Lord Advocate’s Reference

LORD ADVOCATE’S REFERENCE

in

P E T I T I O N O F

THE RIGHT HONOURABLE LORD HARDIE

HER MAJESTY’S ADVOCATE

in terms of

Section 123 of the Criminal Procedure

(Scotland) Act 1995

TUESDAY, 14th NOVEMBER, 2000

LORD PROSSER: Yes, good morning. We had a request to do what we could to improve the audibility of what goes on and I think I can hear in my ears that there is now something switched on. It has not always been satisfactory. I think the experience of many Courts has been that everybody is happier with it switched off and, in particular there can be problems, as Counsel will be aware and you may know Miss Zelter, but in order for speakers to be sensitive enough to pick up what Counsel are saying, it can pick up what they are saying to one another, which they don’t always want broadcast to the nation so perhaps - they are on at the moment, but we will see how that goes and I hope it does make things better. Are there any preliminary matters before we simply resume? Very well then, Mr Mayer.

MR MAYER: I am obliged my Lord. There is a preliminary matter I wish to raise, which is simply to move what I would call Productions for Roder, Volume 3, this is a small volume, most of which arises out of last time.

LORD PROSSER: I don’t suppose there is any problem about that, does anyone object, no.

MR MAYER: Obliged my Lord. I have copies of these for everyone concerned who does not already have a copy.

My Lords if I may now turn to Question 2 of the Petition. My Lords I propose to keep it strictly to the script. Firstly setting out the logic of my answer to the question and following thereon with an analysis of the materials in support of that structure.

LORD PROSSER: You say a script, have we got the script, or do you mean you are just going to read it?

MR MAYER: I hope your Lordships do have it.

LORD PROSSER: Well, is it something that was already in?

MR MAYER: No my Lord.

LORD PROSSER: Well I don’t know, I am not aware of anything having been added, no, I don’t think we have it. I would only add that you say stick strictly to it, by all means, but it is of course the whole nature and value of all Courts’ affairs that one hopes that arguments will be teased out and the Court will learn as it goes, so we can’t promise not to interrupt.

MR MAYER: My Lords the question in my submission poses three subordinate questions as it were and my response to these is, firstly looking at possession of nuclear weapons, to say that there is no such thing in law as mere possession of a fleet of Trident 2 nuclear submarines armed in the way that the British fleet is, there is but one purpose.

LORD PROSSER: I don’t understand that. Possession is a real concept which doesn’t depend on purpose.

MR MAYER: No, it doesn’t, that’s right my Lord, but so far as mere possession is concerned, that is not for the purposes of threat or use. One thinks immediately of the ornamental sword or article of that nature.

LORD PROSSER: I am sorry, but I mean your first proposition is that there is no such thing as mere possession, you are now embarking on whether the Government - of course there is such a thing as mere possession of any object anyway.

MR MAYER: Well, in theory that may be true my Lords and certainly mere possession does exist as a concept.

LORD PROSSER: Yes, so we can alter that, instead of saying no such thing, there is such a thing, is that right?

MR MAYER: Yes.

LORD PROSSER: Thank you.

MR MAYER: The words mere possession are in single inverted commas and what I mean to get at my Lords are that these items are possessed, but not for ornamental purposes, they are possessed for another purpose and that is deployment or use and that my Lords is the context in which I shall discuss possession. The second subordinate within the question is the placing of such weapons, and in my analysis my Lords I equiperate placing with deployment. And thirdly, my third premise is that deployment is and has been for the purposes of threat. I mean that in an active way my Lords and not in any passive sense.

My Lords the learned Crown Junior in his speech, in my submission, said as a central proposition, I hope I have noted him accurately, that threat or use of nuclear weapons is not prohibited by international law, quite the contrary in fact, there are circumstances where nuclear weapons could be threatened or used and in my submission that proposition is wrong, because two authoritative sources of customary international law and thus Scots law say so.

The Court has been taken through the Dispositif of the ICJ Advisory Opinion and I don’t seek to return to it. What I would point out my Lords is that the spectrum which the Court provided for us was one from Mr Moynihan’s position at the one end and the idea of use leading to what they call mutually assured destruction, which is shortened to its initials at the other end, and in-between these two points on the spectrum lies threat and use. And the other source of customary international law which renders threat or use illegal would be the Nuremberg Principles.

My Lords lest there be any doubt about the nature of the British Trident fleet, I make reference to the Scotland Act in Schedule 5, Part II, which mentions all of the specific reservations and Head L, Sub-head L3, Control of Weapons. The Act in one line, says, "control over nuclear, biological and chemical weapons and other weapons of mass destruction". We must read that as being reserved to control of the Westminster Parliament. But that single line my Lords groups together first of all nuclear, biological and then chemical and then other weapons of mass destruction and it is clear in my submission, if any further clarity were required, that nuclear weapons of the type controlled by Westminster are weapons of mass destruction.

My Lords I cannot pass straight to the Nuremberg Principles, I propose to take a moment or two to deal with the status and function of the ICJ opinion. In my submission that opinion did not create new legal rights, nowhere within it can I find that it did that. It was in my submission declatory in quality and nature and focused upon the legality of using or threatening to use nuclear weapons and those in the general sense, not Trident in particular.

LORD PROSSER: Well, it was an Advisory Opinion.

MR MAYER: Indeed.

LORD PROSSER: That’s not quite the same as an Advisory Opinion.

MR MAYER: Yes, but it appears to me at least and in my submission what the Court was doing was trying to give the law as it stood at the time and that’s all I mean by declaratory.

Now my Lords it was unanimously declared, or advised, that to threaten or use indiscriminate nuclear weapons is illegal when the very existence of the State is not at stake. I notice the capital is used, but no further guidance is given as to what a State might be - and the judgement of the Court may to that extent be a rule of customary international law. I cannot go further than that my Lords and if I did it would simply be my own opinion. But importantly my Lords, when the Advisory Opinion is read with Article 6 of the Nuremberg Principles, it’s clear in my submission that the nature of the illegality which the Court mentions throughout is criminal and in my submission the nature of the crime is a crime against humanity.

LORD PROSSER: Well that’s a category of crime no doubt, I mean you will be aware of the attempt in the recent English case of Hutchison, the attempt by Counsel to formulate a sufficiently precise rule and you will be aware of what the Court called formidable difficulties with his formulation. Are you going to formulate what the actual rule is rather than just categorising it as crimes against humanity, is there a particular rule that you have in mind?

MR MAYER: The rule of customary international law.

LORD PROSSER: And a rule coming down into our own law?

MR MAYER: Yes, I am going to point to that, but my Lords I mention, particularly for your Lordships’ reference, Paragraph 20 of the Advisory Opinion where the nuclear States accepted that their actions were limited by customary humanitarian law and I mention Paragraph 78 where the Court was discussing the indiscriminate effect of such weapons and equiperating threat with the same act. Paragraph 79 where they mention, they go on to mention untransgressable humanitarian law and Paragraph 85 which says there is no doubt as to the applicability of humanitarian law. In Paragraph 85 which says in terms that there can be no doubt as to the applicability......

THE TRANSLATOR: Slow down.

MR MAYER: Of humanitarian law to nuclear weapons.

LORD PROSSER: The Translator has a copy of your script, because this is virtually being read out and she is the person who needs it most. We are at the foot of page 2, you will see the reference to 79 and 85.

MR MAYER: That is all I have to say for the moment my Lords. I will turn in due course, to the article written by Lord Murray, which has been mentioned I think by everyone who has spoken so far. In due course I will adopt certain arguments laid out therein, but for the moment that’s all I have to say about the ICJ.

Before turning to the central part of my submission I would mention my Lords that the International Military Tribunal at Nuremberg in my submission is to be thought of as a Supreme Court that had the status of the highest of Courts. There were professional Judges and Counsel and I have mentioned the submission made at the beginning and the summing up on behalf of the British was made by Sir Hartley Shawcross who was then the English Attorney General.

Now my Lords my answer to question 2, against the context of what I have just outlined, really begins by saying that the question should be answered in the affirmative, even if the ICJ Advisory Opinion didn’t exist and that is so....

LORD PROSSER: I suppose that’s the nature of the thing. They were looking for what we are looking for, a rule of customary international law. Either it existed or it didn’t and they might have found it or not and we might find it or not, so they weren’t determining, were they?

MR MAYER: I would respectfully agree with that My Lord. I make that submission because firstly I say that a legal right of intervention based on customary international law to prevent the crimes against humanity such as arise from the deployment of Trident was confirmed by the British, who formed part of the military tribunal, upon individuals and that was of course done decades before the ICJ Opinion. And of course, there was the Scots law of necessity which has been with us for centuries. I say confirmed by the Nuremberg Tribunal because it really is only of academic interest whether such rules existed before it.

LORD PROSSER: Are you saying it was confirmed by the Tribunal or the Government? Are you saying it was confirmed by the British Government and then your script says informed, are we talking about what the Tribunal did or what our Government did? What’s all this about the Government? What your script says is.....

MR MAYER: Members of which sat on the....

LORD PROSSER: I am sorry, members of the British Government sat on the Tribunal? What nonsense, surely by this stage of the case you are capable of some precision, what are you actually saying at this point?

