr. D. Webster, Procurator-Fiscal, for the Crown;

Mrs. A. Zelter, First Accused, appeared on her own behalf;

Mr. J. Mayer, Advocate, for the accused Roder;

Mr. J. McLaughlin, Advocate, for the accused Moxley.

Tuesday, 19th October, 1999

Wednesday, 20th October, 1999

Thursday, 21st October, 1999

TUESDAY, 19th OCTOBER, 1999

MRS. ZELTER: I really would like to go through three basic matters (inaudible), the common law defence of coercion or necessity, a Statutory defence, and an international law defence.

If we start with the common law defence of coercion and necessity. In Scots law the defence of necessity may be used where the accused has done something which is on the face of it unlawful but which is justified by the extreme circumstances of the situation. For instance you are permitted to destroy property belonging to a person in order to save his life. By committing a crime you have avoided the greater evil. The concept that one should not be punished when an act of breaking the law prevents more evil than it has caused is an essential and basic part of common law.

An important case is that of Moss v. Howdall, and I refer to my Bible of references, where a driver exceeded the speed limit by driving too fast to the nearest service station because his passenger was suffering from severe pain. The defence of necessity was available to this particular defendant and therefore it can be open to me too.

SHERIFF GIMBLETT: Mrs. Zelter?

MRS. ZELTER: Yes?

SHERIFF GIMBLETT: I am not sure if Mr. Webster has a copy of this case.

MRS. ZELTER: In this particular case the court found that the driver could have prudently followed an alternative course of action which would not have involved committing the offence, i.e. the driver could have pulled over to the side of the road rather than speeding. The court found the driver had had a real choice and was not constrained to commit the offence.

The Lord Justice General said the defence cannot apply (inaudible) did not in fact constrain the accuse to act in breach of the law. The common law basis of these requirements, minimum requirements of the defence of necessity, are made out sensibly in Moss v. Howdall and they consist of three.

One, that the accused acted in the face of danger of death or great bodily harm. Two, that it makes no difference where the danger arises from, it can be from a natural disaster, an illness, (inaudible) other danger, and three, that there is no other reasonable legal alternative to disobeying the law.

If I can take you through them one by one, the first, I will show that I acted in the face of immediate danger of death or greater bodily harm. Since the question of whether or not there is such a danger is a question of fact and not law it is of no import to this question as to whether British nuclear weapons are legal or illegal in international law. Even if the use of nuclear weapons was to be perfectly legal, which I of course dispute, the viability of this defence is not affected.

The ICJ opinion is of use in this regard not for the statement of law but as an authoritative and comprehensive review of the effects of nuclear weapons upon human life, health and habitat. It includes the detailed review of the current dangers of nuclear weapons. These are based on the testimony of many of the witnesses who gave oral testimony during the proceedings of the ICJ. In detail they are precedented magnitude of the destructive power of nuclear weapons which is uncontainable in both space and time, with the potential to destroy the entire nuclear system of the planet.....

SHERIFF GIMBLETT: Mrs. Zelter, I don’t think it is necessary at this stage that you (inaudible) this may be something that you would like to address the jury on when you address them.

MRS. ZELTER: I wasn’t sure that I would be allowed to which is why I wanted to say it to you.

SHERIFF GIMBLETT: Yes. I can see why you are addressing me on the question of necessity. In fact I think probably it would be fair to say that I am very familiar with the case of Moss v. Howdall and as far as you addressing me on if you like the basics (inaudible) I would totally agree with you there and I am not ruling out your defence of necessity, but that is for them not for me, and in your charge the things you are saying now that is properly put to them and it might help you to curtail a little of what you are saying to me now. I don’t want to hold you back too much but this is a matter which should properly go to the jury and nothing to do with me. I fully accept the defence of necessity and that obviously as part of my job I will be addressing the jury on my understanding of the law, (inaudible).

MRS. ZELTER: Would it be useful to tell you some of my thoughts about imminence and immediacy or should that wait for the jury as well?

SHERIFF GIMBLETT: Yes, I think so, because (inaudible), you will see the things that are absolutely vital to such a defence. If you wish to say the points that you think should be mentioned of course I will give you guidance on that.

MRS. ZELTER: I was going to say the question of imminence and how immediate a danger this would be is obviously arguable.

SHERIFF GIMBLETT: Yes, I think that is something that would be necessary to go to the jury, certainly a part of it, and obviously that will be reflected in some the questions which the Procurator-Fiscal has put to you.

MRS. ZELTER: Well I think as you have said that the defence is open to us I will leave that one and go on to the statutory......

I would like to bring your attention to Reference 4. It might be of use for this court to know that other judges facing a similar dilemma whether to convict or acquit peace protestors under the necessity defence have acquitted and there is an interesting Law Review article which gives a number of examples of people disarming nuclear weapons systems and (inaudible) necessity defence. For instance People v. Jarka in Illinois in 1995 where Judge Alfonse De Witt instructed the jury as follows: "The use or threat of use of nuclear weapons is a war crime or an attempted war crime because such use would rally international law by causing unnecessary suffering failing to distinguish between competent and non-competent and poisoning of targets by radiation.

And in 1982 in the case of People v. Bermitza(?) which involved an attempt to save lives by preventing further nuclear weapons preparation at the (inaudible) National Laboratory and the defendant also was acquitted on the principle of necessity.

Also more recently, on June 8th, eight activists who peacefully blockaded traffic into a U.S. Trident submarine base in the USA were found not guilty when Judge James Weil(?) told the jury to consider in their deliberations the fact that international treaties superseded local state and federal (inaudible).

If I could move on to the statutory defence, having the charge of wilfully and maliciously causing damage, to show that I had a reasonable excuse.....

SHERIFF GIMBLETT: I think perhaps you are continuing two things here. It is possible in Scotland to charge someone with this sort of offence but under Statute and that is the case that I think you will remember of Helen John. The court dealt with the reasonable excuse. In this indictment in which you are accused of the same offence but not under Statute. So there are defences open to you but not a Statutory defence. But the question of why you did it and the reasons may very well be wrapped up if you like in the whole question of necessity and I have no doubt Mr. Mayer or Mr. McLaughlin may elaborate on that. I don’t know.

MRS. ZELTER: I think it’s probably relevant to go through various elements though to prove that I didn’t act wilfully and maliciously.

I would suggest there might be six elements within that. One, preventing a crime is a reasonable excuse in Scots law. Two, that international law is relevant in Scotland. Three, the threat and use of Trident nuclear weapons is a crime in international law. Four......

SHERIFF GIMBLETT: Sorry, third is.........

MRS. ZELTER: Third, that the threat and use of Trident nuclear weapons is a crime under international law. Four, that I honestly believe this crime was being committed and was imminent. Five, that I really do believe there was a practical link between my action and the prevention of the crime, and six, that my action was reasonable in the circumstances, that I had considered alternative courses of action and that I could not do anything else effectively to prevent the crime. Now, briefly let’s take two of those elements.

SHERIFF GIMBLETT: Again, that’s the proposition (inaudible) objecting to any of that (inaudible) then the view might be taken about whether it is a crime under international law but the facts, what you want to do is put them to the jury for them to consider. Is that right?

MRS. ZELTER: In Scots law the belief that one is preventing or halting a greater crime is a reasonable excuse when charged with offences against property. I would like to bring to your attention the case of McDougall v. (Inaudible) which is Reference 5.

SHERIFF GIMBLETT: Again, I am familiar with that and I can consider it.

MRS. ZELTER: One of the things -- in the case of the second element international law is relevant in Scots law, the position of the Scottish courts as far as I am aware is that customary international law is part of Scots law although in case of a conflict with the Statute or precedent that Statute or precedent must prevail and it’s to be noted that for vandalism there’s no legislative guidance on the meaning of (inaudible) therefore it would be valid to look to customary international law to determine the meaning of the phrase, and I would like to refer to Morton v. Peters case, Reference 6.

My Lord Camlachie stated -- I don’t know if I am pronouncing that right -- there’s always a certain presumption against the legislature of a country asserting or assuming the existence of territorial jurisdiction going clearly beyond limits established by the consent of nations, that is to say by international law. It was indicated that when it cannot be said that the Scottish Statute contains express words or (inaudible) international law is agreed in determining the lead of the legislation or of common law. In this way international law can have a highly significant role in the Scottish courts.

For the court to apply a rule of customary international law I refer to Reference 7, the Pristina case. For the courts to apply a rule of customary international law it must have attained the position of general acceptance by a civilised nation as a rule of international conduct evidenced by international treaties and conventions or authorative text books, practice and judicial decisions.

Reference 8 is by Ian Brownie, Principles of Public International Law, and he says on page 4, "Customary international rules are all to be considered part of the law of the land and enforced as such". I further contend that customary international law is binding on all faiths and is incorporated automatically into Scots law and refer you to Reference 9, Tremtex Trading Corporation v. The Central Bank of Nigeria. It’s the (inaudible). In its law (inaudible) "I now believe that the doctrine of incorporation is correct otherwise I do not see that our courts could ever recognise a change in the rule of international law. It is certain that international law does change. Thus when a rule of international law be changed by the course of public opinion first to condemn slavery the English courts were justified in applying the rules of international law.

