Ayliffe & Ors v Department of Public Prosecutions [2005] EWHC 684 (Admin)

Case No CO/2004/3207,3810 and 1365[2005] EWHC 684 (Admin)IN THE HIGH COURT OF JUSTICE(ADMINISTRATIVE COURT) on appeal fromMagistrates Courts at Southampton, CirencesterAnd NorthamptonVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 21 st April 2005
Before
LORD JUSTICE WALLERMR JUSTICE JACK
Between
(1)Benjamin Ayliffe,Appellants(2)Valerie Swain and (3)Lindis PercyAppellantDepartment of Public ProsecutionsRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Maurice Mendelson QC and James Hines and Charlotte Kilroy for Appellant (1)(instructed by Bindman & Partners); Charlotte Kilroy for Appellant (2) (instructed by Bindman & Partners and Nicholas Blake QC and Raza Husain (instructed by Birnberg Peirce & Partners for Appellant (3)Mr Hugo Keith for Respondent in (1)(instructed by CPS Southampton) andMr Peter Blair for Respondent in (2) and (3)(instructed by CPS Gloucester and CPS Northampton)
Judgment

Introduction and Overview

[1]This judgment is concerned with three appeals by way of case stated by District Judges in the Magistrates Court. Each appeal is concerned with actions taken at military bases by way of protest against the Iraq war, which commenced on 20th March 2003. They each raise questions arising from the prosecution of the appellants for offences of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994, or criminal damage contrary to section 1 of the Criminal Damage Act 1971. Subsections (1) and (2) of Section 68 as then in force provide:- “(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) . . .(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 on the activity on the land on that occasion without committing an offence or trespassing on the land.”[2]Section 1(1) of the Criminal Damage Act 1971 provides:- “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.”[3]Section 3 of the Criminal Law Act 1967 provides as follows:- “(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.”[4]The first appeal (the Ayliffe appeal) is concerned with events on 4th February 2003 at the Sea Mounting Centre, Marchwood, Southampton Water. By his decision dated 16th March 2004 District Judge Woollard, sitting at the Southampton Magistrates Court found fourteen defendants guilty of aggravated trespass on the basis that they had obstructed a lawful activity, namely the port operations. He also found four of the defendants guilty of criminal damage. All of the defendants appeal.[5]The second appeal (the Swain appeal) is concerned with events which took place on 9th March 2003 at RAF Fairford in Gloucestershire. By his decision dated 25th February 2004, District Judge Clark, sitting at Cirencester Magistrates Court, found, amongst nine others, Valerie Swain guilty of aggravated trespass, on the basis that she had disrupted or obstructed a lawful activity, namely the maintenance of security of the base. He also found her guilty of criminal damage, holding, inter alia, that she was not acting so as to prevent a crime. She alone appeals.[6]The third appeal (the Percy appeal) is concerned with events on 26th March 2003 at RAF Croughton in Northampton. On 12th December 2003 District Judge Holland convicted Lindis Percy of aggravated trespass, on the basis that she had disrupted a lawful activity, namely security activities on the base. She appeals.[7]The appeals have the following features in common. First, the appellants did not challenge any of the facts alleged against them. Their challenges in relation to section 68 and aggravated trespass are concerned with how the District Judges dealt with issues, in particular disclosure, relating to the lawfulness of the activities at the different bases. So far as criminal damage is concerned, the key issue is as to whether the appellants were using reasonable force to prevent a crime. Second, the defence statements in the Ayliffe and Swain cases asserted that the defence was to be found in a skeleton argument prepared by lawyers, and in the Percy case, although not referred to in the defence statement, the defence relied on was contained in the skeleton argument prepared by lawyers. The skeletons are in similar form in all three cases. The skeleton arguments each contain the following submissions: 1. Submissions relating to the European Convention on Human Rights, not pursued before us (issue 1). We need say no more about that issue. 2. A submission that the war against Iraq was an illegal war, and the activities at the different bases were unlawful being carried out in pursuit of “an unlawful war of aggression” (issue 2). 3. A submission that there was a “strong possibility” that the activities being carried on at the bases were unlawful because they constituted war crimes and constituted offences under section 51 and/or 52 (the latter being the ancillary offences section) of the International Criminal Court Act 2001 (issue 3). 4. In two of the cases where defendants had been charged with criminal damage contrary to section 1 of the Criminal Damage Act, the skeleton contained submissions on necessity and duress (issue 4) and a submission that the defendants were using reasonable force to prevent a crime relying on section 3 of the Criminal Damage Act 1971 (issue 5).[8]A further common feature was that in all cases issues arose as to the prosecution’s obligation as to disclosure. The defendants or those advising them sought disclosure of documents as to what was occurring on the particular bases, and sought in addition documents from amongst others the highest echelons of government, including the opinion of the Attorney General dated on or about 17th March 2003. The disclosure aspect led the District Judges to make preliminary rulings in all cases. All ruled that the issue whether the war in Iraq was illegal was not justiciable before them. All further ruled that the question whether war crimes might be being committed was not justiciable by them.[9]At the trial of the various appellants the District Judges relied on and in effect repeated their preliminary rulings as appears from the statements of case.[10]The appellants seek to challenge the rulings, but so far as the non-justiciability of whether the war in Iraq was illegal (issue 2) and thus on the question whether under section 68 the appellants could argue on that basis that what they were seeking to disrupt was an unlawful activity, they are faced with the Court of Appeal decision in Jones and Milling, Olditch and Prichard and Richards v Gloucestershire CPS [2004] EWCA Crim 1981, [2004] 3 WLR 1362 (Jones). The Court of Appeal was there concerned with section 3 of the Criminal Law Act 1967 and section 5(2)(b) of the Criminal Damage Act 1971. But it is accepted before us that the same reasoning applies with equal force to offences of aggravated trespass contrary to section 68 of the CJPOA. The Court of Appeal in Jones held at paragraphs 42 and 43:- “The question that we have to determine is whether or not the relevant rules [of international law] have effect so as to create a crime of aggression in English law . . . It is difficult to see in these circumstances how it can be said that there is . . . a firmly established rule of international law, which establishes a crime of aggression which can be translated into domestic law as a crime in domestic law, where there is no consensus as to an essential element of the crime. It follows that, whatever other effects the international rules as to the crime of aggression may have, they cannot constitute a crime for purposes of section 3 of the Criminal Law Act, and the judge was right to rule accordingly.”