MR MAYER: What I am actually saying my Lords is that the Judges who sat, some of them were appointed by the British and some were appointed....

LORD PROSSER: Does that matter?

MR MAYER: No, it doesn’t really matter.

LORD PROSSER: Some of the Judges were British, that doesn’t matter, are you saying something more?

MR MAYER: All that matters my Lord is that the right of intervention was confirmed by the Tribunal.

LORD PROSSER: It would be helpful if you included that in your script, because really having the scripts is all very well, but they are merely a distraction if they do not actually represent the submissions.

MR MAYER: Yes. Well I turn immediately to the legal right and I pause to observe the difficulty which seemed to be being expressed last time about a dilemma between whether the test before intervention was whether there was any more that the individual could do or whether there was any more that a reasonable actor could do, and in my submission the arising of a legal right resolves that dilemma because it rather bridges the gap, if I can put it that way, between the subjective and the objective test. But my Lords I will cite the judgement in due course, but it seems, and I have to accept immediately that nowhere did the Tribunal at Nuremberg expressly create or convert any new....

LORD PROSSER: Or identify.

MR MAYER: Oh, they did identify my Lord. I’ll come to the identification in a moment, but any new legal rights. They didn’t legislate something into existence. It appears and however, when one reads the judgement, in my submission there is language within it which strongly suggests that that is exactly what the Court intended to do. The Court doesn’t say in its judgement exactly where from, where it plucks the rights and duties which it discussed and that’s why I say it’s really only of academic interest where they came from once one looks at the judgement of the Tribunal.

LORD PROSSER: I don’t understand I’m afraid again whether one is talking about the Nuremberg Tribunal or the International Court of Justice, or indeed ourselves, if any such body tried or intended to create something new it would be doing what it should not do, its function is to discover rules of customary law which ex hypothesi already exist.

MR MAYER: I would respectfully agree with that.

LORD PROSSER: So what does it matter if they were trying to do something new, except to say that you are saying they did something improper.

MR MAYER: I am simply trying to set the context in which the Tribunal issued the key part of its judgement, for my purposes my Lord. The judgement of the Tribunal said in a passage called "The law of the charter", it’s non paginated, but what it said was, this is quoted in inverted commas, "Individuals have international duties which transcend the national obligations of obedience imposed by the State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law". Now that passage of course destroys the defence of superior orders and it seems to apply both to military and civilian personnel, it draws no distinction.

If I may say so my Lord the passage might be more eloquently read if one begins at the word "If", which is in bold type, "If the State in authorising action moves outside its competence under international law", then you go back to the beginning, "transcend national obligations of competence", and the passage is better understood, at least by me, in that syllogistical form. My Lord that would seem to be the only source of what are said to be duties arising in the circumstances envisaged by question 2 and because the Tribunal does not mention legal rights, it mentions international duties, one has to examine the nature of the duties in order to see if any right arises. The Court doesn’t explain the nature of the duties, but it does seem, in my submission, that two possible meanings arise. The first is a duty to do nothing to assist in the commission of such crimes. That in my submission would be to take a neutral stance. And in my submission that cannot be the meaning which was intended by the Tribunal, because the phrase international duties has a vibrancy about it. It’s not possible....

LORD PENROSE: Mr Mayer because he did nothing to assist, were people not hanged because they did nothing to avoid the commission of the crimes, because of their failing?

MR MAYER: I understand that in fact they were at the time.

LORD PENROSE: How can that - how can the duty to do nothing to assist in the commission of crimes be without content because you have breached that by doing something that....

LORD PROSSER: I would find it quite helpful at the same time if you would say how this relates to the matter before us, which is whether there is a justification for a private individual in Scotland in doing various things, it is going to lead there, is it?

MR MAYER: It is, it is my Lord, it is directly. If I can deal with Lord Penrose’s question, it might be right that to do nothing in such circumstances is self wrong, but whether it would amount to a breach of duty....

LORD PENROSE: I understood your proposition to be that there was a duty to do nothing to assist in the commission of a crime, not to do nothing, and it was that you said was without content and I find that difficult.

LORD PROSSER: Yes, if you assist you will be in trouble. If you merely do nothing that is a different matter. Therefore there is a duty to abstain from positive assistance.

MR MAYER: As that strengthens my point I am happy to accept that. It did seem helpful to me at the time to distinguish those who are passive and those who are active.

LORD PROSSER: That may be, to understand the vibrancy is useful, if there are international duties it is surely important to find out what they are and I don’t think one does that by setting one’s.....

MR MAYER: The vibrancy is....

LORD PROSSER: Where is that going to get one, either there are international duties or there aren’t. It may be more important in this case to find out whether there are rights, such as the rights to destroy property in Scotland.

MR MAYER: Well, I trust, I am getting there my Lord.

LORD PROSSER: Well, I wonder.

MR MAYER: I am having to accept that maybe those who do nothing in certain circumstances, in the context of question 2, do in fact breach the international duties which the Tribunal mention. Passing on to item 2, that the Court says as individuals, it doesn’t distinguish between military and civilian for these duties, international duties. That’s very wide ranging. So they are not kept by the Tribunal to within any particular national or geographical scope, as to the extent that they are said to transcend national obligations of competence and I say that emphasises a positive duty, which is to do something, both by the individual to their own and other nations, to take action to prevent crimes against humanity and that would seem to make sense because it is after all individuals who commit such crimes and individuals can take preventative action.

LORD PROSSER: In the passage that you are quoting from the international duty in question seems to me the duty to abstain from giving assistance, because that’s what they have been talking about.

MR MAYER: Yes.

LORD PROSSER: Where do you find the positive element that they have a duty to go and stop things in the passage you have quoted?

MR MAYER: If my Lord reads the passage in bold, at the bottom of page 2.

LORD PROSSER: Well, perhaps you are coming to it then.

MR MAYER: I say that passage, and the judgement is part of the customary international law and can properly be read as conferring or confirming a legal right in order to perform the duty. One cannot have a duty to perform any law and no right to perform it.

LORD PROSSER: No, what they seem to be talking about is the duty to abstain from assisting.

MR MAYER: That is the context on which the Tribunal was.....

LORD PROSSER: Are you going to be able to identify anything in the Nuremberg decisions which indicates a duty to go and, as it were, interfere with crimes against humanity which are being committed. There may be something, but we don’t seem to be there yet.

MR MAYER: The passage that I have cited is the only passage.

LORD PROSSER: And it makes no reference to having a duty to go and interfere, try to prevent whatever, it doesn’t identify that.

MR MAYER: All it says is what it says my Lord, but it’s my submission that these duties which were identified must carry with them legal rights in order for the duties to be performed.

LORD PENROSE: Mr Mayer, can you (inaudible) prohibitions which are self-contained. Thou shalt not kill, what is the duty that you deduce from that?

MR MAYER: In the ordinary circumstance the duty is one of self-control.

LORD PENROSE: What is the right that you deduce from that?

MR MAYER: In the ordinary, thou shalt not drive above 30 miles an hour....

LORD PENROSE: Deal with the one I raised Mr Mayer please, it will help me in my simplicity, what is the right that you infer from that duty?

MR MAYER: Your Lordship is talking about the duty mentioned by the Tribunal.

LORD PROSSER: The duty that you claim is mentioned by the Tribunal, the duty of taking positive action in crimes against humanity. I mean on the whole that isn’t a duty on citizens in law, as his Lordship says there are self-contained prohibitions.

MR MAYER: Yes, but in my submission when one deals with crimes against humanity one is stepping away from the ordinary prohibitions imposed on every civilised society.

LORD PROSSER: Well, one is at least concerned with specific rules and you seem to have confirmed that the Nuremberg Trials did not lay down any specific rule, but merely sets down that there are international duties and they seem to be talking about the one of abstaining from assisting in crimes of that kind, so that they haven’t identified the rule. Are you going to go to identifying the rule, because it would be much easier to work once you get to the stage of having said what the rule is.

MR MAYER: I go further than your Lordship....

LORD PROSSER: Well would you go step by step perhaps and at some stage go to the specific rule, because we must be talking about specific rules, there are no crimes which are not specific rules.

MR MAYER: The rule in my submission has to be drawn from the passage of the Tribunal which I have quoted.

LORD PROSSER: So that’s the only rock on which you stand?

MR MAYER: That is all there is. The Tribunal tried many individuals and dealt with their circumstances uniquely and in its broad judgement dealt with the themes which came out of the individual cases. The main one being superior orders and this is the passage which destroys superior orders.

LORD PROSSER: But we are not concerned with superior orders.

MR MAYER: We are not concerned with that. I see my Lord that in dealing with superior orders the Court indicated to us that the reason why superior orders is not a defence is because individuals had duties which transcend superior orders.

LORD PROSSER: Yes, and that they identify the relevant one, namely the duty to do nothing to assist. You are saying there is another implied rule somewhere around all of this and we want to know what it is, or at least I do. What is the other implied rule, you don’t seem to identify it in your script. Well, it is the crux, isn’t it? What is the rule, and your script doesn’t identify it so far. I am willing to read ahead of it if I can find it.

MR MAYER: No my Lords, I am going on to the nature of the duty, in fact I have been on that.

LORD PROSSER: Are you going to respond to my question what is the rule? I mean you are saying it is a crime and so forth and there are rules and rights, what is the rule you are talking about?

