Lord Advocate’s Reference

This note is intended to help journalists prepare for the issuing in January or February 2001 of the judgment of the High Court in Edinburgh on the above reference.

On June 8th 1999 three Trident Ploughshares Pledgers, Angie Zelter (English), Ulla Roder (Danish) and Ellen Moxley (Scottish) disarmed a floating laboratory called ’Maytime’ that was moored in Loch Goil, Scotland, by throwing equipment into the loch. The lab is vital to the Trident programme as it researches, tests and maintains the ability of Trident submarines to remain undetected under water while on patrol. The three women were charged with causing thousands of pounds worth of damage and were remanded for four months awaiting trial. They then spent a further month at Greenock Sheriff Court in front of a jury arguing their case. They had openly admitted that they had purposely destroyed the equipment but they argued that their actions were lawful as well as being moral. They were acting to prevent nuclear crime and the UK nuclear weapon system was both illegal and criminal under international law. The Crown could not and did not rebut their arguments and Sheriff Gimblett acquitted them.

This case has become the subject of a Lord Advocate’s Reference.

Where someone is acquitted of a charge, the Lord Advocate may refer a point of law, which has arisen from the original charge, to the High Court for the opinion of that Court. The people charged and then acquitted are called ’respondents’ in the proceedings. The respondents have a right either to participate in the Reference proceedings themselves or to be represented. The opinion of the High Court on the point of law referred by the Lord Advocate has no effect upon the acquittal. Although, in theory, this is a procedure to clarify any point of law that arises, in practice it seems to be a way of appealing against acquittals through the back door.

In his Reference the Lord Advocate posed four questions to the High Court:

(1) In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?

(2) Does any rule of customary international law justify a private individual in Scotland in damaging or destroying in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?

(3) Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?

(4) Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?

The implications of the hearing, which took place on five days in October /November 2000, could be immense. Crime prevention is natural and as long as it is done nonviolently, safely and accountably, forms a recognised right in the vast majority of cultures, societies and nations, many of which have incorporated it directly within their judicial systems. Roder, Zelter and Moxley acted to prevent crime. Mass murder is probably one of the most heinous wrongs known to mankind. The Trident nuclear weapon system is a conspiracy to commit mass murder. Although the questions put to the High Court seem to be purely technical, nevertheless they challenge the right of ordinary citizens to try to put very great wrongs right. If this right is undermined it will be disastrous for our society and will lead to a protracted conflict of interests between the State and ordinary people. People will no longer be able to remain responsible caring human beings as well as law-abiding citizens. They will have to choose between the two.

There is also the underlying question of the illegality of Trident. This issue was examined in some detail during the hearing. A strong case was made which should have persuaded the judges that they must recommend that a full and independent public inquiry into the legality of the British Trident system and present British defence policies be immediately instituted. Although the Reference is of considerable relevance to the struggle against nuclear crime, it is far from critical. Those who are committed to People’s Disarmament will continue that work whatever its outcome.

The judgment is expected in January or February. The respondents will be given five days notice of the announcement of the judgment in open court. At the same time the judgment papers will be published. This may constitute one report or, alternatively, individual reports from the three judges. As soon as we have a date for this we will circulate it.

The Maytime disarmament action is just one of many carried out by Trident Ploughshares activists during the 30 months of the campaign. These have led to a total so far of 784 arrests, 95 trials, 893 days spent in prison (not including time in police cells) and fines totaling £12,661. These bald figures illustrate the determination and unflagging spirit of a movement that is growing in numbers and confidence. At the time of writing Susan van Der Hijden and Martin Newell are on remand in English prisons, awaiting trial after inflicting around £30,000 of damage on a nuclear warhead convoy vehicle at RAF Wittering in November last year. Rosie James and Rachel Wenham, who probably held up Trident submarine HMS Vengeance for several weeks by the damage they did to it on 1st February 1999 will go to a re-trial on 3rd April.

People involved:

Lord Prosser (Presiding Judge)

Lord Kirkwood

Lord Penrose

Angie Zelter (First respondent, representing herself)

Ulla Roder (Second respondent)

Joanna McDonald (Solicitor for Ulla Roder)

John Mayer (Advocate for Ulla Roder)

Ian Anderson (Advocate for Ulla Roder)

Ellen Moxley (Third respondent)

Jerry Brown (Solicitor for Ellen Moxley)

John McLaughlin (Advocate for Ellen Moxley)

Aidan O’Neill QC (Advocate for Ellen Moxley)

Gerry Moynihan Q.C. (Amicus Curiae appointed by court for Angie Zelter)

Duncan Menzies QC (Home Depute, advocate for the Crown)

Simon Di Rollo (Advocate for the Crown)

Key points to look for in the judgment:

These are likely to fall into two main areas, the right of citizens to intervene to uphold the law and the Trident nuclear weapons system in the light of international humanitarian law. On the first issue it will be important to note what the judges say about the defence of Necessity in Scots law, and its limits. What criteria do they mention for that defence? Is there anything about the state of mind of defendants and the objective analysis they have made of the situation? Will they deal with worries about anarchy and vigilantism if the right to intervene is too loosely defined? What do they make of the proposed extension of the Nuremberg Principles, which claims the right of citizens to take action to prevent unlawful "official" actions?

Does the judgment say anything about the relationship between international humanitarian law and Scots law and the extent to which is it within the competence of the courts to examine state policy, such as on nuclear weapons?

What is said about Trident? Does the court accept that the principles of international humanitarian law apply to it? Do they admit that there is at least a prima facie case against it, in terms of the Geneva Protocols and the reasoning of the 1996 ICJ Advisory Opinion? Do they consider that the UK’s active deployment of Trident constitutes an illegal threat? If they accept the prima facie case, do they recommend a thorough legal audit or some other means of addressing their concerns? If the system is unlawful, where does criminality come into the picture?

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