Report 3

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Bread not Bombs retrial - Legal submissions on admissibility of evidence, and Judge's ruling in response

Obviously evidence can be heard by the judge and the jury and the jury are allowed to think about that evidence later on when they decide their verdict.

But not all evidence is allowed ("admissible"), and there are several other choices a judge can make:

- He can allow the evidence to be heard by judge and jury, and after he has heard it he can tell the jury to try not to take any notice of it.

- He can send the jury out and hear the evidence himself, and after he knows what will be said he can bring the jury in and ask the witness to say it all again.

- He can send the jury out, decide what points make a difference to the law in this case, and tell the jury about the points of law that came up. This is what has already happened with the evidence from our international law expert.

- He can decide that the evidence is not to be heard at all, as nothing that that witness can say could possibly be relevant.

So this report is about the afternoon when the two sides were arguing about whether the other defence expert witnesses could be called, and also the beginnings of a discussion about whether the defences offered could be used at all.

Abbreviations used
Def The defence skeleton argument (hopefully to follow)
Pro The prosecution skeleton argument
ICJ The advisory opinion of the International Court of Justice
TDH The TP2000 Tri Denting It Handbook
IHL International Humanitarian Law
SDR Strategic Defence Review (main review, not the essays)

The defence counsel spoke first.

In order to consider whether the defendants were preventing a crime under international law we need to consider the status of the advisory opinion.

ICJ 13 and ICJ 3 discuss the fact that this is both a political and a legal question. It involves a question of law and therefore is a legal question, even though it also has political status. The advisory opinion advises on the legal principles applicable to the matter.

It is vague and abstract: it does not settle a specific dispute but rather provides legal guidance by applying legal rules to all the aspects of the case.

It states existing law: so does not legislate.

Has the fact of possession by several states for so long made the fact of possession lawful by custom? Custom does not create good law, rather the custom needs to be evaluated in the face of existing law.

The court acknowledged the fact of the principle of Deterrence.

This is a step further than mere possession, more than an accumulation in a storehouse. They are kept ready for immediate use, attached to delivery vehicles, with personnel ready to use them.

Deterrence is not deterrence if there is no communication of intent to use, and such a publicly announced threat to use must be unlawful.

The United Kingdom's policy of deterrence is not just deterrence against a nuclear attack: readiness is expressed to use Trident in circumstances where our *economic* vital interests are at stake.

SDR p17, after talking about the use of Trident to prevent war, and the (said) need to keep a minimum deterrent in the face of large nuclear arsenals, it is said explicitly that these weapons may also be used to deter any threat to our vital interests.

SDR p7 explains what is meant by these "vital interests". These are to protect our position as a major state in the European Union, our economic and political future, our fundamental interests in the stability and security of our continent, and our transatlantic relationship with the US. Our vital interests are not confined to Europe: they include our international trade, our investments abroad, our investments in the developing world, and above all oil.

So it can be seen that Trident is not just about deterring threat of nuclear war, but also to deter threats to our economic interests.

TDH 4-3 again refers to a government source, in this case a White Paper published in 1995. Again our access to raw materials and to British investments abroad feature highly.

In other words our possession is in order to threaten other states.

Possession of Trident is itself a threat: what's the point of spending all that money if you don't want the world to think you're going to use it?

It was held, of course, in the case of Chandler that defence policy is beyond challenge in the courts. We have moved on since that case. The recent case in Europe which has forced Britain to allow Gays into the armed forces shows that it is possible to challenge the disposition of the armed forces -- that is Chandler can no longer be relied on.

Judge: the legality of a decision may be challenged but the wisdom of it may not be. [...] The legality must be open to challenge.

Defence: The GCHQ case is another instance where a decision made within the power of discretion was challengeable. The challenge can be on the basis of

- illegality
- irrationality
- procedural irregularities.

An illegal defence policy is challengeable by citizens in the courts. Policy decisions can be defined as crimes, and certainly in this case we challenge it as being criminal.

---------------

The crown disagreed, of course. The crown expert on international law presented his skeleton argument (included separately) to the judge.

The crown submits that when you apply the ICJ Advisory Opinion to the particular facts of this case there is no basis on which any of the defences may be left to the jury.

The statutory defence raises the question of evidence whether they used such damage as is in proportion.

The crime is said to be the future deployment of HMS Vengeance and the inherent threat implied by that deployment.

The crown asks
- if this could amount to an inherent threat
- if it could be characterised as unlawful
- if evidence exists of the defendants belief in the likely commission of a crime

The crown raises, in order to dismiss, the issue of a crime under English law alone: conspiracy to murder. In fact any killing done by Trident would be in time of war, and murder is a crime against the Queen's peace. Thus no killing by Trident can be murder.

[ by the way this is why the British military are not guilty of murder every time a war is fought -- it is not a special argument just for this case ]

The crown says that the deployment according to UK defence policy is not unlawful.