MR MAYER: It’s to be drawn from the passage I have just read. If your Lordships equiperate, if the State in authorising action moves outside its competence under international law that would be committing a crime against humanity, then individuals have these duties which transcend that and what I am saying my Lords is that the right to intervene, just as your Lordship says, it’s crucial to my analysis, the right to intervene arises directly where one’s State has moved out of its competence under international law.

LORD PROSSER: Well, yes. But I mean what this actually says in the relevant sentence is that he who violates the laws of war cannot obtain immunity by acting in pursuance of the authority of the State, if the State in authorising action moves outside. Well that sentence as it stands says nothing at all about people who are interfering or intervening. It’s about those who violate the law, laws of war, and it is saying to them they don’t obtain immunity while acting in pursuance of the authority of the State. Now where is it in this passage, or anywhere else that one finds another proposition to the effect that if the State itself is acting and moving outside the competence then some identifiable duty or right or both falls upon the citizen. It just doesn’t seem to be talking about that at this passage.

MR MAYER: In my respectful submission it’s talking exactly about that. The context is the defence of superior orders, but the reason why superior orders is not a defence is because there is (inaudible) when one is ordered by a superior to step outside the competency of a Nation State to act in accordance with international law, a right not to, it’s expressed as a duty.

LORD PROSSER: But it’s not expressed at all Mr Mayer. This doesn’t deal with the bystander, does it? The first sentence says individuals have international duties which transcend the national obligations of obedience imposed by the State, where you are being actually required to obey an order, and then the next sentence I have just read, and these are about people who are being asked to obey some order and telling you what about them. But I can’t at the moment, I have tried already, I can’t at the moment see where you find any comment here about the bystander who is not being asked to obey anything, but merely I suppose he is a citizen of a country which is doing these things. Where in this do you find - you accept there is no express indication of what the bystander’s rights and duties are?

MR MAYER: I do my Lord.

LORD PROSSER: Now where is it implied, and if it is only implied, where do we identify the scope of his duties?

MR MAYER: First of all the Court says ‘individuals have’, they do not say ‘soldiers have’ and so the scope would appear to be wide enough to include both, and the trigger as it were of the right coming into existence is the action of the State in moving outside its competence and that’s as small a nutshell as I can put this.

LORD PROSSER: It is a very small one and what I am actually wanting is the nut, not the nutshell, is there something in the nutshell?

MR MAYER: Yes.

LORD PROSSER: Where in that case by implication does that Tribunal say anything about what is required or expected of bystanders?

MR MAYER: I have to accept the limitations of the passage, the scope of the passage which the Tribunal sets out.

LORD PENROSE: If you look to see what the scope of the general premise here is, is it more than that those who violate the laws of war do not obtain immunity on the ground that they are acting in pursuance of the authority of the State (inaudible). Is there any other general proposition than that?

MR MAYER: The Tribunal doesn’t state one.

LORD PENROSE: Is the answer an unequivocal no?

MR MAYER: The answer is an unequivocal no. This is the passage upon which I rely.

LORD PROSSER: Well, it may be it rather runs in parallel with arguments about necessity anyway. So far you have been looking to see whether there is a specific rule in relation to international law, but in fact it is the rule that you identify, or we have been trying to get you to identify, does that rule differ from the rules governing the law of necessity anyway? Would it bring different results from those available under the law of necessity?

MR MAYER: In my submission it would not bring a different result.

LORD PROSSER: From the ordinary law as to necessity. In that case we probably shouldn’t labour it because you are coming to necessity.

MR MAYER: The same result is achieved by both means and essentially the right to, or intervene is lawful in my submission by two routes, one is the arising of a legal right when one’s State steps out of his competence under international law....

LORD PROSSER: You see I wonder whether they in fact merged, although you haven’t I think put it this way. Whether your argument is really, with these very general statements about having transcended duties arises, really means that the Tribunal might acknowledge that when faced with that sort of crime, a crime against humanity, the citizen is, as it were, expected to do what his own law would allow him to do, if he could show that it was driven by necessity and one might say the ordinary man, when faced with a crime against humanity, might instead be expected to react by trying to take the law into his own hands, or something in the necessity kind of way. So they may not be so very different. I think it’s perhaps important to move on to necessity if this is really just about one passage in the Nuremberg decision.

MR MAYER: Well, it is my Lords, but it is the crucial passage. I see it as the crucial passage for the arising of a legal right and I say also, lest there be any confusion, that in times of necessity one is not taking the law into one’s own hands, one is augmenting the law.

LORD PROSSER: You are coming to necessity now, well let’s do that.

MR MAYER: What I am coming to my Lord, is on page 3. That as well as this right, which I say arises when the duty is triggered, the individual can look to the domestic law of necessity and in my submission what the Advisory Opinion and the Nuremberg Principles together do is provide a starting point for the basis in reasonableness which all Courts demand before upholding a defence of acting wilfully, but not maliciously. That was the approach taken in the instant case in the Court below. My Lords it’s important, no matter how one reads the conclusion, to be aware that it follows from either perspective, customary international law or necessity, that the legal right to intervention only arises after proper identification of the crime as I have in italics. Not just a vague notion, one cannot, in my submission, without any knowledge, sincerely believe something and use that as a defence in a criminal Court to a charge of destruction of property, because one could simply be wrong in one’s belief.

LORD PROSSER: But I don’t think anyone was arguing that sincere belief is a defence. Certainly my recollection is that Miss Zelter very emphatically said that’s not the point, not sincere belief, so why are we talking about why that should be a defence. No-one says it is.

MR MAYER: I believe my learned friend Mr Di Rollo said that and it is the Second Respondent’s position.

LORD PROSSER: Well, he may have said that it wasn’t a defence, but is it part of your argument that sincere believe is per se a defence?

MR MAYER: No. In my submission taking either of the two routes to intervention, I am using intervention my Lords as a shorthand for the destruction of property of another, and if one identifies that a crime outside the competency of a nation state against humanity is being committed, then of course I say the legal right arises to perform the international duty and that’s enough to legalise the intervention. And of course one stops there when exercising that right, one needs no more.

LORD PROSSER: Are there no rules governing the relationship between two as to what it is you may do?

MR MAYER: I will come to that. The extent of the right, the nature of the right, I am coming to all that, but for the moment when one goes down the necessity road one has to exhaust one’s domestic legal remedies and one does that in my submission by, for instance, complaining to the competent authorities and that would be those in positions of power, to desist from committing the crime and not for instance a passing Constable in the street. And only when one has done all that and been refused or ignored does one have the right in necessity to intervene.

LORD PROSSER: So this may be a necessity argument, do you say that necessity could apply in circumstances such as these, but surely very often the person who acts out of necessity won’t be saying, have I exhausted my legal remedies and so forth, he will simply be acting in very immediate and deserving circumstances, so this whole point about exhausting legal remedies isn’t the essence of necessity, it usually has nothing to do with it.

MR MAYER: I am sticking to the context of question 2 in opposition to UK policy about nuclear weapons for instance.

LORD PROSSER: But if we are trying to get at the nature of necessity, I don’t think it really turns on that kind of point, does it?

MR MAYER: Necessity in my submission arises either incidentally, where one has no time or opportunity to seek the assistance of the authorities and one just has to do what any right thinking person can do, and that’s taking us into the language of reasonable excuse and so on. The

statute for our summary purposes mentions....

LORD PROSSER: But you are saying that apart from that instantaneous category which applies there is another category, so you will be bringing us to a definition of that.

MR MAYER: What I say my Lord is that where the danger is instant, one uses the instantaneous route, but where the danger is constant and is capable of control by the authorities desisting or doing something about their conduct, then one really has to go through the exercise of exhaustion of complaint to those authorities and so on.

LORD PROSSER: So you accept that would be essential before one could begin to....

MR MAYER: My Lords the appropriate identification of such a crime requires answers to certain questions before one can arrive at the legal right. It appears that the first question is, what is a crime against humanity, that would be one of the acts outwith the competence of a national Government and I will come in due course to the crimes which are contained within the Nuremberg Principles, particularly Article 6. It’s very tempting to skip to that, but I’d rather not at the moment. So a written definition is to be found and that written definition comes from the International Law Commission and I will direct your Lordships to these materials in due course. I have thought of one other example which was discussed by the ICJ, that is of the Ecocide. The ICJ discusses that matter at paragraphs 94 and 95 and it was on that basis, if I can take an aside for the moment, that the motion contained within the Petition to the nobile officium was drafted, because I say that this is....

LORD PROSSER: Don’t let’s get diverted, we know that that was a matter - I really don’t think you are going to help by trying to press that.

MR MAYER: Very well my Lords. I have tried to set out for your Lordships the distinction between what happened at Nuremberg, from a philosophical point of view and from a legal point of view and I am happy to say that the philosophical point of view is simply that nothing fundamental happened, it was a case of....

LORD PROSSER: That can be a fairly short chapter, particularly when we are concerned with law and not philosophy, so let’s not take time with something which is irrelevant as a category.

MR MAYER: What’s happened from a legal point of view is the Tribunal took the opportunity to set out, in my submission, certain legal fundamentals and they named crimes against humanity and I say that there are broad relative rights of individuals to prevent these.