[11]The appellants do not argue that Jones can be distinguished. They submit that the decision of the Court of Appeal was wrong in Jones, but recognise that it is not open to them to do so in this court. Leave to appeal has been granted to the appellants in Jones by the House of Lords on the following question, which was certified by the Court of Appeal as being 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?”[12]The certified question in Jones is confined to section 3 of the Criminal Law Act. It is accepted by the appellants that the ratio in Jones must apply to offences under section 68 of the Criminal Justice and Public Order Act. If the Court of Appeal in Jones were held to have been wrong, it would follow that the District Judges in the present appeals were likewise wrong to have ruled that crimes against peace (or crimes of aggression) were not justiciable, and it would follow that they should have investigated whether such crimes might have provided the appellants with defences.[13]It is in the above circumstances that the appellants seek a ruling from this court on the question of whether crimes against peace or crimes of aggression are within section 68(2), so that leave to appeal may be sought to the House of Lords if appropriate. Clearly in the light of Jones we must rule that conduct which may amount to crimes against peace or crimes of aggression is not unlawful activity within section 68. Issue 2 was not further argued before us.[14]The position so far as war crimes (issue 3) and reasonable force to prevent crime (issue 5) is, however, different. In Jones, in his judgment at first instance, Grigson J on the preparatory hearing which gave rise to the appeal held that:- “Under the International Criminal Court Act 2001 certain war crimes committed by individuals are triable in the domestic courts. If a defendant believes that in the context of the use of force against Iraq an identifiable individual or individuals or group were going to commit specific offences (conduct war crimes) he would not be acting unlawfully if he used reasonable force to prevent such an offence or offences being committed.”[15]As the Court of Appeal recorded in its judgment at paragraph 8 the prosecution did not appeal in Jones against the judge’s ruling that the jury was entitled to consider a defence based on the prevention of alleged offences under the International Criminal Court Act. It was submitted to us on behalf of the appellants that this ruling, if correct in relation to section 3 of the Criminal Law Act, will also apply to the lawfulness or otherwise of an activity under section 68. This was not contested before us, and both Mr Keith and Mr Blair on behalf of the respondents accepted that the question whether a war crime arising under the International Criminal Court Act had been committed would be justiciable. It follows they also must accept that the District Judges in the instant cases were wrong to rule otherwise. So the questions posed to the court by the respective District Judges in relation to this aspect must be answered to the effect that the District Judges were wrong in their rulings.[16]That does not however dispose of the appeals on issue 3 or issue 5. For even if the issue were justiciable, if no issue was raised before the District Judges fit to be considered by them that war crimes were being committed, then disclosure in relation to it should not in any event have been ordered and the convictions were in any event safe. It would serve no useful purpose to remit any of these matters to the District Judges for rehearing if no issue was raised.[17]Mr Keith and Mr Blair argued on issue 3 and issue 5 either that the District Judges had in effect ruled in addition to non-justiciability that nothing in the defence statements or in the skeleton arguments raised in an issue fit to be considered by them that war crimes were being committed, or, if the District Judges had not so ruled, that this court should take the view that no issue had been sufficiently raised that war crimes had been committed.[18]Even if the District Judges’ rulings could not be construed as ruling that no issue had been raised that war crimes were being committed, we took the view (and did not understand there to be any objection) that we should look at the skeleton arguments and the defence statements and rule ourselves on that point. Although the appellants were, it seems, very properly given a free rein as to anything they wished to say in evidence, there was no suggestion that any evidence had been given by the appellants at their trial, which went beyond the assertions made in the skeleton arguments. We thus have before us the material on which it is possible to take a view as to whether any issue was sufficiently raised.[19]Having examined the statements of case and the reasoning of the District Judges, although it may be arguable in the Ayliffe and Swain appeals that the District Judges ruled that no issue was raised, in my view the proper course for this court to take on issue 3 and issue 5 is to consider whether, on the appellants’ defence statements and skeleton arguments, issues were sufficiently raised which would have entitled the appellants to disclosure that they did not have and/or which the appellants were entitled to have considered as part of their defences but which were not considered.[20]In those cases in which the issues of duress and necessity were raised in the skeleton arguments (Ayliffe and Swain), the appellants accept that the findings of fact of the district judges preclude any argument. No more thus needs to be said about issue 4.[21]So, in all three appeals this court is concerned with issue 3 – the war crimes issue, and in the Ayliffe and Swain appeals with issue 5, the application of section 3 of the Criminal Law Act. The key question is whether in either instance issues had been raised which should have led to an order for greater disclosure or to consideration of points as part of the defence which were not considered.[22]In the appeal of Lindis Percy there is a further more discrete point as to whether the charge alleged facts which could constitute an offence of aggravated trespass.[23]In relation to issues 3 and 5 the skeleton arguments relied on before the magistrates were in each case in identical form save for changing the name of the base and some minor alterations to take account of the slightly different facts in each case. It is convenient, however, to consider each appeal separately but the similarity of argument will enable points in the second and third appeals to be considered more shortly. The Ayliffe Appeal The events of 4th February 2003

