Docsity
Docsity

Prepare for your exams
Prepare for your exams

Study with the several resources on Docsity


Earn points to download
Earn points to download

Earn points by helping other students or get them with a premium plan


Guidelines and tips
Guidelines and tips

International Law & Individual Responsibility: Crimes Against Peace & Human Rights, Study notes of Law

The application of international law to individuals, focusing on the principles of individual responsibility for international crimes and the right to a fair trial. It also explores the relationship between international and domestic law, using the Nuremberg Principles and the European Convention on Human Rights as examples. The document also touches upon the role of customary international law in domestic legal systems, specifically in Scotland.

Typology: Study notes

2021/2022

Uploaded on 09/12/2022

kyran
kyran 🇬🇧

4.3

(7)

220 documents

1 / 38

Toggle sidebar

This page cannot be seen from the preview

Don't miss anything!

bg1
SCOTS LAW AND TRIDENT: A BREACH OF THE PEACE ?
1. CONTEXT: THE NUREMBERG PRINCIPLES
1.1 In a number of the trials prosecuted in Germany in the wake of the International
War Crimes tribunal at Nuremberg, the principle of individual criminal
responsibility for acts contrary to the requirements of international law was
affirmed by the prosecuting Allied Powers as applying to private individuals who
were not directly part of the official State apparatus but who actively co-operated
in its acts (which had subsequently been deemed by the Allies to be unlawful). 1
1.2 The idea that private individuals have overriding duties to obey a higher law
against that of the (Nazi) State also lay behind various prosecutions which were
brought in Germany before its domestic courts in the immediate post-World War
II period against private persons who had informed on or denounced relatives and
colleagues to the authorities for “political offences”. As a result of these
calculated denunciations those informed against had been handed over to a
judicial system - in particular the Nazi People’s Courts - “which dealt mercilessly
with political opponents at that time, as the population was well aware”. 2 Thus
1 See, for example the Zyklon B Case (Reports of Trials of War Criminals, The United Nations War
Crimes Commission, Volume I, London, HMSO, 1947) in which various civilian officers of the firm
of Tesch & Stabenow - an established distributor of certain types of gas and disinfecting equipment -
were tried by a British Military Court in Hamburg in March 1946 on a charge of being accessories
before the fact of mass murder - in furnishing concentrated prussic acid under the proprietary name
Zyklon B to various concentration camps in Eastern Germany and occupied Poland, knowing that it
was to be used to kill the inmates. The contemporary case note commentary notes at 1498:
“The decision of the Military Court in the present case is a clear example of the application of
the rule that the provisions of the laws and customs of war are addressed not only to
combatants and to members of state and other public authority, but to anybody who is in a
position to assist in their violation The activities with which the accused in the present case
were charged were commercial transactions conducted by civilians. The Military Court
acted on the principle that any civilian who is an accessory to a violation of the laws and
customs of war is himself also liable as a war criminal”
See too Willard B. Cowles “Trials of War Criminals (Non-Nuremberg)” (1948) 42 The American
Journal of International Law 299 who notes at 310:
“Dr. Bruno Tesch, the owner, and his principal executive, one Karl Weinbacher, were
sentenced to death by hanging. The sentences were carried into effect. A third accused was
acquitted apparently on the ground that he held a subordinate position and that there was
reasonable doubt that he knowingly did any act as a principal or accessory”
2 See Ingo Müller Hitler’s Justice: the Courts of the Third Reich (I. B. Turis & Co. Ltd.: London,
1991), in particular Chapter 29 at page 274. See, too, Michael Stolleis The Law under the Swastika:
Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1998) and Neil
Gregor (ed.) Nazism, war and genocide : essays in honour of Jeremy Noakes (Exeter: University of
pf3
pf4
pf5
pf8
pf9
pfa
pfd
pfe
pff
pf12
pf13
pf14
pf15
pf16
pf17
pf18
pf19
pf1a
pf1b
pf1c
pf1d
pf1e
pf1f
pf20
pf21
pf22
pf23
pf24
pf25
pf26

Partial preview of the text

Download International Law & Individual Responsibility: Crimes Against Peace & Human Rights and more Study notes Law in PDF only on Docsity!

SCOTS LAW AND TRIDENT: A BREACH OF THE PEACE?

1. CONTEXT: THE NUREMBERG PRINCIPLES

1.1 In a number of the trials prosecuted in Germany in the wake of the International

War Crimes tribunal at Nuremberg, the principle of individual criminal

responsibility for acts contrary to the requirements of international law was

affirmed by the prosecuting Allied Powers as applying to private individuals who

were not directly part of the official State apparatus but who actively co-operated

in its acts (which had subsequently been deemed by the Allies to be unlawful). 1

1.2 The idea that private individuals have overriding duties to obey a higher law

against that of the (Nazi) State also lay behind various prosecutions which were

brought in Germany before its domestic courts in the immediate post-World War

II period against private persons who had informed on or denounced relatives and

colleagues to the authorities for “political offences”. As a result of these

calculated denunciations those informed against had been handed over to a

judicial system - in particular the Nazi People’s Courts - “which dealt mercilessly

with political opponents at that time, as the population was well aware”.