LORD PROSSER: You say they set them out, but they don’t do that.

MR MAYER: They certainly set them out.

LORD PROSSER: No, I am talking about the relative rights, and we have been over that and you say they don’t set them out.

MR MAYER: So one must first identify what is a crime against humanity. The second question is, is such a crime being committed, and I accept my Lord the question is pivotal to the Second Respondent’s position, because if the answer is no then the argument based on legal rights comes to a halt. But in order to answer yes or no one would have to know which crime, and here in my submission one can equiperate the ‘placing’ of such weapons in Scotland with the deployment of Trident. I’ll say more about that later. One needs to know by whom is the crime being committed, but in an international context my Lords one might ask does it really matter from the point of view of preventing it, but it would be necessary nonetheless to identify the actor. Then of course it’s also necessary in my submission to identify the means and also the, what might be called the timing of this act or series of acts and these meant - I recall your Lordship in the chair last time asking others whether if it is a periodic crime does it continue, the answer would be no, these would be discreet, periodic acts are discreet, they may form a pattern and they may add to the sentence as it were, but each one would be discreetly identified, but equal. My Lords there can be a constant act and I noted that it was accepted that the danger could be constant.

LORD PROSSER: These generalisations are the kind of things one would have to ponder about if one was trying to work out what the law might be in this area, but there is no point in labouring it, as it is pondering materials.

MR MAYER: I am setting it out as tests.

LORD PROSSER: All right, let’s go through them fairly quickly.

MR MAYER: In testing this, we firstly determine whether we have a right to intervene and crucial my Lords, number five is crucial, because the extent of the crime must, in my submission, be either massive, one can’t go categorising ordinary fights in the street as crimes against humanity, they must be massive, or within the definition of what has been written down as crimes against humanity.

LORD PROSSER: These are not questions for the person who is thinking of intervening, they are questions of law, is such a crime being committed, and there is an answer in law to that question. It may also be necessary to look at the question, but whether the intervener or potential intervener believed, these are actually questions about the existence of the crime, aren’t they, I don’t see why you are moving to what was in the mind of the intervener at this stage.

MR MAYER: What I am trying to get at my Lords is the answer to the question, is such a crime against humanity being committed, which must be answered, not in the abstract, but by reference to these real decisions.

LORD PROSSER: No, but it is a question of law and, as you say, if the answer is no to the question of law then I think according to your script at least, then the argument based on legal rights comes to a halt, it is not in fact a crime, that’s it, is that the position?

MR MAYER: Yes, if no crime against humanity is being committed then one has no international duty therefore to prevent one and accordingly no right arises.

LORD PROSSER: Yes, thank you.

MR MAYER: The next question is, at what stage does the citizen’s legal right of intervention arise and I thought it important my Lords to draw a crucial distinction between the phrase ‘citizen intervention’ and ‘civil disobedience’, they are often used interchangeably, and wrongly so in my submission. Citizen intervention in my submission is for, generally what might be called civilised purposes and disobedience is for personal purposes.

LORD PROSSER: But we are only concerned with necessity, we are not trying to redefine the whole circumstances in which people do things. Let’s stick to the questions we have got, sorry, we really do want to move on. I don’t see what we have got to do with these distinctions, we are concerned with the circumstances in which necessity is a justification.

MR MAYER: I have been using the phrase citizen intervention, so I thought it useful to draw that distinction, perhaps it wasn’t.

LORD PROSSER: I don’t know.

MR MAYER: My next point has already been made.

LORD PROSSER: Intervention you say, just to look at this, is what you call a ‘general civilising purpose’, it may be in many circumstances, but we are concerned with that form of intervention which consists of committing what would otherwise be a crime to prevent or interrupt the commission of someone else’s crime and plead necessity as his justification, so we are not about general civilising purposes at all, are we, was it necessitous or wasn’t it?

MR MAYER: My Lords in answering the question ‘at what stage does the citizen’s legal right of intervention arise’, there are two possible answers and I say that the first is the imperative approach which demands that not a moment be wasted, and I say that the moment a crime against humanity is identified then the citizen’s right is triggered to prevent that and the necessity approach is the other one involving exhaustion of legal rights, but that of course depends on circumstances. My Lords I did find a case within the British Foreign State Papers, it’s not actually a Court case, it’s correspondence between the British and American Government and, if necessary, I will turn to that in due course, that is now to be found in the third volume, it’s number four on the list which has been allowed.

LORD PROSSER: Which equates I suggest, it’s concerned with one of the two alternatives you have just mentioned, ie there is no time to seek the assistance, that is when you have no choice, well we are not concerned with that in this case, are we?

MR MAYER: I thought it might be useful because this was correspondence between States and not individuals and I am simply....

LORD PROSSER: If it is useful then tell us how, when it seems to be concerned with the other category of necessity, namely that of instantaneous reaction to an imminent threat or crime.

MR MAYER: If I may, I am not dealing with my materials at the moment.

LORD PROSSER: All right, we will come back to it.

MR MAYER: The fourth question is, if one has a right, then what is the nature of the legal right arising, and in my submission the answer in both cases, international law and necessity, is that if possible one must act non-violently, act timeously and accountably to bring an end to the danger and that is a long way of saying, do what one can when one can, and that’s the approach taken by certain American Apppellate Courts, which I’ll come to when I deal with my material, but at the moment all I say is that the nature arising is to do what one can when one can to bring an end to the danger.

The fifth question is, ‘to what extent can the citizen intervene?’ and the simple answer to that would be ‘proportionately’. It may be the case that the nuclear weapons arena demands slightly different criteria from the civilian, whatever civil arena, but certainly when all is boiled down, one cannot go to, what we used to call a cruel excess, one must act proportionately to the danger. The last question is, by intervening to the extent of damaging the property of another, has the actor himself committed a crime. I say that the answer is no, if there is the background of firstly an express legal right or there is reasonableness, not going to cruel excess, and in either of those circumstances the actor has simply done what he intended to do, namely alleviate or remove the danger, in my submission in either of those circumstances there’s no guilty mind and neither is there a wrongful act. This is because the acts done in alleviation of removal of the danger are not wrongful, but rightful and that’s where one arrives at the conclusion that the actor has acted wilfully, but not maliciously. We get into difficulties, in my submission conceptual difficulties when we use the words ‘excuse’ or ‘justify’ as though the actor in those circumstances had to demonstrate beyond his legal right or reasonableness that they have done nothing wrong. In my submission when one either has the legal right or the necessary background in reasonableness, one cannot be convicted.

There was a difficulty in the Court below, which is in the transcript, I am sure your Lordships will recall it, where almost at the end of the trial the situation arose where if the question had gone, or speeches had been made and the question had gone to the jury, the Judge having ruled as she did, then there was a possibility that persons in the dock in a Scottish criminal Court might have been right in the eyes of the Judge and wrong in the eyes of the jury and that can’t possibility be right. So in my submission....

LORD PROSSER: I understand that, but I don’t know if we need to go back to the conceptual difficulties that arose in the Court below.

MR MAYER: In my submission, for those reasons, when one intervenes to the extent of damaging the property of another, armed either with a legal right or any necessity, one does not himself commit a crime, and that my Lords is my submission on the arising of the legal right, the nature of the right, its extent, its use, its limits.

I turn to the materials for support for my submission and ask, where does one find the law defining a ‘crime against humanity’ and in my submission the first place where one finds it is in the minds of people who know right from wrong and, as Lord Murray has pointed out in his article it is only by ground-swell that certain changes have been made and his Lordship mentions slavery and torture, we think these days of ethnic cleansing, but it is to be found and begun in the Nuremberg Principles. Your Lordships will find that within the second volume for the Second Respondent, and I am throughout referring to these as the Green flagged Volume H. I see my Lord Kirkwood has a different volume, I am dealing with the large volume which has the green tickets and I am at capital H. My Lords I have noted a question by my Lord Penrose to my learned friend Mr Moynihan about the quality of assent to any rules which may exist in international law. I understood the question to be, don’t various Governments attach various standards of assent to various documents when dealing with international matters and my respectful answer to that would be, yes they do, but when it comes to the Nuremberg Principles, because of the way in which they arose and because of the British input, if I can put it at its widest, into the proceedings, my submission would be that the quality of assent so far as the British were concerned to these Principles can be put at its highest.

LORD PROSSER: You are losing me I am afraid, are we talking about what happened at Nuremberg or a Principle which emerged thereafter? This document you are looking at which is a 1949 document, is that right, are you saying that this would apply during the Nuremberg Trials, or is it something that derived from it?

MR MAYER: No, these arose from them.

LORD PROSSER: And therefore I can’t see what it matters what our input at Nuremberg was in relation to this, it is a matter of convention, it is a convention at a later date.

MR MAYER: I’ll talk about how it is incorporated into law in due course.

LORD PROSSER: But you are talking about our input at Nuremberg, our input at Nuremberg is just part of the history that happened to lie behind this document, this wasn’t applied at Nuremberg, it was later.

MR MAYER: Yes.

LORD PROSSER: Are we looking at the history or are we looking at this agreement?

MR MAYER: I am simply saying my Lords that it is widely known that the British took a large part and when I come to demonstrate....

LORD PROSSER: I took a small part myself as a guard commander over certain of these people, but I don’t see how that is any more or less relevant than what happened at Nuremberg itself. We are now looking at this 1949 convention, are we, well let’s get to it.