The Ayliffe Appeal

[24]The prosecution arises out of events which took place at the Sea Mount Centre, Marchwood, Southampton on 4th February 2003. On that date the Ministry of Defence (MoD) or those acting on its behalf were engaged on loading tanks, weapons and other equipment onto ships in order to transport them to the Middle East for use in Iraq.[25]The appellants arrived at Marchwood on the morning of 4th February. Three of the appellants (Belinda Fletcher, Janice Harron and Rachel Murray) chained themselves to the gates of the port and eleven of them (Benjamin Ayliffe, Natalie Duck, James Footner, Oliver Knowles, Jens Lowe, Robin Oakley, Ashby Smith, Graham Thompson, Helen Wallace, Richard Watson and Laura Yates) attached themselves to tanks, which were in the Marchwood Centre awaiting loading. Oliver Knowles and Richard Watson had cut the fence. Ashby Smith and Graham Thompson each applied paint to a tank.[26]These activities were carried out entirely peacefully. Officers of the MoD police arrived swiftly. Each of the appellants was unwilling to remove themselves from the gate or tank to which they were attached. The officers then removed the appellants from their positions and arrested them. In accordance with Greenpeace’s principles, the appellants proffered only passive resistance to their removal.

The Charges

[27]It is only necessary to give an example of the charges. Ayliffe was charged with having:- “Trespassed on land in the open air, namely the Sea Mounting Centre, Marchwood Military Port, and in relation to a lawful activity, namely port operations, which persons were engaged in on that land, did an act, namely chained and padlocked himself [yourself] to a tank, which [you] he intended to have the effect of obstructing that activity”[28]So far as criminal damage was concerned, Watson and Knowles were charged with:- “Without lawful excuse damaged a section of perimeter fence at Marchwood Military Port to the value of £820.32 belonging to the Ministry of Defence and intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.”

