(back to preceding text)

    32.  Section 68 of the 1994 Act, so far as relevant to these appeals and as originally enacted, provides:

"(1)  A person commits the offence of aggravated trespass if he trespasses on land in the open air and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect—

(a)  of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b)  of obstructing that activity, or

(c)  of disrupting that activity.

(2)  Activity on any occasion on the part of a person or persons on land is 'lawful' for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land."

The original object of the section was to penalise the activities of trespassing hunt saboteurs and animal rights activists, but the section has been widened by deleting reference to the open air. By virtue of section 172(10) the section applies throughout the United Kingdom.

    33.  The 1994 Act is a long and detailed statute, addressing a large number of criminal justice matters, particularly in England and Wales but also in Scotland and Northern Ireland. Although some provisions of the Act have a wider reach (section 160 extends the powers of constables to United Kingdom waters), section 68 is directed to land within one or other of the three domestic jurisdictions. There is no suggestion that those whose activities the Marchwood appellants and the appellant Swain sought to obstruct or disrupt were themselves trespassers. So the only question is whether "offence" in section 68(2) should be understood to cover an offence under customary international law.

    34.  The answer to that question must be negative, for very much the same reasons as are given in para 26 above. "Offence" is not defined in the Act. It must be understood as meaning an offence under the domestic criminal law of the relevant UK jurisdiction.

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

    35.  This proposition must be rejected, for the reasons given in paragraphs 28 to 31 above. It is a conclusion which involves, in my opinion, no substantial injustice to the Marchwood appellants and the appellant Swain since, even if this proposition were accepted it would be all but unarguable that those whose activities these appellants obstructed or disrupted at Marchwood and Fairford were themselves committing the crime of aggression or that there was a sufficient nexus between the conduct of these appellants and the preparation for or waging of an aggressive war even if (which is not a matter for decision) the hostilities against Iraq could be properly so described. This was the conclusion reached by the courts below, and I agree with it.

    36.  For these reasons, which are much the same as those given by the Court of Appeal and followed by the Administrative Court, I would answer the certified questions in paragraphs 4 and 9 above together, as follows: the crime against peace (or crime of aggression) is not capable of being a "crime" within the meaning of section 3 of the Criminal Law Act 1967 or an "offence" within the meaning of section 68(2) of the Criminal Justice and Public Order Act 1994. I would accordingly dismiss all the appeals.

LORD HOFFMANN

My Lords,

Demonstrations against war

    37.  The war against Iraq began with the bombing of Baghdad on 20 March 2003. It caused deep divisions among the people of the United Kingdom. Many people thought that it was morally wrong and contrary to international law. On 15 February 2003 there was a demonstration in central London in which about a million people marched through the streets to demonstrate their opposition. Others thought that it was justified, necessary and lawful. A motion in support of the war was passed by the House of Commons on 18 March by a majority of 396 to 217.

    38.  In the weeks before the war, some people protested by acts of civil disobedience at military installations. These appeals are concerned with incidents which occurred during February and March 2003 at a military port facility at Marchwood, Southampton and at the airbase at RAF Fairford in Gloucestershire. At Marchwood demonstrators entered the port area and chained themselves to railings and to tanks which were about to be loaded onto ships. At Fairford they entered by cutting the perimeter fence and caused damage to vehicles or otherwise disrupted activities at the base. The appellants were arrested and charged.

    39.  Most of the demonstrators were prosecuted summarily before the Magistrates' Courts (at Southampton or Cirencester respectively) on charges of aggravated trespass or criminal damage. Aggravated trespass is an offence under section 68 of the Criminal Justice and Public Order Act 1994. At the time of these events (the scope of the offence has since been broadened) it was committed by a person who—

"(1)…trespasses on land in the open air and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect…(b) of obstructing that activity, or (c) of disrupting that activity.

(2)  Activity on any occasion on the part of a person or persons on land is 'lawful' for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land".

    40.  Criminal damage is an offence under section 1(1) of the Criminal Damage Act 1971:

"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."

    41.  Section 5 enlarges upon the concept of reasonable excuse:

"(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse — …

(b)  if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

(i)  that the property, right or interest was in immediate need of protection; and

(ii)  that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held."