Lord Denning in (inaudible) was cited with approval by Lord Oliver in Reference 10, McLean Watson v. Department of Trade and Industry, and as recently as March 24th, 1999 in Regina v. Bow Street Metropolitan Stipendiary Magistrate (inaudible) Pinochet in Glasgow -- that’s Reference 11 -- Lord Miller said in that case customary international law was part of the common law.

I further contend that the advisory opinion of the International Court of Justice is controlling because it is the authorative articulation customary international law on the legality of the use or threatened use of nuclear weapons. Moreover a recent Times Law Report on the 19th of May, 1999 shows that national courts must take cognisance of ICJ advisory opinions, Reference 12. The report stated "The Government of Malaysia was obliged and indicated the advisory opinion to the Malaysian court in order that Malaysian international obligations be given the effect and Mr. (inaudible) immunity be respected".

In the war crimes tribunals for the former Yugoslavia and Rawanda are explicity based on what I have articulated, customary international law as it stands today relating to humanitarian law (inaudible). The international laws that I rely upon in this case are applicable to every nation and every individual within these nations regardless of their rank or status.

Now although customary international law is part of Scots law in cases of conflict with the Statute or precedent the Statute or precedent must prevail. Some people have taken the view because the Trident programme is official and because yearly Defence budgets have found amounts of money for Trident that therefore the nuclear weapons programme appears to be authorised by Parliament. In fact Parliament was initially kept totally in the dark, the Prime Minister actually managed to spend £100 million on the nuclear programme without informing Parliament and Churchill was re-elected in 1951 admitted at the time to discovering this and maintained the same veil of secrecty. Parliament is still kept uninformed about large parts of the nuclear programme. The current Government has refused to hold publicly accountable legal audit for Trident.

As far as I am aware there has been no specific Act of Parliament authorising Britain’s nuclear programme and I am not aware of any legislation which directly authorised Trident as such. As for the budgetary note Parliament (inaudible) to all Government programmes some of which are lawful and some of which are not, as some judicial reviews have uncovered. The very existence of judicial reviews makes it clearly a nonsense to suggest that the Government programmes cannot be questioned in a U.K. court. International law is incorporated into Scots law in so far as it is not in conflict of any specific Statutory provision and as far as I am aware there is no such provision regarding Trident.

To go to the third element, I have already spoken at length from the witness box to the third element in my defence, that the threat and use of Trident nuclear weapons is a crime in international law and I therefore refer you to that.

The fourth element, I honestly believe that a crime was being committed and was imminent. I don’t want to go through the evidence arguments again when I refer you to the (inaudible). I think maybe the only thing I want to deal with here is that the P.F. seem to be suggesting that Trident would have to be actually launching its nuclear missiles before a crime is imminent or before one could detect the danger in order to be able to prevent a crime lawfully. That makes no sense to me in such a complex system.

I would argue that in ordinary life we don’t wait for precise (inaudible) faulty wiring will go up in flames or when gas mains will explode, any prudent and responsible person acts immediately they sense a danger. If an event can be reasonably foreseen to happy at some unspecified time or other, either over a course of years or it could of course come about immediately, then that danger is a real one.

There would be neither time or opportunity for reasonable and peaceful intervention like our own to prevent the terrible crime of mass destruction at the actual time that nuclear weapons are launched, apart from the fact that we are extremely unlikely to know when exactly a (inaudible) nuclear weapons.

The fifth element, I reasonably believe there was a practical link, I think that probably comes under something I picked out during (inaudible), actions reasonable in the circumstances pertaining.

I think we can go on to the international law defence. Judge Sharwood said on page 9 I think in the sentencing of (inaudible) once it is shown that the use of a weapon could annihilate mankind it returns to the conscience of the international community is not materially diminished by showing that it need not have that result in every case. It is not reasonable to respect that the conscience of the international community will both strangely and impossibly wait on the event to see if the results of any particular use is the destruction of the human species. The opposite consideration is the risk of annihilation, that result may not ensue in all cases, but the risk that it can is here in every case. The risk may be greater in some cases, less in others, but it is always present in sufficient measure to render the use of nuclear weapons unacceptable to the international community in all cases.

Again I’d like to refer to my testimony where I did explain fully why U.K. nuclear weapons are illegal and criminal, and which international law was being broken. I don’t want to repeat them here.

As Professor Boyle corroborated it is every citizens’ right and duty to try and uphold international law and prevent war crimes and crimes against peace, which is what our act was about. If you look at Reference 27, (inaudible) in Professor Boyle’s paper on the criminality of nuclear deterrents, states that every person around the world possesses the basic human right to be free from the criminal practice of nuclear deterrents, and its contomitent spectre of nuclear distinction, all human beings possess the basic human right under international law to engage in non-violent civil resistant activities designed for the express purpose of preventing, impeding or terminating the ongoing commission of these international crimes by the confirmed Government officials in the world nuclear weapons states. The universal declaration of human rights, Reference 31, as the chief exponents of customary international law would regard fundamental human rights irrelevant here, the preamble says the General Assembly proclaims this universal declaration of human rights as the common standard of achievement for all peoples and all nations. To the end that every individual and every society keeping this declaration constantly in mind shall strive whilst aggressive measures national and international to secure the universal and effective recognition and observance both among the people of member states themselves and among the people in the territories under their jurisdiction, the right of then outlining the charter or if possible reconcile with the use of nuclear weapons. If you just look at the first article they are all act towards one another in the spirit of brotherhood for instance, it is obvious that this (inaudible) threatening mass destruction.

I therefore argue that I have the peaceful privilege if not duty under this U.N. declaration of human rights to effective hearing by the U.K. Government and military to this declaration. The Nuremberg Charter also authorises me to act in order to prevent the commission of crimes recognised under international law, Reference 16, the International Military Tribunal, faced with the contention that international law provided the punishment to individuals held as follows. That international law imposes duties and liabilities upon individuals as well as states has long been recognised. Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provision of international law be enforced. The true test which is found in varying degrees in the criminal law of most nations is whether moral law -- is whether moral choice (inaudible).

This duty derives from Article 8 of the Charter of the International Military Tribunal which you will find at Reference 16, that states that the fact that the defendant acted pursuant to order of his Government or his superior shall not free him from responsibility in international law. Similarly in the trial of German industrialists for war crimes committed during World War II the Tribunal stated with respect to private individuals, and this is Reference 32, and I think that one’s missing from your...... International law as such binds every citizen just as does ordinary municipal law, acts adjudged criminal when done by an officer of the Government are criminal when done by a private individual, the guilt differs only in magnitude not in quality, the offender in either case is charged with personal wrong and punishment falls on the offender in appropriate (inaudible). The application of international law to individuals is no novelty.

One example is that of a German businessman who provided the Dyclon B gas that was used in the gas chambers in Nazi Germany and who were eventually found guilty and sentenced to death for their breaches of international law, Reference 33. Saying they were only running a business and providing jobs and pretending that they didn’t know what the gas was to be used for was no defence. Now I am contented that if international law punishes individuals for complicity in the commission of war crimes, crimes against peace, crimes against humanity, and offences against the peace and security of mankind, then by inference international law must authorise (inaudible) to prevent those crimes. To go back to the German industrialist who was found guilty after they had plotted to kill thousands of people, it is quite obvious that any responsible citizen who had tried to prevent the gas from reaching the chambers or who tried to prevent the research of the gas taking place, even if she had caused some property damage would have been acting lawfully. Just as Jackson the Chief Prosecutor in the 1945 Nuremberg War Crimes Trial clearly establishes that the Nuremberg principles are inconsistent when they say the very essence of the Nuremberg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual states, and I can remind you of Professor Boyle’s testimony when he cited the recent Pinochet case where the legal opinion -- the law lord, he didn’t mention his name, said explicity that the Nuremberg principles apply here in the U.K. today.

The Tokyo War Crimes Tribunal went so far as to declare anyone with knowledge of illegal activities had an opportunity to do something about it was a potential criminal under international law unless the person had taken affirmative measures to prevent the commission of crime. This is Reference 35 in the war crimes trials decisions, and I would like to repeat that. Anyone with knowledge of illegal activity had an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crime.

Now, the (inaudible) has confirmed that the Nuremberg Charter applies to nuclear weapons, thus military personnel should obey the Nuremberg Charter even if given a contrary order by a superior or by its national Government. The British Marinary Military Law actual expresses this principle in stronger language, Reference 36, where it says "If a person who is bound to obey a duly constituted superior receives from the superior an order to do some act or make some omission which is manifestly illegal, he is bound under a legal duty to refuse to carry out an order and if he does carry it out he will be criminally responsible for what he does". This would mean in my submission refusing to fire nuclear warheads. But more importantly for this case the foregoing applies to my friends and I, we three did have knowledge of illegal activity and we had an opportunity to do something about it, therefore I contend that under international law I have a positive duty to take such steps that are reasonable and necessary to prevent the commission of war crimes and other violation of international humanitarian law and that this duty is supreme vis-a-vis the domestic law of any state which includes Scotland.