The Appellants’ Defence

[29]The appellants all submitted defence statements pursuant to the Criminal Procedure Investigations Act 1996. Their defence statements simply said this:- “1. This document is served in pursuance to the provisions of section 5 of the Criminal Procedure Investigations Act 1996. 2. My defence is set out in the skeleton argument prepared by my lawyers and already provided to the court and Crown. 3. I seek disclosure of all relevant material from the Crown or its agents.”[30]I have already stated what, in general terms, was covered by the skeleton argument but so far as issue 3 and issue 5 are concerned, it is necessary to set out in a little more detail what was contained in the skeleton. Having set out in the skeleton what the defendants admitted they had done in terms of attaching themselves to gates and tanks the skeleton then went on at paragraph 11 to say:- “The defendants intended the actions outlined above to be acts of peaceful direct action in opposition to the activities being carried out at Marchwood. They considered those activities to be acts preparatory to a war which the United Kingdom was determined to carry out regardless of whether it was expressly authorised by a further United Nations Security Council resolution, and which would kill and main numerous Iraqi people. The defendants’ objections to the war are outlined in greater detail below. The reasons for the protest are mentioned at this stage to emphasise(1) the sincerity of the defendants’ political and ethical convictions;(2) the seriousness of the issue which they sought to highlight and challenge through peaceful protest.”[31]The skeleton then set out the legislative framework. It quoted section 68 of the Criminal Justice and Public Order Act and section 1(1) of the Criminal Damage Act 1971. It also referred to section 5(2), which defined lawful excuse. It referred to section 3 of the Criminal Law Act.[32]The following paragraphs of the skeleton are material to section 68:
“21.The Defendants emphasise that it is for the prosecution to prove each and every element of the offence in section 68. It is for the prosecution to prove that each of the Defendants was trespassing, and that each defendant did an action which was intended to have one of the three effects specified in section 68(1)(a)-(c). 22. The Defendants place particular emphasis on the prosecution’s need to define the “activity” which it is said was being carried out at the port, and to prove the legality of that activity. On the charge sheets, the relevant activity is defined as ‘port operations’. This is a vague and generalised term. It is clear that at the relevant time the port was engaged in loading tanks and weapons onto ships with the purpose of transporting them to the Middle East. The Defendants submit that the prosecution must define precisely what the ‘port operations’ consisted of. The prosecution must then demonstrate for each type of equipment being loaded the legislation, regulations and other relevant orders or authorisations which are said to give legal authority to those activities. It is not sufficient to say that the MoD and its contractors were operating a port. Loading equipment for an imminent war is quite different from the everyday functions of a port. The critical issue for this case is what legal authority existed for the very specialised functions being carried out on 4 February 2003. 23. The need for specificity is inherent in the wording of section 68, which requires the prosecution to demonstrate that the activity was able to be carried out on the land on that occasion without committing an offence or trespassing on the land. It is therefore insufficient to show the general framework of rules which establish the Marchwood Military Port. The prosecution must go further, showing what activities were being carried out on that occasion, and the precise legal basis for those activities. 24. The defendants place particular emphasis on the context of the activities. The loading of the relevant equipment on 4 February 2003 was not, it is submitted, a neutral act. Rather, the defendants submit that it may amount to an offence under the International Criminal Courts Act 2001. This submission is developed in detail below. For present purposes the argument is raised in order to emphasise the defendants’ duty to satisfy the court of the legal basis for those activities. 25. Accordingly the Defendants submit that the prosecution must disclose all documents relevant to each element of the offence, including the nature of the activities and their legality, and in particular must show: . . . . (there are then set out specified documents of which the defendants claimed disclosure.)”
[33]There then followed paragraphs 26 to 54 dealing with the Human Rights issue, issue 1.[34]Paragraphs 55 to 80 contained submissions as to why it was argued that the war itself was “an unlawful war of aggression”, the justiciability of this is covered by Jones.[35]The aspect of war crimes contrary to section 5 of the International Criminal Court Act is covered by paragraphs 81 to 96. The submission in the skeleton is to the following effect. First (paragraph 81), the United States and United Kingdom were implicated in certain acts, which included the bombing of civilians. Second, a recognition by paragraph 82 that the conduct alleged in paragraph 81 had not been found to be a war crime by any court.[36]The skeleton then sets out the circumstances in which the International Criminal Court Act came into force and sets out sections 50, 51 and 52. Section 50(1) provides that a “war crime” means a war crime as defined in Article 8(2) of the [Rome] Statute of the International Criminal Court. By sections 52 and 55 it is an offence to “aid and abet” the commission of an offence under section 51 which states at sub-section (1):- “It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.”[37]The skeleton thereafter, at paragraph 90, sets out a number of war crimes specified by Article 8(2) of the Rome statute. It included for example:- “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects, or widespread, long-term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated.” It also included:- “Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities.” and:- “Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.”[38]The skeleton then refers to various authorities relating to aiding, abetting, counselling and procuring, in particular the dictum of Lord Goddard CJ in Johnson v Youden [1950] 1KB 544, where that judge said:- “Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence, and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence . . ” (at pages 546-547)[39]There then follow paragraphs 95 and 96 which I must quote in full:- “95. The Defendants submit, given the evidence which has come to light about the behaviour of the allied forces in the last Gulf War in 1991, the behaviour of the US forces and the allies in Afghanistan, and the emerging information as to the coalition’s conduct in the present conflict, as set out above, there is a strong possibility that the activities being carried on at Marchwood Military Port were unlawful, in the sense intended by section 68(1) CJPOA, because they constituted offences under section 51 and/or 52 of the International Criminal Court Act 2001. Questions are already being raised about the conduct of the war in Iraq. On 26th March 2003 Kofi Annan, the Secretary General of the United Nations stated that:
“I must say that I am getting increasingly concerned by the humanitarian casualties in this conflict. We have just heard reports that a missile struck a market in Baghdad and I would like to remind all belligerents that they should respect international humanitarian law and take all necessary steps to protect civilians.” (New York 26 March 2003 Secretary General’s press encounter upon arrival at UNHQ)” “96. Without further disclosure and investigation into the events of this war in Iraq and the activities of the Ministry of Defence at Marchwood, the defendants are unable to elaborate further on this point at this juncture, but reserve the right to do so following disclosures. In any event, the burden of proving that the activities with which the Defendants are alleged to have interfered were lawful lies on the prosecution. The Defendants submit that in order to do so the prosecution will be required to show that the activities carried out at Marchwood either could not or did not constitute offences under the ICCA.” “I must say that I am getting increasingly concerned by the humanitarian casualties in this conflict. We have just heard reports that a missile struck a market in Baghdad and I would like to remind all belligerents that they should respect international humanitarian law and take all necessary steps to protect civilians.” (New York 26 March 2003 Secretary General’s press encounter upon arrival at UNHQ)”