MR MAYER: My Lords six Principles, I beg your pardon, seven Principles were identified and they have become widely known as the Nuremberg Principles, Principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgement, as your Lordships can see, these were adopted by the International Law Commission in 1950 and I’ll come to that document in due course. I wish to draw your Lordships’ attention to page 2, Principle 6, "The crimes hereinafter set out are punishable as crimes under international law". They are then listed as A, B and C.

LORD PROSSER: Where are we?

MR MAYER: Page 2, I have misled your Lordship, mine is marked H and everyone else around the table seems to be marked A.

LORD PENROSE: It’s also A in your index.

LORD PROSSER: Everyone else you say has A. I think the points I was making remain the same, this is a subsequent matter of agreement which has its roots, in actually what was contained in the original Charter which regulated what happened at Nuremberg.

MR MAYER: Yes. I wanted to draw your Lordships’ attention to Principle 6, which is on the second page, and these are said to be, "The crimes hereinafter set are punishable as crimes under international law". A, B, C. A is crimes against peace, (1) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, crimes or assurances. (2) Participation in a common plan or conspiracy for the accomplishment of any of the acts....

LORD PROSSER: Are we concerned with these, which are we going to be interested in?

MR MAYER: I am myself interested in B.

LORD PROSSER: I thought you were looking for definitions of crimes against humanity, it’s not really that.

MR MAYER: These are the particular Principles my Lord and these went through two stages before being adopted into international law.

LORD PROSSER: I am not asking about these. According my notes and according to your script where do I find the law defining a law against humanity. On the page that we are looking at crimes against humanity are indeed defined at Head C and I was not sure why, if that was the avenue you are going up, why you were looking at the definitions in A and B.

MR MAYER: In my submission they can all broadly be described as crimes against humanity. They are set out in three categories, but can obviously be taken in the broadest possible way and narrowed down as they go along.

LORD PROSSER: I am sure they can all broadly be called crimes against humanity, but they are not all those described in the Nuremberg Principles where crimes against humanity is used to describe categorical....

MR MAYER: The word humanity appears there, yes.

LORD PROSSER: The expression crimes against humanity is used there in contra distinction to the other and if my recollection is right they had very important considerations in dealing with people appearing at Nuremberg.

MR MAYER: If I may draw your Lordships’ attention to B, "War crimes, violations of the laws or customs of war which include, but not limited to, murder, ill treatment or deprivation, to slave labour, or for any other purpose of civilian population or unoccupied territory, material or ill treatment of prisoners of war or persons, killing of hostages or plundering of public or private property, wanton destruction of cities or villages not justified by military necessity". That is the important one for the context of the question within the Lord Advocate’s Petition, "Crimes against humanity are murder, extermination, deprivation or other inhumane acts done against another civilian population or ...reads... in execution of or in connection with any crime against peace or any war crime". So C really encompasses A and B.

LORD PROSSER: I beg your pardon, you choose to use the expression crimes against humanity in a wider sense, in ordinary English that may be right. It might be better to talk about humanitarian rules of international law for you, but it doesn’t impress those in Nuremberg.

MR MAYER: Well, in my submission....

LORD PROSSER: You want to look at them all and you say they all go under what you call the humanitarian aspects of international law.

MR MAYER: I do my Lord. So these were the Principles. The next document I do draw your Lordships’ attention to is the judgement of the Tribunal.

LORD PROSSER: The Nuremberg Tribunal?

MR MAYER: Yes, that is within the new volume, Volume 3 and it is number 3 and it is headed "The Avalon Project at Yale Law School" and I have gone to this source because it’s a responsible university and I needed a clean version of what was otherwise a heavily marked version, the only other version I could get. This is the judgement of the Tribunal which on the first page sets out it’s jurisdiction.

LORD PROSSER: I am not quite sure what you mean by it’s their judgement of the Tribunal, it’s a very complex process the whole Nuremberg process, what do you mean by their judgement?

MR MAYER: What I mean my Lords is this is the only, these are the only remarks of the Tribunal which are applicable to the whole proceedings, all other remarks are applicable to individual trials.

LORD PROSSER: Yes, right, very well.

MR MAYER: The Court on the first page sets out its jurisdiction and on page 2 sets out some of the broad arguments and its responsibilities.

LORD PROSSER: So that in looking at what might have been said at Nuremberg we have to remember that it was set up ad hoc on a Charter which defined certain things for its own purposes, that doesn’t naturally flow into international customary law in itself, because it was ad hoc, and as it were not working on customary law, but find those things for its own purposes and so forth.

MR MAYER: Yes my Lord. Your Lordship, as usual, is well ahead of me.

LORD PROSSER: Actually it is the page we are just looking at, page 1.

MR MAYER: That is why the Principles set out at Nuremberg had to go back to the UN and formulated by the International Law Commission before being adopted as international law.

LORD PROSSER: That’s what I had in mind, but what was taken into international law in some sense was the Principles we have just looked at, it’s not clear to me at the moment what more one has from what was done at Nuremberg. Light, I suppose light can come from curious corners.

MR MAYER: I really wish to take your Lordships to page 6 to 7 of this document and this is where the Tribunal aims its remarks, all in the context of trying individuals and against the broadly public defence of superior orders. In the first main paragraph at the top, the Court sets out that it was given a list of cases where individual offenders were charged with offences.... reads.... be enforced". And this Court has heard enough about that in my submission. The passage upon which I relied earlier is to be found in a paragraph which begins, "On the other hand". "The very essence of the Charter is that individuals have international duties which transcend.... reads.... cannot obtain immunity, etc.". That comes at the very end of the Tribunal’s deliberations and that is why....

LORD PROSSER: It rather confirms what we were saying earlier, doesn’t it, that they are dealing quite specifically with the question of obeying orders.

MR MAYER: Yes, there is no doubt about that, that the Tribunal was principally concerned with....

LORD PROSSER: No, but at this point they are specifically dealing with that.

MR MAYER: Yes, everything that was in that context and one has to look behind that context and ask certain questions which I have attempted to do this morning.

LORD PROSSER: But what that boils down to is looking away from this to some other source of knowledge which this isn’t dealing with.

MR MAYER: Well I have no more than this my Lord. My Lords the next document I refer your Lordships to is again in the second volume for the Second Respondent and it’s I, principal Resolutions adopted by the General Assembly of the United Nations.

LORD PROSSER: Well, my I is the Lord Justice Clerk in 18 something or other, have I got the wrong thing, what are we looking at?

MR MAYER: We are looking for this document.

LORD PROSSER: I can’t see from there, what are we looking at?

MR MAYER: Resolutions adopted by the General Assembly of the United Nations.

LORD PROSSER: In the green flagged thing?

MR MAYER: This is in volume one for the Second Respondent, it is headed I.

LORD PROSSER: It’s not the green flagged volume?

MR MAYER: It’s not, the green flags are volume two, even although I said volume two, I really meant volume one. I am concerned with Resolution 95/1, which is set out on one page. The General Assembly there my Lords recognise an obligation laid upon it by certain articles of the Charter to initiate studies and so on.

LORD PROSSER: This is in December 1946, is that right?

MR MAYER: 14th of February 194.... I beg my Lord’s pardon, that seems to be the 11th of December 1946. The General Assembly recognises certain obligations which were laid upon it and took note of the International Military Tribunal for the prosecution and punishment of the major war criminals and European access signed in London on the 8th of August 1945 and it says, "Therefore confirms the Principle of international law recognised by the Charter of the Nuremberg Tribunal and the judgement of the Tribunal, directs the committee on the codification of international law established by the General Assembly resolution, to treat, as a matter of primary importance, plans for the formulation, the contents of the general codification of conventions against peace and security of mankind or.... reads... and in the judgement of the Tribunal". My Lords, what that’s doing is sending the Principles to the committee for codification.

LORD PROSSER: You have already looked at the result of that, the result of that was the Nuremberg Principles.

MR MAYER: Well my Lords actually my next document is the authoritative one, which is the deliberation of the International Law Commission. It’s....

LORD PROSSER: What sort of authoritative, this is part of the document to the adoption of the Nuremberg Principle in the documents we have already seen.

MR MAYER: The resolution came after the document we have seen and they sent the Principles to the International Law Commission for codification. Now the International Law Commission doesn’t make international law, it codified and sent its draft back for adoption.

LORD PROSSER: The document we saw of the Nuremberg Principles was the document which had been adopted by the International Law Commission in 1950, the one you referred us to earlier, it’s a 1950....

MR MAYER: I think all that that means is that what is contained therein was ultimately adopted. The exercise I am going through at the moment....

LORD PROSSER: I don’t know what we are going through at the moment, but please make it clear why we have to look into what was done by the General Assembly, which was merely asking somebody to do things, which is a complete waste of time.

MR MAYER: In my respectful submission what I am doing at the moment is demonstrating to your Lordships what is the international law on crimes.

LORD PROSSER: Well, if you say we have to do it then we have to do it.

MR MAYER: My Lords in the same volumes, that’s Volume 1, E, I hope your Lordships will find the Yearbook of the International Law Commission for 1950. Now my Lords this document is in four parts, the first is historical, the second part sets out the resolutions of the General Assembly which the Commission is dealing with, the third part deals with the codification exercise which the Commission is charged with and the fourth part is a conclusion, quite short. I haven’t photocopied all of this document, it is hundreds of pages long.