SHERIFF GIMBLETT: (Inaudible).

MR. MAYER: My lady, I’m conscious of the hour and your ladyship’s remarks to the jury regarding the timetable of events.

SHERIFF GIMBLETT: Yes. We may in fact however (inaudible) very shortly so whether we (inaudible) they may not all be there. So I think I would rather you started. When we come back at 2.15 we can maybe then if it seems appropriate then I can release them for the rest of the day or whatever. I think that is probably the way to go because although you may be finished quite early on in the afternoon I would have thought if they had some time to think about the matters that have been raised, on some of these matters I think I would like to take proper time and give you a reasoned decision (inaudible).

I don’t wish to rush you in any way but if you would like to start, Mr. Mayer, let’s do so.

MR. MAYER: I’m obliged, my lady. SHERIFF GIMBLETT: What I would say on the (inaudible) I would not have thought it was necessary for you to deal with that. I accept that that defence is live and it’s up to you what you claim or charge, obviously I will (inaudible) when I return to speak in my charge. I am much more interested in the international side, it may of course impinge on the question of necessity but it is the international law that applies. (Inaudible). If there is something however you think I should hear in your submission, please go ahead.

MR. MAYER: Your ladyship has had from me this morning a handwritten list of certain authorities and a typed version called a submissin by me on behalf of the second panel. I want to say immediately that the handwritten list and the submission were transmitted in an attempt to be helpful.

SHERIFF GIMBLETT: I accept that.

MR. MAYER: I’m obliged. And that neither of them is ex partie -- I really now talking about submissions -- and whilst I’m on my feet, my lady, it seems to me that being a legal submission there’s no need for translation because even if the panel were an English speaker she would be deemed not to understand the submission.

SHERIFF GIMBLETT: (Inaudible) knowing if Miss Roder is bright -- I don’t mean that disparagingly -- is intelligent and is interested in this whole trial as clearly as Mrs. Zelter and Miss Moxley are then I think it appropriate that anything you have to say even if it is legal is translated to her. Please go slowly, I think she would appreciate that.

MR. MAYER: Yes. I thought -- I will try to do this as quickly as possible.

SHERIFF GIMBLETT: Perhaps I could check, if that is her wish, I mean, I was thinking that.......

Could you ask her if that is what she would like, a translation?

MR. MAYER: It appears that the second panel would prefer to hear a translation.

SHERIFF GIMBLETT: I’m sure I would if I were in her position and I am very happy that you should continue. If you don’t mind -- are you quite happy to continue translating?

THE TRANSLATOR: I am quite happy to continue.

SHERIFF GIMBLETT: Yes, right.

MR. MAYER: My submission which I have typed is to be understood of course as only one way of seeing the defence available to the second panel. It is however in my submission the most comprehensive way of seeing the defence. That the admission within that comprehensive (inaudible) two things, there are matters of fact and matters of law.

My clear understanding and in terms of your ladyship’s opening remarks after the empanelling of the jury that all matters of law in criminal courts are entirely in the province of the judge. It is no function, no part of the jury’s function, to make up their own minds about matters of law. They are incapable of doing so. Accordingly their only function is to decide matters of fact.

What I have attempted to do in my written submission solely for the benefit of your ladyship, who is uniquely capable in this court of approving or disapproving of their approach, is to set out my view of how one gets on this approach from the beginning of the trial to the end of the trial. Within my written submission where any reference expressed or implied is made to the law, then those issues must before the jury retires to consider its verdict be ruled upon or at least decided upon by the court.

I now identify certain areas of my submission which I say, (inaudible) submission if I may, my lady, in three parts, which I submit require attention before charge -- judicial charge -- to the jury.

Your ladyship indicates a certain particular judicial interest in the international law defence and I shall deal with that to some extent in a different way from the way in which it has been done by Mrs. Zelter, but as your ladyship can see there is a -- I have taken a comprehensive approach to lines of defence open and of course it’s entirely a matter for others to take their approach, and certain concessions I recall were given to the court at an early stage by others but not by me. That may be academic because the court may now take the view that if a line of defence is open to one of these accused then it’s open to them all.

Now, I am conscious that it’s now four minutes to one, I could now embark on the first step of my analysis but I am entirely in the court’s hands.

SHERIFF GIMBLETT: No, if you are about to embark on the first step in fact this may be an appropriate moment to adjourn and then perhaps we can make a start at 2 (inaudible) but about 2.15, so if you could come to a suitable pause (inaudible).

MR. McLAUGHLIN: Just one point really for my assistance, would my lady depending on how long these addresses take, be expecting me to address the jury late this afternoon, because obviously it will have some effect on what I do over lunchtime, whether I return to that matter or whether I simply restrict myself to the submissions that have been made so far.

SHERIFF GIMBLETT: No, I think (inaudible) to consider what we’ve said to fine tune anything you may wish to say in reply. I don’t want anyone to rush (inaudible). I (inaudible) until tomorrow (inaudible) that there should be a pause before the various speeches and the charge. It’s not important to rush.

MR. McLAUGHLIN: I quite appreciate......

SHERIFF GIMBLETT: I don’t wish you to be working all through your lunchtime.

After an adjournment for

Lunch.

SHERIFF GIMBLETT: Ladies and gentlemen of the jury, I promised that I would let you know what was happening when you came back at 2.15. It might have been that we were in a position to continue with the speeches and then my charge but the legal arguments with which I am dealing do appear to be going on longer than might have been anticipated and may indeed stretch into most of this afternoon, and it may be also that we have an adjournment during the course of these arguments to allow one side or another to consider their position, which includes me, because I may wish a little time before I give my response. Some of these arguments are quite complicated. So I think rather than detain you in the jury room much longer what I would like to do is to discharge you for the rest of the day but ask you to come back tomorrow at the usual time. I don’t think there is anything to preclude us starting at the normal time, and hopefully by that time we should be in a position to proceed. If we are not obviously I will let you know the position.

So I am going to warn you again most strenuously not to start discussing what you have heard and all the evidence and to form an opinion. Obviously you can think about it and I have no doubt you have been ever since this started, but please do not talk about the subject matter of this trial, any evidence, or indeed anything connected with it until you are ready to retire into the jury room and consider your verdict.

So you are free to go this afternoon, I am sure you are delighted, and I’ll see you again tomorrow morning.

The jury left the courtroom at 14.17 p.m.

MR. MAYER: My lady, before embarking on the first step of my analysis I should point out although I’m certain your ladyship will have recognised the structure of my thinking, that my paper is written in philogistical form. It begins with the word -- and the final proposition begins with the word "then" and I trust that is clear. I have explained the basis of the (inaudible) position to the translators so that they know the thrust of how this is set out.

My lady, during this submission I shall identify certain words or phrases which in my submission have a legal definition. It may be just as in the rest of the (inaudible) that certain words or phrases on thinks of in statements in criminal cases which are mixed fact and law, but in so far as the words and phrases have legal connotation I shall deal with only the legal connotation.

The first such phrase occurs on the second line of the first development which is at item one, and the phrase is made up of two words which so far as I know do not occur together anywhere else in any of the law in the United Kingdom, but if they do I would welcome instruction and enlightenment thereupon. My lady the words are "mass destruction".

I turn to the Scotland Act, 1998, Schedule 5, Part 2, Heading L, Third Heading L3, and see that the Parliament at Westminster has reserved and I quote "Control of nuclear, biological and chemical weapons and other weapons of mass destruction". My lady, it is unusual to find the concept of jus dem generis applied more than once in the same position. Other than intact Statutes it seems to be abhorred by the Lord Advocate’s legal draughtsmen, but it’s used here. The provision clearly begins with the idea of controlled nuclear then goes into other weapons, types of weapons, which the United Kingdom Government has dealt with by way of treaty and it’s interesting to see that the concept of what has been controlled by Westminster stretches as far as legal drafting allows out into the wide flatlands of the word "other" without definition, but the provision ends very succinctly and conclusively with the words "mass destruction".

Mass destruction in my submission does not require to be otherwise statutorily interpreted because the words are quite ordinarily capable of receiving their ordinary usual meaning. If I may be permitted to read and think in my preferred language for the second I read the phrase as meaning destruction of masses. So, the phrase "mass destruction" is used by the Westminster Parliament, and in my submission perfectly clear what sub-heading L3 is for and what control, that’s all control, the control is not restricted over the said types of weapons.

Item two proceeds purely on the basis of fact, and in my submission and unless the court sees otherwise and I can assist, I do not see cause for the court to define as a matter of law any words in Part 2; similarly Part 3.

It may be that a threat to use might be considered as a word which is used considered by the International Court of Justice but once again it does appear to me that even at that high level it was unnecessary to explain the threat meant. The word "threat" or "threatening" appears in a large number of places in the advisory opinion, it appears in an even larger number of places in the dissenting opinions and unless I can assist the court with any of those references to any particular part I don’t propose to take the court through every single place in the considerations of all the judges where they use the word "threat", it is a word in very common parlance and in ordinary usage.

