R v Jones and Another; R v Olditch and Another; R v Richards

[2004] EWCA Crim 1981

Court of Appeal

Latham LJ, Gibbs J and Judge Richard Brown

21 July 2004

CRIME - Criminal damage to property - Defence to charge - Defendants damaging property at operational military airbase in attempt to prevent allegedly unlawful attack on Iraq - Whether attack on Iraq crime of aggression - Whether crime of aggression international law crime - Whether defences of necessity and/or lawful excuse available - Criminal Law Act 1967, s. 3 - Criminal Damage Act 1971, s. 5

Whether or not there was an international crime of aggression, it was not a crime in domestic law for the purposes of the defence in s. 3 of the Criminal Law Act 1967 but a person who used force in the honestly held belief that in doing so he was protecting the property of others abroad from damage that would be caused by the executive's lawful exercise of the prerogative power to wage war could raise a defence under s. 5(2)(b) of the Criminal Damage Act 1971.

The Court of Appeal, Criminal Division, so held in a reserved judgment dismissing interlocutory appeals by Margaret Jones, Arthur Milling, Philip Pritchard, Toby Olditch and Josh Richards and the Crown's cross appeal against rulings by the trial judge, Grigson J, at Bristol Crown Court, at a preparatory hearing under s. 29 of the Criminal Procedure and Investigations Act 1996, relating to the extent to which the defendants, in proceedings against them for criminal damage to property at RAF Fairford, could 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.

LATHAM LJ said that each of the defence statements for the purposes of the three trials were based on the assertion that the attack on Iraq was an unlawful act which the defendants were attempting to prevent by damaging military property. Each defendant submitted that they were entitled to rely on three defences: (1) duress of circumstance/necessity; (2) the defence of lawful excuse under s. 5(2)(b) of the Criminal Damage Act 1971 and (3) the prevention of crime under s. 3 of the Criminal Law Act 1967. At a preparatory hearing the trial judge concluded that the issue of the legality of the war was not justiciable in domestic courts. On the defence under s. 5 of the 1971 Act he concluded that the only matters which were relevant were those expressly set out in the sub-section. 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. 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.. He held that the defence of necessity was available if a defendant could show that he acted to prevent an act of greater evil but there was no requirement that the act of greater evil should be unlawful or that it took place within the jurisdiction; if he could show that the greater evil was directed to those for whom the defendant reasonably believed he had responsibility; that his actions were reasonable and proportionate to the evil to be avoided and that on the facts as the defendants believed them to be he was driven to act as and when he did to avert harm that was about to harm. He concluded that the actual legality or illegality of the war against Iraq was accordingly not a relevant issue in the trial. The defendants appealed against the judge's ruling on justiciability and his conclusion that the alleged crime of aggression was not a crime for the purposes of s. 3 of the 1967 Act. The Crown appealed against his ruling in relation to the defence of necessity and lawful excuse under s. 5 of 1971 Act in so far as that permitted the jury to take into account in determining the reasonableness of the defendants' actions the inevitable consequences of a declaration of war, but did not appeal against his ruling that the jury was entitled to consider a defence based upon the prevention of alleged offences under the 2001 Act. In their Lordships' judgment whatever other effects the international rules as to the crime of aggression might have, they could not constitute a crime for the purposes of s. 3 of the 1967 Act. On the defence under s. 5 of the 1971 Act the only objective element which the jury would have to consider was whether it could be said on the facts, as believed by the defendant, that the criminal damage alleged could amount to something done to protect another's property. Subject to that element the court and the jury were concerned simply with the question of a defendant's honestly held beliefs. Accordingly, no issue could arise in relation to that defence which involved consideration of the legality of the war in Iraq. On the question whether the defence of necessity was available, necessity was potentially a domestic defence to a domestic offence. On the basis that the executive's action in declaring and waging war was, in itself, a lawful exercise of its powers under the prerogative, the court would have to consider the extent to which necessity might afford a defence to the defendants in the light of their beliefs The extent to which their beliefs as to the facts would enable the defendant to establish any elements of the defence was not a question their Lordships were called upon to answer. Accordingly, it was not necessary to consider further the question whether or not the legality of the war in Iraq was a justiciable issue.

Appearances : James Lewis QC and James Hinds (instructed by the Stokoe Partnership) for Jones and Milling; Vaughan Lowe and Alison MacDonald (Bindman & Partners) for Olditch and Pritchard; Keir Starmer QC and Hugo Charlton (Stokoe Partnership) for Richards; Malcolm Shaw QC, Mark Ellison and Peter Blair (Crown Prosecution Service, Gloucestershire) for the Crown.

Reported by: Clare Barsby, barrister