(back to preceding text)

    65.  How, consistently with our constitution, is liability for such a crime to be determined in a domestic court? First, there is the theoretical difficulty of the courts, as the judicial branch of government, holding not merely that some officer of the state has acted unlawfully (as in, for example, M v Home Office [1994] 1 AC 377) but, as a sine qua non condition, that the state itself, of which the courts form part, has acted unlawfully. Secondly, there is the practical difficulty that the making of war and peace and the disposition of the armed forces has always been regarded as a discretionary power of the Crown into the exercise of which the courts will not enquire. I say that it is a practical difficulty because, as Lord Devlin pointed out in Chandler v Director of Public Prosecutions [1964] AC 763, 806-812, the reason why the courts cannot enquire is not the technicality that the powers form part of the royal prerogative. Lord Devlin's view that the prerogative origin of the powers did not in itself exclude judicial control was affirmed by the House in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. It is because of the discretionary nature of the power itself. As Lord Devlin said (at pp.809-810):

"When Lord Parker of Waddington in The Zamora [1916] 2 AC 77, 107 said that 'Those who are responsible for the national security must be the sole judges of what the national security requires,' he was not, I think, laying down any special constitutional doctrine about the powers of the Crown in relation to national security. He was simply stating the reason why the court should declare those powers to be discretionary."

    66.  It is of course open to the court to say that the act in question falls wholly outside the ambit of the discretionary power. But that is not the case here. The decision to go to war, whether one thinks it was right or wrong, fell squarely within the discretionary powers of the Crown to defend the realm and conduct its foreign affairs.

    67.  To say that these matters are not justiciable may be simply another way of putting the same point. But I would not accept the implication, inherent in the way the certified questions are formulated, that one can first decide whether aggression is a crime in English domestic law and then go on to consider whether the issues which it raises are justiciable. Mr Rabinder Singh QC, who appeared for the defendants in Ayliffe v Director of Public Prosecutions submitted that it would be contrary to the right to a fair trial under article 6 of the Convention for a defendant to be told that he could not rely on a defence otherwise open to him because it raised questions which were not justiciable. There seemed to me to be much force in this submission. But, as Mr Singh readily acknowledged, article 6 does not require that, as a matter of substantive criminal law, any particular defence should be available to the defendant: compare Matthews v Ministry of Defence [2003] 1 AC 1163. The discretionary nature or non-justiciability of the power to make war is in my opinion simply one of the reasons why aggression is not a crime in domestic law. It follows that an intention to prevent aggression cannot be a defence under section 3 of the 1967 Act.

    68.  It follows that the first part of the certified question in R v Jones (Margaret) can be answered no and that is sufficient to enable the appeals by the defendants to be dismissed. As the prosecution has not appealed, there is no need to answer the second certified question and, since the appeal is interlocutory and the case must go back to the Bristol Crown Court for trial, it is unnecessary to say anything more about it.

    69.  The first parts of the certified questions in Ayliffe v Director of Public Prosecutions can likewise be answered no and the appeals dismissed. But Mr David Perry, who appeared for the prosecution in the latter case, invited your Lordships, in both his printed case and oral submissions, to dismiss the appeals on broader grounds. These raised issues of very considerable public importance concerning the scope of justification for acts of civil disobedience. Mr Keir Starmer QC, who appeared for the appellants in R v Jones (Margaret), said that the House should confine itself to the certified questions and not say anything about the grounds upon which Mr Perry relied. But the jurisdiction of the House in dealing with the appeals is not limited to answering the certified questions: see Attorney-General for Northern Ireland v Gallagher [1963] AC 349 and your Lordships may dispose of the proceedings in Ayliffe v Director of Public Prosecutions on any grounds which appear to be appropriate. Those proceedings will now be finally concluded. I do not think that your Lordships should refrain from expressing your opinions on matters fairly raised by the respondents simply because they may be thought to have some relevance to the conduct of the trial in R v Jones (Margaret) when it returns to the Bristol Crown Court. That will be a matter for the judge at the trial.

    70.  Put shortly, Mr Perry's submission was that even if aggression was a crime in domestic law and the defendants honestly believed that the United Kingdom was about to commit it, section 3 of the 1967 Act would not justify the action which they took. The section says that a person may use "such force as is reasonable" and it was not reasonable in all the circumstances for the defendants to have taken it into their own hands to use any force at all.