SHERIFF GIMBLETT: You would have to consider the context in which it was used and throughout the opinion and I am aware that there were dissenting opinions (inaudible) if one looks at the opinions the word "threat" is used and used in the context of if I can put it, before war and in war (inaudible).

MR. MAYER: Yes, my lady, I am conscious that this exercise is ultimately in benefit of the three accused in affording them a fair trial, part of which is ultimately really the jury’s understanding of what this lady means. The jury can only proceed on the basis of the evidence and nothing else, and it would be open to them to recall from their own recollections or their notes the evidence from witnesses, Rodgers, Johnston and there may have been others, what threat amounted to, by whom it was perceived, the nature of the perception and so on. That would be matter of fact or matters of fact. For my purposes I do not seek the assistance of the court in defining for the ladies and gentlemen the word "threat".

Juries are brought to court because they have knowledge of the ways of the world and their understandings are crucial, their understandings of the way the world works are crucial in interpreting what they see and hear from the witness box, and in my submission it wouldn’t be necessary to tell 15 people from Greenock what a threat was. They’ve heard two or three weeks of evidence and understand it in the context of threat or use of nuclear weapons from accident, inadvertence or purposeful firing. That may be if the court needs to define or explain assist in the using of the word threat may be as far as the court has to go go.

SHERIFF GIMBLETT: May I interrupt you?

MR. MAYER: Indeed, my lady, of course.

SHERIFF GIMBLETT: I am purely saying could I (inaudible) word advisedly.

MR. MAYER: Yes.

SHERIFF GIMBLETT: You see if one takes the view that the opinion of the International Court of Justice is very persuasive on the question of the legality of otherwise of nuclear weapons then I think one has to look very carefully as I’ve indicated already, that the context in which that court used the word "threat" (inaudible).

MR. MAYER: Yes.

SHERIFF GIMBLETT: So, for instance, it may well be that in considering the question of the legality of nuclear weapons in their final decision, ambiguous though it may be in the last part, one has to look at it from the way they were looking at it, i.e., (inaudible) in war circumstances. That doesn’t mean to say, of course, that even if it is -- even if Britain had not illegally at the time, it doesn’t mean to say that there needn’t be a threat in the minds of those looking.....

MR. MAYER: Perceived threat.

SHERIFF GIMBLETT: ......perceived threat in looking exactly (inaudible) and indeed you have such a thing. I think you have to make some distinction because if as the High Court has said that the position of nuclear weapons is nowhere pledged to be legal, then one has to look at various types of threat, and while you and I may concede -- I’m talking not personally if I can put it, you or anyone else if I can put it that way because I’m not saying what I think one way or another.......

MR. MAYER: But for the purposes of the notes I understand exactly what your ladyship is driving at.

SHERIFF GIMBLETT: Yes, well we may perceive a threat and in fact there may be the threat although if it’s extremely worrying and looks like a threat to see Vanguard or any of the others cruising up and down the Clyde knowing what it is carrying and its range, that’s not to say it is a threat as looked at by the International Court of Justice.

MR. MAYER: Precisely, my lady, that was the purpose of leading Miss Johnston yesterday because the threat as understood by the judges who gave consideration in the ICJ is not a threat to one’s own population, it’s other’s population, that’s why questions were (inaudible) of the witnesses on the question of neutrality, neutral countries. The perceived threat would be from countries other than the United Kingdom.

I was later in my submission hoping to refer your ladyship to a document which I had the benefit of providing to the court at a much earlier stage of this trial, but I shall be reading certain parts from the journal, the Oxford Journal of Medicine, Conflict and Survival, and in particular an article from Volume 15 of 1999 written......

SHERIFF GIMBLETT: I don’t think I’ve got it here but I am familiar with the article and have read it before.

MR. MAYER: Written by Ronald King Murray -- Lord Murray, and particularly at page 132.

SHERIFF GIMBLETT: I think Reference 25 I think submitted by you (inaudible) an article that’s not in the journal but seems to be for all intents and purposes the same but perhaps slightly longer.

MR. MAYER: The journal is -- the journal I am holding in my hand.....

SHERIFF GIMBLETT: I have seen that.....

MR. MAYER: Yes, my lady, which I submitted to your ladyship....

SHERIFF GIMBLETT: (Inaudible).

MR. MAYER: This is the longest and only authorative version. I have to say I have seen abridged and I one has to say bastardised version but I refer your ladyship to the journal because I could swear as an officer of the court to the source of this journal which is the address at the very end of the article. I was hoping -- I agree with the point as your ladyship has read this, page 132 in the middle of the big block of paragraphs the author, learned author writes, "The court" -- that’s the ICJ -- "I think rightly proceeded on the basis that threat was equivalent to use". I’ll deal with that in its place if I may later, but my submission would be that the jury are entitled having heard evidence not (inaudible) to the High Court for interpretation to find that the method of deployment which the jury has heard so much about is far more than mere possession which is the phrase used by Lord Coulsfield -- mere possession, it would be open to the jury in my submission to find there was nothing mere about the way in which Trident is possessed. I’ll return to the point about -- if I may later, my lady.

That brings me to item four, and the three words or three parts of that sentence having dealt with major threat which required judicial consideration at the moment would (inaudible) but if I may I’ll leave that until the end and the other two phrases which require attention, namely "international law" and "Scots law".

My lady, the beginning of Governmental and judicial consideration of a crime against humanity, whether that may be described as crimes against peace, war crimes, et al the whole thrust of these phrases amounts to the same thing, that vast amounts of humanity are having crime committed against them. This line begins in the 19th Century in The Hague but was so abruptly brought to world attention by the defence at Nuremberg.

The starting point, my lady, are the Nuremberg Principles. I have a copy for your ladyship. These are succinct, they were in my submission always meant to be succinct, that’s what principles are, they’re not principles if they’re capable of wide interpretation, to be unclear, but on the second page of what I’ve handed up you’ll find Principle 6 which is headed, sub-headed, "The crimes hereinafter set out are punishable as crimes under international law". Your ladyship will recall the vigour with which Professor Boyle applied to the word "criminal" when it was put to him that the deployment, the threat, etc., all of which seemed a little out of place as we hadn’t had any other evidence in which to set this context, was given. But it’s clear that Principle 6 refers to crime punishable not simply advisory or subject of recommendation, hope or cajoling, but punishable under international law.

My lady, I’ll deal with certain instruments of international law in a moment, but it’s important in my submission to recognise that international law does not proceed into authority in the same way in which European law for instances proceeds, nor domestic law. The only parallel between the way in which international law works which as I say I’ll deal with in a moment and European law is in my submission where the European directive is in issue. In those circumstances which are in contra-distinction to European regulations which are directly applicable to all individuals, all corporations in Europe from the moment the are promulgated is that that directives are just that -- they point the way forward. However they can distinguish from the way in which international law works because they provide a complete timetable and deadline by which time nation states, member states as they’re known -- must comply with the directives of European Parliament. Failure to do so would mean certain sanctions.

Thus one thinks for instance of the Environment Act of 1995 which called for a huge plethora of changes to the -- to everything to do with the environment within Europe from the cleanliness of air, beaches, public places beyond a certain size, to the use of public buildings controlling temperature, airflow, light and so on. States need time to implement these changes in their own ways, and that’s crucial in their own way, and the whole idea in my submission is to reach an objective by a deadline in different ways, the methods matter really not provided the Statute is complied with.

My lady, it would be possible to develop a line -- I don’t mention it -- from for instance the orders or certain what might be practice notes by say the Sheriff Principal, where the Sheriff Principal says something shall be done from a certain date, we can think of acts of (inaudible) where the Lord President promulgates exactly the same thing -- it must be done now, as soon as he says. Through to an Act of Parliament which themselves bring in certain provisions by a certain time these are brought in as and when the Civil Service and the other organs dominant can get them into place, usually after consultation, but they are brought in. Everybody knows the thrust of the Act, everybody knows what’s to be brought in and everybody knows that they will come into force eventually if they don’t exactly know the date. Well, European regulations of course apply (inaudible), the directives have the same kind of approach as a large Act of the United Kingdom which comes into force in bits and pieces perhaps, but by a deadline. The distinction of international law of course is that no one, not the International Court of Justice, nor the United Nations General Assembly, can actually force nation states to bring about any particular state of affairs within a particular time.

But that lack of compulsion with a deadline attached to it in my submission does not demean or diminish the force of international law as it develops. It is a developing organ and as an organ of law it’s embryonic, by comparison with the ancient systems, Roman law, Scots law, Western European common law, use communing, all of these sources which we looked at, it’s really only about 100 years old and that in my submission is embryonic.