2

Thus

(^1) See, for example the Zyklon B Case (Reports of Trials of War Criminals, The United Nations War

Crimes Commission, Volume I, London, HMSO, 1947) in which various civilian officers of the firm of Tesch & Stabenow - an established distributor of certain types of gas and disinfecting equipment - were tried by a British Military Court in Hamburg in March 1946 on a charge of being accessories before the fact of mass murder - in furnishing concentrated prussic acid under the proprietary name Zyklon B to various concentration camps in Eastern Germany and occupied Poland, knowing that it was to be used to kill the inmates. The contemporary case note commentary notes at 1498: “The decision of the Military Court in the present case is a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of state and other public authority, but to anybody who is in a position to assist in their violation The activities with which the accused in the present case were charged were commercial transactions conducted by civilians. The Military Court acted on the principle that any civilian who is an accessory to a violation of the laws and customs of war is himself also liable as a war criminal” See too Willard B. Cowles “Trials of War Criminals (Non-Nuremberg)” (1948) 42 The American Journal of International Law 299 who notes at 310: “Dr. Bruno Tesch, the owner, and his principal executive, one Karl Weinbacher, were sentenced to death by hanging. The sentences were carried into effect. A third accused was acquitted apparently on the ground that he held a subordinate position and that there was reasonable doubt that he knowingly did any act as a principal or accessory”

(^2) See Ingo Müller Hitler’s Justice: the Courts of the Third Reich (I. B. Turis & Co. Ltd.: London,

1991), in particular Chapter 29 at page 274. See, too, Michael Stolleis The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1998) and Neil Gregor (ed.) Nazism, war and genocide : essays in honour of Jeremy Noakes (Exeter: University of

a woman who, with a view to effecting a swift end to her marriage, reported her

husband to the authorities for slandering Hitler in their private conversations.

Her denunciation resulted in his imprisonment and sentence of death (later

commuted to service on the Eastern Front). She was subsequently convicted in

the post-War period of de-Nazification by national German courts of wrong-

doing for relying in bad faith on unjust laws of the Nazi system.

3

1.3 Such cases may be understood as examples of the application (and in the case of

the denouncing wife, of the extension to conduct other than crimes against peace,

war crime or crimes against humanity) of the principle that all individuals have

legal duties derived directly from fundamental human rights considerations to be

found in international law, which may bind those individuals, even against the

claims and justifications of national law.

4

1.4 The ideas behind these Nuremberg and post-Nuremberg prosecutions were

subsequently codified into the “Nuremberg principles” which sought

authoritatively to summarise the principle of individual responsibility under

international law in the following terms::

(I) Any person who commits or is an accomplice in the commission of an act

which constitutes a crime under international law is responsible therefor and

liable to punishment

(II) The fact that domestic law does not impose a penalty for an act which

constitutes a crime under international law does not free the person who

committed the act from responsibility under international law

(III) The fact that a person who committed an act which constitutes a crime under

international law acted as Head of State or responsible Government official

does not relieve him from responsibility under international law.

Exeter Press, 2005) Chapter 5 Nikolaus Wachsmann “‘Soldiers of the home front’: jurists and legal terror during the Second World War”

(^3) See Case Note in (1951) 64 Harvard Law Review 1005-1007. See, too, the commentary on this and

similar cases in H. O. Pappe “On the validity of Judicial Decisions in the Nazi Era” (1960) 23 Modern Law Review 260-

(^4) For a celebrated discussion of the justification of this case from the standpoint of competing legal

philosophies see HLA Hart: “Positivism and the separation of law and morals” (1958) 71 Harvard Law Review 583-629 and Lon Fuller: “Positivism and the separation of law and morals: a reply to Professor Hart” (1958) 71 Harvard Law Review 630-

(ii) Participation in a common plan or conspiracy for the accomplishment of any

of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war include, but are not limited to, murder,

ill-treatment or deportation to slave-labour or for any other purpose of civilian

population of or in occupied territory, murder or ill-treatment of prisoners of war,

of persons on the seas, killing of hostages, plunder of public or private property,

wanton destruction of cities, towns, or villages, or devastation not justified by

military necessity.

(c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done

against any civilian population, or persecutions on political, racial or religious

grounds, when such acts are done or such persecutions are carried on in execution

of or in connexion with any crime against peace or any war crime.” 10

1.7 And Nuremberg Principle VII provides that “complicity in the commission of a

crime against peace, a war crime, or a crime against humanity as set forth in

Principle VI is a crime under international law.”

