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Judgments - R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant)), Etc.

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 16

on appeal from: [2004] EWCA Crim 1981 and

[2005] EWHC 684 (Admin)

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant))

R v. Milling (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. M (Appellant))

R v. Olditch (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. O (Appellant))

R v. Pritchard (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. P (Appellant))

R v. Richards (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. R (Appellant)) (Conjoined Appeals)

 

Ayliffe and others (Appellants) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

 

Swain (Appellant) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

 

Appellate Committee

 

Lord Bingham of Cornhill

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

 

 

Hearing dates:

20, 21, 22 and 23 February 2006

 

on

WEDNESDAY 29 march 2006

 

 

Counsel

Appellants

R v. Jones and Milling

James Lewis QC

James Hines

(Instructed by Foresters)

 

R v. Olditch and Pritchard

Vaughan Lowe

Alison Macdonald

(Instructed by Bindman & Partners)

 

R v. Richards

Keir Starmer QC

Nicholas Grief

Hugo Charlton

(Instructed by Foresters)

 

Ayliffe v. Director of Public Prosecutions

Rabinder Singh QC

James Hines

Charlotte Kilroy

(Instructed by Bindman & Partners)

 

Swain v. Director of Public Prosecutions

Rabinder Singh QC

Charlotte Kilroy

(Instructed by Bindman & Partners)

 

 

Respondents

Crown

Malcolm Shaw QC

Mark Ellison

Sarah Whitehouse

(Instructed by Crown Prosecution Service)

 

Director of Public Prosecutions

David Perry

Hugo Keith

(Instructed by Crown Prosecution Service)

 

 

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant))

R v. Milling (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. M (Appellant))

R v. Olditch (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. O (Appellant))

R v. Pritchard (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. P (Appellant))

R v. Richards (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. R (Appellant))

(Conjoined Appeals)

Ayliffe and others (Appellants) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

Swain (Appellant) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

[2006] UKHL 16

LORD BINGHAM OF CORNHILL

My Lords,

    1.  The immense, perhaps unprecedented, suffering of many people in many countries during the twentieth century had at least one positive result: that it prompted a strong international determination to prevent and prohibit the waging of aggressive war. This determination found expression in the international legal order, and understandably so, since it is states which wage such wars and states that must suppress them. At issue in these appeals is the extent to which, if at all, this international determination is transposed into the domestic legal order of England and Wales.

    2.  There are 20 appellants before the House. All of them committed acts in February or March 2003 which were, or are alleged to have been, criminal offences, unless there was legal justification for what they did or are said to have done. The issue in each appeal concerns this legal justification, which (depending on the charge in question) differs somewhat from case to case. But the common feature of all the appeals, and the feature which makes the cases important, is that they all raise the question whether the crime of aggression, if established in customary international law, is a crime recognised by or forming part of the domestic criminal law of England and Wales. The appellants acted as they did because they wished to impede, obstruct or disrupt the commission of that crime, or what they believed would be the commission of that crime, by Her Majesty's Government or the Government of the United States against Iraq in the weeks and days before (as we now know) hostilities began. They accordingly contend, or have contended, that they were legally justified in acting as they did. The House is not asked to rule whether, in preparing to make war against Iraq, the United Kingdom or the United States committed the international law crime of aggression, but it must rule whether, if they may have done, that would justify the appellants' otherwise criminal conduct.

