IN THE HIGH COURT OF JUSTICIARY
LORD ADVOCATE’S REFERENCE
FORM 40.4 A
NOTICE OF INTENTION TO RAISE A DEVOLUTION ISSUE</>
on behalf of the First Respondent
to the Petition of
COLIN BOYD QC, Her Majesty’ Advocate
PETITIONER
in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995
against
(FIRST) ANGELA ZELTER; (SECOND) BODIL ULLA RODER; and (THIRD) ELLEN MOXLEY
RESPONDENTS
October 2000
Angie Zelter HUMBLY SHEWETH:
That the present Lord Advocate’s Reference was initiated by the Lord Advocate on 21st January 2000 when it was lodged with the Clerk of Justiciary following the decision by Sheriff Gimblett, sitting in the Sheriffdom of North Strathclyde at Greenock, on 21 October 1999 (in a trial which had commenced on 26 September 1999) formally to instruct the jury to acquit all three accused (the respondents to the present petition) of charges relating to wilful and malicious damage arising out of an incident on 8 June 1999 when the three accused had boarded a vessel known as “Maytime” which was then moored in Loch Goil.
That I, Angie Zelter, the first accused in the original proceeding and the first respondent to the present petition intend to take part in the proceedings in accordance with my rights under Section 123 of the Criminal Proceedings (Scotland) Act 1995. A hearing diet has been fixed in this matter for 9 to 13 October 2000.
That I, Angie Zelter, intend to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act on the following grounds:
That at the time of the initiation of the Lord Advocates Reference no transcript of any of the original trial proceedings was made available to me, neither was there any Report from the Sheriff setting out the circumstances under which I, the first respondent had been acquitted of the charges against me. The Sheriff’s Report was eventually produced and lodged with the Justiciary Office on 21 August 2000.
That from the 9th February onwards I have written and received to and from the Court a series of over 40 letters asking for clarification on the procedure to which I have still not received full replies and that I have similarly had communication with the Crown. The procedure and ground-rules for the reference proceedings are still not clarified and as a respondent electing to appear personally the ever-shifting goal-posts are confusing and unfair.
That one of the major issues that I have raised in letters and at the very first procedural hearing on the 4th April was why the major issue and question raised at Greenock is not being addressed directly in these proceedings. I have still not been given a convincing argument. I actually submitted at that 4th April 2000 hearing in the following words, “The Greenock trial was essentially about the right of ordinary citizens to try to prevent one of the greatest crimes imaginable – that of the use of indiscriminate weapons of mass destruction that would lead to the mass slaughter of innocent people and of long-term and severe damage to the environment. I submit that the major issue that arose from our case at Greenock and that in all fairness should be addressed at this Reference, is the question of the criminality of the present deployment of Trident nuclear missiles and therefore I submit that this Court should also answer the following question: Is the UK actually in breach of international law in the deployment of the Trident system, given HM Government’s present nuclear deterrence policy?“
That on the 26th September 2000, I enrolled a motion to enable discussion on my arguments for changing the wording of the questions and for including the major question of law that had arisen at Greenock. I included an 11 page Statement of Argument with the motion. That on 28th September I received a letter dated 25th September from Dr. Alastair Brown of the Crown Office on the subject of the re-phrasing of the Lord Advocate’s Questions informing me that they had “reviewed those Questions and are not minded to make any changes”. That on the morning of the 29th September I attended a meeting with the Home Advocate Depute, the Amicus Curiae and Counsel for the other two respondents at which we had a round-table discussion on the issue of changing the questions and at which the Home Advocate Depute made it quite clear that while he had received a copy of my motion and arguments for re-phrasing the questions in a fairer manner so that they arose out of the facts of the Greenock trial he was unwilling to do so – that it was for the Lord Advocate to ask the questions and he had done so and they would remain as they were. Moreover it became clear at that meeting that no-one present knew for sure what kind of proceedings the Lord Advocate’s Reference proceedings are – some people present seemed to think they are some kind of hybrid – are they criminal or civil, inquisitorial or adversarial? I wanted to know what these proceedings are exactly so that I know more precisely my rights and obligations.
That the Court had my Motion and Statement of Argument before them on the bench on the 29th September at the third Procedural Hearing although it was not deemed appropriate to deal with the arguments at this Hearing. At that hearing, the Home Advocate Depute advised the court that, having considered matters, including the proposed changes to the questions suggested by the respondents, that it was not the intention or wish of the Lord Advocate that these questions should be altered in any way. I was left still not knowing if, how, or when the questions might be re-phrased and still not knowing whether they would be the actual questions to be heard at the reference or not, which was why I enrolled my motion in the first place. I was also no clearer as to what kind of proceedings the Reference proceedings are or what exactly would be happening on October 9th – the start of the proceedings.
That it is submitted that the refusal on the part of the Lord Advocate, or the Court for that matter, i) to amend the Questions for consideration by the court in connection with my acquittal from the charges of wilful and malicious damage and ii) to include the major question arising out of Greenock, and iii) to clarify what kind of proceedings the Reference proceedings are constitutes an act or omission on the part of the Lord Advocate, or the Court, incompatible with my rights under the European Convention of Human Rights, in particular the rights to a fair trial contained in Article 6.
That I, the first respondent, wish to assert my rights under Article 6 to a fair trial.