11

1.8 The Nuremberg principles were formally adopted into international law by UN

Resolution 95(1) of UN General Assembly of 11 December 1946 and by Article

51 of the UN Charter, in relation to the prohibition of wars of aggression. The

United Kingdom Parliament was advised in 1963 by the then Lord Chancellor

that the United Kingdom Government then took the view that the Nuremberg

Principles, as formulated by the International Law Commission, were “generally

accepted among States and have the status of customary international law”.

12

(^10) See, now, Article 5 of the Rome Statute of the International Criminal Court (which entered into force

on 1 July 2002): “ Crimes within the jurisdiction of the Court

  1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”

(^11) The decision of the Appeals Chamber the International Criminal Tribunal for the former Yugoslavia

(ICTY) in Prosecutor v. Dusko Tadic , decision of 15 July 1999 finding that customary international law does not contain any requirement to the effect that crimes against humanity may not be committed from purely personal motives, such as revenge or personal gain.

(^12) Hansard HL Volume 253, column 831, 2 December 1963

1.9 The post-Nuremberg assertion that a higher normative authority inheres in

principles derived from international humanitarian (and human rights) law, even

as against the requirements of national law, was also specifically incorporated

into the 1950 European Convention on Human Rights by the terms of Article 7

ECHR. The Convention refers, in Article 7(2) ECHR, to the possible trial and

punishment of any person for any act or omission which, at the time it was

committed, “was criminal according to the general principles of law recognised

by civilised nations”.

1.10 Thus when including Article 7 ECHR as one of the “Convention rights” for

the purposes of the Human Rights Act 1998 (“HRA”) (and associated statutes

such as the Scotland Act 1998) the United Kingdom Parliament arguably also

effectively introduced Nuremberg derived principles regarding the justifiability of

conduct under national and international law directly into domestic law.

13

It

might therefore be thought that, within the context of the post-HRA United

Kingdom constitution, there can properly be no conflict between the requirements

of the (domestic) “law of the land” and any “moral imperative”

14

  • at least as

(^13) See, too, Article 38(1)(c) of the Rome Statute of the International Criminal Court which refer to “the

general principles of law recognised by civilised nations”. The Rome States and the jurisdiction of the IICC has been recognised and given domestic effect to in the United Kingdom by the International Criminal Court Act 2001 and, in Scotland, by the International Criminal Court (Scotland) Act 2001 (asp 13)

(^14) See Francôme v. Mirror Group of Newspapers Ltd. [1984] 1 WLR 892, CA per Sir John Donaldson

MR at 897: “Parliamentary democracy as we know it is based upon the rule of law. That requires all citizens to obey the law, unless and until it can be changed by due process. There are no privileged classes to whom it does not apply. ....

It is sometimes said... that all are free to break the law if they are prepared to pay the penalty. This is pernicious nonsense. The right to disobey the law is not obtainable by the payment of a penalty or licence fee. It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime.

In saying this I nevertheless recognise that, in very rare circumstances a situation can arise in which the citizen is faced with a conflict between what is, in effect, two inconsistent laws. The first law is the law of the land. The second is a moral imperative, usually, but not always, religious in origin. An obvious example is the priest’s obligation of silence in relation to the confessional, but others can be given. In conducting the business of the courts, judges seek to avoid any such conflict, but occasionally it is unavoidable. Yielding to the moral imperative does not excuse a breach of the law of the land, but it is understandable and in some circumstances may even be praiseworthy. However, I cannot over-emphasise the rarity of the moral imperative. Furthermore, it is almost unheard of for compliance with the moral imperative to be in the financial or other best interests of the person concerned. Anyone who conceives himself to be morally obliged to break the law, should also ask himself whether such a course furthers his own interests. If it does, he would be well advised to re-examine his conscience.”

See too Fox LJ at 901

Advocate wished the High Court’s advice and guidance on four questions of law

which he raised before the court following the acquittal by the Sheriff at

Greenock of three women – Angie Zelter, Ulla Roder and Ellen Moxley – who

had been charged with causing malicious damage to a vessel involved in

facilitating the transport and deployment of Trident nuclear missiles.

2.2 These women had successfully argued before the Sheriff that the damage to

property which they admitted having caused was not “malicious” but was instead

justified since, they said, the deployment of the Trident nuclear weapons system

was in breach of customary international law, and therefore in breach of Scots

law. They were accordingly acting not in breach of the law but were rather to be

seen as “citizen interveners” seeking to enforce the law, even against officials of

the State. 17 They argued, in effect, for the existence of an “(international) law

enforcement motivation” defence within the Scots common law sufficient to

allow them to defeat their prosecution for having done a prohibited act with the

requisite mens rea. The basis for this defence was the avowed purpose of their

apparently criminal action: namely to bring a wrong-doer (the United Kingdom

Government) to justice, or to expose its (greater) criminal wrong-doing.