LORD PROSSER: Tell us which page you want to refer to and what it is.

MR MAYER: Could I go my Lords to page 374 and I am dealing with 374 through to 377 and that in my submission is where the Nuremberg Principles are codified. Your Lordship will wish to note immediately that the Commission virtually adopted verbatim the formulation of the Principles, but it’s necessary in my submission to look at the actual wording. There is set out in paragraphs underneath each Principle which has been codified, an explanation by the Commission for the way in which it has acted. Number 1, 2, 3, 4 and 5 are set out up to page 375. Page 376 contains Principle number vi, which we have looked at, and your Lordships will note the same categorisation against crimes against peace, war crimes and crimes against humanity.

My Lords if I can direct the Court’s attention to paragraph 116 on page 376, the Commission in explanation, explains that, "The terms ‘planning’ and ‘preparation’ of a war of aggression were considered by the Tribunal as comprising all the stages in the bringing about of a war of aggression from the planning to the actual initiation of the war. In view of that the Tribunal did not make any clear distinction between planning and preparation. As stated in the judgement, planning and preparation are essential to the making of the war". "It must be accepted that", in 117 the Commission goes on to say, "Some members of the Commission feared that everyone in uniform who fought in a war of aggression might be charged with the ‘waging’ of such a war". It says, "The Commission understands the expression to refer only to high ranking military personnel". I will be going on to equiperate, indeed I think I have already equiperated deployment with threat. " A legal notion of the charter to which the defence objected was the one concerning ‘conspiracy’. The Tribunal recognised that ‘conspiracy is not defined in the Charter’. However, it stated the meaning of the term, though only in a restricted way."

LORD PROSSER: These rules are concerned with the category of crimes against peace, planning, preparation of a war of aggression or a war in violation of international treaties, crimes or assurances. I just want to know which of these it is that is going to be apposite to our present concerns.

MR MAYER: It can be all of them.

LORD PROSSER: No, I am asking you what in your submission is the relevant matter, I mean they don’t sound to be anything that is alleged here.

MR MAYER: Planning and preparation my Lords is the stage before deployment.

LORD PROSSER: No, no, no, planning and preparation, waging of a war of aggression, are you saying that our Government have waged a war of aggression, I just want to find out what you are submitting or, alternatively are you saying that they are doing these things in relation to a war in violation of international treaties, crimes or assurances, I just want to know where you are.

MR MAYER: I say that the deployment of Trident is equivalent to a threat, and that was unanimously said by the ICJ to be illegal.

LORD PROSSER: Well, we are coming to these bits.

MR MAYER: I have said the nature of that illegality is a crime against humanity used in the broadest sense and what I have come to here....

LORD PROSSER: You say in the broadest sense, but at this point they are still dealing with the very specific categories set out at Principle 6 while at this point I am only trying to get some broad indication of what all this material about crimes against peace, waging wars of aggression or violation of treaties, etc, what that has to do with our concerns.

MR MAYER: Well, firstly my Lords one has to identify is a crime against humanity being committed.

LORD PROSSER: Yes, but these seem to be categories of it that I don’t think you were alleging, what category of crimes against humanity are we concerned with?

MR MAYER: We are concerned with the threat posed....

LORD PROSSER: In this categorisation where does it bite?

MR MAYER: Well, in 69 (1), planning, preparation and I would go so far as initiation which....

LORD PROSSER: I am directing your attention to these words, "war of aggression or in breach of treaty, etc", do you have in mind some treaty or agreement or assurance which you say the Government are in breach of, or are threatening to be in breach of, or preparing to be in breach of, or is it an aggressive war that they are playing. It seems pretty elementary if you are referring us to these things we should know why.

MR MAYER: To plan, prepare or initiate the use of Trident is in my submission struck at by 6.1 because, or for the reasons that my learned friend Mr Moynihan gave, the nature of those weapons, areas of those weapons, the indiscriminacy.....

LORD PROSSER: I don’t think Mr Moynihan guided us through this passage, I think he was dealing with a quite different conceptual, as you would call it, basis. Why this passage which is dealing with wars of aggression and so forth, is in point, is it in point, or is it just something with which you would equiperate your propositions.

MR MAYER: That is my intention my Lord.

LORD PROSSER: If you are only equiperating it then one can do that to its heart’s content. As long as you are not saying that it does fall within these categories then I would understand.

MR MAYER: I think I will have to go further my Lords.

LORD PROSSER: Choose a direction then.

MR MAYER: I say that deployment of Trident by the British Government contains planning and preparations, that must be right, it’s not out there at random.

LORD PROSSER: Keep going.

MR MAYER: And its intention is to threaten, I’ll come to the language of threat in due course. We know from the evidence that Trident is a first strike aggressive weapon. Professor Rogers I think at page 10, and although it may or may not be said to be at war when it’s in the water, that really doesn’t matter, if one gets as far as threat one reaches the unanimous opinion of the ICJ.

LORD PROSSER: We will come to that, but you are bringing this under a category of the planning and preparation of aggressive war, ‘war of aggression’ is the expression.

MR MAYER: Yes. Indeed it is also accepted that Trident operates under the NATO command and that in my submission is ii, "Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned above".

LORD PROSSER: Because in the same way NATO are planning a war of aggression.

MR MAYER: They are being aggressive.

LORD PROSSER: We are trying to categorise it. No, that’s why we have got this document here.

MR MAYER: I would add 1 and 2 together, yes.

LORD PROSSER: But it is a war of aggression is the relevant phrase.

MR MAYER: Yes. The Commission is careful my Lords at 118, that’s the bottom right hand bit of page 376, to say, 118, "A legal". The Court below recognised that conspiracy is not defined in the Charter, however it stated the meaning of the term, though only in a retrospective way. But in the opinion of the Tribunal it was said in the judgement conspiracy must be clearly outlined in its criminal purpose, so first of all there must be a conspiracy and it must be a criminal one, that’s why I was careful at the beginning to try to identify the name of the crime as a crime against humanity, but also to say that the nature of the illegality being discussed was criminal not civil.

LORD PROSSER: And you say that identifies what this conspiracy that you talk about is.

MR MAYER: No, I say one must read the rest of the passage, "It must not be too far removed from the time of possession and of action. The planning, to be criminal, must not rest merely on the declarations of a party programme such as found in the 25 years of the Nazi Party announced in 1920, or the political affirmations expressed in Mein Kampf". "The Tribunal must examine whether a concrete plan to wage war existed and determine participants in that concrete plan". That is where my Lords I say in my analysis that one must look to see whether there is a crime being committed, who is doing it and is there this concrete plan.

I would go on to draw your Lordships’ attention to the British Government’s strategic defence reviews and say that that is a concrete plan.

LORD PROSSER: I am sorry, I though the conspiracy that this was dealing with was NATO and not us, not Britain.

MR MAYER: Of course British defence reviews is written by Ministers, part of NATO.

LORD PROSSER: The conspiracy we are talking about is a NATO conspiracy, or so you said, and that’s what this is concerned with and you are going to demonstrate that there is a NATO concrete plan for a war of aggression.

MR MAYER: I am sticking to the deployment of Trident.

LORD PROSSER: That may have gone beyond planning and preparing, but you say there is a concrete plan of NATO for a war of aggression and that they have reached the stage of deployment which is somewhere along the planning, preparation route towards waging and you will be bringing us to identifying that concrete plan.

MR MAYER: Yes, I shall. B I have read out, that is verbatim, the Principles, and C is also verbatim.

LORD PROSSER: Well, of course they are because these were adopted.

MR MAYER: One is tempted to say that the Commission did actually send the Principles back and say - what do you want us to do with this, and they sent them back and said, do what you are charged to do and they simply adopted these.

LORD PROSSER: It tells us about this in the preamble to the Nuremberg Principles.

MR MAYER: So at 374 one finds that formulation, the language is confusing, they were asked to codify, they seem to have formulated, it may be the same language.

LORD PROSSER: Well, they discussed.

MR MAYER: But at all events my Lords this is where one finds the Black Letter Law of the definition of crimes against humanity.

LORD PROSSER: Although that phrase is only used in the context to define something quite, well, something more limited.

MR MAYER: Yes, the structure of the judgement of the Tribunal leaves one rather surprised, reading with a modern eye, do we stick with it?

LORD PROSSER: Nothing surprises me with a more ancient eye.

MR MAYER: Now my Lords it may be argued that what happened in Nuremberg was that the Principles were set out, that there was this mechanism via the International Law Commission and all in the garden was meant to be rosy. However since then there has been de facto ignorance of these high principles, leading us through the Cold War to the present day.

LORD PROSSER: Are you saying that they have become matters of customary international law, conventional international law, neither of which seems quite possible.

MR MAYER: Yes.

LORD PROSSER: What, you say they were.

MR MAYER: I would say my Lords that in codifying the crimes and the UN units adopting these....

LORD PROSSER: The General Assembly, everyone knows that’s not a legislative body.

MR MAYER: No, these become customary international law, but because they are written down....

