Transcript of Day Five Friday, 13th October, 2000

FRIDAY, 13th NOVEMBER, 2000

LORD PROSSER: There is one other matter I want to take you to and ask again Mr. Moynihan, there is one matter that I wanted to raise. I appreciate that in our search over what is Customary International Law a decision of the International Court of Justice is one possible source and I am not embarking on that question, but if one comes back to it to your search for Customary law their own decision was not yet available to them. The intransgressible rules that you referred to I think are rules not of customary but of Conventional international law, they are from the Hague and Geneva Conventions. Two questions arise as to whether these are indeed rules as opposed to principles.

The most obvious parallel to this is perhaps the earliest “Thou shalt not kill” and that is a quite unequivocal and universal command but as usual over the years it has been seen as a statement of principle to which there are exceptions and it is at least possible that is the nature of the conventional statements contained in things like the Hague and Geneva Conventions. That being so that is not perhaps self-evident that they are intransgressible.

Subsequently the position of the International Court of Justice appears to take a decision as to Customary law. If one leaves aside conventional matters so that one can identify the basis upon which it could be said that there was a clear practice of the usual kind establishing that there was a customary accepted rule, because there is a crucial difference I think between a situation where you are looking for practice as a source and a situation where you already have a rule.

In the latter cases you can see that in a particular nation it is not enacted or it is in breach of the rules or there is no pre-existing rule, or if there is a rule that is in existence, but again I don’t want to take time up but I am puzzled as to the basis for this assertion, whether there is any basis for the practice that would be worth looking at, that it was unlawful to do what a number of countries were doing.

MR. MOYNIHAN: I have the three sources of the content of International law and carrying over from yesterday where I raised first the thing yesterday in answering your Lordship’s question, not by my Lord in the Chair, the formulation of the question raised by Lord Penrose.

LORD PROSSER: But since the ICJ I have been looking at this and it is really difficult to analyse their decision where they qualified it by saying Customary law not to have identified practices.

MR. MOYNIHAN: It is convenient to do this now and what your Lordships have to consider is the crucial structure of language used in the conclusions of the Court in paragraph 105 and these are propositions A to F. They are quite crucial to establishing whether we should rely on Conventional international law or we should rely on Customary international law. This is at page 266 and it is paragraph 105.

LORD PROSSER: We are addressing the matter of intricacy, not interpretation?

MR. MOYNIHAN: Yes. As far as A is concerned and B for that matter your Lordships will see these are two self-cancelling propositions. “There is in neither Customary nor Conventional international law any specific authorisation of the threat or use of nuclear weapons”.

B says “There is in neither Customary nor Conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such” so you see the Court is careful there to be conscious of the distinction between Customary and Conventional and we see as the matter progresses what begins to affect us is C, D and E. “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful”.

So there is a reference to exceptions, and in my respectful submission the reference to Customary law is where in D and E it says “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons”. So humanitarian law in my respectful submission is seen as an aspect of Customary law.

LORD PROSSER: Well I’m not sure about that because it seemed from reading that that the intransgressible one was identified in fact within the Conventional area rather than the wider scope of humanitarian law.

MR. MOYNIHAN: The Court progresses through the various headings. If your Lordships see as far as the structure is concerned that the Court begins at Paragraph 52, this is page 247. “The Court notes by way of introduction that international Customary and Treaty law does not contain any specific prescription authorising…” The Court then examines whether at Paragraph 53 “The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect”, and then the various treaties are set out.

LORD PROSSER: That is really those earlier A and B bits.

MR. MOYNIHAN: That is correct, then we come to the matters with which I was concerned at paragraph 64 page 253. The Court says “The Court will now turn to an examination of Customary International law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law”.

LORD PROSSER: That is what I was really considering, whether they found something which indicated an opinion.

MR. MOYNIHAN: If I can perhaps conclude this chapter by inviting your Lordships to look at paragraph 79 of page 257 and this is really back to the intransgressible principles. It is the last sentence of that paragraph 79 and I accept it makes reference to the Hague and Geneva Conventions but after that it states, “Further these fundamental rules are to be observed by all States whether or not they have ratified the Conventions that contain them, because they constitute intransgressible principles of international Customary law”.

LORD PROSSER: But we have ratified that so from Britain’s point of view it would be conventional.

MR. MOYNIHAN: If we include that and on the basis that the Geneva Convention has been ratified, whether the UK situation is reflected by this, that is the position regarding the nuclear weapons and we have to look to this convention.

LORD PROSSER: Convention rather than the practice by saying “intransgressible principles of international Customary law,” that is based in terms of these conventions.

MR. MOYNIHAN: That is upside down and if one turns to 78 and right down to 79 there are two points and my Lord’s point is one of not just international understanding but one of convention because it is the use of laws and there is a legal point at the very last sentence where the Court is referring to the Hague and Geneva Conventions, though it is actually mentioned in 78 and 79 first as to what it perceives to be a rule of international Customary law, and if anything all that the treaties are being used to do is to demonstrate what I believe in the Oppenheim reference is a universal principle that is accepted.

LORD PROSSER: This is a passage where it comments on a great many rules of humanitarian law, in other words not all rules of humanitarian law are conventional, it is just an element of humanitarian law, but in the Hague and Geneva Conventions that is more to identify in particular fundamental rules, but they are not falling outwith the act of these conventions are they?

MR. MOYNIHAN: I think they are because of what I understand to be Customary international law which is the first two sentences of paragraph 78 and indeed the first sentence of paragraph 78.

LORD PROSSER: Yes, 79 seems to narrow it down by saying the Court rules are so fundamental. The first sentence of paragraph 79 refers to “A great many rules of humanitarian law” being fundamental, etc. It says that not all, it is perhaps obvious, but not all rules of humanitarian law are this fundamental.

MR. MOYNIHAN: It is I think the last sentence of 79 that mentions this point. If your Lordships go back to the first sentence your Lordships will see why they refer to the Hague and Geneva Conventions because what they say is “It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ’elementary considerations of humanity’ as the Court put it in its Judgment of 9 April, 1949 in the Corfu Channel case, that the Hague and Geneva Conventions have enjoyed a broad accession.”. So in other words they are saying you can see that these are universal principles because it is conventional or broadly accepted. They then go on to say in their final sentence, “Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international Customary law”. So it is broadly accepted that probably over-arching the Customary law is universally binding.