[40]In this case there was a preliminary hearing before the District Judge on 22 July 2003 at which extensive argument on justiciability occurred. It suffices to say that the District Judge on that occasion ruled certain aspects non-justiciable. That led to the prosecution disclosing details of the materials being loaded onto the ships at Marchwood on the relevant date. At this stage they also contacted the relevant government departments in order to ascertain whether any relevant material was available which should be disclosed.[41]By letter dated 17th September 2003 the Crown made clear that whatever their attitude to disclosure had been prior to that time, they were not prepared to make further disclosure “as the departments will not hold relevant material that bears on the issue of the lawfulness of the activity being engaged in at Marchwood on that date.”[42]In the light of that letter, on 1 October 2003 the appellants made an application for disclosure pursuant to section 8 of the Criminal Procedure and Investigations Act 1996, in which they applied for full disclosure of relevant material, and by way of a list indicated that certain matters should be disclosed including the advice of the Attorney General to the Cabinet on or about 17 March 2003. That led to an exchange of skeleton arguments and to a ruling by the District Judge on 28 November 2003 that:- “Having considered the arguments on both sides, I am satisfied that I am bound by the decision in The Campaign for Nuclear Disarmament v The Prime Minister and Others. It is not for this court to decide whether the government’s foreign and defence policies are lawful or not. If the Crown are able to show that the land in question was being used for the furtherance of government policy then it is not for this court to question that in the context of these proceedings. There seems to me to be nothing in the defence which is being advanced, and assuming for the sake of argument that I have the power within section 8 to order the Crown to explore a particular avenue of enquiry concerning disclosure they have declined to pursue, I am not prepared to make any such order. So far as the prevention of crime argument is concerned, the defence have failed to show me any crime which it is alleged to have been committed. The only basis for that assertion is that government policy amounted to the commission of an offence under the ICCA 2001. Lawful government foreign and defence policy is not a matter for the courts to second guess, and for that reason I see no prospect of success for that line of defence and accordingly I am not prepared to make any order on the appellants’ application.”[43]On 30 January 2004 the appellants lodged an application for permission to apply for a judicial review of the decisions contained in the District Judge’s ruling on disclosure. That application was refused by Moses J on 24February 2004 on the basis that the application was premature, the matter should proceed to trial with the appellants raising all of their defences, and that if those defences were unsuccessful as a matter of law, as the District Judge’s rulings indicated they would be, then no evidence was relevant and no disclosure was necessary and an appeal should be brought by way of case stated.[44]On the first day of the hearing the appellants made an application under section 8 of the Criminal Procedure and Investigations Act for disclosure of the Attorney General’s advices on the then proposed invasion of Iraq. The District Judge refused that application.[45]The appellants assert in their skeleton before us that:- “In the light of the District Judge’s previous rulings on the question of whether the prosecution were required to prove that the activities at Marchwood did not constitute offences under the ICCA and/or crimes of aggression and on the question of whether the appellants were entitled to rely on the defence contained in section 3 of the CLA, namely that they acted to prevent crimes under the ICCA, and/or crimes of aggression, the appellants raised in their closing submissions, (my emphasis) but did not argue or present evidence on, their arguments and defences based on crimes against peace and crimes under the ICCA. This course was adopted in the light of the observations of Moses J (see above). In his judgment given on the 16th March 2003 the District Judge repeated his rulings at the hearings relating to disclosure. In relation to the question of whether the prosecution were required to prove that the activities at Marchwood were not crimes under the ICCA, he said that “this would leave him with a startling task of having to form an opinion on the legality of military action engaged in by the government to decide whether it is being party to genocide or war crimes.” He continued “It would mean that I would have to ignore the caution with which courts have always approached the question of whether they should be engaged in questioning the foreign or defence policy of the elected government, touched on by Buxton LJ in Hutchinson v Newbury Magistrates Court (2000) (CO/663/00) at paragraph 59, as to whether the court should pass judgment on the reasonableness or propriety of governmental policy.”[46]His conclusion was that all the Crown had to prove therefore under section 68(2) was that the dock workers and others were employed by the Ministry of Defence to load ships with military cargoes and that this was what they were doing.[47]The appellants’ skeleton before us makes certain points on issue 3, which I understood Mr Keith to accept on behalf of the respondent. It makes the point that the District Judge has not grasped the distinction between crimes against peace, the so-called jus ad bellum, and war crimes which are concerned with the conduct of warfare, i.e. the jus in bello. He also did not appreciate that the CND case on which he relied was concerned with the legality of the decision to go to war and thus had no bearing on war crimes for the purposes of English law. By section 51 war crimes, as there defined, are offences under English law and thus, if the activity which the appellants disrupted was the commission of a war crime, or if, by the use of reasonable force, the appellants’ conduct was preventing a war crime, then there would be no offence committed under section 68(2) and no offence committed under section 1(1) of the Criminal Damage Act.[48]By the case stated the District Judge posed the following five questions for the opinion of this court:- 1. Was I correct to rule for the purposes of section 68(2) . . . the word “offence” means an offence contrary to the law of England and Wales and that an act of aggression or crime against peace is not such an offence? 2. Was I correct to rule that in order to prove that the activity obstructed or disputed at the SMC was lawful within the meaning of section 68(2) . . . it was sufficient for the prosecution to prove that the actual activity engaged in by those obstructed or disrupted was lawful (e.g. the loading of ships) and that I was not required to consider the legality of the foreign policy of, or the deployment of armed forces by, the elected government? 3. Was I correct that I was bound by the decision in R (theCampaign for Nuclear Disarmament) v(1) The Prime Minister of the United Kingdom(2) The Secretary of State for Foreign Affairs;(3) Secretary of State for Defence (2002) EWHC 2777 Admin? 4. Was my finding that there was no evidence that raised necessity as a defence reasonable? 5. Was my finding that there was no evidence upon which I could base a finding that a fence or tanks were damaged in order to protect property belonging to another reasonable?[49]Questions 4 and 5 have for reasons already explained not been contested and thus can be answered, “Yes”. Question 1 can be answered “Yes” in the light of Jones. For reasons already explained questions 2 and 3 cannot be answered in such a straightforward fashion, having regard to the concession by the prosecution that, insofar as the District Judge was ruling that the issue in relation to war crimes contrary to section 51 was non-justiciable, he was in error.