    71.  My Lords, I pass over the question of whether damaging property counts as the use of force within the meaning of section 3 of the 1967 Act. There is much to be said for the view that offences against property have their own provisions for justification, such as "reasonable excuse" as defined in section 5 of the 1971 Act and that "force" in section 3 means force against persons committing crimes or escaping arrest. But I am willing to assume for the sake of argument that chaining oneself to railings or putting sugar into the petrol tanks of lorries involves the use of force for the purposes of section 3 of the 1967 Act.

    72.  In R v Baker and Wilkins [1997] Crim LR 497 the Court of Appeal decided that in considering whether a defendant was entitled to rely upon section 3, it must be assumed that the events which the defendant apprehended were actually going to happen. Provided that his belief was honest, it did not matter that it was unreasonable. If those events would in law constitute a crime, he was entitled to use such force as was reasonable to prevent it.

    73.  My Lords, I have no difficulty with these propositions. I am willing to assume that, in judging whether the defendant acted reasonably, it must be assumed that the facts were as he honestly believed them to be. But the question remains as to whether in such circumstances his use of force would be reasonable. And that is an objective question. The position may be different under section 5 of the 1971 Act but section 3 of the 1967 Act does not excuse a defendant if he uses such force as he himself thinks to be reasonable. It must actually have been reasonable.

    74.  The crucial question, in my opinion, is whether one judges the reasonableness of the defendant's actions as if he was the sheriff in a Western, the only law man in town, or whether it should be judged in its actual social setting, in a democratic society with its own appointed agents for the enforcement of the law. I take, by way of example only, the statement by Margaret Jones and Paul Milling appended to their printed case, which states their beliefs when they entered RAF Fairford:

"By disrupting the loading of bombs onto aeroplanes and by interfering with the ability of the base to refuel the aircraft they were acting lawfully, reasonably and proportionately in order to (i) prevent armed aircraft from operating from RAF Fairford and (ii) in order to prevent domestic and international criminal offences from being committed.

That the action they took was reasonable to protect persons and property in Iraq from injury and damage caused by criminal acts. That their action would at least in part prevent the commission of the crime of aggression. Their action would at least in part prevent invasion by armed forces of the aggressor or would at least in part prevent the attack by the airpower of the aggressor."

    75.  That is a fair picture of what an observer from the United Kingdom would have thought of a somewhat ineffectual attempt by a Second World War résistante to sabotage a German airfield in occupied France. It assumes the defendant to be a lonely individual resisting the acts of a hostile and alien state to which she owes no loyalty. But the state in this case was the defendant's own state, the state which protected and sustained her and to which she owed allegiance. And the legal system which had to judge the reasonableness of her actions was that of the United Kingdom itself.

    76.  It is a fundamental characteristic of the state as a social structure that, in the classic formulation of Max Weber (Politics as a Vocation (Politik als Beruf), 1918), it

"claims the monopoly of the legitimate use of physical force within a given territory…[T]he right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it."

    77.  That formulation does not of course answer the questions which arise in these appeals, because the appellants say that the state, by its legislation, did indeed permit them to use physical force in the circumstances which existed, or which they honestly thought to exist. But when Parliament speaks of a person being entitled to use such force as is reasonable in the circumstances, the court must, in judging what is reasonable, take into account the reason why the state claims the monopoly of the legitimate use of physical force. A tight control of the use of force is necessary to prevent society from sliding into anarchy, what Hobbes (Leviathan, Chapter 13) called the state of nature in which

"men live without other security, than what their own strength, and their own invention shall furnish them withal. In such condition, there is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and what is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short."

    78.  In principle, therefore, the state entrusts the power to use force only to the armed forces, the police and other similarly trained and disciplined law enforcement officers. Ordinary citizens who apprehend breaches of the law, whether affecting themselves, third parties or the community as a whole, are normally expected to call in the police and not to take the law into their own hands. In Southwark London Borough Council v Williams [1971] Ch 734, 745 Edmund Davies LJ said:

"the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances."

    79.  There are exceptions when the threat of serious unlawful injury is imminent and it is not practical to call for help. The most obvious example is the right of self-defence. As Hobbes said (Leviathan, Chapter 27):

"No man is supposed at the making of a Common-wealth, to have abandoned the defence of his life, or limbes, where the Law cannot arrive time enough for his assistance."

But, he went on to say:

"To kill a man, because from his actions, or his threatnings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Soveraign Power) is a Crime."

    80.  In the same spirit as Hobbes, Lord Upjohn said in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, 164 - 165:

"No doubt in earlier times the individual had some…rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour's property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour's house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade."