Even if it were unlawful it would still not amount to a crime, and therefore there is no defence.

International Law does not rule out deployment for purposes of deterrence -- there remains an area of uncertainty even over use, let alone mere deployment.

The legality of any threat depends on various factors, including the envisaged purpose, which may not necessarily be the stated purpose.

It is clearly illegal to threaten force to take territory, or to force another state to follow certain political or economic paths. For example if Trident had surfaced off the coast of China during the Tiananmen uprising in order to influence events, that would clearly be an illegal threat.

Any declared readiness to use force must be force in compliance with the UN charter.

ICJ 48: Possession itself a threat? not a proposition the the court accepted.

The defendants did not have some particular use in mind beyond deterrence, no particular threat beyond that inherent in the policy of deterrence. The court intended a specific threat not a general one.

If Trident were used to threaten the territorial integrity of another state, that would of course violate the principles of proportionality and necessity.

To say that possession is itself illegal is quite an extension to the Non Proliferation Treaty. The court accepted that the parties had kept to themselves certain rights under these treaties.

There is nothing in the advisory opinion that outlaws mere possession nor deployment according to a policy of deterrence.

It was not possible to rule for every circumstance, and there was no discernible change in the practice of nuclear weapon states since the handing down of this judgement

[ George Farebrother says of this point that it left him speechless. If we take this point seriously then all we have to do to make a new law is for everyone to ignore it! ]

He gave three examples of expert comments on the judgement, including a quote from Nick Grief our expert witness that the court's non-pronouncement on possession was disappointing, the court's reference to the practice of nuclear weapon states to justify non-pronouncement, and the fact that Nick has suggested that the opinion does not go far enough.

Whichever side of the debate you come from there is no evidence that the policy of deterrence was outlawed.

The court's opinion carries great weight, considerable persuasive opinion. The UK government's view, encapsulated in one of the letters produced by the defence, is that it was not thought the judgement gives rise to factors affecting the governments nuclear defence policy.

Is there any evidence of a crime?

Judge: it is not about state criminality but about individual criminality as under Nuremberg.

Policy cannot even begin to be described as criminal when even the opinion refers to illegality not criminality.

Crimes are personal, justiciable, and relate to unlawful acts or omissions.

---------------

Defence:

ICJ 78 sets out the cardinal principles, and breach of these principles as at Nuremberg is a crime. There is no use of nuclear weapons that fits into these principles, therefore there is no threat that could be lawful.

The crown have not offered one circumstance where use or threat could be lawful. The defence are entitled to say "you tell us where we are wrong".

The crown refers to the need for a threat to be a specific threat.
- firstly the judgement does not say that
- secondly to be on patrol at all times must be a threat

The fact is that the crown have not offered a single circumstance that would not offend cardinal principles.

Possession of Trident is possession within a policy of deterrence, a continuous threat of a use that would necessarily offend the principles.

If it prohibited is it a tort? If illegal these must be crimes

Individual AND state responsibility.

TDH 4-4

Equating the ability with threatening to use. Otherwise why is there a sub on patrol at all times?

The defence then went on to other matters, other things besides international law.

It is for the crown to negative the *belief* of the defendants that the people of Britain had the right to consent to his act -- the judge cannot withdraw from the jury the question of belief

Necessity -- an imminent peril of death or serious injury

Both nuclear weapons and nuclear powered delivery vehicles pose an imminent threat of peril of death and injury to thos who may be in the vicinity of an accident of failure of the system.

Compulsion is also a matter for the jury.

Judge: it is the duty of the judge to decide if enough evidence of imminence exists to put before the jury

Defence: yes, of imminence but not of compulsion -- it must be open to the defence to call evidence which sheds light on their beliefs

There must be nexus between peril and act [ nexus = a close connection ]. The crown says that nexus is insufficient.

Stellan then spoke

We are not here challenging the legality of the entire nuclear weapons, but challenging the legality of specific weapons and specific policies.

There might exist cases where specific threats of use had been made, or of numerous cases where nuclear weapons have already been used. Therefore that kind of evidence must be admissible. These specific occasions it is up to the crown to prove they are legal.

We do have such evidence and are prepared to bring it forward.

If you want to prevent accidents I can't see a closer nexus than going to the weapon just before it is going to be deployed and disarming it. This was our last chance as disarmament is much harder at Faslane.

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We all went home, the judge having promised to consider the arguments overnight and to return with a clear ruling in the morning. This he did, though it was not the ruling we had hoped for.

The ruling was delivered in writing, I hope one of the defendants will post it on the bnb website so that we have the exact text, and therefore I will not confuse things by typing up the notes I took in court.

The effect was that we could call no relevant witnesses other than character witnesses, so we moved on to hear Annika's testimony, described in my next report.