    42.  In addition, one group of Fairford demonstrators was charged with offences such as conspiracy to cause criminal damage, which can be tried only on indictment. They were brought before the Crown Court at Bristol. For reasons which I shall explain, the trial has not yet taken place.

    43.  In essence, all the demonstrators said that their actions were justified, not only morally but also legally, because they were aimed at preventing a greater evil, namely the war in Iraq and its probable consequences. Translating these generalities into the terms of the various statutes, they said that their acts of disruption were not aggravated trespass because the activities of the Crown at Marchwood and Fairford were not lawful within the meaning of section 68. They involved the commission of criminal offences associated with the prosecution of the war. Likewise, the intention to prevent the commission of a crime was a "lawful excuse" for causing damage to property within the meaning of section 1 of the 1971 Act. And, in respect of any of the offences charged, they were entitled to rely upon section 3 of the Criminal Law Act 1967:

"(1)  A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

    44.  All these defences thus depend upon the proposition that the war in Iraq was a crime as well as a mistake. What was that crime? Various offences were suggested but all except one have either fallen by the wayside or been left for further consideration at a later stage. The one which remains is the crime of aggression, the unlawful use of war as an instrument of national policy. There is no doubt that this is a recognised crime in international law. Twelve of the major German war criminals were convicted of aggression in one form or another by the International Military Tribunal at Nuremberg and eight of them were executed. This decision has since received general international approbation. Article 5 of the Rome Statute of the International Criminal Court lists "the crime of aggression" together with genocide, crimes against humanity and war crimes as the crimes over which the Court is to have jurisdiction, these being "the most serious crimes of concern to the international community as a whole". But the Statute postpones the exercise of jurisdiction over the crime of aggression until the adoption of a provision which defines the crime and sets out the conditions under which the jurisdiction is to be exercised.

    45.  Anticipating that the prosecution might not share its view that the war constituted aggression, the defendants proposed that the issue be determined by the District Judges at Southampton and Cirencester or the jury at Bristol. For this purpose, they made applications for disclosure of a wide range of documents of which the following (taken from the proceedings in Southampton) is a small sample:

"Any material used by the Government when deciding whether to launch an armed attack on Iraq, in particular any and all material which undermines or may undermine its published statements concerning (i) possession of weapons of mass destruction by the regime of President Saddam Hussein; (ii) the capability of the said regime to use such weapons;

All military plans and orders drawn up in readiness for the armed conflict including (but not limited to) (i) bombing and targeting plans; (ii) maps indicating the sites which were to be bombed in the course of the war; (iii) all memoranda, minutes or other material identifying them and explaining and/or justifying their selection as such sites."

    46.  In the event, the applications for disclosure were rejected because the District Judges at both Southampton and Cirencester ruled that aggression was not an offence within the meaning of section 68 of the 1994 Act or a crime within the meaning of section 3 of the 1967 Act. It was therefore unnecessary to decide whether the war had been lawful or not. The District Judges said that there was no evidence that the activities of the Crown upon the land involved the commission of any other offences and convicted all the defendants. They were conditionally discharged. The defendants appealed by way of case stated to the Divisional Court.

    47.  At Bristol, there was a preparatory hearing before Grigson J under section 29 of the Criminal Procedure and Investigations Act 1996. The judge was invited to give preliminary rulings as to various matters, including the extent to which the defendants could rely upon the alleged illegality of the war (or their beliefs as to its illegality) for the purposes of section 3 of the 1967 Act, "lawful excuse" under section 1 of the 1971 Act and the common law defence of necessity. It is not necessary to set out the terms of the judge's rulings because they were all appealed by one side or the other to the Court of Appeal.