So, with that in mind, my lady, I turn to what has happened to the Nuremberg Principles. Perhaps before it passes on I should direct your ladyship to Principle 6A on the second page and point out that 6A(1) makes it criminal to plan, prepare or initiate to wage a war of aggression or a war in violation of international treaties, agreements or assurances. Your ladyship will be aware that the force with which the Nuremberg Principles were brought into law was by the affirmation of the principles of international law recognised by the Charter of Nuremberg and UNOV. I have brought your ladyship a copy of the resolution. I’m privileged to be holding in my hand the official printed version which at page 188, Section 95(1) reads: "The General Assembly recognises the obligation laid upon it by Article 13, paragraph 1, sub paragraph (a) of the Charter to initiate studies, make recommendations for the purposes of encouraging progressive development of international law and its qualification and I would point my lady, particularly to the words progressive development of international law and its qualification.

Your ladyship has heard that plans are afoot to promulgate a Statute bringing into being an international criminal court. This is more than 50 years after these words were written, an indication if any were needed about the long hard road along which international law proceeds. The General Assembly takes note of certain facts of history and then affirms the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal. Direct committee on the qualification of international law established by the resolution of 11th December, 1946 to treat as a matter of primary importance plans for formulation in the context of the general qualification of offences against the peace and security of mankind, or of an international criminal code of the principles recognised in the Charter.

So where one might say point me to the sub-section or section which deals with A, B or C in international law in the way that one would point for instance to a sub-section of the Licensing (Scotland) Act or the Town and Country Planning Act for authority on a fine point. It may not be possible in international law. One has to construct one’s authority from a broad base of sources. Fortunately there are certain documents which have been produced as Production 14 for the second panel and these have been referred to in evidence throughout.

Before turning to that, my lady, I would simply point to two Statutes, United Kingdom Statutes, first the Geneva Convention’s Act of 1937 an Act to enable effect to be given to certain international conventions done in Geneva on the 12th of August, 1949 and for purposes connected therewith. The conventions are mentioned in the schedule -- well, four of them, and this in 1957 was the bringing into domestic law of several treaty obligations which the United Kingdom had undertaken.

Your ladyship will see that the fourth schedule is relative to the protection of civilian persons in time of war. But in 1957, my lady, the concept of what was the time of war was perhaps a good deal narrower than ongoing for years, situations where countries received daily threats from such weapons as nuclear weapons, but for all that I say you can’t go beyond the normal rules of interpretation of this Act and simply point to it and say this was the bringing in of these conventions.

The other Act I would point to as an example of the way in which the course of law in this country is specifically provided by Acts is the Genocide Act of 1969, Chapter 12, I should have said to your ladyship for completeness that the ’57 Act is Chapter 52. Of course the Genocide Act was brought into force specifically with effect to the convention on the prevention of punishment of the crime of genocide. I have to accept that the whole tests of the Act anticipates punishing acts of crimes of genocide which have already taken place.

I also accept that there is no United Kingdom or as yet Scottish Statute which makes a specific provision as these Acts for the issues dealt with by these Acts. So what is left relying upon the treaties which we’ve heard so much about. We know about the Geneva Convention’s Act and that it protects civilians in times of war, that’s Convention 4, it’s amongst the bundle of Productions, so that aspect of international crime is certainly covered by United Kingdom law -- directly covered I should say.

The other treaty which I mentioned is one which was covered at length yesterday by Miss Johnston in evidence and that’s the Protocol One as we know it of June, 1977, ratified by the present British Government in December of 1997. My lady I pause to reflect that the present Government if challenged upon the reason why they did nothing for 20 years about ratifying this very important protocol would argue we were out of Government for 18 years. We have done what we can when we can. The parallels with the three accused in this case are quite obvious.

My lady the front page of the protocol starts in the usual kind of way in which these international instruments begin. The high contracting parties proclaim their earnest wish to see peace prevail among peoples. They recall that every state has the duty in conformity with the Charter of the United Nations to refrain in its international relations from threat or use of force against the sovereignty, territorial integrity for political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflict and to supplement measures intended to reinforce their application, expressing their conviction that nothing in this protocol should be construed as legitimising or authorising any acts of aggression or any other use of force inconsistent with the said Charter.

They reaffirm that the convention of 12th August and this protocol must be fully applied in all circumstances to all persons who are protected by those instruments without adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the parties to the conflict. If I read that in ordinary language, my lady, it seems to say sort your own battles out in your own way but don’t adversely affect those persons from all of those states unprotected, and as Mrs. Zelter has argued and I would adopt it is impossible to imagine the use of a nuclear weapon which given the vagaries of the weather with which we’re so familiar in Scotland could effectively should blow any which way, north, south, east or west and cause the kind of damage which we’ve heard in a very restricted way in evidence can happen.

Part 1 of the protocol begins after saying that how contracted parties undertake this step and ensure the effect of this protocol. In all circumstances in cases not covered by this protocol or by other international agreements civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience. So those provisions applied in this country on the 8th of June, 1999. In my submission, my lady, that was the law, there is no other law covering the position.

It follows, therefore, and it’s a very important point, despite what the position taken by the learned Fiscal several times during this case and one or two other comments, despite those things the accused as far as the second panel is concerned does not therefore have to rely upon the advisory opinion of the International Court of Justice to find legal authority justification for their understanding of the situation quoad Trident on the 8th of June this year and their rights on that date. They don’t need the ICJ in, if it didn’t exist they would still have the law which I have just outlined. But they do have it, and in my submission and against the background of the way in timescale against which international law works, the advisory opinion so far as threat of use of nuclear weapons is concerned, is entirely with the accused’s position. For as I’ll come on in a moment to say as Lord Murray points out the court was clearly dead against the threat of nuclear weapons. The only legal use which might be, depending on the facts at the time, might afford a nation a defence for using nuclear weapons was when it was faced, imminently faced, with annihilation. In my submission that is the only scenario which the court envisaged could afford legal use of nuclear weapons. It wasn’t certain about that because it depended on the facts at the time.

My lady, I couldn’t take the court in detail through the ICJ opinion but against the background of the accused’s legal right to act as they did on the 8th of June this year, it is unnecessary for me to do so because as I said it’s not necessary to rely upon the ICJ opinion. I would rather spend my time this afternoon, my lady, dealing with analysis than pointing to articles which I am certain your ladyship has read in any event.

That brings me to the learned article by Lord Murray to which I have referred. On page 128 of the journal Lord Murray reminds us under the heading "International Law" that international law despite any appearance to the contrary is real law, not just international morality or international expediency, it may be less developed than domestic law as I have said today but it has a genuine and growing force of its own. To ignore international law is to ignore a factor which is significant if less than conclusive in the conduct of international affairs. My lady I pause there to reflect on my earlier submission that nothing can be conclusive in the field of global affairs, happily the globe continues in existence. Under international law slavery has been outlawed, worldwide post(?) is regulated, navigation at sea and in the air controlled and -- navigation at sea and in the air control -- and under very special circumstances even war criminal brought to trial and executed. All law consists of organised structured principles with an institutional base. What international law lacks is the state’s power to legislate and to enforce the law, but in contrast with moralities want of agreed institutions international law has a court of law whose authority is almost universally accepted.

My lady, it is my understanding from elsewhere in this document and other places that 95 per cent of what the International Court of Justice promulgates is universally accepted as being the legal position in the world. It is notable in my submission that Miss Johnston told us about the United Kingdom’s rather reluctant position to go along with if I can put it that way 105F of the opinion as we know it.

Now, Lord Murray deals with earlier opinions of the court, ICJ that is, involving various parts of the world and very serious schisms therein demonstrates how the court’s authority has had ultimate success in many of these before going on to say that its judicial decisions which really bring these advisory opinions to light. His lordship then at page 131 analyses the advisory opinion and reminds us that the judges were unanimous on a number of points, they were divided on the form of the final answer in which they declared one, that the threat or use of nuclear weapons would generally be contrary to international law but two, that it could not be determined definitively whether such threat of use would be lawful in an extreme circumstance of self-defence in which the very survival of a state would be at stake.

His lordship also reminds us that the President of the court stated that that situation upholding of the court cannot be interpreted as a half open door to recognition of the legality of the threat of use of nuclear armaments.

The court was unanimous on two important issues. It heard that the threat or use of nuclear force which did not comply with Articles 2 to 51 of the U.N. Charter would definitely be unlawful, and secondly it held to avoid illegality nuclear threat or use would have to be compatible with the laws of armed conflict and in particular international humanitarian law. These propositions by themselves would severely restrict the scope of nuclear arms. In my submission the scope of nuclear arms is restricted to the imminent moments where the very survival of a nation state is at stake.

It’s very important to recognise, in my submission, that an absolute majority of the court -- ten out of 14 -- a two-thirds majority judged that threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception, the one I’ve mentioned. So a summary of that is that a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.