18

An

alternative analysis was that the actions for which they had been prosecuted had

in fact been done by them in exercise of the implicit power and responsibility -

possessed by every law-abiding citizen at common law - to take proportionate

(^17) Compare with Helen John v Donnelly , 1999 JC 336 where the appellant, one of a group of protesters,

was charged under Section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 with vandalism for cutting part of the perimeter fence of the Faslane Royal Naval nuclear base. She stated J, stated when cautioned and charged that she had cut the fence in order to protest against ‘the genocidal nature of the illegal Trident weapons programme’. Her defence at trial was that she had a reasonable excuse for her conduct by reason of her sincere belief in the illegality of nuclear weapons and her anxiety at their potentially appalling effects on mankind and the environment. That defence was rejected and on conviction she appealed. It was held on appeal that a person could be said to have a reasonable excuse when he or she had acted in response to some particular and immediate stimulus and that in the present case the appellant had acted deliberately and without any immediate stimulus.

(^18) Compare with the English Court of Appeal decision in R. v. Denis Geoffrey Clarke (1985) 80 Cr. Ap

R. 344 an appeal in relation to a conviction for aiding and abetting a burglary charge in which the defence had been put forward by the accused that he was in fact working as an informer for the police and was passing on information about the other offenders to them. The Court of Appeal held that it would not be right to state “that conduct which is overall calculated and intended not to further but to frustrate the ultimate result of the crime is always immaterial and irrelevant”. Accordingly in “exceptional and rare cases” where it could be said that the acts in question were done n order to allow “the police to make use of information concerning an offence that is already ‘laid on’, a jury might conclude that the defendant had been acting lawfully.

action to prevent or impede reasonably apprehended breaches of the law by

another, and thereby assist in keeping the peace within the realm (and

internationally). 19

2.3 It was not open to the prosecution authorities to appeal against the acquittal of

these three women. Concerned, however, that the decision of the sheriff might

be thought to set a general precedent for anti-nuclear protesters intent on direct

action, the Lord Advocate referred the following four questions to the High Court

of Justiciary, in an attempt to restore the presumed status quo ante :

In a trial under Scottish criminal procedure, is it competent to lead

evidence as to the content of customary international law as it applies to

the United Kingdom?

Does any rule of customary international law justify a private individual

in Scotland in damaging or destroying property in pursuit of his or her

objection to the United Kingdom's possession of nuclear weapons, its

action in placing such weapons at locations within Scotland or its policies

in relation to such weapons?

Does the belief of an accused person that his or her actions are justified in

law constitute a defence to a charge of malicious mischief or theft?

Is it 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?

(^19) See the English Court of Appeal decision in R v. Fitzroy Derek Pommel [1995] 2 Cr. App. R. 607

where the defendant’s answer to charges of possessing a prohibited firearm and ammunition without a licence (in fact a loaded sub-machine gun) was that he had taken them from another man who was intending to commit a crime with them and intended to pass them on to his brother for surrender to the police. The Court of Appeal held that if these facts could be established, a defence should be available to the accused, termed by the court “duress of circumstances” and observed “[In] the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accepts as being a greater evil with a gun … it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth and then, even if he is vindicated, he is left with a criminal conviction which, for some purposes would be recognised as such.”

Significance of the decision for Scots law

2.5 At some levels, then, the decision of the High Court of Justiciary was an

unequivocal defeat for direct action campaigning involving breach of the law, but

the decision of the court did in fact mark a number of significant developments

in, and for, Scotland and Scots law.

2.6 In the first place the High Court accepted – by the very fact that it answered the

question posed to it by the Lord Advocate - that questions relating to the

lawfulness of the deployment of weapon systems by the United Kingdom

government were justiciable before the courts.

2.7 Secondly, customary international law was recognised by the court automatically

to form part of municipal Scots law without need for any formal treaty

incorporation. It would appear that the court implicitly accepted, too, that

customary international law could be relied upon by individuals in determining

the lawfulness of their actions – and the lawfulness of the actions of the State.

2.8 Finally the case highlighted the importance of international law generally before

the Scottish courts. As we shall see, the relevance of - and the potential for

direct reliance upon - international treaty law before the courts in Scotland has

been increased by the provisions of the Scotland Act (notably Sections 35, 58,

106(6) SA) which make it clear that the acts of the Scottish Parliament and of the

Scottish Government may be subject (specifically at the instance of the Secretary

of State) to legal challenge before the courts insofar as these acts are thought to

be incompatible with the United Kingdom’s “international obligations” (which

Section 108(1) SA defines as meaning “ any international obligation of the United

Kingdom, other than obligations to observe and implement Community law or

the Convention rights”). The obligations on the part of the devolved Scottish

institutions to respect Community law and Convention rights are, of course, the

subject of other more specific provisions within the Scotland Act..