The Fairford appellants

    3.  On the night of 13 March 2003 the appellants Margaret Jones and Paul Milling broke into the Royal Air Force base at Fairford in Gloucestershire and caused damage to fuel tankers and bomb trailers. They had conspired together to do so. A little later, the appellants Toby Olditch and Philip Pritchard conspired together to cause criminal damage at the base. On 18 March 2003 they had in their possession articles which they intended to use to destroy or damage the runway at the base and aircraft belonging to the United States Air Force. On the same date, 18 March 2003, the appellant Josh Richards attempted to set fire to an aircraft at the base belonging to the United States Air Force. He had with him on that date articles which he intended to use to destroy or damage such aircraft. Also on that date, he caused damage to a perimeter fence at the base. It is convenient to refer to these appellants collectively as "the Fairford appellants". In indictments preferred against them they were (after the withdrawal of one count) charged with counts of conspiracy to cause criminal damage contrary to section 1(1) of the Criminal Law Act 1977 (Jones, Milling, Olditch, Pritchard), having articles with intent to destroy or damage property contrary to section 3(b) of the Criminal Damage Act 1971 (Olditch, Pritchard, Richards) and criminal damage contrary to section 1(1) of the 1971 Act and attempted arson contrary to section 1(1) of the Criminal Attempts Act 1981 (Richards). The Fairford appellants have not yet been tried. Thus the factual basis of these counts has not been proved. But the facts recounted above are not understood to be contested.

    4.  A preparatory hearing was held under section 29 of the Criminal Procedure and Investigations Act 1996 to seek rulings on some questions of law arising from the proposed defences of the Fairford appellants. Relevantly, the question was raised whether the defence of using reasonable force under section 3 of the 1967 Act was available to them. Sitting at Bristol, Grigson J ruled on 12 May 2004 (1) that foreign policy and the deployment of the armed services involved the exercise of prerogative power and could not raise justiciable issues, and (2) that the citizen could not plead lawful justification for interfering with the exercise of that power (including the power to make war). The judge accepted, as the Crown had accepted in argument, that the appellants were entitled to contend that they had been acting to prevent the commission of war crimes within the scope of the International Criminal Court Act 2001, so the argument was directed to the crime of aggression. The appellants challenged the judge's ruling in the Court of Appeal (Criminal Division) (Latham LJ, Gibbs J and His Honour Judge Brown). It ruled ([2004] EWCA Crim 1981, [2005] QB 259) that the crime of aggression which the appellants claimed they were seeking to prevent was not a "crime" for the purposes of section 3 of the 1967 Act, and that accordingly the issue of justiciability did not call for decision. It certified as a question of general public importance:

    "Is the crime against peace and/or crime of aggression capable of being a 'crime' within the meaning of section 3 of the Criminal Law Act 1967 and, if so, is the issue justiciable in a criminal trial?"

It has not been suggested that there is any difference of substance between a "crime against peace" and a "crime of aggression" and I shall for convenience use the latter expression.

The Marchwood appellants

    5.  It is convenient to refer to the appellant Benjamin Ayliffe and his 13 co-appellants as "the Marchwood appellants". On 4 February 2003, some weeks before hostilities began against Iraq, they trespassed on the land of the Sea Mounting Centre, Marchwood Military Port, at Hythe in Hampshire. Some of them entered the port by boat. Others cut a hole in the perimeter wire and entered the port through it. Some of them chained themselves to tanks or reconnaissance vehicles. The work of the port, which involved the loading of vessels bound for the Middle East, was brought to a halt, as they intended. They were all charged with the offence of aggravated trespass contrary to section 68(1) of the Criminal Justice and Public Order Act 1994, the charge being that they trespassed on land in the open air and, in relation to a lawful activity, namely port operations, which persons were engaged in on that land, did an act intended to have the effect of obstructing that activity. There was also a charge of criminal damage contrary to section 1 of the 1971 Act.

    6.  The Marchwood appellants appeared before District Judge Woollard in the Southampton Magistrates' Court. They argued that the activity being carried on at Marchwood was not a lawful activity within the section because it was being carried out in pursuance of a crime of aggression under customary international law and constituted a war crime within the meaning of sections 51 and 52 of the International Criminal Court Act 2001. They also relied on section 3 of the 1967 Act. The judge ruled at a preliminary hearing that "offence" in section 68(2) of the 1994 Act means "a specific offence known to English law by common law or statute", and thus excludes the crime of aggression. At a later preliminary hearing when the Marchwood appellants sought wide-ranging disclosure said to be relevant to their defences under section 3 of the 1967 Act and under the 2001 Act, the judge refused to make an order. He held that the foreign and defence policies of the Government were not matters into which the court could enquire. At trial, all the appellants were convicted of aggravated trespass, and some were convicted of criminal damage. They were conditionally discharged or fined, and some compensation orders were made. The judge stated a case for the opinion of the High Court on the correctness of his rulings.