That it is submitted that I fall into the Convention category of “victim” for the purposes of the present proceedings, taking into account the following considerations, among others:
I have been subjected to criminal prosecution in respect of my act of crime prevention;
the purpose of the present proceedings is, in effect, to attempt to overturn a finding that my actions were, in the circumstances of their case, justifiable and hence devoid of necessary criminal intent;
if the present proceedings are successful in this end then my actions will, in effect, retrospectively be declared to have been illegal and the necessary finding from that is that I was unjustly and unlawfully acquitted. I will therefore lose my “status“ as an acquitted person;
I will also lose the “benefit” of my acquittal in that any such finding by this court will mean that my future actions as a conscientious peace protester trying to prevent nuclear crime will be proscribed;
Further, I may also, conceivably, be held liable at civil law for the damage inflicted by me if I am found, as a result of a decision in the present reference, to have had no defence to the criminal prosecution against me.
That it is submitted that the manner in which the proceedings have been conducted to date fall short of the requirements of Article 6 of the ECHR. In particular, I rely on the principle of “equality of arms” embodied in Article 6 which requires that each party to a civil action or criminal trial must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage compared to his opponent.
And yet I have been required to prepare to respond to proceedings which raise questions which do not properly identify the points of law which in fact arose in relation to the original charges against me. In particular, question 2 as framed by the Lord Advocate, with its reference to possession of nuclear weapons, did not arise in relation to the charges. This is just one example of many but I refer to all the arguments I put in the Statement of Argument of 29th September that was before the Court on that date and refer you also to my suggested re-wording of all the questions that I considered would be much fairer.
That read in the light of the proper protection of my rights under Article 6(1), it is submitted that Section 123 must mean that the Lord Advocate has no power to refer a point of law which has not arisen in relation to my successful defence to a charge against me. All the questions as framed by the Lord Advocate did not arise in relation to the charges against me, and the defences which I in fact offered to those charges.
That further and in any event, I submit that questions 2, 3 and 4 are so lacking in specificity that they fail to give due notice to me as to the case for which I have to prepare as to render the present proceedings “unfair” for the purposes of Article 6.
That further, I submit that this lack of specification is also arguably in breach of my specific rights under Article 6(3)(a) to be informed promptly and in detail of the nature and cause of the case against me challenging the lawfulness of my acquittal. In particular, the reference to the United Kingdom’s “policies in relation to such weapons” requires that the Lord Advocate spell out what those policies are, as he understands it, otherwise I am left arguing in the dark.
That further, I submit that by virtue of Article 6(3)(d) I have a specific right to obtain the attendance and examination of witnesses on my behalf to establish whether or not my acquittal was well-founded in law. The present proceedings as conducted by the Lord Advocate however make no provision for my being able to bring expert witnesses as to the relevant (international) law on which I based my defence so as to establish the lawfulness of my original acquittal.
That it is submitted too that because of the breadth of the questions which the Lord Advocate has chosen to ask in this case, no sufficient notice can be given to any of the respondents as to the case which might be put by or on behalf of the Lord Advocate, or which might be made out by the court. The principle of sufficient and fair notice requires not only adequate warning of arguments that are intended to be taken, but also a limitation and specification in the pleadings as to the arguments which might conceivably be taken, or founded upon by the court. That is to say, fair notice requires precision in the questions put before the court. This breach of Article 6(1) consequent upon the lack of specification in the questions posed is not then remedied by any Statement of Argument produced on the part of the Crown since it is the questions (rather than the Crown’s Statement of Argument) which determine the case in respect of which the respondents are required to prepare and respond. For the Lord Advocate to proceed to court on the basis of wholly inadequate and unspecific questions necessarily adversely affects and impacts upon my right under Article 6 to have adequate time to prepare my case in response.
That the principle of fair notice has therefore been breached by the Lord Advocate in his decision to proceed with the questions in their present unacceptably wide terms, regardless of the terms of any Statement of Argument lodged 7 days prior to the hearing on behalf of the Lord Advocate setting out what he envisages arguing. Insofar as this Statement of Argument seeks to limit the basis on which he is to be arguing before the court, then he should also formally seek to limit the terms of the questions actually before the court, rather than leaving them unamended. Any such late amendment may itself, raise fair notice points on the part of the respondents, however.
That the unfairness to me in contravention of Article 6(1) could have been remedied by the Lord Advocate: first, by amending the questions so as properly to reflect the legal issues which arose at my trial; and secondly by his giving me fair and specific notice of the approach which would be taken by him in relation to these duly amended question. The Lord Advocate has refused to amend the questions and, it necessarily follows that he has also failed to give due notice of his approach in relation to any properly formulated questions. Such failure to respect my Convention rights to a fair trial renders his conduct in continuing with the present proceedings under the currently drafted questions both unlawful under reference to Section 6(1) of the Human Rights Actand under reference to Section 57(2) of the Scotland Act 1998.
That a copy of this minute has been duly intimated to Her Majesty’s Advocate, and to Ellen Moxley, to Bodil Ulla Roder, to Gerard Moynihan QC, amicus curiae and to the relevant authority within the meaning of Rule 40.1 conform to the executions attached to this minute MAY IT THEREFORE PLEASE YOUR LORDSHIPS
To order that there be a diet and to assign a date for that diet
IN RESPECT WHEREOF
Angie Zelter, 1st Respondent