Scots criminal law wholly distinct from English criminal law

2.9 It should be noted that there was no possibility of any appeal against this

decision. This is because the High Court of Justiciary is the highest court in

matters concerning Scots criminal law. In contrast to the position which applies

in England, Wales and Northern Ireland, the House of Lords has no appellate

jurisdiction in criminal law matters from Scotland. 20 As Lord Bingham has

noted:

“When Scotland was united with England and Wales in 1707 it was clearly implicit in

the Act of Union that there was no criminal appeal from Scotland to London ….

There was originally a doubt as to whether there was even a civil appeal from

Edinburgh to London, but it was very quickly established that there was and indeed

extensive use of it was made to such an extent that there was very little time to hear

English appeals! But what is important is that the Scots criminal system has always

been self-contained and has had no English input at all. ” 21

2.10 With the coming into force of the Scotland Act, however, the Judicial

Committee of the Privy Council (which has traditionally been the final Imperial

court of appeal in cases for the British Commonwealth) was given a role to play

in matters of Scots criminal law in that it could hear appeals or references from

the Scottish criminal court on matters which raise “devolution issues” – typically

the proper interpretation of Convention rights. But the jurisdiction of the Privy

Council in issues concerning crime in Scotland is strictly a limited one - at least

so the judges of the High Court of Justiciary claim -

22

and it is not given general

(^20) See Mackintosh v Lord Advocate (1876) 2 App Cas 41, HL(Sc).

(^21) Lord Bingham of Cornhill, evidence to the Parliamentary Joint Committee on Human Rights, 26

March 2001

(^22) See for example Fraser (Nat Gordon) v. HM Advocate [2008] SCCR 407, HCJ per Lord Osborne at

paragraphs 219- 219 ... [T]he relationship between the concepts of a miscarriage of justice, recognised in section 106(3) of the Criminal Procedure (Scotland) Act 1995 and an unfair trial in terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a miscarriage of justice. That would be so where, for example, that trial concluded with an acquittal, since the concept of miscarriage of justice comes into play only following a conviction on indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair yet result in a conviction which must be regarded as a miscarriage of justice, as for example where the provisions of section 106(3)(a) operate.

220 What importance, if any, it may be asked, attaches to these considerations in the present context. The answer, in my view, is that it is potentially confusing and therefore unhelpful, in criminal appeals under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 to seek to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the Scotland Act 1998, since the issues which this court must determine in the former type of

3.3 Article 7 ECHR contains, then, two main strands: first a requirement the proper

prior definition in respect of crimes charged; and secondly, a requirement against

retrospectivity in the defining of, and punishing for, criminal offences. Article 7

ECHR was intended to re-state the existing general legal principles of nullum

crimen sine lege

25

(no crime without a (prior) statute) and nulla poena sine lege

26

(no punishment without a (prior) statute), while also seeking to take into account

and reconcile these principles with the existence of the jurisprudence concerning

individual criminal responsibility for gross breaches of international humanitarian

and human rights law, as these concepts were first articulated at the post-World

War II Nuremberg trials. 27

(^25) In Korbely v. Hungary , ECtHR, 19 September (2008) 25 BHRC 382 the Grand Chamber of the

Strasbourg Court noted as follows at paragraph 70: “70.... Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts' interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. The Court has thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability.”

(^26) See Coëme and others v. Belgium , ECtHR, 22 June 2000 at paragraph 45:

“45. Since the term “penalty” is autonomous in scope, to render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see the Welch v. the United Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 13, § 27). While the text of the Convention is the starting-point for such an assessment, the Court may have cause to base its findings on other sources, such as the travaux préparatoires. Having regard to the aim of the Convention, which is to protect rights that are practical and effective, it may also take into consideration the need to preserve a balance between the general interest and the fundamental rights of individuals and the notions currently prevailing in democratic States (see, among other authorities, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 14-15, § 26, and the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 34-35, § 95).”

(^27) In Kononov v. Latvia , ECtHR 24 July (2008) 25 BHRC 317, the Strasbourg Court observed (at para

115): “115. With regard to Article 7 § 2, the Convention institutions have commented as follows: (a) The second paragraph of Article 7 of the Convention relating to “the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations” constitutes an exceptional derogation from the general principle laid down in the first. The two paragraphs are thus interlinked and must be interpreted in a concordant manner ( Tess v. Latvia (dec.), no. 34854/02, 12 December 2002).