LORD PROSSER: On this point before we go away from the Conventions they have identified the practice which is the usual source for saying there is no opinio juris, so they have covered that point but did they identify anything in practice which suggests an opinio juris to this effect. I know they set out the conclusions and they set out the basis.

MR. MOYNIHAN: The answer is no if your Lordship goes back to Paragraph 22, the paragraph that I read in relation to the proposition of the UK assenting, page 239 my Lords “The Court notes that the nuclear-weapon States appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particular humanitarian law (see below, paragraph 86), as did the other States which took part in the proceedings”. What I am suggesting to my Lords is that because it was a non-acceptance the principles of humanitarian law were applicable but one doesn’t get that chapter and verse.

LORD PROSSER: That is another question. I don’t know if that was put forward as a proposition or not but you may get some assistance from the words I mentioned which are thousands of years old.

MR. MOYNIHAN: Yes, you were suggesting the phrase “Thou shalt not kill” and that brings in the conscience factor, whether the killing may be justified and this includes the self-defence and one may choose to say the words, “You may never kill” so that the rule is intransgressible.

LORD PROSSER: The way I see it it at least opens the possibility that relates to the principal rule situation, but the words “intransgressible and “conventional” are the ICJ rather than the convention.

MR. MOYNIHAN: That was a conclusion.

LORD PROSSER: That was the conclusion but it doesn’t derive from the findings of the opinion?

MR. MOYNIHAN: With respect no, these are, these rules which are universal principles so they basically have to be accepted in the research and derivation of these for the simple reason the International Court of Justice in 78 and 79 use quite deliberately the words, “intransgressible principles”.

LORD PROSSER: I know but there is also the inference that one finds when it is not covered by convention and one would expect that to be covered by the opinio juris so it is indeed a substantial departure from any findings or any such opinio juris. Do you say that is wrong?

MR. MOYNIHAN: No, that is inviting, following the invitation of the Court in Paragraph 22 and in looking at 86, I was trying to read paragraph 86 and paragraph 86 begins on page 259 and goes on to 260.

LORD PROSSER: Yes.

MR. MOYNIHAN: And I have it marked here but 260, a quarter of the way down the page, it is the second full sentence. “So far as the Customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the Jus in bello“.

LORD PROSSER: I have no problem with that, that’s exactly the distinction I had in mind but the general principle has exceptions so it is quite distinct material from the universal, so that’s actually an expression of opinion from the UK which would appear to fall short of acceptance of the views as in the intransgressible rules and saying they are general principles.

MR. MOYNIHAN: But again just to re-repeat the argument of yesterday, I was just indicating that where it becomes complicated as fa as trying to understand the UK position is because we have a page over from 86, we have the sentence in 91 relating to this small point, but I have not sought to delve behind the international Court judgment for this reason, for two reasons. Firstly 78 and 79, those use the words, “never” and “intransgressible” and accordingly I would cover that in coming to the terms of Answer No. 3 which is persuasive authority. First of all one sees in there a reasoned opinion but the precise reasons are missing.

LORD PROSSER: Yes, one sees it in there but one doesn’t get the details, only an inference.

MR. MOYNIHAN: The derivative is not explained, the only explanation I can give for that is to look at paragraphs 22 and 86 and to invite your Lordships to read it on the basis that these matters are not again in considerable detail because they were not initially in issue between the States. If that leaves a, this is a passage just in passing into the third point, if that leaves the authority for the cases for your Lordships that will require to be done or when the Court reconvenes that is something to look behind to see whether these principles of humanitarian law are set up by the practice of opinio juris or whether they are set up as being so fundamental as not to require practice.

LORD PROSSER: There is an incompatible practice on the part of all the nuclear States according to you?

MR. MOYNIHAN: Yes.

LORD PROSSER: And then you go on to say it is almost impossible to say there is a rule based on practice?

MR. MOYNIHAN: Yes, so viewed there is a purpose simply to be gained by looking at the introduction of the dissent of Judge Schwebel on page 311 and it really is summed up on that page in the first sentence. The first sentence sums up what the judge debates on the whole of that page. “More than any case in the history of the Court, this proceeding presents a titanic tension between State practice and legal principle. It is accordingly the more important not to confuse the international law we have with international law we need. In the main, the Court’s Opinion meets that test, I am in essential though not in entire agreement with much of it, and shall, in this Opinion, set out my differences. Since however I profoundly disagree with the Court’s principal and ultimate holding, I regret to be obliged to dissent. The essence of the problem is this. Fifty years of the practice of States does not debar, and to that extent supports, the legality of the threat or use of nuclear weapons in certain circumstances. At the same time, principles of international humanitarian law which antedate that practice govern the use of all weapons including nuclear weapons, and it is extraordinarily difficult to reconcile the use – at any rate, some uses – of nuclear weapons with the application of those principles”. So one sees there that he quotes matters in that way.

LORD PROSSER: The crux may be whether principles or in a sense that may be an exception on whether the rules, if they are absolute rules or if there is a collision if the statement of principle as it features is one of the exceptions.

MR. MOYNIHAN: Again if one looks at Judge Schwebel who was dissenting and what he is saying in the first sentence of paragraph 2 is “The essence of the problem is this. Fifty years of the practice of States does not debar, and to that extent supports, the legality of the threat or use of nuclear weapons in certain circumstances”. Now, obviously the question posed to the Court was to invite the Court to define this satisfactorily and he dissents because he takes a more principled view of the circumstances in which there may be a threat or use.

LORD PROSSER: I don’t know that this paragraph really distinguishes because he treats them as principles and not as rules when he is talking about the particular weapons and so on.

MR. MOYNIHAN: I think all I’m saying is that stepping back from the language used so as to mirror that he dissents on a view that you would get more liberal use of nuclear weapons but he doesn’t agree with the proposition and the sense about use and if one does use that without taking the question and language back to reflect what the majority view was reflected in the opinion of the Court, that certain exceptions may be used in certain circumstances that I suggest is a limited circumstance and uses the circumstances of proportionality which are intransgressible and I think probably the rule simply means that intransgressible is more a bedfellow of the rules rather than anything else.

