R v Margaret Jones; Swain v DPP; R v Arthur Milling; R v Toby Olditch; R v Philip Pritchard
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,LORD JUSTICE LATHAM |
| Judgment Date | 21 July 2004 |
| Neutral Citation | [2004] EWCA Crim 1981 |
| Docket Number | Case No: 2004/2759/D |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 July 2004 |
[2004] EWCA Crim 1981
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRISTOL CROWN COURT
GRIGSON J
T2003337041 TO 45
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Mr Justice Gibbs and
His Honour Judge Richard Brown Dl
Case No: 2004/2759/D
James Lewis, Qc & James Hines (instructed By The Stokoe Partnership) For The Appellants Jones & Milling
Vaughan Lowe & Alison Mcdonald (instructed By Bindman & Partners) For The Appellants Olditch & Pritchard
Keir Starmer, Qc & Hugo Charlton (instructed By The Stoke Partnership) For The Appellant Richards
Prof Malcolm Shaw Qc, Mark Ellison & Peter Blair (instructed By The Crown Prosecution Service) For The Respondent
Introduction
These appeals arise out of rulings given by Grigson J at a preparatory hearing under the provisions of Section 29 of the Criminal Procedure and Investigations Act 1996 on the 12 th May 2004. Those rulings relate to a common issue raised in the three prosecutions with which we are concerned, namely the extent to which the defendants in the proceedings can rely on their beliefs as to the lawfulness of the United Kingdom's actions in preparing for, declaring, and waging war in Iraq in 2003.
The background facts.
i) R �v�Jones and Milling
These defendants are jointly indicted with conspiring together, contrary to Section 1(1) of the Criminal Law Act 1997 on the 13 th March 2003, to cause criminal damage.
At about 2145hrs on that day, the defendants were discovered together by a senior USAF airman in the secure fuel installation complex inside the perimeter fence of RAF Fairford, which was at the time a 24 hour operational military airbase and NATO stand-by base, as well as being home to Allied US visiting forces. They were in possession of tools which had enabled them to enter the airbase, and which they intended to use to cause damage to equipment on the airbase. By the time that they were apprehended, they had damaged three refuelling trucks, two munitions trailers and their tractor units. When arrested they both stated that it was their intention to prevent the United States and the United Kingdom from using the base for what they described as a launching pad for war crimes.
ii) R �v�Olditch and Pritchard
These defendants are charged with two counts. The first count is conspiracy contrary to Section 1(1) of the Criminal Law Act 1977 between the 16 th and 19 th March 2003 to cause criminal damage. The second is having articles in their custody or control on the 18 th March 2003 intending to destroy or damage property in a way which they knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971.
At about 5.25am on the 18 th March 2003, the defendants were discovered lying in the grass inside the perimeter of RAF Fairford. They both had rucksacks in their possession containing items which were clearly intended to cause damage, although no damage had in fact been occasioned before they were arrested. Each of them asserted in prepared typed statements that they were intending to take action against the bombers on the airbase in such way as to immobilise them if possible on the grounds that the United Kingdom and the United States of America were acting unlawfully.
iii) R �v Richards.
This defendant is charged with three counts. The first count is attempted arson on the 18 th March 2003 being reckless as to whether the life of another would thereby be endangered. The second is having articles in his custody or under his control on the same date intending that they should be used to destroy or damage property in a way which he knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971. And the third is Criminal Damage contrary to Section 1(1) of the Criminal Damage Act 1971.
The defendant was discovered at 0210hrs on the 18 th March 2003 just outside the perimeter fence of RAF Fairford close to where a section of the perimeter fence had recently been cut. He was in possession of a rucksack in which petrol and washing-up liquid was found mixed together, which he said were intended to set fire to the wheels of a bomber. He stated that he had intended to take this action in order to stop a crime in that the bombers were taking part in an illegal war.
The Preparatory Hearing
The defence statements for the purposes of the trials were based on the assertion that the attack on Iraq was an unlawful act which they were attempting to prevent. As a result, each submitted that they were entitled to rely upon three defences:
a. duress of circumstance/necessity;
b. the defence of lawful excuse under Section 5(2)(b) of the Criminal Damage Act 1971, which provides as follows:
"A person charged with an offence to which this section applies shall �. be treated as having a lawful excuse �
�.
(b) if he destroyed or damaged or threatened to destroy or damage the property in question, or in the case of a charge of an offence under Section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right to an interest in property which was or which he believed to be vested in himself or another at the time of the act or acts alleged to constitute the offence he believed �
(i) that the property, right or interest was in immediate need of protection, and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances:
(3) For the purpose of this section it is immaterial whether a belief is justified or not if it is honestly held."
c. the prevention of crime under section 3 of the Criminal Law Act 1967, which provides:
"A person may use such force as is reasonable in the circumstances in the prevention of crime."
The prosecution sought rulings from the judge in relation to the following questions:
"(i) Can a defendant facing criminal proceedings in an English court challenge the legality of the use of force by the UK Government and/or the government of the USA and other states, against Iraq in March 2003 in reliance upon UN Security Council Resolutions? (justiciability)"
a) If the answer to question 1 is "No", is the defence of necessity available to the defendant as a matter of law, on the most favourable view to him on the material available and likely to be available?
b) If the answer to question (i) is "No", is the defence of use of reasonable force in the prevention of crime under Section 3 of the Criminal Law Act 1967 available to either of the defendants on the most favourable view to them on the material available or likely to be available?
ii) Is the defence of lawful excuse under Section 5 of the Criminal Damage Act 1971 available to the defendant on the most favourable view to him of the material available or likely to become available?
iii) Does the defence provided by Section 3 of the Criminal Law Act 1967 extend to the reasonable use of force by them against the person?"
The judge declined to give a ruling on the basis of any assumptions as to the facts. No one suggests that he was wrong to take that course. As far as the question relating to Section 3 of the Criminal Law Act was concerned, that confined itself in argument to an issue of what, if any, crime or crimes could be relied upon by the defence.
The judge's decision
The judge concluded that the issue of the legality of the war was not justiciable in domestic courts on the basis that the United Kingdom government was exercising its prerogative powers in relation to foreign policy and the deployment of the armed forces, which were issues into which the courts would not enquire. As far as the defence under Section 5 of the Criminal Damage Act 1971 was concerned, he concluded that the only matters which were relevant were those expressly set out in the sub-section, so that a defendant had a lawful excuse if he acted in order to protect property, and at the time he so acted he believed that the property was in immediate need of protection and that the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances as the defendants believed them to be. He ruled that there was no requirement that the damage to the property which the defendants sought to prevent was the result of an illegal act. As far as Section 3 was concerned, he ruled that this must mean a crime in domestic law. He rejected the defendants' submissions that there was an international crime of aggression which was triable in domestic courts. But he ruled that under the International Criminal Court Act 2001, certain war crimes committed by individuals were triable in domestic courts, so that the defendants were entitled to argue that they had not acted unlawfully in so far as they were able to establish that they believed that any force they used was reasonable force to prevent such offences from being committed. As to necessity or duress of circumstance, he said as follows:
"49. As it seems to me, for the defence of necessity to be available, a defendant must show:
(i) that he committed what would otherwise be an offence of criminal damage in order to prevent an act of greater evil. There is no requirement that the act of greater evil should be unlawful, nor that it take place within the jurisdiction.
(ii) that the greater evil was directed to those whom the defendant reasonably believed he had responsibility or for whom the situation made...
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