    48.  The appeal from the Bristol Crown Court came before the Court of Appeal in June 2004: see R v Jones (Margaret) [2005] QB 259. The Court decided that "crime" in section 3 of the 1967 Act meant a crime in domestic law. It was not sufficient that it was a crime under a foreign or international law. It then proceeded to consider whether, by virtue of the principle that international law forms part of English law, the crime of aggression had been incorporated into domestic law. It rejected this submission on the ground that the definition of aggression was too uncertain. The article defining the crime for the purposes of the Rome Statute had not yet been agreed. There was no international agreement over whether, for example, the International Criminal Court could exercise its jurisdiction without there having been a determination of the Security Council. So the Court of Appeal said:

"It is difficult to see in these circumstances how it can be said that there is, accordingly, a firmly established rule of international law which establishes a crime of aggression which can be translated into domestic law, where there is no consensus as to an essential element of the crime."

    49.  On the questions of lawful excuse and necessity, the court said that it was only necessary to decide whether these defences could raise an issue as to the legality of the war in Iraq. It decided that no such issue could arise because, assuming the other elements in the defence to be made out, all that mattered was the honest opinion of the defendants about the need for action. The court rejected a prosecution argument that the threatened damage to property must be unlawful and that it could not be a lawful excuse that one had intended to prevent damage which would be the inevitable consequences of warfare.

    50.  The appeal from the Magistrates' Courts was heard by the Divisional Court in February 2005: see Ayliffe v Director of Public Prosecutions [2006] QB 227. The court followed the decision of the Court of Appeal in rejecting the arguments that aggression was a "crime" for the purposes of the 1967 Act. It held that it was likewise not an "offence" for the purposes of section 68(2) of the 1994 Act. The Divisional Court also dealt with the question of whether there was any ground for an argument that the defendants were acting to prevent war crimes, that is to say, crimes like wilful killing or taking hostages, committed in the course of what might otherwise be a lawful war. These had been made offences in English domestic law by section 51 of and Schedule 8 to the International Criminal Court Act 2001. The court said that no issue had been raised at the trial as to whether such crimes were likely to be committed and in any case there could be no connection between the actions at Marchwood and Fairford and possible war crimes in Iraq. Jack J put the reasoning in a single sentence: "The reality is that these were protests and…not attempts to prevent crimes."

    51.  The Court of Appeal in R v Jones (Margaret) certified two questions of general public importance:

"(1)  Is the crime against peace and/or the 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?

(2)  Is the defence of lawful excuse under section 5 of the Criminal Damage Act 1971 available to a defendant who acts to protect the property of another abroad from damage that will be caused by the executive's lawful exercise of prerogative power to wage war?"

    52.  The second question was presumably included at the request of the prosecution. But only the defendants sought the leave of the House to appeal, which was granted on 1 November 2004.

    53.  In Ayliffe v Director of Public Prosecutions the Divisional Court certified two questions of general public importance:

"(1)  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?

(2)  Is a 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?"

    The House gave the defendants leave to appeal on 28 July 2005.

    54.  I think it is clear that "crime" in section 3 means a crime in domestic law. The Act was passed to give effect to the Seventh Report of the Criminal Law Revision Committee, Felonies and Misdemeanours, which had been published in May 1965. The Committee recommended the abolition of the ancient distinction between felonies and misdemeanours and dealt with certain questions which would need to be clarified once the distinction had gone. One of these arose out of the existence of some old authority ("very obscure") which suggested that extreme force could be used to arrest a person or prevent a crime only when the crime was a felony. The Committee (paragraphs 20-23) recommended against any attempt to clarify the degree of force which could be used or the circumstances in which it could be justified. But they suggested a clause to make it clear that it should make no difference whether the offence had been a felony or a misdemeanour. That clause became section 3.

    55.  This background suggests that "crime" in section 3 means something which had previously been either a felony or a misdemeanour: a form of classification peculiar to the common law and inapplicable to foreign or international law. And, as my noble and learned friend Lord Rodger of Earlsferry pointed out in the course of argument, that is confirmed by the long title of the Act:

"An Act to amend the law of England and Wales by abolishing the division of crimes into felonies and misdemeanours and to amend and simplify the law in respect of matters arising from or related to that division or the abolition of it…"

    56.  "Crimes" in the long title are self-evidently domestic crimes and in my opinion "crime" in section 3 must have the same meaning.

