APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 2656/98
OPINION OF THE COURT
delivered by LORD COULSFIELD
PROCURATOR FISCAL, Dumbarton
Appellant: Shead; Clark Ferguson
Respondent: S. Cathcart, A.D.; Crown Agent
23 July 1999
The appellant was charged with a contravention of section 52(1) of the Criminal Law (Consolidation)(Scotland) Act 1995 in that on 24 August 1998, without reasonable excuse, she wilfully or recklessly destroyed or damaged the perimeter fenceline of the Royal Naval Armaments Depot at Coulport by cutting part of the fenceline there. The appellant pled not guilty but was convicted after a trial on 29 September 1998. She was on bail at the time of the offence. The magistrate admonished her but ordered her to pay compensation of £180 to the Ministry of Defence. He also confiscated a set of bolt croppers used in the commission of the offence, in terms of section 22(1) of the Proceeds of Crime (Scotland) Act 1995. The appellant appeals both against conviction and sentence.
The facts of the case were not really in dispute. The appellant is a member of the Ploughshares 2000 group of protesters against the Trident Nuclear Weapons Programme, with which the Royal Naval Armaments Base at Coulport is connected. She was seen to leave a group of other protestors near the chain link perimeter fence of the base, approach the fence and make several cuts, resulting in a small hole about six inches square. She was then arrested. She was cautioned and charged, in due course, with malicious mischief and replied "I cut the fence to protest against the genocidal nature of the illegal Trident weapons programme". In her evidence in the District Court she confirmed that she had used a set of bolt croppers to cut through the fence and explained that her reason for doing so was because she intended to enter the base to try to get to where the weapons system was stored and do as much damage to it as possible, to stop it functioning. She said that she believed that she had a reasonable excuse for her conduct. In her view nuclear weapons were illegal. She found support for that view in that nuclear weapons were unable to distinguish between combatants and non-combatants and would pollute the atmosphere, and posed a massive ecological threat. She also said that it was not lawful, in her view, to target nuclear weapons at innocent non-combatants and that this was a contravention of humanitarian law. She had tried alternative methods of protesting, such as subscribing petitions, but without result. She took the view that her actions were justified in terms of international law, the Nuremberg Principles, the Geneva Conventions and humanitarian law.
A submission was made on behalf of the appellant to the magistrate to the effect that humanitarian law was part of customary international law and therefore part of Scots law, unless it specifically came into conflict with statute, and that, having regard to the appellant's belief that her actions were justified in law, she had not committed an offence. She had acted out of necessity as well as having a reasonable excuse. The magistrate considered these arguments but rejected them on the grounds, in brief, that he considered that customary international law could only form part of Scots law if it did not specifically conflict with statute, whereas the nuclear weapons programme appeared to be authorised by Act of Parliament; that he was not satisfied that the possession of nuclear weapons was contrary to international law; that humanitarian law, so far as it did not form part of customary international law, was not established before him; and, in any event, that he was not satisfied that international law permitted an individual to take action in the way that the appellant had done. He considered that the appellant's expressed intention to do as much damage as possible to the weapons system involved a risk of possible serious injury and he did not accept that her conduct could afford a reasonable excuse.
In presenting the appeal, counsel for the appellant accepted that the Advisory Opinion of the International Court of Justice, of 8 July 1986, on which the appellant founded her case that nuclear weapons were illegal, did not go so far as to hold that nuclear weapons were in all circumstances illegal; the majority view was that the threat or use of nuclear weapons would be, in general, illegal but that it might, in the last resort, not be illegal to use such weapons in self defence against a threat of national extinction. Further, he accepted that there was nothing in the opinion of the court which indicated that it was illegal for a state to have nuclear weapons, as opposed to using or threatening to use them. We were not referred to the actual terms of the opinion nor addressed on the court's reasoning in arriving at these broad conclusions. We are content, for the purposes of this case, to accept counsel's summary of the effect of the advisory opinion. We have however seen the opinion, and we would note that in arriving at its decision the court took account of customary international law and humanitarian law as well as of the Charter of the United Nations and relevant international conventions.
Counsel referred to McDougall v. Ho 1985 S.C.C.R. 199. He accepted that the court had said that it was not concerned with a question of principle in regard to the application of section 78 of the Criminal Justice (Scotland) Act 1980, which preceded section 52(1) of the 1995 Act; but this decision, on the facts, amounted to a recognition that what would otherwise be a criminal act might be committed where there was reasonable excuse. The correct approach to the present case was to ask whether in all the circumstances the justice was entitled to hold that there was no reasonable excuse. Counsel could not refer to any line of authority or reasoning to support a proposition that the possession of nuclear weapons was criminal by Scots law and the argument turned entirely, so far as this case was concerned, on the presence of the words "without reasonable excuse" in the statutory provision. The implication of McDougall was that a reasonable and honest, even if mistaken, belief could amount to a reasonable excuse. In deciding the question, the justice should have had regard to the effect of the Advisory Opinion of the International Court of Justice. Counsel also referred to Murray v. O'Brien 1994 S.L.T. 1051 which indicated that it was for the justice to determine the case on the facts and to Palazzo v. Copeland 1976 JC 52.
The advocate depute referred to Earnshaw v. H.M. Advocate 1981 S.C.C.R. 279 as indicating that the correct approach was to consider whether there was some fact or circumstance which could in law amount to reasonable excuse. The justice had taken that approach. He had had regard to the appellant's arguments. The appellant accepted that there was nothing in law which precluded the possession of nuclear weapons in Scotland. If no crime was being committed, there was no justification for the appellant's argument that a lesser crime could be committed to prevent a greater one, a proposition which, on the basis of the cases of Palazzo and McDougall, was not correct in any event. McDougall, in any event, was distinguishable since in that case what had been done was not done to prevent an offence but to prevent the escape of an offender, or believed offender.
In our view, the magistrate reached the correct conclusion. As counsel accepted, the Advisory Opinion of the International Court of Justice does not hold that it is contrary to international law for a state to possess nuclear weapons. In the course of its deliberations, the court considered the requirements of customary international law, humanitarian law and a wide range of international treaties and conventions. The opinion itself was not, as we understand the position, placed before the magistrate and no other material was placed before him which might have justified the conclusion that there was any illegality, under any of these systems of law, in the possession by a state of nuclear weapons. In these circumstances, what the case put to the magistrate came to was that the appellant's sincere belief in the illegality of nuclear weapons and her anxiety at their potentially appalling effects amounted to a reasonable excuse for the purposes of section 52(1) of the 1995 Act. In our view, there is no basis for holding that a sincere belief of the kind here in issue amounts to a reasonable excuse for the purposes of the statute. In the cases to which reference was made, a person was held to have had a reasonable excuse, on the particular facts, when acting in response to some particular and immediate stimulus. In McDougall, for example, action was taken in the belief that a crime had just been committed and that the participants were in the course of escaping. What is a reasonable excuse must be a matter depending on the particular facts and circumstances of the case. It is enough for present purposes to say that there is no parallel between cases such as McDougall and the present case, in which the appellant acted quite deliberately and without any immediate stimulus. As has been held in all the cases, it is for the magistrate to assess the particular facts and circumstances. In our view, in the present case the magistrate was entitled to take the view that nothing had been established before him which amounted to a reasonable excuse. In these circumstances the appeal against conviction must fail and we shall answer questions 1 and 2 in the stated case in the affirmative. Question 3 relates to the sentence imposed, but no submissions were made on that issue, and we shall answer the question in the negative.