LORD PROSSER: Well, they might, you see what in fact is said in the Introductory note to the Nuremberg Principles is that "In the course of the consideration of the consideration of this subject the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgement constituted principles of international law. The conclusion was that since the Nuremberg principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them". So it at the very least is left wide open, the whole question of whether these had been or ever would be Principles of international law. Now I want to know what your submission is as to their status at 1950 or at any other time, there must be a simple submission on that, whatever else.

MR MAYER: In my submission all that’s being said there is....

LORD PROSSER: I am asking about your submission and explanation why, your submission as to their status, are they or are they not rules of international law and if so customary or conventional.

MR MAYER: They are customary....

LORD PROSSER: And became so how and when, can that be put briefly or not?

MR MAYER: I understand that my learned friend Mr O’Neill will address the Court.

LORD PROSSER: Well I am concerned with your submission, or are you adopting in advance what Mr O’Neill may say? I am sure he will be happy with such a blank cheque.

MR MAYER: What I say my Lords is that the Westminster Parliament was advised in 1963 by the then Lord Chancellor, that the United Kingdom took the view that the Nuremberg Principles, as formulated by the International Law Commission were "Generally accepted among States and have the status of customary international law", and that comes from Hansard, House of Lords, Volume 253, Column 831 of the 2nd of December 1963.

LORD PROSSER: Now you are moving on from that I think.

MR MAYER: Well, it might be argued that these had been ignored and that in fact these Principles no longer represented customary international law.

LORD PROSSER: I don’t think anyone had suggested that.

MR MAYER: But in my submission nothing could be further from the case. I am coming on my Lords to deal with what the House of Lords has said in Pinochet Number 3 case. I have got quite a lot to say about that.

LORD PROSSER: You can say the first ten minutes of it, that will be useful now.

MR MAYER: My Lords the version which I have been working from comes from the second volume for the Second Respondent, that’s the green flags, letter T, that’s 1999 2 Weekly Law Reports at page 827. All of the Judges discussed the Nuremberg Principles, they were of course discussing Principle number 7 and not 6, but they didn’t distinguish between any of them.

LORD PROSSER: So what’s the first point as it were, or the first short point?

MR MAYER: The short point is that the Nuremberg Principles have been expressly approved by every Judge in Pinochet 3 as being current customary international law.

LORD PROSSER: Is that disputed Mr Depute?

MR MENZIES: No.

LORD PROSSER: Well, it seems to be conceded.

MR MAYER: Nevertheless my Lords I would seek to draw your Lordships’ attention to certain important passages which have resonance with the Lord Advocate’s second question.

LORD PROSSER: I feel about resonance the way I feel about vibrancy. Of course you can look at the case if there is a more detailed point, but just from recollection I don’t recall anything that would throw light on the detailed meaning of Principle States.

MR MAYER: Not from the point of view which your Lordship has taken this morning.

LORD PROSSER: If the main short point is, as one would expect, conceded, what are we going to learn from this?

MR MAYER: If I may my Lords, address your Lordships to page 840, Lord Browne-Wilkinson, and this is of course in the context of torture and his Lordship helpfully sets out for those of us seeking to know where or what the mechanism was of how these Principles came to be customary international law. In the bottom paragraph his Lordship says, "The concept of personal liability under international law for international crimes is of comparatively modern growth. The traditional subjects of international law are states not human beings. But consequent upon the war crime trials after the 1939-45 World War, the international community came to recognise that there could be criminal liability under international law for a class of crimes such as war crimes and crimes against humanity. Although there may be legitimate doubts as to the legality of the Nuremberg Charter: Charter of the International Military Tribunal, adopted by the Big Four Powers (1945) in my judgement those doubts were stilled by the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal adopted by the united Nations General Assembly on 11 December 18946 (G.A. Res. 95, 1st Sess., 1144; U.N. Doc. A/236 (1946).That affirmation affirmed the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgement of the tribunal and directed the committee on the codification of international law to treat as a matter of primary importance plans for the formulation of the principles recognised in the Charter of the Nuremberg Tribunal. At least from that date onwards the concept of personal liability for a crime in international law must have been part of international law". I notice his Lordship seems to group together war crimes and crimes against humanity in a class of crimes. There may be doubts about the legality of the Nuremberg Charter adopted by the big four powers, "In my judgement those doubts were stilled by the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal"

LORD PROSSER: Well that was obviously just a decision, so of course there will be doubts about its legality at the time, but as he goes on to say, that’s all that happened afterwards, what’s the point here?

MR MAYER: I wish to draw your Lordships’ attention to page 841 for the purposes of drawing a distinction between what might be called official acts at high level and the legality of such acts. My principal submission is that the deployment of Trident is official but not legal. Lord Browne-Wilkinson, in the bottom paragraph 841 discusses this distinction and says, "But there was no tribunal of court to punish international crimes of torture. Local courts could take jurisdiction. But the objective was to ensure a general jurisdiction so that the torturer was not safe wherever he went.. For example, in this case it is alleged that during the Pinochet regime torture was an official, although unacknowledged, weapon of government and that, when the regime was abut too end, it passed legislation designed to afford an amnesty to those who had engaged in institutionalised torture. If these allegations are true, the fact that the local court had jurisdiction to deal with the international crime of torture was nothing to the point so long as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication by its own court on its own shortcomings. Hence the demand for some international machinery to repress state torture which is not dependent upon the local courts where torture was committed". And in my submission the evidence from the Court below demonstrates, from Rogers and from Johnston that they both thought that deployment of Trident was a form of totalitarianism, it seems rather extraordinary, to me at least, but that’s what they said. I would draw your Lordships’ attention to the passage about torture and say, well, if that’s, if what his Lordship said about torture is true then it must also apply to indiscriminate mass destruction.

LORD PROSSER: I don’t know, I mean this case was discussed in the recent Hutchison case and at least there Lord Justice Buxton seemed to think that what was said in Pinochet 3 wasn’t clearly consistent with the submission that this had just come down in the English law, English criminal law. I mean he referred to the fact that it was only with the passing of Section 134 of the Criminal Justice Act in 1968 that English Courts had jurisdiction over international torture. It’s quite complex this I think, isn’t it? Well, perhaps that’s a point at which we can treat 10 minutes as having expired.

After an adjournment for lunch.

MR MAYER: I feel I can pass from the confirmation of the Nuremberg Principles by the House of Lords to page 6 of my written note, to the top of that page. I am in the chapter called the Black Letter Law and where we find it, and I hope it will be useful my Lords to take a quick look through what the experience of the American Courts have been. They have had an opportunity to consider very similar questions to these raised in the instant matter. There is in Volume 1 of the Second Respondent’s Productions, at J, which appeared in the Santa Clara Law Review. It is getting on in vintage now, 1986, it was written by a post graduate student and another and it in my submission fairly summarises the history and development and all the elements in their law. The Article appears in four chapters, begins at page 299 of the Journal and through to 309, is a development called United States Law of Necessity. Page 310 to 325 sets out their law of necessity in the nuclear age and the third chapter is pages 326 to 348, setting out the elements of the necessity defence when citizens intervene and from 349 to the end are the conclusions.

LORD PROSSER: Just before we go to it, do I understand therefore it is about necessity rather than any specific international considerations, international law considerations. Necessity is a matter of the domestic law in every country. It will vary in every country, but if it is about necessity, with all respect to Santa Clara and all that, one would normally just look at one’s own laws and see that it had apparent gaps, wouldn’t you? I mean our law is what our law is. It seems a funny starting point.

MR MAYER: Well, the particular assistance which the American Courts provide is having had a fairly deep and wide look at the citizen intervention type of case connected with nuclear issues....

LORD PROSSER: I follow that, but whether - you say that that actually produces light on necessity as a concept.

MR MAYER: Certainly the criteria, some of which were mentioned by my learned friend Mr Moynihan in his reference to the Berrigan case, are useful.

LORD PROSSER: Okay.

MR MAYER: So my Lords I needn’t trouble your Lordships with the - I shouldn’t say I needn’t trouble your Lordships and take that as a departure, but I can steer quickly through the history to the necessity defence in the nuclear age. At page 301 the authors cite the case of Mitchell v Harmony. This case was concerned with the existence of damage and said it was for the jury to decide on the facts. Also if there is a question about imminence, moves on to consider an example of that, an early case, Surocco -v Geary 3 Cal. 69 (1853). This was a fire which almost burned down the then small town of San Francisco. A public officer ordered the destruction of houses for the purpose of creating a fire break and was subsequently sued by one of the owners. The Californian Supreme Court held that the action was proper because the right to destroy property to prevent the spread of conflagration has been traced to the highest law of necessity and in my submission, there are parallels with intervention to prevent nuclear strike or accident.

LORD PROSSER: That wasn’t intervention by a citizen, it was a public officer.

MR MAYER: A public professional in that case.

LORD PROSSER: That sounds more like the general rights of police, I don’t mean police in its abstract sense, in other words there is perfectly good Scots law on this, so we don’t need to go to this, the right to interfere with private property where that’s in the interests of the State.

MR MAYER: No my Lord, I’ll be coming shortly to a case involving the British Government, Attorney General versus Nissan, from 1969, but this sets out, in my submission, principles which are absolutely in line with our own. At the bottom of that page, it’s marked "Californian Legislature. Right to abate pubic and private nuisance". So they both have a right.