More detailed consideration of Section 68

[50]What the District Judge found is that at the time of the trespass the Sea Mounting Centre was being used for the purpose of loading a number of ships with supplies for onward transportation to the Gulf in anticipation of the potential conflict in Iraq. He also held that the appellants’ activities disrupted the work of the port. Putting to one side the appellants’ arguments in relation to crimes of aggression (see the ruling on the impact of Jones above) there is no suggestion that that work was other than lawful apart from an assertion contained in the skeleton arguments that “There is a strong possibility that the activities being carried on at Marchwood Military Port were unlawful”. That assertion was itself based on an assertion that certain activities had been carried out by the United States and the United Kingdom in previous conflicts, which no court had ever ruled as war crimes. The above assertions provide no basis for saying that any activity being engaged in by persons at the Sea Mounting Centre was not an activity in which they might engage without committing an offence – I choose my words to reflect those of section 68(2). It is plain that a prosecutor does not have to rebut every possible illegality: it is enough that he shows that the activity is apparently lawful. It is then for the defendant to raise any issue to the contrary. It was accepted by Mr Mendelson QC on behalf of the appellants that in order to obtain disclosure in the context of the legality of activities and section 68 the appellants had to raise an issue as to whether or not an offence was being committed. That must mean a specific offence, or specific offences, by the persons who were engaged in the activities on the land in question. There was nothing put forward by the appellants to raise such an issue. In fact, paragraph 11 of the appellants’ skeleton argument before the District Judge, which is quoted in paragraph 30 above, indicates the contrary.[51]Two subsidiary arguments were addressed to us as to the proper construction of section 68, with which I should deal. Mr Hugo Keith sought to argue, that because section 68(2) defined activity on land as “lawful” if “he or they may (my emphasis) engage in the activity on the land on that occasion without committing an offence or trespassing on the land”, it followed that, if the activity engaged in at a particular moment were unlawful, provided it might have been engaged in lawfully, the activity would be lawful. Mr Mendelson QC for the appellants in Ayliffe submitted that the construction of “may engage” simply meant that the activity “was permitted”, i.e. was lawful when it was being carried out.[52]In my view Mr Mendelson’s construction is clearly right. Parliament cannot be presumed to have intended to make it an offence for a person to disrupt an activity being carried on unlawfully, simply because, if carried on in another way, the activity could be carried on lawfully.[53]Second, Mr Keith, and with him Mr Blair in the Lindis Percy appeal, also appeared to submit that it would be possible to pick an activity taking place on the land which was lawful, and to charge the defendant with disrupting that activity and so exclude any consideration of other unlawful activities that may be taking place on the land. If the defendant raises an issue that his or her intention was to disrupt an unlawful activity, it will not in my view have assisted the prosecution to limit the description to some lawful aspect of what was occurring on the land. The key is that section 68(1) refers to a lawful activity, in relation to which the person does something which is intended by him to have the effect of, inter alia, disrupting the activity: the person must intend to disrupt the specified activity. Nelder v CPS, of which we have a transcript dated 3rd June 1998, seems to me to support the above. In that case the charge related to disrupting a hunt. The argument of the defendant was that two of the whippers-in were trespassing on Railtrack’s land in relation to which they had no permission. The magistrates had approached the matter on the basis that the intention had been to interrupt the hunt’s lawful activity on areas where they were hunting lawfully. The approach of the magistrate was upheld. In the course of his judgment, Simon Brown LJ, as he then was, said:- “Clearly if the hunt’s central objective had been for example to hunt land over which they had no permission to go, or upon which hunting was banned, then the mere fact that they proposed also to engage in some lawful hunting in the vicinity would not make their activity, as a whole, lawful. That, however, was not this case. Equally, had the protesters confined their protest to the period while a significant part of the hunt was trespassing, then too no offence here could properly be found established. That too however was not the case.”[54]Here it is plain that the object of the appellants was to mount a protest and disrupt the normal activity of the port, which the charges appropriately defined as “port operations”.[55]The position with regard to section 3 of the Criminal Law Act is more plain. As Brooke LJ said in R v Baker and Wilkins (Court of Appeal, unreported, 17th October 1996):- “This defence is available if a person’s honest but mistaken belief (however unreasonable) is that a factual situation exists or is apprehended, which would in law constitute a crime. But it does not extend to a mistaken belief about the criminal law if those facts do not in law amount to a crime.”[56]The force that the appellants in this case used was the cutting of a fence and then the minimal damage to two tanks. In addition to the lack of any basis for asserting that any war crime was being committed by anyone, there is simply no nexus or connection between the cutting of the perimeter fence and the speculated possibility. There is furthermore no nexus or connection between writing on a tank and the speculative possibility that the tank might in some circumstances once in Iraq be used to commit a war crime. The purpose of these actions was to effect a protest, not to prevent a crime.[57]I return to questions 2 and 3 posed by the District Judge and set out in paragraph 48 above. I would answer them in this way. The District Judge was right to rule that the activity of port operations was lawful. He was not required to consider the legality of the operations because: a) Insofar as the appellants sought to raises crimes of peace or crimes of aggression, they were not justiciable : Jones b) Insofar as the appellants sought to raise war crimes contrary to section 51 of the International Criminal Court Act, the general allegations made by them did not raise any issue requiring disclosure by the prosecution, or consideration by the District Judge in connection with the lawfulness of the activity at the port. The District Judge was wrong in holding that the CND case precluded him from considering war crimes contrary to section 51, but for the reasons stated that did not in the circumstances affect the proper outcome of the case.