LORD PROSSER: Yes, I think that is for convenience.

MR. MOYNIHAN: My Lord, I really can’t without embarking on yesterday’s discussion really improve this position.

LORD PROSSER: The only other thing is the rules in Letter D on page 266 and this is as part of the context and it has the words “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules”. Now, I would like some comment on the occurrence of that word in any statement on principles and rules at all. I don’t understand it. It might be a word you would use if you were speaking of some broad principle but one can think of exceptions and it doesn’t seem to be right.

MR. MOYNIHAN: I think if it assists your Lordship you may wish to refer to the French text to see if that illuminates the point there. I have taken it, and it belongs to the National Library.

LORD PROSSER: It is not just “dupret”.

MR. MOYNIHAN: My Lord, that is why I have passed up the French for your Lordships.

LORD PROSSER: I’m not going to explain what it is but “dupret” is an interesting word in some contexts.

MR. MOYNIHAN: I’m not competent to address the interpretation of the French position.

LORD PROSSER: It is semi-conditional on other things but if it is not something you can comment on.

MR. MOYNIHAN: It is the answer to it formulated in English and this was really where I began, this was really the whole purpose of yesterday afternoon. I began with the facts that if we were standing as the dispositive at page 266 then there would really be a conundrum because this would be culminating in a second paragraph of Proposition E which Judge Bedjaoui acknowledges is a very difficult task, so if one was standing looking at this in the abstract and accepts what my Lord says in the Chair such things in, particularly in D flowing into E generally is an unhelpful area or is lost in the language. I am conscious of the time Judge Bedjaoui discussed what the word was generally intended to mean albeit he used it using this vague expression, Judge Higgins calls it a vague expression and they are thought by the Judges to be vague and my thesis that I am submitting to your Lordships is that vagueness reflects what I call marginal issues and although your Lordships will not seek to do so, this case concerns the core and if one looks to the core, the position is I think pretty obvious that these vague expressions are there because of the Judges who were present and that they acknowledged them to be so and something I have not read your Lordships but they acknowledge that they were going to answer this question in the abstract.

If you look at page 237 and this is paragraph 15 at the top of page 237. This my Lords in a context of the Court debating the proposition of entertaining the question because the question was so badly stated what the Court was stating was that “Certain States have however expressed the fear that the abstract nature of the question might lead the Court to make hypothetical or speculative declarations outside the scope of its judicial function. The Court does not consider that, in giving an advisory opinion in the present case, it would necessarily have to write ’scenarios’ to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientific information. The Court will simply address the issues arising in all their aspects by applying the legal rules relevant to the situation.”

So the Court acknowledges that it is going to address it in the abstract relating to all weapons.

LORD PROSSER: I can understand I think if they then identified the practice which confined what you called the core was the practice of opinio juris but the trouble is that even at the core they don’t find identification in practice, in fact the practice they find contradicts it at the core.

MR. MOYNIHAN: And the fact that they use the word practice looking to Judge Schwebel, he acknowledges at the core that there is “a titanic tension between State practice”, the practice of the Nuclear States, and what I said and I have not researched through enough to speak authoritatively on this, is whether the principle, that is the humanitarian legal principle, whether that is something derived from practice and opinio juris or whether it is something derived from a basic and fundamental law.

LORD PROSSER: It wasn’t identified, you can’t identify anything in anything that they say, a basis in practice even for the core proposition.

MR. MOYNIHAN: No.

LORD PENROSE: Would one want to look at the opinion of Judge Schwebel where he does elaborate quite clearly what the problems are as he sees them. I’m just trying to follow up on this.

MR. MOYNIHAN: I can answer on these two points, I submit to your Lordships the whole of the opinion of the Court has to be read as my learned friend Mr. Di Rollo more or less did. In so far as your Lordships are looking at the opinions of the judges, that is Judge Schwebel and the rest, they should be read on their own and only the Judge’s opinions require to be read on their own as a totality and indeed as summarised for your Lordships the limited numbers of the opinions that have been given to illustrate from my perspective, illustrate the points, and it may be that your Lordships will feel they need ultimately to read more even than is here in which event copies can be made available.

I have not for example invited your Lordships to look at Judge Weeramantry.

LORD PROSSER: It is just to assist in finding out how they interpret those particular passages.

MR. MOYNIHAN: There are dissents from the judges who thought that Propositions D and E went, or perhaps E did not go far enough, and that is Judge Weeramantry and among the others was the judge who thought perhaps E went too far, Judge Schwebel and if my Lords were to read Judge Schwebel and specifically Your Lordships will be aware that there is a passage from Judge Weeramantry and these would require to be read side by side.

If I can pass to the third matter which is also significant, your Lordships asked me a number of questions when we began on the status of the International Court of Justice opinion and I can’t remember the precise formulation but there seemed to be some discussion about practice since the Opinion. I said to your Lordships that I have some recollection of having read something about the United Kingdom having, about the United Kingdom having refused to accept Proposition F which is negotiation in good faith.

The evidence which I refer to in connection with this is the evidence of Rebecca Johnston which begins at page 42 letter D of the transcript. I don’t propose to read it but I simply direct your Lordships to what it is. 42 letter D is simply, putting it in context, Mr. Mayer had asked her to look at the Advisory Opinion and then looking at page 42 letter D indicating that he wanted to restrict his questions to this, to Paragraph F. In so far as I can determine myself the transcript does confine itself to paragraph F.

The witness at 46A to 47B and in particular it is the last two lines above E your Lordships will see “and on that occasion the British government voted against”. Two lines above E “And on that occasion the British government voted against.” When the opinion of the International Court of Justice first came before us, came before the General Assembly for approval this evidence is here that the United Kingdom voted against. I’ll come back to that in a moment as to what that actually means.

And then it goes on later at 50 letter B through to 53 letter E, 50 letter B to 53 letter E, to indicate that the following year 1997 after the General Election the new Government, the present Government changed its voting in relation to this matter from one of voting against to abstention. She says at 51 B and C at, yes, 51 B to C she says regarding the meaning of the word “abstaining”, “It is a curious step because it is interpreted as meaning that Britain accepts the validity of this unanimous opinion of the International Court of Justice but the particular paragraph of this was a resolution calling for further steps to be taken”.