    81.  What is true of the use of self-help to protect one's own interests is a fortiori true of the use of self-help to protect the interests of third parties or the community at large. In a moment of emergency, when individual action is necessary to prevent some imminent crime or to apprehend an escaping criminal, it may be legitimate, praiseworthy even, for the citizen to use force on his own initiative. But when law enforcement officers, if called upon, would be in a position to do whatever is necessary, the citizen must leave the use of force to them.

    82.  What if the sovereign power, when called, will not come? Sometimes this is for operational reasons, as when the police lack the resources to provide protection (see, for example, R v Chief Constable of Sussex, Ex p International Trader's Ferry Ltd [1999] 2 AC 418). A citizen whose person or property is under threat would in such a case be entitled to take reasonable steps to protect himself. So in R v Chief Constable of Devon and Cornwall, Ex p Central Electricity Generating Board [1982] QB 458, where the police refused to intervene to prevent protesters from obstructing a survey of land with a view to building a nuclear power station, the Court of Appeal said that the Board was legally entitled to use reasonable force to repel the protesters. But the court did its best to discourage them from exercising this right. Lord Denning MR suggested that the Board should be content with erecting a barbed wire fence.

    83.  The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act (compare R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118) then he must use democratic methods to persuade the government or legislature to intervene.

    84.  Often the reason why the sovereign power will not intervene is because it takes the view that the threatened action is not a crime. In such a case too, the citizen is not entitled to take the law into his own hands. The rule of law requires that disputes over whether action is lawful should be resolved by the courts. If the citizen is dissatisfied with the law as laid down by the courts, he must campaign for Parliament to change it. So in Monsanto v Tilly [2000] Env LR 313 a landowner claimed an injunction against protesters who threatened to trespass upon his land and dig up genetically modified crops. They claimed to be acting in the public interest and to protect third parties from damage which the crops might cause. The Court of Appeal said that this was no defence. Mummery LJ said (at p 338):

"Trespass by the individual, in the absence of very exceptional circumstances, cannot be justified as necessary or reasonable, if there exists a public authority responsible for the protection of the relevant interests of the public. In this case the Department of the Environment has that responsibility. In such cases the right of the individual to trespass out of necessity, whether as defender of his own or a third party's interest or as champion of the public interest, without attempting to enlist the assistance of the public authority, is obsolete."

    85.  It was clear that the Department, if called upon, would have done nothing to stop the growing of the genetically modified crops. It had granted Monsanto a licence under the relevant legislation for the specific purpose of enabling them to be grown. But, as Stuart-Smith LJ pointed out (at p 329), the protesters' remedy, if any, was to challenge the legality of the licence by judicial review. Or, if that failed, they could seek to have the law changed. But that must be effected by lawful means. Whatever the honest apprehension of danger to the community, it is not reasonable to resort to force.

    86.  My Lords, to legitimate the use of force in such cases would be to set a most dangerous precedent. As Lord Prosser said in Lord Advocate's Reference No 1 of 2000 2001 JC 143, 160G-H:

"What one is apparently talking about are people who have come to the view that their own opinions should prevail over those of others…They might of course be persons of otherwise blameless character and of indubitable intelligence. But they might not. It is not only the good or the bright or the balanced who for one reason or another may feel unable to accept the ordinary role of a citizen in a democracy."

    87.  A time of war is the extreme example of the dangers. Of course citizens are entitled, indeed required, to refuse to participate in war crimes. But if they are allowed to use force against military installations simply to give effect to their own honestly held view of the legality of what the armed forces of the Crown are doing, the Statute of Treason would become a dead letter.

    88.  In my opinion, therefore, the District Judges would have been right to convict even if aggression had been a crime in domestic law. The apprehension, however honest, that such a crime was about to be committed could not have made it reasonable for the defendants to use force of any kind to obstruct military activities at Marchwood or Fairford.