The Swain Appeal

[58]The Swain case related to activities at RAF Fairford. The appellant, a peace campaigner, accepted that on 9th March 2003 as part of a protest against the war in Iraq she had cut through the perimeter fence of the RAF Fairford airbase, entered the base and disrupted activities there. She was charged initially with having trespassed on land in the open air, namely RAF Fairford Airbase and in relation to a lawful activity, namely an operational RAF airfield which persons were engaged in on that land, that she had done an act, namely trespass, within the perimeter area which she intended to have the effect of intimidating those persons or any of them so as to deter them or any of them in engaging in that activity. She was also charged, on the same date, with causing criminal damage by damaging a perimeter fence without lawful excuse.[59]That aggravated trespass charge was withdrawn and she was charged with trespass at RAF Fairford Airbase and “in relation to a lawful activity, namely the general operation, maintenance and security of the base, you did an act, namely, cut a hole in the perimeter fence which you intended to have the effect of obstructing or disrupting that activity”. Even that charge was amended on the 5th February 2004 to take out the words “the general operation” and to vary the activity to “the maintenance of security of the base.”[60]Her defence statement was slightly fuller than those in the Ayliffe case. She stated by paragraph 1:- “1. The defendant would rely on the following in her defence:-(a) the defendant accepts that she cut the fence and entered the grounds of RAF Fairford;(b) the defendant accepts that she disrupted war preparation activities being carried out at RAF Fairford on the day of her arrest;(c) the defendant does not accept that the activity she disrupted was lawful;(d) the defendant asserts that she acted with lawful excuse;(e) the defendant was acting in accordance with section 3 of the Criminal Law Act 1967 in that she was acting to prevent the imminent commission of a criminal offence;(f) the defendant was acting out of necessity (duress of circumstance);(g) the prosecution is an unjustifiable interference of her Article 10 and 11 rights for freedom of expression and association.” (a) the defendant accepts that she cut the fence and entered the grounds of RAF Fairford; (b) the defendant accepts that she disrupted war preparation activities being carried out at RAF Fairford on the day of her arrest; (c) the defendant does not accept that the activity she disrupted was lawful; (d) the defendant asserts that she acted with lawful excuse; (e) the defendant was acting in accordance with section 3 of the Criminal Law Act 1967 in that she was acting to prevent the imminent commission of a criminal offence; (f) the defendant was acting out of necessity (duress of circumstance); (g) the prosecution is an unjustifiable interference of her Article 10 and 11 rights for freedom of expression and association.”[61]The defence statement then also stated:- “The defendant refers the court and the prosecution to the skeleton argument served by the defence, where these points are given full amplification.”[62]The defence further asked for extensive disclosure of documents[63]The skeleton was in identical form to that which I have quoted above in relation to the Ayliffe appeal, save that RAF Fairford is substituted for the Marchwood Military Port. The District Judge again had to rule on the question of disclosure and by a ruling he made on the 15th January 2004 he ruled that:- “In my view having heard the extensive arguments from counsel I should not allow this case to develop in terms of ordering the disclosure sought because to do so would inevitably trespass into areas that are not permissible. In my judgment the decision whether the conflict was justified or not is one that I cannot and should not undertake and I should therefore decline to order further disclosure of any information which simply bears on that issue on the ground that it is irrelevant to any matter in this case. I have considered first of all the question of whether war crimes were going to be or were being committed. The defence say that this issue is relevant because the question of the commission of war crimes is incorporated into domestic law by the International Criminal Court Act 2001 Schedule 8,. . . which covers genocide, crimes against humanity and war crimes. I have also been referred to a number of press releases which Miss Kilroy says show that “reputable organisations are concerned that the war may be illegal and that war crimes may have been committed” for example the deliberate bombing of a civilian market at Al Nasar. Further the use of cluster bombs as indiscriminate weapons is also illegal it is contended. It seems to me that it would be quite unrealistic to expect this court to allow the sort of enquiry into these matters that it is contended for. These are not clear matters but controversial ones. To take them into account the court would have to at least consider where the truth lies, for example about the market bombing. Was it deliberate, was it a mistake. That is the sort of enquiry that this court in my view is simply not competent to undertake. In any event, even it were established beyond doubt that someone had done it deliberately, the defendants could not have known what would occur when they acted as they did. Furthermore, whilst I accept that the concept of war crimes are part of our domestic law as a result of the International Criminal Court Act it does not follow that if a UK combatant commits one the decision to go to war or its continuance becomes “per se” unlawful. A war crime could be an isolated incident for which the state is not accountable. The justification for interfering with an otherwise lawful activity, that there is a fear that it might be an activity ancillary to a war crime which might be committed in the future is not to my mind a lawful justification at all.”[64]He then continued dealing with the question of justiciability, and as already indicated above he did so in terms which could arguably be said to be ruling on relevance as well as justiciability, but the safe course is to adopt the approach that he was limiting his views at this stage to justiciability.[65]A case was stated and the questions posed for the court were the following:- “1. Was I correct to rule that as a preliminary matter that:(a) the legitimacy or lawfulness of HM government’s decision to go to war and(b) the conduct of the war; were not matters that the court could consider when determining the extent of the Crown’s duty of disclosure to the defence under the Criminal Procedure and Investigations Act 1996 for the reasons given in my ruling dated 14 and 15 January 2004. 2. Having heard the evidence, did I err in law when I rejected the defendant’s defences which were:a. the activity she disrupted was unlawful because the activities carried out at the base were (1) war crimes, (2) crimes against peace;b. that she had a lawful excuse because she had a genuine belief that her actions were necessary to prevent an imminent war;c. she was acting in accordance with section 3 of the Criminal Law Act 1967 by preventing the imminent commission of a criminal offence, namely the commission of war crimes under the ICCA, and/or crimes against peace;d. that she was acting out of necessity (duress of circumstances).” (a) the legitimacy or lawfulness of HM government’s decision to go to war and (b) the conduct of the war; were not matters that the court could consider when determining the extent of the Crown’s duty of disclosure to the defence under the Criminal Procedure and Investigations Act 1996 for the reasons given in my ruling dated 14 and 15 January 2004. a. the activity she disrupted was unlawful because the activities carried out at the base were (1) war crimes, (2) crimes against peace; b. that she had a lawful excuse because she had a genuine belief that her actions were necessary to prevent an imminent war; c. she was acting in accordance with section 3 of the Criminal Law Act 1967 by preventing the imminent commission of a criminal offence, namely the commission of war crimes under the ICCA, and/or crimes against peace; d. that she was acting out of necessity (duress of circumstances).”[66]In the light of Jones it is accepted that the first question must be answered “Yes” insofar as it relates to the legitimacy or lawfulness of the government’s decision to go to war. But insofar as it may be suggesting that war crimes contrary to section 51 were not justiciable, then the answer is “No”. So far as question 2 is concerned, the question raises two aspects, both justiciability and the question whether an issue has been raised. The question is however clearly directed at the justiciability aspect. But, as already indicated, if no issue has been raised in relation to war crimes, or no issue has been raised which provides a defence under section 3 of the Criminal Law Act, then the answer to the question will still be that the District Judge was right to reject the defendant’s defences.[67]As already indicated, the skeleton argument in this case was no different from that in the Ayliffe case. For the reasons given in the Ayliffe appeal, the speculative assertions set out in the skeleton argument did not provide a sufficient basis for the raising of an issue as to whether the operation of the airbase was being carried on by those on it without the commission of any offence.[68]It does not assist the prosecution to have sought to have cut down the nature of the activities to security activities in order to provide an answer to the case. If it had been established that the normal activities at the airbase involved the commission of war crimes or the aiding or abetting of war crimes, and that it was the intention of Valerie Swain to disrupt those unlawful activities, then the charge against her must have failed.[69]But the normal activities of the airbase are lawful and there is no sufficient raising of any issue that any unlawful activity was taking place. There was not a scintilla of evidence that persons on the base had it in contemplation to commit or aid and abet some conduct which was a war crime. Bare assertions relating to the possible use to which aircraft might be put by some unidentified person at some future date provide no evidence that any unlawful activity was being carried on. Such assertions formed no basis for the disclosure of documents sought on behalf of the appellant. Nor did they provide any basis for holding that the Crown had not discharged the burden of showing that the activities at the base were lawful. That disposes of the appeal in relation to section 68.[70]For the same reasons given in the Ayliffe appeal, section 3 simply provides no defence to cutting the perimeter fence. Firstly, once again, there is no sufficient raising of any issue that any war crime was being committed. Secondly, even if, on speculation upon speculation, aircraft taking off from the air base might, when they got to Iraq, commit some war crime, there is no nexus between the cutting of the perimeter fence and the preventing of such an activity.