So can I leave it that what she has been saying all the time in the context of Paragraph F is that the UK initially voted against and then in 1997 abstained and that was apparently understood to indicate a now acceptance of that proposition.

LORD KIRKWOOD: If you abstain do you accept?

LORD PROSSER: Particularly if you think he should be taking further steps.

MR. MOYNIHAN: Yes your Lordship I have handed up at the appropriate time some documents which I have before your Lordships answering your Lordship’s question which I don’t think were there at the time of the trial. The reason for putting these up is simply to answer your questions about the submission of the United Kingdom’s attitude to this Opinion and as your Lordship sees and this is at page 2 that the witness may have been referring to the time when the matter came before the General Assembly in 1996 and on Page 3 I have marked it with a line in the margin and an arrow. (Proposition 3 and Proposition 4 read).

LORD PENROSE: The General Assembly is not a legislative body for this purpose so does that help us at all?

MR. MOYNIHAN: It doesn’t but I am seeking to answer your question from yesterday.

LORD PENROSE: Yes, whether there was international, whether there was subsequent material from which one would draw conclusions as to whether or not it had come to be Customary international law.

MR. MOYNIHAN: Yes your Lordship, all I was doing is showing your Lordships that the search is inconclusive because as far as I can see the only subsequent debate is to discuss the evidence and in these documents it relates to Proposition F and I can see nothing, it is simply a point of information for your Lordships.

If I pass then to the matter which is the issue for today. The international law goes to the defence of necessity. My Lords, there is not much in the way of dispute between myself and the Crown in relation to the relevant propositions. My learned friend Mr. Di Rollo said that the Crown’s basic position was that necessity apart it is no defence to have one crime committed to avoid another. For my part I do not quarrel with that proposition. Can I make a point that your Lordships have said they will not determine and therefore I will touch upon this lightly.

My Lord in the Chair has from time to time on occasion in the course of discussion with me raised this question about the manner of the acquittal and the time at which it was raised and the reference to the case of Kent and if I can just say very briefly this was a matter on which your Lordships did not wish to make a ruling but can I just draw to your Lordships’ attention that there may be something which I raise in the passing which will have a bearing on future practice.

The case of Kent at 1950 Justiciary Cases page 38 and that is authority for the proposition upon which the Crown relies, that a judge should not, a Trial judge should not give a direction to the jury to acquit until after the conclusion of speeches by Council to, or legal representations to the jury. I would ask your Lordships to take into account three matters in relation to that case. Firstly of course the point at issue in the case was whether the defence at the close of the Crown case make a Motion for acquittal, and that case says that the Defence cannot and the Authority of the case has accordingly been overtaken by Statute.

Section 97 of the Criminal Procedure (Scotland) Act which allows a no case to answer submission on which nothing seems to be said. That is the first point that would require to be noted. The second point that requires to be noted in that bundle of cases is the case called Collins v. H.M. Advocate and that is 1993 Scots Law Times page 101 and I handed up to your Lordships two documents this morning and I should say that in relation to the international law question before we come to Collins I found for your Lordships the case or the book called Harris Cases and Materials on International Law and I have some photocopies to hand in.

LORD PROSSER: Cases and Materials on International Law.

MR. MOYNIHAN: At page 105 it gives a note of the Statutes and Advisory Opinions.

LORD PROSSER: This is slotted in at the back of your bundle?

MR. MOYNIHAN: It tells your Lordships what in general the attitude is to the Advisory Opinion. It is illustrative of an Advisory Opinion, one of the very opinions we debated but it doesn’t tell us where that stands so I’ll pass over that and not take up time.

But the case of Collins 1993 page 101, this is citing for your Lordships the observations of the Lord Justice Clerk Ross and what appears on the third page, page 103 from the Scots Law Times your Lordships will see “I am bound to say that I am very surprised at some of the things which Counsel for John Paul McFadyen said in his address to the jury. I do not approve of Counsel using his address to the jury as a vehicle for inviting directions on law from the Trial judge”.

The preceding paragraph tells your Lordships what the direction was that was sought and I personally my Lords have always understood that lack of approval to support what we know as an oldfashioned submission, that it is the duty of Counsel to raise before their speeches matters of law on which they seek a direction from the judge.

LORD PROSSER: It is a matter of degree and circumstances so it is probably a moot point, but you would raise it with the Judge in advance.

MR. MOYNIHAN: The final part of this in the submission we have in that part of the Statute which is in Section 106 sub section 3B of the Grounds of Appeal says that they had returned a verdict which no reasonable jury properly directed could have returned. So in other words no jury properly directed in law could have returned the verdict that they did was the Ground of Appeal.

What I submit to your Lordships regarding these three propositions together is if there is an issue of law raised on that old-fashioned submission, and if the Judge reaches and forms the conclusion on that matter of law I would respectfully say that there is nothing in Kent to say that the Judge cannot say at that stage “I have reached my conclusion, I cannot direct a jury that it would be legitimate to convict, accordingly I will now direct to acquit.”

This case, particularly at the first instance did not have time for embarking upon unnecessary speeches to the jury and if the Judge had reached, had formed a conclusion on the matter of law this suggests that he could call a halt to the proceedings there and then and thereafter obviously ask the appropriate tribunal, the jury, to return the appropriate verdict.

LORD PROSSER: The Fiscal had already told the Sheriff what the Crown contention is and there is no reason why he should then address the jury at that point rather contrary to…

MR. MOYNIHAN: If your Lordship looks at Kent what Lord Justice-General Cooper says at page 41 is that ultimately the Trial Judge has to give a direction to the jury that it would be open to them to return a verdict of not guilty and that in practice in Kent the Judge could contemplate that only at the conclusion of the entire case.

LORD PROSSER: If you introduce the Section 106 submission at the end of the Crown case for which the Judge rather than the jury that should perhaps have been dealt with at the stage where there is an old-fashioned argument at the end of the evidence, so in that case also the Judge does the same thing.

MR. MOYNIHAN: On the 106 which is a Ground for Appeal it is nothing to do with a Trial Judge, it is in the first instance, if it be, it is self-evident, if the Judge has to be satisfied that the jury can appropriately return a verdict of guilty he has to direct them in his Charge. If having heard a comprehensive argument on the matter the Judge is satisfied that no such direction can be given what is the point of asking parties to go through the charade of speeches where ultimately the charge is going to be deleted, it is simply a matter of expediency where the Court is not going to waste unnecessarily the time.