The appellant Valerie Swain

    7.  On 9 March 2003 the appellant Valerie Swain and others trespassed on the RAF base at Fairford which she entered by cutting a hole in the perimeter fence. She intended to obstruct or disrupt the maintenance of the security of the base. She (with nine others) was charged with aggravated trespass contrary to section 68(1) of the 1994 Act, alleging that she trespassed on the base and "in relation to a lawful activity, namely the maintenance of security of the base" did an act, namely cut a hole in the perimeter fence, which she intended to obstruct or disrupt that activity. She was also charged with criminal damage contrary to section 1 of the 1971 Act.

    8.  This appellant advanced very much the same defences as the Marchwood appellants and District Judge Clark, sitting in the Cirencester Magistrates' Court, ruled at a preliminary hearing that the defences were not maintainable because the decision to go to war and its continuance were not justiciable. At trial this appellant and her co-defendants were convicted of aggravated trespass and criminal damage. She was conditionally discharged and ordered to pay costs and compensation. She alone appealed by way of case stated.

    9.  The appeals of this appellant and the Marchwood appellants were heard together in the Divisional Court (Waller LJ and Jack J), and dismissed: [2005] EWHC 684 (Admin), [2006] QB 227. It was accepted that the court was bound by the Court of Appeal's judgment on the appeal of the Fairford appellants, and also that the ratio of that case governed the court's decision on section 68 of the 1994 Act. The court certified that these appeals raised two questions of general public importance. The first was

    "Is a crime of aggression capable of being an 'offence' within the meaning of section 68(2) of the Criminal Justice and Public Order Act 1994, and if so is the issue justiciable in a criminal trial?"

The second was in substance that certified in the case of the Fairford appellants.

The appellants' argument

    10.  The appellants' case was deployed with much erudition and elaboration, to which any summary must necessarily do injustice. But I think their argument, expressed in a composite manner and in my own words, not theirs, involves the following major propositions:

(1)  Customary international law is (without the need for any domestic statute or judicial decision) part of the domestic law of England and Wales.

(2)  At all times relevant to these appeals customary international law has recognised a crime of aggression.

(3)  Crimes recognised in customary international law are (without the need for any domestic statute or judicial decision) recognised and enforced by the domestic law of England and Wales.

(4)  "Crime" in section 3 of the 1967 Act covers a crime established in customary international law, such as the crime of aggression.

(5)  Alternatively, "crime" in section 3 means a crime in the domestic law of England and Wales, and the crime of aggression is such.

(6)  "Offence" in section 68(2) of the 1994 Act covers an offence established in customary international law, such as the crime of aggression.

(7)  Alternatively, "offence" in section 68(2) means a crime in the domestic law of England and Wales, and the crime of aggression is such.

I shall consider these steps in turn.

(1)  Customary international law is (without the need for any domestic statute or judicial decision) part of the domestic law of England and Wales.

    11.  The appellants contended that the law of nations in its full extent is part of the law of England and Wales. The Crown did not challenge the general truth of this proposition, for which there is indeed old and high authority: see, for example, Triquet v Bath (1764) 3 Burr 1478, 1481; Blackstone's Commentaries, Bk IV, Chap 5, p 67; Duke of Brunswick v King of Hanover (1844) 6 Beav 1, 51-52; Emperor of Austria v Day (1861) 2 Giff 628, 678; Chung Chi Cheung v The King [1939] AC 160, 167-168; Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 554; J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch 72, 207. I would for my part hesitate, at any rate without much fuller argument, to accept this proposition in quite the unqualified terms in which it has often been stated. There seems to be truth in Brierly's contention ("International Law in England" (1935) 51 LQR 24, 31), also espoused by the appellants, that international law is not a part, but is one of the sources, of English law. There was, however, no issue between the parties on this matter, and I am content to accept the general truth of the proposition for present purposes since the only relevant qualification is the subject of consideration below.

(2)  At all times relevant to these appeals customary international law has recognised a crime of aggression.

 
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