Lindis Percy Appeal

[71]It is not in issue that on 26th March 2003 at about 8.30 pm Lindis Percy gained access to the airbase and subsequently to the perimeter fence at the US Embassy Annex within the airbase, and hung on the Annex fence a US flag upside down with the words “War on Iraq is immoral, unlawful madness” written on it.[72]She was charged that:- “On Wednesday 26th March at Croughton in Northamptonshire, having trespassed on land in the open air, namely RAF Croughton, and in relation to lawful activity, namely the routine security activities on the base which persons were engaged in and on that land, did an act, namely enter a secure and restricted area, and attach a flag to the interior fencing on the base causing a security alert and closure of the base, which you intended to have the effect of disrupting security activities on that base.”[73]Lindis Percy’s defence was again slightly fuller than those in the Ayliffe appeal. She asserted:- “2. In relation to the allegation of aggravated trespass to section 68(1) . . . the defendant takes issue with the following:(a) the assertion that the activity conducted at RAF Croughton was lawful;(b) the allegation that she intended to disrupt the security activity at the base by attaching a flag to the interior fencing on the base. 3. The defendant will say that she entered the base to protest against the war taking place in Iraq at that time; 4. The personnel at RAF Croughton are part of the United States military, which at the time of her protest was engaged in an illegal war in Iraq; 5. It is not considered the activity on the base was disrupted but if there was disruption the defendant did not intend this as a consequence of her protest; 6. By reason of matters aforesaid the defendant seeks the disclosure of material which might reasonably assist his defence and/or may undermine the prosecution case.”[74]Although no reference was made to a skeleton argument in this instance, a substantial skeleton argument was put in, drafted by counsel, Mr Raza Husain. Since no charge of criminal damage was made, the sections which in other skeletons had dealt with necessity, duress and section 3 of the Criminal Law Act, were not in this skeleton. Otherwise it was in almost identical terms to the skeletons in Ayliffe and in Swain, save for the fact that where necessary RAF Croughton replaced Marchwood or Fairford. In particular, the section on war crimes, running from paragraph 75 through to 90, was in identical terms to the paragraphs in the other skeletons, save for the minor alteration of the name of the base.[75]The questions posed for the opinion of the High Court were:- 1. Was I correct to rule the legality of the war in Iraq was not justiciable in the proceedings before me? and 2. Was I correct to make my decision on the basis that there is no defence of de minimis (i.e. either a duty or discretion to dismiss a prosecution on the basis of minimal or negligible seriousness) as such in English law? and alternatively 3. If there is such a defence, was I right, having regard to all the facts found, and upon finding particularly that the appellant intended, by the placing of a flag on an internal fence on a secure base, to cause disruption of routine security activities, to find that that was of more than minimal or negligible seriousness and so convict?[76]The question(i) must in the context of Jones be answered “yes”, but it was common ground that, by that question, was also raised the war crimes issue. So far as the District Judge was ruling that the question of war crimes was not justiciable, the answer would have to be “no”, but as in the other appeals that does not deal finally with Lindis Percy’s appeal relating to the charge under section 68. I will return to that question having dealt with questions(ii) and (iii).[77]Questions (ii) and (iii) relate to a separate point taken on this appeal. It is made by reference to The Director of Public Prosecutions v James Benjamin Barnard and Others (transcript 15th October 1999) and the judgment of Laws LJ in that case. He identified the following elements of an offence under section 68 :(1) trespass on land in the open air,(2) the doing of some act which is distinct and overt act beyond the act of trespass itself; and(3) the intention by the second act to intimidate, obstruct or disrupt as provided by (a) to (c) in section68(1).[78]Mr Blake QC, who argued Miss Percy’s appeal with great skill, submitted that there is in reality no distinct second act relied on in the information laid in this case. He asserted that the second act must be something which is not the trespass itself. He asserted that the placing of a flag on the fence does no more than state that the person trespassing is there and thus it cannot amount to a distinct second act, separate from the act of trespass itself.[79]The difficulty for Mr Blake is that when one looks at the information in this case the allegation goes well beyond simply waving a flag to assert that one was present. The act alleged is that Miss Percy attached a flag “to the interior fencing”. As we know the flag was upside down and contained the words which I have quoted above. In my view there was a distinct act separate from the act of trespass, namely entering the base. Thus the point argued by Mr Blake fails. The reference in question (ii) to “de minimis” apparently derives from the manner in which the point was put before the District Judge, namely that if there was any act in addition to the act of trespass, it was “de minimis”. Here there was a separate act and it was not such that the law should ignore it. I would not want to embark on discussion of any defence in English law of “de minimis”. That was rightly not how the appeal was presented to us.[80]So far as section 68 is concerned, for the reasons given in the previous appeals, the assertions in this skeleton do not provide any basis for alleging that war crimes were being committed or contemplated. There was not a scintilla of evidence that persons on the RAF Croughton base had it in contemplation to commit or aid and abet some conduct which was a war crime. Bare assertions relating to the possibility that activities at RAF Croughton by persons unidentified might possibly amount to a war crime or the aiding and abetting of a war crime provide no evidence that war crimes were being committed or that there was any aiding and abetting of war crimes. Such assertions simply provide no basis for the disclosure sought and no basis for holding that the Crown had not discharged the burden of showing that the activities at the base were lawful.

Conclusion

[81]For the reasons I have given, the convictions of the appellants in all these cases should be upheld. The appeals therefore must be dismissed.[82]I agree. The reality is that these were protests and they were not attempts to prevent crimes.

Cited in 3 later judgments