    57.  The main thrust of the appellants' argument is that aggression is indeed a crime in English domestic law. They point out that in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553-554 Lord Denning MR discussed the two rival schools of thought on the relationship between international law and domestic law: the one saying that the rules of international law as they exist from time to time are "incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament" and the other saying that they did not become part of English law unless adopted by "the decisions of the judges, or by Act of Parliament, or long established custom". Lord Denning preferred the former view. More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1081-1082, this House refused to recognise the effect of a domestic law of Iraq on the title to property situated within Iraq on the ground that the property had been brought to Iraq after being plundered in the course of the invasion of Kuwait which was contrary to international law and condemned as aggression by the Security Council.

    58.  Lest it be said that these cases are concerned only with the civil law, the appellants draw attention to cases in which crimes under international law have been treated as ipso facto forming part of domestic law. Blackstone (Commentaries on the Laws of England, Book IV, Chap 5) records that violation of safe-conducts and the rights of ambassadors, as well as piracy, were treated as offences in English law because they were offences against the law of nations. And in In re Piracy Jure Gentium [1934] AC 586 the Privy Council looked to international law as a "living and expanding code" (p 592) for the definition of the crime of piracy triable in a British court.

    59.  I say nothing about the reception into English law of rules of international law which may affect rights and duties in civil law. But there are two reasons why I think that aggression has not become a domestic crime. One concerns new international law crimes in general and the other reason is peculiar to the crime of aggression. Before explaining them, I should say that I do not rely upon the reason given by the Court of Appeal, namely that the elements of the offence are too uncertain. It is true that there is at present no consensus about the circumstances in which the International Criminal Court should exercise its jurisdiction to try the crime of aggression and in particular whether the imprimatur of the Security Council should have to appear on the indictment. But I think that upon analysis it will be found that these disputes are not about the definition of the crime but about the circumstances in which the International Criminal Court (as opposed to some domestic or ad hoc international tribunal, such as the International Military Tribunal at Nuremberg) should try someone for committing it. Of course the definition of a crime so recent and so rarely punished will have uncertainties. But that is true of other crimes as well. If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.

    60.  I come then to the two reasons why I think that aggression is not a crime in English domestic law. The first is the democratic principle that it is nowadays for Parliament and Parliament alone to decide whether conduct not previously regarded as criminal should be made an offence. In the eighteenth century judges were less inhibited about creating new offences. Perhaps the last assertion of that power was by Viscount Simonds in Shaw v Director of Public Prosecutions [1962] AC 220, 268:

"When Lord Mansfield…said that the Court of King's Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society. Let me take a single instance…Let it be supposed that at some future, perhaps early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait until Parliament finds time to deal with such conduct? I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still powerful and that it is for Her Majesty's judges to play the part which Lord Mansfield pointed out to them."

    61.  But this opinion has since been repudiated. In Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435 all members of the House were agreed that, as Lord Reid said (at pp 457-458), the courts do not

"have some general or residual power either to create new offences or so to widen existing offences as to make punishable conduct of a type hitherto not subject to punishment."

    62.  The same reasoning applies to the incorporation into domestic law of new crimes in international law. The law concerning safe conducts, ambassadors and piracy is very old. But new domestic offences should in my opinion be debated in Parliament, defined in a statute and come into force on a prescribed date. They should not creep into existence as a result of an international consensus to which only the executive of this country is a party. In Sosa v Alvarez-Machain (2004) 159 L Ed 2d 718, 765, Scalia J recently said:

"American law - the law made by the people's democratically elected representatives - does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here."

At least so far as the criminal law is concerned, I think that the same is true of English law.

    63.  My second reason for rejecting aggression as a domestic crime is that, in the absence of statutory authority, the prosecution of that particular crime in a domestic court would be inconsistent with a fundamental principle of our constitution. Aggression is a crime in which the principal is always the state itself. The liability of individuals is in a sense secondary. Thus the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind (see ILC Yearbook 1996, Vol II, Part Two, p 42) defined individual liability in article 16 by reference to the action of the state:

"An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression."

    64.  The commentary explains:

"Individual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression… Thus, the violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression. The words 'aggression committed by a State' clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression."