Lord Advocate's Reference (No. 1 of 2000)

Section 123(1) of the Criminal Procedure (Scotland) Act 1995 provides “Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion.”

The respondents were tried on indictment on inter alia three charges of malicious damage to a naval vessel and to property on it. The vessel had a role in relation to submarines carrying Trident missiles. Expert evidence was led for the accused that the deployment of nuclear weaponry breached customary international law, and was thus illegal, and thus that the acts of the respondents complained of were justified. In accordance with this, the trial judge directed the jury to return a verdict of not guilty in respect of each of the charges, and the respondents were unanimously found not guilty on these charges. The Lord Advocate petitioned the High Court of Justiciary in terms of sec 123 of the Criminal Procedure (Scotland Act 1995 for their opinion on: (1) whether it was competent to lead evidence at trial as to the content of customary international law; (2) whether any rule of customary international law justified a private individual in damaging or destroying property in objection to the United Kingdom's possession or deployment of, or policies relating to, nuclear weapons; (3) whether the belief of an accused person that his or her actions were justified constituted a defence to a charge of malicious mischief; and (4) whether it was a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person. The respondents argued that the deployment of Trident missiles by the United Kingdom Government was a breach of customary international law and was thus illegal and criminal in Scots law; that accordingly it was lawful to take action which would otherwise be criminal to prevent or inhibit the government's illegal acts; or alternatively that the acts complained of were done out of necessity, which was a complete defence at Scots law.

Held (1) that a rule of customary international law was a rule of Scots law, and as such was a matter for the judge and not the jury; accordingly, there could be no question of the jury requiring to hear or consider the evidence of a witness as to what the law was (p 152E); (2) that the crime of malicious damage did not require proof of spite or any other form of motive; and that the admitted fact that the respondents set out deliberately to cause damage, including the damage that they inflicted, was sufficient to constitute the mens rea; and that accordingly the only substantial issue was justification (p 154D–E); (3) that immediacy of danger was an essential element in the defence of necessity, because where there was no immediate danger there would be time to take a non-criminal course as an alternative to destructive action (p 157B–D); and thus the defence was only available where there was so pressing a need for action that the actor had no alternative but to do what would otherwise be a criminal act under the compulsion of the circumstances in which he found himself (p 157G–H); (4) that the defence of necessity only arose where the actor had good cause to fear that death or serious injury would result unless he acted; that the cause for that fear must have resulted from a reasonable belief as to the circumstances; that the actor must have been impelled to act as he did by those considerations; and that the defence was only available if a sober person of reasonable firmness, sharing the characteristics of the actor, would: have responded as he did (p 158H–I); (5) that for the defence of necessity to apply, it was not necessary that the apprehended harm should be to the actor or to a person already known to or having a relationship with him, but to anyone reasonably foreseen to be in danger of harm if action were not taken to prevent the harmful event (p 159C–F); (6) that the defence of necessity could be available where the place and person or persons under threat were remote from the locus of the allegedly malicious damage, provided that they were within the reasonably foreseeable area of risk (p 159F–H); (7) that for the defence of necessity to apply, the actor must at the material time have reason to think that the acts carried out had some prospect of removing the perceived danger (pp 159H–160B); (8) that for the defence of necessity o apply, the conduct must be broadly proportional to the risk (p 160C); (9)) that there was in Scots law no wider defence of justification available to “citizen interveners”, being private citizens who intervened to damage public property claiming the justification of public interest (pp 160E–162E); (10) that the rules of international humanitarian law referred to in the Advisory Opinion of the International Court of justice related to warfare and times of armed conflict, and did not regulate states in times of peace (pp 176D–177B); (11) that the continuing deployment of nuclear weapons as a deterrent in time of peace did not constitute a threat of force or of nuclear weapons as referred to in the rules of international humanitarian law cited in the Advisory Opinion of the International Court of Justice (pp 177B–178D); (12) that customary international law did not justify, the intervention of an individual as a self-appointed substitute law-enforcer to commit what would otherwise be a criminal act in order to stop or inhibit the criminal acts of others; and that accordingly the acts of the respondents could not be justified unless under the domestic law of necessity (p 178E–G); (13) that the acts of the respondents were planned over many months and were not a response to some immediate perception of danger, or perception of immediate danger, and were not even remotely analogous to circumstances providing a justification for intervention to prevent immediate danger (pp 178H–179D); (14) that there was no indication that the damage done by the respondents had or could have had an conceivable impact upon the supposedly immediate risk (pp 178H–179D); (15) that the provision ins 123 of the Criminal Procedure (Scotland) Act 1995 for the Lord Advocate to refer to the High Court “a point of law which has arisen in relation to that charge” was sufficiently wide to encompass points of law which arose in the proceedings, including points of law which arose from any defence advanced against the charge, and that the court was not restricted to answering the precise questions posed (pp 179E–180B); (16) that it was not a defence that a person who carried out acts constituting a crime was under a misconception of his legal rights (p 181F); (17) that, apart from the defence of necessity, it was not a defence to a criminal charge that the actions complained of were carried out to prevent another person from committing a crime (p 181H). All questions were answered in the negative.

Observed (1) that, although the petition procedure under sec 123 of the Criminal Procedure (Scotland) Act 1995 was not an appeal and would not affect the acquittal of the appellants, it did not follow that the court should avoid saying anything that would cast doubt on the rightness of the acquittal (p 149D); (2) that when a solicitor or counsel was addressing the court on a matter of law, the court might find it convenient to be referred to textbooks, articles, or other written material which provided a succinct or illuminating formulation of a proposition, and that a court would not reject such a procedure merely because the material was not technically authoritative (p 152H); (3) that the Advisory Opinion given by the International Court of Justice was not a judicial determination of customary international law, and was not binding on the High Court of Justiciary (p 166C–E).

Opinion reserved (1) on whether it would ever be appropriate for a judge to hear what an expert had to say in the context of a particular case, where that judge would be willing to read what the expert had to say in a general context; and on whether this would be a matter for the discretion of the judge (p 153A–C); (2) whether the legality of the incorporation of Trident II in the United Kingdom's defence strategy was properly justiciable, or conversely was not justiciable due to the privileged status of the prerogative in matters relating to defence of the realm (p 163H).