(b) The preparatory works to the Convention show that the purpose of paragraph 2 of Article 7 is

to specify that Article 7 does not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish war crimes, treason and

3.4 In interpreting and applying Article 7 ECHR (that is to say in determining when

and how an individual should properly be found guilty of and punished for a

criminal offence defined in the law) the domestic courts have also to take account

of the “general principles of law recognised by civilised nations”, that it so say

the requirements of customary international (humanitarian and human rights) law.

3.5 In Smith (Pamela) v Donnelly the Crown resisted the claim that “breach of the

peace” in Scots criminal law meant anything that the prosecution wanted it to

mean. The Crown argued that, while past case law certainly showed that the

method of committing the offence of breach of the peace had wide variations and

a variety of actual circumstances, that did not alter the essential definition of the

crime.

3.6 The High Court of Justiciary rejected the accused Pamela Smith’s challenge to

the Convention compatibility of the offence of “breach of the peace” with which

she had been charged as a result of her actions at Faslane. The court did seek to

clarify the legal position by stating that in order to constitute the crime of breach

of the peace, there has to be conduct severe enough to cause alarm to an ordinary

person and to threaten serious disturbance to the community. 28 Mere

collaboration with the enemy; accordingly, it does not in any way aim to pass legal or moral judgment on those laws ( X. v. Belgium , no 268/57, Commission decision of 20 July 1957, Yearbook 1, p. 241). This reasoning also applies to crimes against humanity committed during this period ( Touvier v. France , no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports (DR) 88, p. 148; and Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001-XII (extracts)).”

(^28) See, more recently, Paterson v. HM Advocate , 2008 SLT 465, HCJ at paragraphs 22-23 considering

the potential use of a charge of breach of the peace to convict an individual accused of lewd, indecent and libidinous behaviour toward a seventeen year old: “In Smith v Donnelly , 2002 JC 65 this court examined the existing authorities on breach of the peace with a view to determining whether bringing proceedings on such a charge, as developed, violated the requirements of art 7 of the Convention (no punishment without law). The court held that, on a sound interpretation of these authorities, the definition of the crime was such as to meet the requirements of the Convention. ... In the context of behaviour towards a 17 year old girl by a man 20 years her senior the conduct was, in our view, severe enough to cause alarm to ordinary people. ... The conduct does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance. Such conduct by a mature man towards an adolescent girl was such that, if discovered, was likely to cause a serious reaction among other adults. In these circumstances the nature of the conduct was such that, if proved, it constituted on each occasion breach of the peace. [...] Although the two elements in the conjunctive expression [conduct severe enough to cause alarm to an ordinary person and to threaten serious disturbance to the community] may include common elements and the same evidence in particular circumstances may cover both, they focus on different things. In particular, the former element highlights the objective

theft, 35 fraud, and robbery, to name but a few. Most of the general principles of

criminal liability are to be found in the common law, including matters such as

accessory liability and attempts to commit crime. In the opinion of the code group,

the unsatisfactory state of the current common law is the most persuasive argument in

favour of codification.” 36

3.8 The fact that the criminal law is in large part the creation of the common law

means in Scotland the judges of the High Court of Justiciary may - albeit

exceptionally in the exercise of the court’s inherent declaratory power

37

  • find

and declare certain conduct to be criminal. 38 The judges may also exercise this

(^34) It is an aggravated assault where the victim is a police officer: see s.41(1)(a) of the Police (Scotland)

Act 1967

(^35) Note, however, that the Theft Act 1607 makes it an offence to steal bees, and fish from fishponds

(^36) Pamela R. Ferguson “Codifying criminal law: a critique of Scots common law” (2004) Criminal Law

Review 49-59 at 50-

(^37) See Grant v. Allen , 1987 JC 71 per Lord Justice-Clerk Ross:

“[T]his court has an inherent power to punish any act which is obviously of a criminal nature (Hume on Crimes (3rd edn.), i, 12; Macdonald Criminal Law (5th edn.), p. 193; Sugden v. H.M. Advocate 1934 J.C. 103) .... Hume describes the declaratory power of the court as an inherent power to punish every act which is obviously of a criminal nature. Although there are circumstances where it will be appropriate for the court to exercise this power, I am of opinion that great care must be taken in the exercise of this power. Exercising the power may well conflict with the principle nullum crimen sine lege. The declaratory power has been considered in a number of cases over the last fifty years. I do not find it necessary to consider these cases because I am not satisfied that what is libelled in this complaint was so obviously of a criminal nature that it should be treated as a crime under the criminal law. No doubt what the appellant is alleged to have done was reprehensible and immoral, but as was recognised in H.M. Advocate v. Mackenzies , 1913 JC 107,, the fact that conduct is reprehensible or indicates moral delinquency is not sufficient to bring it within the scope of the criminal law. I recognise that there may be reasons for thinking that conduct of this kind ought to be regarded as criminal. However, if that is so, I am of opinion that it is for Parliament and not the courts to create any new crime in that regard.”