    89.  My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.

    90.  These appeals and similar cases concerned with controversial activities such as animal experiments, fox hunting, genetically modified crops, nuclear weapons and the like, suggest the emergence of a new phenomenon, namely litigation as the continuation of protest by other means. (See, for examples, R v Hill (1988) 89 Cr App R 74 (nuclear weapons) Blake v Director of Public Prosecutions [1993] Crim LR 586 (Gulf War) Morrow, Geach and Thomas v Director of Public Prosecutions [1994] Crim LR 58 (anti-abortion) Hibberd v Director of Public Prosecutions (27 November 1996) Divisional Court, unreported (Newbury by-pass) Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499 (Trident missiles) Nelder v Crown Prosecution Service (3 June 1998) Divisional Court, unreported (fox hunting) Lord Advocate's Reference No 1 of 2000 2001 JC 143 (Trident missiles) Director of Public Prosecutions v Tilly [2002] Crim LR 128 (genetically modified crops) Monsanto v Tilly [2000] Env LR 313 (genetically modified crops).) The protesters claim that their honestly held opinion of the legality or dangerous character of the activities in question justifies trespass, causing damage to property or the use of force. By this means they invite the court to adjudicate upon the merits of their opinions and provide themselves with a platform from which to address the media on the subject. They seek to cause expense and, if possible, embarrassment to the prosecution by exorbitant demands for disclosure, such as happened in this case.

    91.  In Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499, where a protester sought to justify causing damage to a fence at Aldermaston on the ground that she was trying to halt the production of nuclear warheads, Buxton LJ said:

"There was no immediate and instant need to act as Mrs Hutchinson acted, either [at] the time when she acted or at all: taking into account that there are other means available to her of pursuing the end sought, by drawing attention to the unlawfulness of the activities and if needs be taking legal action in respect of them. In those circumstances, self-help, particularly criminal self-help of the sort indulged in by Mrs Hutchinson, cannot be reasonable."

    92.  I respectfully agree. The judge then went on to deal with Mrs Hutchinson's real motive, which ("on express instructions") her counsel had frankly avowed. It was to "bring the issue of the lawfulness of the government's policy before a court, preferably a Crown Court." Buxton LJ said:

"In terms of the reasonableness of Mrs Hutchinson's acts, this assertion on her part is further fatal to her cause. I simply do not see how it can be reasonable to commit a crime in order to be able to pursue in the subsequent prosecution, arguments about the lawfulness or otherwise of the activities of the victim of that crime."

    93.  My Lords, I do not think that it would be inconsistent with our traditional respect for conscientious civil disobedience for your Lordships to say that there will seldom if ever be any arguable legal basis upon which these forensic tactics can be deployed.

    94.  The practical implications of what I have been saying for the conduct of the trials of direct action protesters are clear. If there is an issue as to whether the defendants were justified in doing acts which would otherwise be criminal, the burden is upon the prosecution to negative that defence. But the issue must first be raised by facts proved or admitted, either by the prosecution or the defence, on which a jury could find that the acts were justified. In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required.

    95.  I would dismiss these appeals.

LORD RODGER OF EARLSFERRY

My Lords,

    96.  I have had the privilege of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hoffmann, in draft. I agree with them and, for the reasons which they give, I too would dismiss the appeals and answer the certified questions in the manner proposed. There is nothing which I can usefully add.

LORD CARSWELL

My Lords,

    97.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann. I entirely agree with their reasons and conclusions and cannot usefully add to them. I would dismiss the appeals and answer the certified questions in the manner proposed.

My Lords,

    98.  I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hoffmann, and I agree with their conclusions.

    99.  I agree in particular that there is under public international law a crime of aggression which is, as history confirms, sufficiently certain to be capable of being prosecuted in international tribunals. But neither the concept of "crime" in section 3 of the Criminal Law Act 1967 nor the concept of "offence" in section 68(2) of the Criminal Justice and Public Order Act 1994 can in my view embrace conduct which is no more than a crime under public international law. So the issue is whether the public international law crime of aggression has as such automatically become, or should now be recognised as, a crime and an offence under domestic law.

    100.  It is unnecessary to consider the recognition or reception of international law in the context of civil law. In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 the courts refused in civil proceedings to recognise an expropriatory decree made in the context of armed aggression by Iraq designed to extinguish Kuwait's existence as a separate state.

    101.  As regards the criminal law, my noble and learned friend, Lord Bingham of Cornhill, has demonstrated in paragraphs 20-22 that crimes under public international law have in the past been received and recognised at common law as domestic crimes. This was the case with piracy and violation of safe conducts and diplomatic immunity and, very arguably, with war crimes.

    102.  It does not follow that all public international law crimes must or should be received and recognised as domestic law crimes. The expansive former view that the courts had a general residual power to recognise or in effect create new crimes, when the public interest in their view so required, no longer survives: Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435. The creation and regulation of crimes is in a modern Parliamentary democracy a matter par excellence for Parliament to debate and legislate. Even crimes under public international law can no longer be, if they ever were, the subject of any automatic reception or recognition in domestic law by the courts.