The learned author says that he thinks rightly that the court proceeded on the basis that threat is equivalent to use, because as Miss Johnston assured us you can get the situation you want internationally by the threat of these weapons than actually have to use them. His lordship then goes on to deal with treaties and conventions, reminds us of the St. Petersburg Declaration of 1868 and sets in context three cardinal principles. No targeting of civilians, use of inhumane weapons is forbidden, where they are designed to cause unnecessary suffering to combatants and civilians caught up in combat, page 133, my lady, and the Martins(?) clause which is the sort of catch-all about morality and the dictates of public conscience. But at the bottom of page 133 his lordship says it is to be noted that in so far as they consist of international customary law these treaties are part of the domestic law of this country, and I find comfort for my submission about the way in which the phrase "mass destruction" is to be construed from the bottom of the first paragraph to page 134 where the learned author says that the use of a weapon of mass destruction will be unlawful almost by definition where the target is the mass -- and the mass in question is the population as a whole as Hiroshima and Nagisaki show.

The stringent limitations introduced by the 1977 Geneva Protocols on possible reprisals leave little scope for relying on them to counter an opponent’s breach of international law. That in my submission is what Professor Boyle dealt with when he gave evidence about mutually assured destruction or MAD.

My lady, I pass now if I may having dealt with Item 5 and the right of citizens to intervene to 6 where I shall deal with some force in my submission with the prevention of crime aspect as it is understood in common law to Scotland. The key words in Item 6 of my analysis in my submission are "against the said crime". My lady, it has always been the law of Scotland -- I shall turn to the well known passage in Moss v. Howdell in a moment where Lord Rodger says from memory -- I’ll quote it in a moment, Scots law has never been so mean spirited as to deny a defence against the libel when intention was the prevention of the greater harm.

That might just be enough said on that matter. I do want to deal with a particular line of authority on the question of necessity, something which her ladyship has mentioned several times. The defence of necessity in the law of Scotland despite having been available for centuries as having been the subject of calling by Baron Hume and late 20th century judicial consideration remains in a state of paucity. It has only so far as I can see certainly this century dealt with drunk drivers and irate shopkeepers and the like. The whole Scottish jurisprudential enlightenment is silent on the bigger issues, certainly the issues which engages the court instantly, but other jurisdictions are not so silent. In the United States where the volume of the population has afforded them the opportunity and perhaps their whole sociopolitical history has afforded them the opportunity of considering the defence of necessity, both on a far wider scope and with far greater depth than has the population and sociopolitical history of Scotland.

I couldn’t take your ladyship through the well known cases, I have in fact prepared a bundle of materials on the defence of necessity in Scots law which begins I have to say with a not very helpful, not to criticise the author too much, not very helpful article I pass for your ladyship’s consideration. This bundle has this article and then the chronological development of the law of necessity case by case up to the latest one. But I would point out that the learned author in the article at the front begins in the second paragraph of his article by reminding us that the primary justification for recognising a defence of necessity is a humanitarian one, and he goes on to give examples of other learned authors who have told us that a tacit admission of (inaudible) against some of the greatest evils that have failed them as well as a measure of his moral obligation even in extremis, and that comes from Hall’s general principles of criminal law.

The second point the learned author makes is that it may well be, and I shall demonstrate this I trust by reference to certain developments in America, that someone who commits a crime out of necessity is acting as society would wish him to. Now it’s an important preface to this line, my lady, to say that the judges of the High Court who have considered the defence of necessity and nowadays I can include amongst them Sheriff Gordon in his temporary capacity. Generally speaking dealing with the case in front of them envisage a little more but don’t go into all treaties about possibilities for mankind as a whole. That in my submission leaves the door wide open for the defence of necessity to be judicially developed, perhaps by your ladyship.

My lady, I do want to draw the court’s attention to the first case which I trust your ladyship will have after the article in the bundle which is Reid v. McLeod. For the purposes of the notes we are reading from the CD rom version of the Scots Law Times, 1967 Reports, page 70, in which the High Court of Justiciary under Lord Justice Clerk Grant and Lord Wheatley who was to become Lord Justice Clerk, dealt with the statutory offence and the question of reasonable excuse. Now as your ladyship has reminded Mrs. Zelter we are not in the realms of Statute in this case, however there are certain general principles which the court should keep in mind, particularly with respect to charging the jury, and I refer your ladyship to page 2 of this report where the report of the learned Sheriff is narrated and Item 2 on page 3 is stated as the onus in these circumstances fell on him to prove lawful authority or reasonable excuse. Lawful authority or reasonable excuse. The standard of proof being in my view that the balance of probabilities. That in my submission is the correct test because in a Scottish criminal trial the accused doesn’t have to prove anything, let alone beyond reasonable doubt, that is to confuse the defence and the prosecution roles, and that statement by the learned Sheriff is nowhere criticised by their lordships and in my submission is self-evidently correct.

Page 4 of the case report at the second paragraph from the top is in terms of Lord Justice Clerk Grant who says in the fourth line of the second paragraph, "I think that the only general proposition which can be laid down in regard to ’reasonable excuse’" which is put in quotations, is that each individual case must be judged on its own particular facts and circumstances. I do not think it is possible to lay down (inaudible) general rules applicable to classes of persons, whether they be taxi-cab drivers, bank messengers, security guards or vulnerable shopkeepers with a cosh below the counter. Thus as the Appellant’s counsel frankly admitted one must for example have regard to the nature of the offensive weapon.

Well, my lady, for the purposes of this case I would turn that last phrase on its head to say one must have regard to the nature of the offensive weapon one is trying to prevent from being used in the commission of a crime, and lastly my last word on this case is to point out that on page 5 back there in 1967 we find that one of the counsel for the Crown was none other than someone called Donald Murray.

My lady, the next case which I would cite is that of Earnshaw v. H.M. Advocate, 1982 SLT 179. This case shan’t occupy the law, I merely point out that five lines from the bottom of the first paragraph we find the same text of balance of probability applied to reasonable excuse. Reasonable excuse in my submission can be for these purposes, these and only these purposes, equiperated to lawful authority as the court puts it, or perhaps a lawful authority would be a right under international law. If an accused satisfies you on a balance of probability that he had a reasonable excuse that is enough for you to acquit him on this charge.

My lady, it may be a matter of judicial comment in this case, I don’t know, but that this test upon the Crown in these types of cases which in my submission does not connect by the Crown. This submission could not have been made until the end of the evidence because the test in every case of this type once the defence which I am discussing is raised, it is for the prosecution in every case to negative it. By the thrust of my friend the learned Fiscal’s cross-examination was the other way. He did not in my submission seek with all three accused and their supporting witnesses to negative the defence which I told them we were going to rely upon early in his own case. That is a serious flaw in the way in which the Crown dealt or failed to deal with the defence case.

Your ladyship has given certain indications about the facts concerning necessity to the jury and the last substantive paragraph of this case would support that indication in private. The High Court saying expressly that the issue should be left to the jury, that’s the last substantive paragraph before the quotation. We merely decide that in this case we are not satisfied the trial judge should not have left the issue of these motions to the jury.

Your ladyship has mentioned and I have alluded by reference to irate shopkeepers to the case of McDougall v. Ho. I would only say two things about this case cited for the notes, my lady, I brought along a photocopy copy of the case report from the Scottish Criminal Case Reports but it doesn’t give me the exact citation (inaudible) your ladyship is well aware of the case in any event.

The Lord Justice General in that case begins his speech at page 202 but the substance of it is to be found in the back page, 203, and early in the second paragraph three lines down the court deals once again with the comment which I have raised about the way in which the prosecution has dealt with our case, and says "The critical issue in the trial was, however, whether it had been established by the prosecution that the act was committed without reasonable excuse". The court seems to think it obvious that’s what the prosecution has to do, and indeed it is a critical issue in that case. Echoing the words of Lord Justice Clerk Grant, after the reference to the case of Galaxo and Copeland the court says "Let us examine the approach of the learned Advocate Depute. We are not satisfied that the judges had asked themselves the wrong question because in our reading of their note what they did was to examine the excuse offered by the Respondent and ask themselves objectively whether it had been demonstrated by the Crown that the excuse was not a reasonable one in all the circumstances" -- all the circumstances. We trip the phrase "all the circumstances" off our tongues a lot in court but this is a case in my submission which reminds us that there are circumstances with which we have perhaps never dealt before and we have to look at all the circumstances.

The court touches then on the question of what citizens can do lawfully at the bottom of the Lord Justice General’s opinion and discussed arresting people, keeping them to hand, but saying that we do not consider that this case was any guidance on a question of principle, so in my submission McDougall v. Ho on questions of principle with which we’re concerned here doesn’t advise us. The commentary -- I’ll be corrected if I’m wrong about the author of it -- Criminal Case Reports from 1985 but I seem to recall it was Sheriff Gordon in those days -- says that the reporting of this case is not then suggested it affords any guidance on questions of principle. In fact it must say that because that’s just what the court said. It 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 to admission and links the statutory position with the incident position by querying whether the result would have been the same if the Crown had been content to charge the common law crime of malicious mischief which is exactly what we have here.

The question that is left is an open one, but in my submission the answer would be the same, and the reason for that is where a citizen comes to court, points to a link expressed or contructed under international law and says "I was acting lawfully", there is an evidential onus upon the Crown to disprove that and the Crown didn’t do that.

My lady, the next case in the bundle is that of McGregor and Jessop and that is to say that it was a case involving impossibility to physically provide a specimen and for my purposes I cite it in the case of completeness but have no other mention to make of the case because it doesn’t in my submission assist your ladyship on this occasion. It is there -- it was once again the drunk driver situation as is the next case in the bundle McAulay v. Owen Thomas, 1990 SLT, page 323 again a drink driver case, a question of reasonable excuse and as I have already conceded to your ladyship it seems there would be common knowledge to those of us who prosecute and defend in the criminal courts that 90 odd per cent of these reasonable excuses are nothing of the kind, they’re trumped up. I don’t want to be unfair to anyone who might have had one sustained, but 90 odd per cent of them are.

I need hardly mention the next case, Murray v. O’Brien, 1994 SLT 1951 because your ladyship has already indicated that it’s of the trials of the facts, in this case the justice, that the court held that it was for the justice to determine. I interpret that as the trials of the facts whether a reasonable excuse is justice and so on. So that is cited as another example of the trials of facts in the case of necessity, of reasonable excuse.

The next case is almost identical, Duncan v. Norman, 1995 SLT 629, similar in character and development it’s a statutory offence, drink driving, reasonable excuse, virtually does not assist us a jot.

I trust -- your ladyship may or may not have Cribben v. Friel, the next case. That’s a mistake on my part. It was originally relevant to someone else’s case but it’s not relevant to this case, and that brings me to Moss v. Howdell.

Moss v. Howdell, 1997 SLT, page 792, is the latest and highest word on the defence of necessity so far as I know. A glance at the number and height of the cases cited in this case shows us that both English and Scottish law was considered. That is not surprising because the argument in this case was essentially a philosophical one, the facts being an unremarkable question of driving at speed believing the passenger to be seriously ill, that not being the case and whether an alternative course is open to an accused not involving an offence.

As has been said the defence per se was open but in the facts of this case closed to the accused because the court held that he could have followed an alternative course. However, the court took the opportunity to look at the way in which the defence added up and began by dealing with a crisp observation by Lord Wheatley. That was the kindness in my submission, and at page 4 of the report, original page No. 784, my lady, a convenient starting point is the crisp observation of Lord Justice Clerk Wheatley, as your ladyship may remember Lord Justice Clerk Wheatley was well known for making crisp observations, and the court has been kind on this occasion in laying that observation to one side.

Turning to the equivalent defence in English law called duress, and mentioning Hume’s commentaries where the author goes through a range of cases in which arguments have been put forward that an accused person should be acquitted because he acted under compulsion of various kinds. Hume did not say which kinds of compulsion nor what might drive one to compulsion. Hume could hardly have envisaged nuclear weapons. One thing which emerges in Scots law as known to Hume was caution in admitting such kinds of defence, naturally any system of jurisprudence would be. Nonetheless he does recognise in certain situations a defence of this type may be made out in situations of great caution or extensive danger in time of war or rebellion where the forces of law are being overpowered.

Well, my lady, where several diplomatic or ambassadorial sources mention directly with the field reference or cajoled or it’s known that they have come under the kind of pressures which Miss Johnston told us about yesterday. It is we with the benefit of hindsight who are able to link what Hume was talking about where forces of law, Hume no doubt meant the forces of law of this country, but forces of law have been overpowered. That in my submission is exactly what the threat or use of nuclear weapons does to foreign powers, it overpowers them for mistakes. And individuals may be forced to do things for their self-preservation. Baron Hume was talking -- I forget exactly -- but a very long time ago, he then applied a similar approach to situations of less extensive (inaudible) take possession of someone and compel them to take part in a criminal adventure and so on and then a discussion about (inaudible) and there may even be situations although not so common now as formerly of the most specially and private sort of violence which shall be judged by the same rules. Special and private -- the whole way in which we have heard about the deployment and threat of Trident in my submission fits perfectly into the specially and private sort of violence which was imagined by the great mind of David Hume, the nephew.

My lady, the next paragraph is an informative Minute of discussion about Hume admitting that the defence may be open (inaudible) that circumstances mentioned that the ordinary conditions of the law regulate the society. This is I think a somewhat difficult plea that can hardly be serviceable in the case of a trial for any attrocious crime unless it has the support of these qualifications.

Now, Hume is talking about the accused committing attrocious crimes but says nevertheless the defence is open if certain criteria are met, and these are an immediate danger of death or grave bodily harm, that’s one. A different one is inability to resist the violence whatever that may mean, inability to resist what as my learned friend the Fiscal says can one person do against the violence posed by Trident. A backward and an inferior part in the perpetration I think that means whether you do it another way, and the disclosure of the facts as well as restitution of the spoil, (inaudible) in the kind of language which Hume was used to using, on the first safe and convenient occasion.

I think this is the other way round from the argument being advanced on behalf of the accused in this case saying they did what they could when they could. Hume seems to envisage that you can’t do the attrocious crime if you can get out of doing it on the first convenient occasion, as I read that, my lady.

Now, the court dealt with the certain false gloss put on Hume’s words, then at the bottom of page 5 your ladyship will see in the block box at the bottom the page numbers are mentioned. What Hume envisages is a situation where a third party threatens the accused with death or serious injury if he does not commit a particular offence or participate in a criminal adventure. And the accused commits the offence or participates in the adventure in the context of duress as the English call it. In such cases the threat is directed at compelling the accused to commit a particular offence or to participate in a criminal adventure, but in other cases where that is not the purpose of the threat the accused may commit a particular offence in order to escape from an immediate threat of death or serious injury. Now that has resounding parallels for the scope of the offence in this case. (Inaudible).

The parallels between the philosophical dangers for the defence is at the start of page 6 where the court respectfully adopts the reasoning of Lord Hailsham who was then the Lord Chancellor in 1987 H.M. v. Howe so the line of reasoning between Scotland and England was if I may say so brought into a straight parallel, if there is such a thing, (inaudible) on this occasion.

The Lord Chancellor is dealing with an argument that cases of duress could be distinguished from cases of necessity such as the famous case of Dudley and Stevens the two cabin boys or the two shipwrecked sailors who ate the cabin boy. The court observes that necessity arises from any other objective dangers threatening the accused. Well, in my submission although I said that the threat -- that the word threat -- when it comes to being used by the ICJ is threat of other nations, there was evidence that the nature of an explosion by Trident would be indiscriminate and that in my submission would cover any definition of threat to ourselves.

We heard evidence about the Chernoble accident and how it has affected countries far and wide even to this day. So the objective danger threatening the accused in my submission can be expanded given the particular circumstances of a case such as this to include a threat to the accused.

The Lord Justice General reminds us that the defences of self-defence, necessity and duress arise in the circumstances where a person subjected to an external danger and commits an act that would otherwise be (inaudible), otherwise be criminal, as a way of avoiding the arm the danger presents. In the case of self-defence and duress it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes. Now the Lord Justice General is careful not to exhaust the list of other causes, but does mention such as forces of nature, human conduct other than intentional threats of bodily harm etc.

Forces of nature, it is easy in my submission to equiperate that phrase with what would happen in the forces of nature during the explosion of a Trident missile.

At page 7 the Lord Justice General goes further than a comparison with the law of England and discusses the case of Valner v. International Railway Company and mentions that the law recognises that danger invites rescue in Scotland just as surely as in New York. So Scots law has never been so mean spirited as to confine a defence of self-defence to situations where the accused actually save themselves. It has always recognised that the defence may be available in situations where the accused act in an altruistic fashion to save a companion, cohort.

Now, Lord Justice General Rodger, not known for loose judicial language here expressly says that Scots law has never been so mean spirited as not to recognise that defences of this nature where people are compelled to act through perceived dangers etc., can arise, these defences can arise where the accused acts in an altruistic fashion to save a companion.

Now, I’m tempted to paraphrase Lord Atkin in Dorothy and Stevenson(?) discussing the question of who is my neighbour, both the ability and remoteness in that case but in this case it is proper to look at the word "companion" and construe it given that there are three nationalities of women in the dock in the widest sense. It may be said to be a long judicial leap to construe Lord Rodgers’ word "companion" to mean the whole of humanity or large part of humanity, i.e. the kind of masses which Lord Murray describes. But in the context of this case I say that is not such a long judicial leap. I say that is the only interpretation which can be placed upon that word in this case.

The Justice General continues the view according to 218 in the same way if a defence of duress is open to someone who committed a crime to try to escape immediate danger of his own life or health it should be open to someone who does the same to try to ensure that his companion escapes such danger, an illustration given by (inaudible) as he then was in Marchant in the 1989 English Case Assizes says it is particularly instructed for present purposes. We can see no distinction in principle between various threats of death, it matters not whether the risk of death is by murder or by suicide or indeed by accident. One could interpone nuclear accident. One can illustrate the matter by considering the disqualified driver driven by his wife, she suffering a heart attack in remote countryside when they get lost, the court coming down to earth with a bump as it were to give that kind of real life example where humanitarian interest would seem to supersede the order of a court disqualifying a driver. Well, that’s not so far away in principle from incident case.