LORD PROSSER: One line would be to hear outwith the presence of the jury the submission if there is any scope for the judge hearing oral evidence. In order to resolve matters of international law that would occur at that Hearing outwith the presence of the jury because that is a step towards the judge making up his mind on that point of law especially if it is a point of difficulty that has to be disentangled and that is where any such evidence would require to be dealt with. That is where it would occur. It would be for the judge and would not be evidence given to the jury because that would not be a matter upon which the jury could competently reach a decision.

MR. MOYNIHAN: The answer is yes, subject to this, that of course it begs the question whether the evidence of the witness can be broken into pieces and I say when one looks at the evidence of the witness in this case Professor Boyle, an essential witness, your Lordships will see and understand that he is relying on his factual evidence, or his factual matrix.

LORD PROSSER: One might expect the legal part to be heard by the Judge outwith the presence of the Jury and the Judge should reach a conclusion as to the legal matter, and that matter would have to be avoided if there was factual matter which the witness was competent to give to the jury although I think it would still be the point that you would have to, there could be evidence which would affect the witness’s belief as to the law, which could be relevant but that’s not giving evidence as to the law.

MR. MOYNIHAN: The intention of putting that chapter in Kent before your Lordships was the opposing view of the Crowns in which they have already said they would not wish to answer the particular question which gave rise to that.

LORD PROSSER: Unless someone submitted that we should.

MR. MOYNIHAN; I am simply stating what someone has said and someone has taken an opposing view on the matter. So, what are the proper bounds of a defence of necessity? Your Lordships will be aware having read the learned Sheriff’s note that she considered necessity in two different respects. Firstly as I have dealt with the mens rea and secondly as a specific defence. She considered mens rea as having a bearing, necessity as having a bearing on mens rea and as a separate defence. I will choose to address your Lordships on the basis of a defence of necessity. The reason being for that it is easier for me to have it in such terms and I would suggest in some circumstances the same propositions of proof can be brought to bear in defining mens rea.

What I have in mind is the particular circumstances where a doctor is carrying out an operation in an emergency situation and the doctor acts out of necessity and of course there are cases in England including the House of Lords where defining the circumstances of necessity would permit a doctor to act out of necessity. It may be thought more conceivable for a doctor acting that one is taking necessity into account in mens rea, in other words in asking whether he committed the crime of assault at all rather than saying the doctor has committed the crime of assault but can he establish the defence of necessity.

LORD PROSSER: I think it may be right in relation to assault because where the evidence is of an intention to harm it may be rather different from the intention to make a decision but that is simply an argument, or an example.

MR. MOYNIHAN: I am not suggesting to your Lordship that in this mens rea version and in the defence version there are different parameters but what I am going to do is approach it broadly on the basis that necessity in either of those guises is broadly the same parameters and to seek to define them.

LORD PROSSER: They said they were going to decide on the basis of a specific definition and I think they made clear the issue and one is whether there is evidence of motive.

MR. MOYNIHAN: I think as far as possible they are not contradicting myself and the intention of myself is to define necessity, to define the parameters of such a defence and your Lordships I would not concede that the same ideas can’t be applied to mens rea. Your Lordships in particular Lord Kirkwood may look at the case of Ward v. Robertson Lord Aitchison 1938 Justiciary Cases page 23 and the particular passage for Lord Kirkwood was page 36 where, your Lordships, Lord Justice-Clerk Aitchison indicated that there was still some room for the word “malicious” in the crime of Malicious Damage at the very end of his judgment and this four lines up from the bottom of his, the very end of his judgment, where he says, “but, however that may be, we are not justified in re-defining malicious mischief so as to eliminate from it the element of malice or what in law may be the equivalent of malie. I regret that the appeal must be allowed.”, so there is still possibly the content. And what I am choosing to do for ease of reference is to now speak of the defence of necessity. The reason why I kept the option open was to look at the mens rea premise and when your Lordships dealt with the merits of this case the learned Sheriff gave an analysis of the facts under the heading of mens rea, so it is easier just to quote the heading of the defence of necessity.

I am wanting to leave open the factual consideration of mens rea because that is a way of explaining where I am going.

In order to limit the defence of necessity I really have two points of difference from the submissions which your Lordships have heard from my learned friend Mr. Di Rollo. Those two matters relate to the companion limitation, and secondly the standard which has to be applied. Your Lordships have heard that there has to be no choice. Now, does that mean no choice to the individual, no choice to anyone, or some other standard. So I am speaking primarily about that, and then looking at some American cases, which are looking at it from a different perspective and if I can clarify the documents I am referring to are in the Crown bundle of Authorities and they are in the lever arch files that were lodged with the Crown Production. It is in the amicus curiae volume. So if I begin with Glanville Williams Criminal Law, the Second Edition and it is W for the Crown my Lords. And looking at page 728 my Lords, this paragraph entitled “Theoretical Basis and Limits”, and I introduce this not as a precedent of the limits of the defence but that is stated at paragraph 232 is “The peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision. Much of what would otherwise be covered by the doctrine is specifically provided for by law, whether Statute or precedent; the general doctrine needs to be invoked only in the unprovided case. It is in reality a dispensing power exercised by the judges where they are brought to feel that obedience to the law would have endangered some higher value.

Sir William Scott said in the Gratitudine (1801). ’The law of cases of necessity is not likely to be well furnished with precise rules; necessity creates the law; it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal. It is not to be considered a matter of surprise, therefore, if much instituted rule is not to be found on such subjects’”.

So in other words one should be conscious when we are reading the Authorities that there are few cases involving necessity that will come into use, and when one is trying to find a unifying theory these are in my respectful submission a pragmatic acceptance that the Court is using and dispensing power which like any dispensing power will be used rarely and only in the most deserving of cases.

This continues and explains why when one looks at some American cases and if your Lordships turn to paragraph 232 of this text at page 731, paragraph 233, page 731, your Lordships will see the learned author sets out the jurisdiction where there has been consideration of the necessity and he cites “Much the best formulation is that in the American Law Institutes Model Penal Code”, and it is for that reason I will take my Lords in due course shortly across the Atlantic for some specific consideration of the defence in the context of anti-nuclear activity.