LORD PROSSER: By statute apparently, what’s that got to do with it?

MR MAYER: A right arising from a Legislature, I haven’t gone so far as to say that the Tribunal at Nuremberg can be regarded as a Legislature in exactly the same way, but I do say it’s guiding authority in the same way that the Advisory opinion is guiding authority. My Lords at page 303, in a case known as the Bisbee Deportation case 92 Cal. App.2nd 776,208 P2d 68-73 (1949), about eight lines down, we are told that the Defendants were acquitted because of necessity, "The Court made several important points, the distinction between self-defence being justified to repulse a wrong and the necessity as justifying the exercise of a right. Actions of necessity can be against persons as well as property. The burden of proving the existence of necessity lies with the defendant and the right of citizens to act based on necessity is a natural right that appertains to the individual. Finally, the court cited the 1846 Rhode Island Militia case to re-establish that necessity is a fact to be determined by the jury". That was their first authoritative discussion on the matter. In to the modern age, the case of Morissette -v- United States 342 U.S. 246 (1952) is cited. "The US Supreme Court, pointed out the case would have been insignificant had the trial not been conducted in such a manner and the facts presented to the jury in such a way as to raise fundamental and far reaching questions in criminal law . The case was granted certiorari solely because essential questions of fact, such as the reasonableness of defendant’s act, were excluded from the jury during trial".

LORD PROSSER: This is an article by an aerospace engineer and a law student and I really can’t see that we can treat it as being a source, a useful source, unless there are particular cases making particular points in a particular way.

MR MAYER: They do discuss the Berrigan case which I shall come to very shortly my Lords.

LORD PROSSER: What I am saying, you are appearing before us, you can make submissions as to the effect of the American case, they would come from you as legal submissions and that would be appropriate. I can’t see how that would be in any way reinforced by the views of either an aerospace engineer or a law student. How does this add to your simply making the apposite submissions?

MR MAYER: My only purpose in referring your Lordships to this summary of these cases is to provide a comparison with high ranking United States cases in a convenient way.

LORD PROSSER: If as I say there is some point in a case which, as it were, is at one with your submissions and out of international amity between Courts, you find it persuasive, then no doubt you will refer us to such cases, but this kind of overview of cases, with a kind of (inaudible) version of what they were thought to mean, particularly as it seems that that law student was one who was devoting herself to support of a cause, not a classic lawyer’s position, she was supplying material to support, it says, particular sides of cases, her view of it isn’t going to be useful, is it? If it was cases that are, by whatever standards, in point, then you will presumably refer us to them and we will then look at what the Court said and it will no doubt command our interest and receive, but this is a very peculiar way of going about that to my mind, unless they quote large passages and this was the only way of finding them or something, I don’t think we need this young student’s overview.

MR MAYER: I would make two points then my Lord from this source, the first is that the American Courts have not sought to restrict those who intervene to moments when danger is either imminent or present. They in effect have upheld the proposition that in the cases where danger is constant then one can do what one can when one can.

LORD PROSSER: If there is somewhere where a Judge says that then refer us to that.

MR MAYER: Yes, on page 306 there is a case called People v Condley. 69 Cal. App. 3d. 999., 138 Cal Reporter 515 (1977). This is the Californian Court of Appeal "emphasised that the threatened danger need not be imminent. The necessity in Lovercamp is not like the classical paradigm of absolute necessity where the prisoner escapes to save his life from immediate danger of a prison fire. Absolute and imminent necessity are rare, and even rarer is prosecution under such circumstances. Unlike duress, under Lovercamp the threat is in the ‘immediate future’...Duress requires an imminent threat to one’s life".. They go on to say in the last three lines on Page 306, "However, neither lay nor legal definitions measure imminence in seconds or minutes, or even in weeks or months". That seems to be the view, the summed up view.

LORD PROSSER: Summed up view by a law student. We really do need to be shown material which is of persuasive authority and you certainly can’t take it that on the issues that everyone who is writing a JD thesis or whatever assesses matters correctly. You don’t know, it is an elementary professional standard.

MR MAYER: If I could just stay with this article for a moment and turn to page 317, there the case of Berrigan is discussed. What happened in Berrigan was there were four stages, there was a trial, there was the Superior Court Appeal, there was the State Court Appeal and the US Supreme Court, it didn’t get as far as the US Supreme Court, but the Defendants were convicted at the trial, the conviction was overturned at the first level of Appeal, but was re-overturned as it were at the State Supreme Court level.

LORD PENROSE: I missed the reference to the page.

MR MAYER: 318 my Lord. This was the case mentioned by my learned friend Mr Moynihan, in America it is known as the Ploughshares Eight Trial involving the carrying of blacksmiths’ hammers and other materials to do damage to property within the General Electric, systems plant in Pennsylvania and, just as in the instant case in the Court below, largely the facts are agreed, but parties sought to defend themselves according to Pennsylvanian justification statutes and they presented witnesses, just as in the Court below, to testify, but the expert testimony was excluded by the Trial Judge and the jury found them not guilty. "On Appeal the appellant Court reversed the conviction for several reasons, including the following: ‘The lower court erred when it ruled that appellants could not introduce the evidence that they needed to show the objective reasonableness of their action". Now that’s the very phrase which was used in the Court below and which I think I have said on previous occasions was the standard to be applied in this country before anyone can avail themselves of the defence of acting wilfully but not maliciously. The majority disagreed with the dissenting judge and there’s a speech which says that, "It was argued that to avail themselves of the defence the Appellants must be able to say that their actions could totally avert nuclear war. We will not hold them to such a burden. Appellants must show that their actions could reasonably have been thought necessary to avert a public disaster....Surely the use of the weapons, the components of which were damaged by appellants, would cause a public disaster on the order of a ‘conflagration, flood, earthquake or pestilence". The citation is given earlier, that in my submission is a parallel language with the language used by Hume and Lord Justice General Rodger in Moss against Howdle, to which I will turn in due course.

LORD PROSSER: I don’t suppose it is necessary to worry about Berrigan, Hume is a bit more apposite.

MR MAYER: Indeed, indeed my Lords. But in a case like this where I was aware that these cases had been cited from this article in the Court below I expected your Lordships might want.....

LORD PROSSER: It’s just whether you are adding anything. As one moves round the table one doesn’t want to hear things again, we have got a fairly full picture of what was said by Mr Moynihan on Berrigan, I don’t know whether you are really adding to that, but anyway to pick up a phrase, "Their actions could reasonably have been thought necessary to prevent a public disaster", and you say this could be applied to the facts of the present case.

LORD PENROSE: At what level, I thought you had told us about two levels of Appeal, which Court is being described here?

MR MAYER: The first one.

LORD PENROSE: And that was the one which was overturned next time round?

MR MAYER: It would appear it was overturned for different reasons.

LORD PROSSER: That’s why we should look at the authority if you are trying to make anything of it, we don’t know its status in the view of the higher Court, do we?

MR MAYER: I can tell your Lordships that my learned senior may wish to develop the matter further.

LORD PROSSER: We don’t need to hear you just now, if he wants to say something he will be properly prepared when he does so.

MR MAYER: My central purpose is to get to the criteria which the Court have laid out and at page 326, on a summation of the elements of the necessity of events when citizens intervene, and I would commend those six criteria to this Court.

LORD PROSSER: You mean you submit they are sound?

MR MAYER: Yes, I do. There is an analysis of each of one of those which may not, standing your Lordship’s comments, be useful to look at and so I think I can end that part of my submission there. My Lords whilst I am still on Black Letter Law, I have written on page 6, number 8 at the top of the page, ‘for completeness see a case called Operation Dismantle Incorporated v The

Queen, this is a decision of the Canadian Supreme Court and it is simply there out of completeness, I was aware of the case.

LORD PROSSER: You don’t seem to be adopting what I would refer as an orthodox approach, either you are going to refer us to this case or you are not. The fact that it is there in your page of paper is nothing, it is only of use to us if you want to make some submission about it.

MR MAYER: Well, I was just about to make a submission.

LORD PROSSER: If you are referring us to it where is it?

MR MAYER: It’s in the Second Respondent’s second bundle, green flagged letter II. I direct the Court’s attention to this case because it is a decision of the Supreme Court of Canada and as far as I can discover it is the only occasion on which the Supreme Court of Canada has had dealings with the same matters under consideration. The case was taken purely on the point of injunction and declarator and it is for that reason that I don’t expect it will assist your Lordships very far. What happened was that the Plaintiff organisation, together with the Trade Unions, challenged the decision of the Government of Canada made pursuant to an agreement with the United States to promote the testing of the low launch cruise missile in Canada, on the ground that it would infringe the right to life and the right to security and person guaranteed to their members and other Canadians by Section 7 of their Charter of Rights and Freedoms. They sought an injunction to prevent the testing of the cruise missile and a declarator that the decision to test it was unconstitutional and they wanted damages. The Defendants applied to strike out the statement of claim and dismiss the action on the ground that it did not disclose a reasonable cause of action and it was with that question which the Court was concerned.

LORD PROSSER: The action had been dismissed?

MR MAYER: Yes. The principal allegation was that the testing posed a threat to the lives and security of Canadians by increasing the risk of nuclear conflict and violated certain rights to life and security provi