Now, the court is careful at page 8 in my submission to resoundingly say that if an accused could nevertheless realistically is the word used by the court have acted to avoid the peril or prevent the harm without breaking the law, then he has no defence. Lord Justice General Rodgers says realistically. Now we’ve heard evidence in this case about the realism of how international law develops and how nation states perceive the threat of Trident, and we’ve also in response to my response to my friend the learned Fiscal’s cross-examination of the first panel heard that she tried to stand for Parliament. However -- I think she may have said she tried twice, but tried at least once -- but Miss Johnston told us in no uncertain terms what the realistic effect of one person standing on a single picket as it were would be upon the international community in which she works. So in my submission the key word there for the law is "realistically".

The defence is careful if I can speak for a moment for all of us, to fill as promised to the court the kind of objective understanding and background of the realism which these women understood. So it is accepted on my part as I humbly must that the law is that if you have a legal way out you must take it, but the law recognises expressly as stated by Lord Justice General Rodger that the contest is a realistic one.

My lady, that brings me to the end of my submission on the scope and depth of the nature of the defence of necessity in the law of Scotland. I intend and make no apology for doing so to develop submissions along the line of -- no, I’ll take that out -- I intend to show the court what the English position is and demonstrate that it is in just as dire straits almost as we are, but that the law in America has dealt precisely with the kind of issues which we are dealing with here today, and it has taken the kind of line which I say the court should take on this occasion.

The hour is late, my lady, I tender the Production mentioned by Mrs. Zelter which your ladyship will have seen before. Although -- I forget exactly the Production number of this but it was mentioned by Mrs. Zelter, if someone may help me......

SHERIFF GIMBLETT: Reference 4.

MR. MAYER: You think it was Reference 4, probably (inaudible).

SHERIFF GIMBLETT: Are you intending to speak to this tonight.

MR. MAYER: No, my lady, the hour is late. I tender the document. It may be your ladyship might get a chance to read it. I don’t intend to go through it in depth because it’s foreign, it’s not the decisions of courts. It is helpful in my submission, it is an academic survey of the ways in which courts who have had an opportunity of dealing with such cases with judge and jury have dealt with them, and from there, my lady, I would be passing to one or two passages in Sheriff Gordon’s text, and that would be my submission.

So I trust I shouldn’t be any more than, I hope, half an hour to three-quarters of an hour in the morning.

SHERIFF GIMBLETT: Well, it certainly seems appropriate that we adjourn now, apart from anything else I am quite certain the interpreter must be worn out.

That just leaves the question of the jury. Now I don’t want to hold things up in any way. Is it possible that we can make an earlier start tomorrow or is that not possible given the way the transportation problems have been.

MR. MAYER: I think the lawyers can certainly be here, my lady. The police may be able to assist the court on the logistics of transport.

SHERIFF GIMBLETT: I am thinking that given that all three of the ladies in front of us wish to hear what is being said, I would wish them to be present but it depends on them. I take it you’ve not so far managed to come before 10. That’s impossible.

MR. MAYER: Well, one morning we were here at 10 past 9, it depends on the traffic, my lady.

NEW SPEAKER: The reason it is difficult, my lady, is the Procurator-Fiscal (inaudible) on the other side of the water.

SHERIFF GIMBLETT: Oh yes, I am well aware of that and I was going ask him if it is possible (inaudible) is that right. It is difficult for you to get here before 10.

MR. WEBSTER: Well, I normally get in about half past 9, my lady, bearing in mind the time of the boats and the connecting trains.

SHERIFF GIMBLETT: Right. What about the interpreter? Can you be here slightly earlier?

THE INTERPRETER: I can.

SHERIFF GIMBLETT: May I suggest that as long as Mrs. Zelter, Miss Roder and Miss Moxley are here that if at all possible we start at say about half past 9 or shortly thereafter, but I do not wish to start without the jury and the interpreter.

Adjourned until tomorrow.

WEDNESDAY, 20th OCTOBER, 1999.

SHERIFF GIMBLETT: Now, I did say to the Jury I would be able to let them know by this morning what was going to be happening and I know you gave me an indication last night that you might be an hour or so. I am wondering, and I am only wondering, perhaps we can short circuit matters a little so far as you are concerned Mr. Mayer, because you gave me an indication that I think you would be referring to the United States law and the pattern of decisions, most of which from the papers which you have so very kindly given me, seem to be reflected in the Santa Carla (?) Law Review.

MR. MAYER: Yes, my lady.

SHERIFF GIMBLETT: Now I have read this document......

MR. MAYER: Obliged, my lady.

SHERIFF GIMBLETT: .......and knowing what you are going to be doing today I took the opportunity of reading it again and if you are going to be suggesting that the whole question of nuclear weapons should be considered as part of the defence of necessity as has been done in some of these state cases you’ll be knocking at an open door and it may therefore be more appropriate given that to curtail your remarks perhaps to a couple of paragraphs.

MR. MAYER: Oh well, I’m very much obliged, my lady, I can do that.

SHERIFF GIMBLETT: Right, because you are knocking at an open door. Having gone this far in this trial I am prepared to allow in this Court what has happened in the States so far as it is necessity, leading the Jury on the facts to consider whether looking at the guidelines laid down in Scotland?

MR. MAYER: Yes.

SHERIFF GIMBLETT: The three accused admit.

MR. MAYER: Very much obliged, my lady. In that case I imagine that the rest of my submission might take 10 or 15 minutes.

SHERIFF GIMBLETT: Yes.

MR. MAYER: I do have one or two other matters to turn to but this American line would have taken me half an hour or so.

SHERIFF GIMBLETT: Are you sure, perhaps taken slightly longer. You are not suggesting for one minute that you are using 200 words where perhaps one would suffice, but I know that you go through it with meticulous detail, which is appreciated.

MR. MAYER: I’m very much obliged, my lady. Well, in that case, my lady, I can now be quite short.

SHERIFF GIMBLETT: Now, before we go on maybe Mr. McLaughlin could give me an idea of how long he thinks he will be addressing you.

MR. McLAUGHLIN: My lady, I’m going to cover two matters and half an hour at most, I think.

SHERIFF GIMBLETT: Yes. Mr. Webster, what about yourself?

MR. WEBSTER: Well, much depends on what my two friends say, to what extent I need to reply to that. I am of course conscious that we are not dealing with submissions of no case to answer as far as I’m aware.

SHERIFF GIMBLETT: No, that seems to be the case.

MR. WEBSTER: The rest depends on additional procedure that has been.......

SHERIFF GIMBLETT: Wait a minute, Mr. McLaughlin is looking.....

MR. WEBSTER: .....tacked on to this case whereby the Defence are seeking guidance as a result of making their submissions in law to my lady as to what my lady’s position will be in what instructions will be given to the Jury in terms of the charge. So I anticipate that I’ll be going through everything which Mr. Mayer said line by line and of course much depends on what is said by Mr. Mayer and also by Mr. McLaughlin.

SHERIFF GIMBLETT: Mr. McLaughlin, on the question of the submissions of no case to answer.

MR. McLAUGHLIN: Yes, there wasn’t going to be any no case to answer submissions but the matter that addresses us on this side of the bar is obviously still the international law defence and the reasonable excuse matters but there may well be another matter which my learned friend might allude to this morning seeking a direction on the onus that the Crown have in this case.

SHERIFF GIMBLETT: I suspected that might be.

MR. McLAUGHLIN: The matter has crystallised and I think it’s only fair just to alert the Court to the fact that that would be an (inaudible) over and above asking the Court to make a direction on international law reasonable excuse. There will be another matter relating to the issue of onus in this case.

SHERIFF GIMBLETT: So we really don’t know how long Mr. Webster will be and I don’t think I can tie you down in any way, Mr. Webster because as you say you don’t know, you know what’s been said yesterday on the onus and I daresay you’ve probably anticipated that yourself, you will probably be dealing with it in short compass. I’m really wanting to know when I can send the Jury away until because it doesn’t seem to be going to take all morning.

MR. WEBSTER: That would certainly appear to be the case at present, my lady.

SHERIFF GIMBLETT: Yes, right. I am prepared I may say to give you my views on the question of international law and on what I will be saying to the Jury so far as that is concerned which might give you some indication but I’m obviously wanting to hear Mr. Webster on that particular point. (Inaudible) my opinion on what I think is not one or the other that would be improper but I’m prepared to give you an indication what I will be saying to the Jury.

MR. MAYER: From my part I’d rather not hear your ladyship for the moment until the conclusion of my submission this morning.

SHERIFF GIMBLETT: Right. I’m just saying I thought about it.

Good morning, ladies and gentlemen, now good news and bad news, I don’t know which way you look at it but I am prepared, I have to say that unfortunately we did not reach a conclusion to the legal argument last night but it seem having spoken to the parties round the table that this may well improve halfway through this morning, one would hope so, in which case we would then be in a position to continue. So what I’m going to do is to allow you to go away until say half past eleven this morning and I would ask you to please be back by then. I’m sorry to keep you coming backwards and forwards but I don’t really see a way round this at the moment and then I can give you a much better indication of what is going to happ