So there is some justification for looking at it and I accept that it is, that the American cases proceed upon a statutory basis rather than common law.

LORD PROSSER: The Institute’s Model Penal Code is not something which has been incorporated into law.

MR. MOYNIHAN: No.

LORD PROSSER: As certain States have their own specific statutes.

MR. MOYNIHAN: Your Lordships will see some of the cases turn on that and it is put forward as I have taken it very broadly on the basis of Glanville Williams and that is the basis of the broad formulation but this is the only justification for looking across the Atlantic. If I can refer to the first question of companion in Moss and Howdle which is 1997 Scottish Criminal Case Reports page 215 and this is modern Scots Law and the first point which was made by the Court was to approach and consider the appropriate points of the defence of necessity and the Lord Justice General has a fairly comprehensive review of the defence.

My Lords, Mr. Di Rollo cited this case to your Lordships with the proposition that the defence of necessity is confined to the actor, the Accused, assisting either himself, in other words helping himself or helping his companion and that is because if your Lordships look at page 222 letter E, “The law recognises that ’Danger invites rescue’ in Scotland just as surely as in New York”, and there are two citations given. “So Scots Law has never been so mean-spirited as to confine the defence of self-defence to situations where the Accused acts to save himself. It has always recognised that the defence may be available in situations where the Accused acts in an altruistic fashion to save a companion”.

And then there is the citation of Hume page 218 and if I take your Lordships to Hume and if I could also ask your Lordships to look back to page 220 letter E the word “companion” was introduced by the Counsel for the Accused in her submissions and it is if we take it from the beginning of the fifth line, “Similarly, she said, the threat did not need to be to the Accused himself. If an Accused could be acquitted when acting to avoid danger of death or great bodily harm to himself, he should likewise be acquitted when he acted to avoid such danger or harm to a companion”.

So those were the words…

LORD KIRKWOOD: Equally in this case these are directed to the facts of a particular case.

MR. MOYNIHAN: That is quite so, and I’m simply directing your Lordships to this as that is a term which has been borrowed by the Lord Justice General from the submissions and with respect to the facts of the case this is referred to in Hume and a passage has been added and mentioned to your Lordships this morning with Harris and Collins and at page 218 of Volume 1 of Hume and in the margin the note, “Homicide in defence of life against a felon. The right to kill on such occasions is not even confined to the person who is attacked, but belongs alike (which never can be true of self-defence in a quarrel) to his friends or servants or others who are along with him. Nay, it may even be maintained, that though the assailant give back on the resistance, yet still the innocent party is not for this obliged immediately to desist, (since it may be only a feigned retreat, or to call his associates); and that he may pursue nevertheless, and use his weapon, until he be completely out of danger.”

LORD PROSSER: That is on the passage of self-defence, that is a clear self-defence concept and not anything to do with necessity.

MR. MOYNIHAN: No, in Moss against Howdle this was to do with the actor.

LORD KIRKWOOD: Can one think of it as the kind of matter where one is about to unleash a mortar into the centre of a village and I rush up to him and hit him on the head, that is not a question of my saving a companion, that would be a justification of necessity. Would it be justified or would it explain the concept of self-defence upon which…. You see it could be the sort of thing where it is protecting people by the concept of self-defence, in other words if in certain situations where oneself is regarded as a legitimate arm of the law.

MR. MOYNIHAN: Yes.

LORD KIRKWOOD: Yes, normally it is the prevention of crime which is left to the authorities and if anyone else is going to do it they would have to have some indication that a particular person intended to do it and that would be covered by the reference to self-defence and then you have the concept of necessity.

MR. MOYNIHAN: The case of Moss against Howdle concerns the defence of necessity and the Lord Justice General in answering Counsel’s submission on necessity is not confined to acting out of necessity to save oneself. Using that analogy the proposition in regard to self-defence is I would say, it comes back to the Glanville Williams and what is said there is that the mens rea may limit the defence of necessity, and what I’m seeking to do is under whichever guise we look at this matter and there is no dispute between my submission and the Crown that was the proper point, was the limit of this dispensing power and one has an understanding of that and that is an interesting point that one may seek to define or protect perhaps the interests, one would seek to protect one’s interests, and I think I am entitled to refer to Lord Justice General’s reference to the companion.

LORD PROSSER: It wasn’t committing a crime to prevent another crime in Howdle and Moss, it was committing a different crime, and we were referring to the concept of necessity and it contains a defence/protection type situation. Miss Zelter distinguished her necessity arguments from a rather separate argument in which they are preventing a crime and as long as one is thinking of preventing a crime it may be a self-defence is a closer analogy.

Now, going on to refer to this under necessity will run away beyond the prevention of crime.

MR. MOYNIHAN: It is an example of preventing a crime and indeed as the Respondents may even themselves view this as preventing a crime they can also perhaps see it as preventing a natural disaster. That’s probably a broader way of looking at it.

LORD KIRKWOOD: Using the example of the missile launch emitted on to a village when Mr. Di Rollo referred to this this was the smaller rather than the larger of the two things and this was someone in motion that sees someone about to press the button aimed at a foreign city, say New York and can it really be said there wasn’t a justifiable action because the people of New York are not a companion. This really seems to be the point of my Lord’s example.

Now, in my respectful submission the proper approach would be almost to parody which will be my second point but at that stage as the law stands the companion is the person whom I foresee will be involved in this situation, who will be injured by the actor’s inactivity, so in law my companion is the person whom I reasonably foresee will be injured by my inactivity.

LORD PROSSER: I understand the crime prevention if the button presser is about to commit a crime then one has a reason for thinking they are right to do that and it may be one is entitled to prevent a crime or whatever, but it leaves open the question of who can intervene, it leaves open the question of intervention. Is one entitled to do this and does one feel it is important to do it, that is the question for the intervener.

MR. MOYNIHAN: On the question of the intervener, I will come on to that but all I am saying or suggesting to your Lordships is whatever point is to be put upon the defence of necessity in this context it is not one delineated by a narrow understanding of one’s companion.