(^38) See McLaughlan v Boyd , 1934 JC 19 per Lord Justice-General Clyde at 22-3:

It would be a mistake to imagine that the criminal common law of Scotland countenances any precise and exact categorisation of the forms of conduct which amount to crime. It has been pointed out many times in this Court that such is not the nature or quality of the criminal law of Scotland. I need only refer to the well-known passage in the opening of Baron Hume's institutional work (Hume on Crimes (3rd ed.) ch. i), in which the broad definition of a crime - a doleful or wilful offence against society in the matter of ‘violence, dishonesty, falsehood, indecency, irreligion’ is laid down. In my opinion the statement in Macdonald's Criminal Law (4th ed., p. 221) that ‘all shamelessly indecent conduct is criminal,’ is sound and correctly expresses the law of Scotland. No doubt there may be in particular cases circumstances of aggravation, but I am not prepared to rule out of the category of crime any shamelessly indecent conduct, and I am not prepared to infer, from the circumstances that sec 11 of the Act of 1885 affirmed the proposition that shamelessly indecent conduct by one male adult in relation to another was criminal, that such conduct was not, or could not have been, the competent subject of prosecution in Scotland before.”

inherent declaratory power to find certain conduct no longer to be criminal at

common law by, for example, abolishing one common law defined crime and

replacing it with another.^39

(^39) In Webster v Dominick , 2005 JC 65 a court of five judges headed by the Lord Justice Clerk (Gill)

(with Lord Marnoch, Lord Macfadyen, Lady Cosgrove, Lord Sutherland, Lord Gill) decided to abolish the previously recognised crime of “shameless indecency” and replace it with a crime of different scope which they termed “public indecency Lord Justice Clerk Gill stating

“[43] ... [T]wo decisions of this court [ McLaughlan v Boyd 1934 JC 19 and Watt v Annan 1978 JC 84] have created a crime that rests on an unsound theory, has an uncertain ambit of liability and lays open to prosecution some forms of private conduct the legality of which should be a question for the legislature ( Paterson v Lees 1999 JC 159 , Lord Justice-General Rodger, p 234D). It is time that this court put the matter right. ... [45] The soundness of the present law on shameless indecency is not a mere academic question. There are important practical considerations. Since shameless indecency is a sexual offence within sch 1 to the Sex Offenders Act 1997 (para 2(1)(a)(vii)), every person convicted of it becomes a sex offender and is subject to the notification requirements of secs 1 and 2 of that Act. ... [51] In my opinion, this crime, clearly established in Scots law before McLaughlan v Boyd , 1934 JC 19, should in modern practice be described as ‘public indecency’. It has a similar place in the law of Scotland to that of the common law offence of public indecency in the law of South Africa. Public indecency was declared to be a crime by the Supreme Court of the Cape Colony in R v Marais (1887) 6 SC 367 on the analogy of the crimina extraordinaria described by Voet ( Commentarius ad Pandectus (1704, A de Hondt, Hagae at 47.11.1ff.; cf D. 47.11; Mars, WH, ‘ Crimina Extraordinaria ’ (1911) 8 SALJ 490; Snyman, CR, Strafreg (4th ed, Butterworths, Durban, South Africa, 2003), pp 365, 366) and by reference to the English common law on the subject ( R v Marais , (1887) 6 SC 367 per De Villiers CJ at 370). In its original conception, the South African crime of public indecency was considered to be criminal by reason of the tendency of the conduct to deprave the morals of others ( R v Marais ), but it has been recognised in the modern case law that it is sufficient for liability if the conduct outrages the public’s sense of decency ( R v B and C (1949) (2) SA 582 (T); Milton, vol 2, pp 271, 272, 276-278). In S v F (1977) (2) SA 1(T), for example, an indecent action committed by a performer in a cabaret was found by the magistrate to have been designed to incite lascivious thoughts and arouse sexual desires, but the decision of the appellate court was concerned almost entirely with the question whether the audience were shocked.

[52] In my view, if such conduct is seen as a public order offence, questions about the depraving or corrupting effects of the conduct complained of are at most of indirect relevance. As in the English offence of outraging public decency ( Knuller (Publishing Printing and Promotions) Ltd v DPP [1973] AC 435, Lord Simon of Glaisdale, p 493), it is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence.