LORD PROSSER: It is an identified person who is a potential victim.

MR. MOYNIHAN: Much more important in relation to the action in relation to the law and the unlawfulness of the actions as the Respondents is for your Lordships to address the jurisdiction point and I should add that the permitted actor is the lawfully permitted actor and that is a matter on which your Lordships will find guidance in the House of Lords case R versus Howe which is at the back of my volume of Authorities and this is reported in 1987 1 Appeal Cases page 417 and this is one of the appeal cases which is cited for approval in Moss against Howdle 1987. This is 1987 1 Appeal Cases and this was the case which resulted from a charge in England about whether necessity or duress could ever be a defence to a charge of murder. The House of Lords overruled a previous case of duress on the grounds that duress could never be a defence to a charge of murder.

Your Lordships will find the Committee was considering three issues and if I can invite your Lordships to look at page 423 in the speech of Lord Hailsham page 423 C to D. “Is duress available as a defence”, and I’m only going to take your Lordships to what is of interest but I’m not going to take your Lordships to any discussion of Proposition 1, what is relevant for your Lordships is Proposition 3 or Question 3, “Does the defence of duress fail if the prosecution proves that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats as did the defendant?”, and the answer given to that was yes.

My Lords, the standard by which one judges the lawfully permitted intervention is by reference to the reaction of the person of reasonable firmness sharing the characteristics of the Accused, the actor.

LORD PROSSER: These are words directed at the Accused.

MR. MOYNIHAN: Again, this is simply looking at duress as a sort of facet of necessity. The matter was considered by Lord Hailsham at page 426 between C and D and my Lords will see the reference to Cogan “In the event, we also did not call upon the Respondent to argue the third certified question since, in my opinion, and, I believe, that of my noble and learned friends, the definition of duress, whether applicable to murder or not, was correctly stated by both Trial Judges to contain an objective element on the lines of their respective directions and this must involve a threat of such a degree of violence that ’a person of reasonable firmness’ with the characteristics and in the situation of the defendant could not have been expected to resist. No doubt there are subjective elements as well, but, unless the test is purely subjective to the defendant which, in my view, it is not, the answer to the said certified question, like that to the second, must be ’yes’.”

LORD KIRKWOOD: Would that not make it pretty difficult for you?

MR. MOYNIHAN: If I can further direct your Lordships to the proper limits and if I might turn to another chapter which dealt with this matter and that is by Lord Mackay of Clashfern on Question 3 which is at page 458B to 459E for these two dicta of the LJC Lord Lane for approval and this includes the objective stamp if I can call it that at 459C, B to C “Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendant’s will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to this test”.

That is in the context of duress and this indicates the same principle either in the wider context of necessity and that is one manifestation which is mentioned in Archbold – V on the Crown list and the consideration your Lordships will see is Section 7 and looking at the defence of necessity in general.

Over on the second page at paragraph 17-130 there is a reference to the case of R. v. Martin 88 Criminal Appeal Reports 433 and the Court of Appeal position part of which is not there but a part of it was cited for approval in Moss v. Howdle and it is cited in the context of J. Simon Brown “First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the Accused’s will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the Accused or others. Arising thus it is conveniently called ’duress of circumstances’.

Secondly, the defence is available only if, from an objective standpoint, the Accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Thirdly, assuming the defence to be open to the Accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the Accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the Accused, have responded to the situation as the Accused acted? If the answer to both these questions was yes, then the defence of necessity would have been established.”.

My Lords I have not brought the book along because that is a fairly short opinion and it is set out there and my Lord in the Chair asked my learned friend Mr. Di Rollo to look at this aspect of it, someone having no choice but to act is it for the individual – we had no choice or no-one had any choice in the circumstances and neither of those answers is an objective one, a reasonable one, a person having the characteristics derived from Howe, having the characteristics of the person defined in Howe, so that is an objective standard.

LORD KIRKWOOD: Would you say that again, an objective standard, a reasonable person having the characteristics of the person defined in Howe.

MR. MOYNIHAN: In other words a person in the same circumstances as the Accused.

LORD KIRKWOOD: Having the characteristics of the person as defined in Howe, that is a person of reasonable firmness, and looking to the facts in this case in due course and if one thinks about the characteristics of the Accused and the situation in which they were applied, then in this way as an example of going past a house and one sees smoke coming out of the top, if one hears a child inside one is looking at a situation where there is not a great deal of smoke but obviously thinks, “There is no problem here, I will just wait for the Fire Brigade to arrive or I will wait for a neighbour with keys”. If however one envisages that the person standing outside the door is the father of the child inside then there is no doubt in my respectful submission what a father would do in the circumstances and that would be by some means to get into that house and get the child out.

LORD PROSSER; You are introducing an aspect that others don’t really seem to deal with because they are concerned with a face to face situation and the whole question of emergency and personal involvement. I don’t know that most people see much problem with the necessity case as something that may arise but there are circumstances where it would involve an emergency and it would be an indicator of what a person would do in certain circumstances and I find it very difficult to relate that in this case.

MR. MOYNIHAN: Well, this is, if I could refer to the American case.

LORD PROSSER: This is an immediate situation where one may have to intervene where you can reasonably expect to avert, I don’t quite understand the word “avoid” here, it is an opportunity to prevent a thing happening but I don’t see what that has got to do with what I would call non-immediate action, that is ipso facto to avert a supposed hazard. Are there Authorities that deal with that?

MR. MOYNIHAN: Well, there are such reasonable tests and there are Authorities which set out the broad parameters and then go to America and they are I think set out in the Note of Argument the case called Commonwealth of Pennsylvania v. Berrigan, it is in the middle of the volume Authority I which is an Authority dating from 1984/1985 and the facts are appearing on the second sheet at the top of the page “The Commonwealth of Pennsylvania (the Appellant) appeals the Superior Court’s reversal of the judgments of sentence of the Court of Common Pleas of Montgomery County, Criminal Division”. …the “Appellees were convicted by a jury on charges of burglary, criminal mischief, and criminal conspiracy, for their September 9, 1981, trespass into a General Electric Plant in King of Prussia, Montgomery County, Pennsylvania. Appellees admitted entering the plant, destroying missile components with hammers, pouring human blood on the premises, and causing $28,000.00 in property damage”. As far as the components were concerned, these were a bomb shell, perhaps ultimately to be used for nuclear bombs. The Appellees sought to defend their actions as falling within Section 510 of the Crimes Code which is set out as providing Justification in property claims and at paragraph 122 “The Appellees attempted to present evidence from claimed experts which was intended to support their contentions that their actions were necessary to prevent a nuclear holocaust. The Trial Court rejected this offer, ruling as a matter of law that the justification defense as defined in Section 510 was not available to Appellees because they established that the operation of the General Electric facility constituted an ’imminent danger’ to the public, justifying Appellees’ trespass thereon and concurrent criminal conduct. Appellees were permitted to testify as to their reasons for entering the plant property, but the jury was instructed that, as a matter of law, the justification defense was not available as a defense for Appellees actions”.