[53] In the law of Scotland, in my opinion, the actus reus of the crime has two elements, namely the act itself and the effect of it on the minds of the public. As to the indecent act, the paradigm case is that of indecent exposure (1995 Act, sch 5; Lord Advocate, Petr , 1998 JC 209 Lord Justice-General Rodger, p 405A-C; Usai v Russell , 2000 JC 144, Lord McCluskey, p 62B-C); but the crime may extend to any other form of indecency, for example sexual intercourse in public view ( Paterson v Lees 1999 JC 159 Lord Sutherland, p 235F-G; R v B and C (1949) (2) SA 582 (T)), or the making of indecent actions or gestures in a stage show (eg S v F (1977) (2) SA 1(T) ). Whether or not such indecency is committed for sexual gratification is, in my view, irrelevant to liability, being a matter of motive, but may, on conviction, be a relevant factor in the court's disposal.

3.10 As our previously mentioned academic commentator has also noted

“Some judicial development of the common law is of course inevitable and indeed

desirable. The European Court of Human Rights has described this as ‘a well

entrenched, necessary part of legal tradition’. 42 Nor does the evolution of the

common law offend against the principle of legality and non-retrospectivity contained

in Article 7 of the Convention. According to that court, Art.7 ‘cannot be read as

outlawing the gradual clarification of the rules of criminal liability through judicial

interpretation from case to case, provided that the resultant development is consistent

with the essence of the offence and could reasonably be foreseen.’ However,

judicial development of the common law should be kept within proper limits.” 43

3.11 Given the breadth in the concept of “breach of the peace” in Scots law which

the case of Pamela Smith v. Donnelly highlighted, the question might then arise

as to whether or not it would it be possible for an individual to take action to seek

to prevent or impede the State authorities themselves taking action in (threatened)

“breach of the peace”? That, in a sense, was the question which the House of

Lords considered in our next case R v. Jones.

4. THE DECISION OF THE H OUSE OF LORDS IN R. V M ARGARET JONES AND OTHERS

4.1 In R. v Margaret Jones and others the House of Lords – exercising the criminal

appellate jurisdiction which it has for England, Wales and Northern Ireland -

considered the cases of a number of individuals, all of whom had either been

charged with or convicted of aggravated trespass or criminal damage arising out

of their individual protest actions against the invasion of Iraq War at various

(^42) SW v UK (1995) 21 E.H.R.R. 363 at 399

(^43) Pamela R. Ferguson “Codifying criminal law: a critique of Scots common law” (2004) Criminal Law

Review 49-59 at 58. This approach has recently been confirmed in the Strasbourg decision Korbely v. Hungary , 19 September 2008 where the Grand Chamber of the ECtHR noted as follows (at paragraph 71): “71. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Jorgic v. Germany , no. 74613/01, §§ 100-101, 12 July 2007; Streletz, Kessler and Krenz , cited above, § 50; and S.W. v. the United Kingdom and C.R. v. the United Kingdom , judgments of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 34-36, and Series A no. 335-C, pp. 68-69, §§ 32-34, respectively).

military bases in the United Kingdom. In their resulting criminal trials some of

the protesters sought to rely upon the statutory defence available to them under

Section 3 of the Criminal Law Act 1967 to the effect that their actions were

lawful since they could properly be regarded as the use of reasonable force to

prevent the commission of a crime by the State, namely the pursuing of an

unlawful war of aggression contrary to the binding norms of international law.

Others argued that because the actions of the Crown in mobilising the armed

forces for the invasion of Iraq could not be said to be lawful under international

law, the protesters’ admitted acts in seeking to disrupt the military action could

not be characterised as “aggravated trespass” within the meaning of section

68(2)of the Criminal Justice and Public Order Act 1994. The House of Lords

were therefore asked to rule on the question as to whether the various protesters

could rely upon the customary law notion of “crimes against peace” or “crimes of

aggression” to justify their actions under domestic criminal law.

4.2 The House of Lords agreed, first of all, that the concept of crimes against peace

(including the planning, preparation or waging of a war of aggression, or

participation in a common plan or conspiracy to accomplish such acts) was

sufficiently defined and clearly established in customary international law to

permit lawful prosecution and punishment of those responsible. This is perhaps

an unsurprising conclusion given that it was on the basis of such charges that

various high functionaries in the German Nazi and Japanese wartime

governments were charged convicted - and in some cases executed - in the post-

War Nuremberg and Tokyo war crimes trials. Further and, in any event, in its

decision in Kuwait Airways Corporation v. Iraqi Airways Co (Nos. 4 and 5) the

House of Lords had already recognised the concept of the international crime of

aggression. They held that the fact that the invasion of Kuwait by Iraq was

generally considered to be an unlawful war of aggression contrary to customary

international law and to the provisions of the UN Charter could be given effect to

by the English courts in a purely domestic context. Their Lordships therefore

refused to recognise the validity of an Iraqi decree which purported to transfer

property in certain Kuwaiti state owned aircraft to the Iraqi state in recognition