If I turn over to the justification defence the Court sets out the reasoning and this is to be read as being the limits in America of the defence, “Our Crimes Code embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm or crime.”. Rather than read the whole of that…

LORD PROSSER: Did they mean excused or did they mean justified. Usually the distinction is drawn between a justification for things that reasonable people could do which would be excusable.

MR. MOYNIHAN: It is because of the statutory language in that State.

LORD PROSSER: It is a justification defence that they’re talking about, justification is the word.

MR. MOYNIHAN: The statutory language is the justification in the circumstances.

LORD PROSSER: That does not affect this word “excused”.

MR. MOYNIHAN: If one reads the lists on the next page “By reading Section 510 of our Crimes Code together with Sections 196 and 262 of the Restatement of Torts Second, it is clear to us that the defense of justification will work only where the actor offers evidence that will demonstrate: 1) that the actor was faced with a public disaster that was clear and imminent, not debatable or speculative; 2) that the actor could reasonably expect that the action taken would be effective in avoiding the immediate public disaster; 3) that there is no legal alternative which will be effective in abating the immediate public disaster; 4) that no legislative purpose exists to exclude the justification from the particular situation faced by the actor”.

There is then detailed consideration on those matters and I will not read them out – your Lordships will require to see the detailed consideration of those matters but I would ask your Lordships to note one other point on the next page at the footnote Note 5. This is a note in which it is said “We also note that since the manufacture of shell casings for nuclear warheads is legal conduct, it is the type of conduct to which the Legislature has spoken in excluding the justification defense. This is in keeping with the general proposition that the justification defense is aimed at stopping perceived illegal conduct, not legal conduct.”

I state that perhaps to simplify what I said to your Lordships yesterday afternoon at 10.4, the significance of the illegality of international law and the Trident thing in an abbreviated way.

LORD PROSSER: It is just a matter of what the word “perceived” means there. I can see it might be aimed at stopping the illegal conduct or, not the legal conduct, if it is not available as a defence for encouraging that legal conduct. What would it matter if it was perceived to be illegal?

MR. MOYNIHAN: I think from my perspective it wouldn’t, nothing turns on the word, for the acts have to be illegal, but from my point of view that when necessary there is the relevance of international illegality in a defence of necessity for us and that is the point, if they are not illegal in international law then they would not be illegal here.

LORD PROSSER: If you are doing something which is legal the fact that it may produce a disaster or a catastrophe wouldn’t justify anyone in stopping me doing that.

MR. MOYNIHAN: If it is a disaster I suppose that is where perhaps someone could be doing something legal which would threaten disaster and one might say there would be a defence of necessity.

LORD PROSSER: It would be important for me in governing that disaster if say the situation settled and there was no necessity for action but if there was and it produced catastrophic results why should someone not do something to intervene?

MR. MOYNIHAN: In that scenario I am trying to think of an example and the example I have thought of would be if someone breached a dam, that would be wrong.

LORD PROSSER: The hypothesis if death were to be prevented and it happened to avert the matter which was or might be executed, there is no doubt a legal basis that would warrant that action but whether one would say it was lawful, one can’t say that it would exclude from me the right to take that action.

MR. MOYNIHAN: That is correct. Yes, my Lords, yesterday afternoon I didn’t demur from that, I said yesterday afternoon that the sole relevance of the international illegality is the actions of these women in relation to Trident and, as far as I am concerned their actions were entirely consistent with Miss Zelter’s own approach at least by saying that she was acting to prevent a crime, and all I am saying is that I don’t see anything other than there is some explanation for that.

My Lords, when referring to the international law there is an advising opinion and indeed in the Scots Law, that is to say what these women were doing was trying to prevent an illegal act and whether that is legal in law one has to determine whether that illegality is viewed as a crime or whether that illegality is viewed as averting a potential natural disaster.

In my respectful submission it matters not, what matters is that it is an illegal act.

LORD PROSSER: Illegal creating a disaster.

MR. MOYNIHAN: What I want to answer my Lord in the Chair is that what I say in the case of Howe when one looks at the situation there and the relationship between actor, almost a companion type situation but it is not remote from the situation of the nuclear disaster and in the criteria of Berrigan, that has to decide whether the actor can have a defence of necessity.

LORD PROSSER: Are you suggesting that the list of criteria when reading Section 510 should apply to this?

MR. MOYNIHAN; Yes.

LORD PROSSER: Effectively it can be, appear as the law of Scotland.

MR. MOYNIHAN: Yes, as a handy signpost, that would be the passage if one has a defence of necessity but I don’t see them to be prescriptive in this respect and carrying that on to what Glanville Williams said all the way through but that is broadly the approach that one has to be conscious of that the criteria are derived from these statutory provisions which are helpful factors in weighing it up.

LORD PROSSER Can you expand on that a little further. There are three lists set out in that case.

MR. MOYNIHAN: Four.

LORD KIRKWOOD: Are you saying these are applicable in this case?

MR. MOYNIHAN: Yes, and what I will do in the next chapter my Lords is mention those briefly. There are two other American cases there to complete the citation of the American authorities, and these are again different States, and the next one I believe I have is where the activists ought to be convicted.

LORD PROSSER: All three examples here.

MR. MOYNIHAN: They are cases in which the activists were convicted. The second case is a USA Federal case against Quilty and that is a 1984 case so it is perhaps simpler to define.

LORD PROSSER: Which one is it?

MR. MOYNIHAN: It is the United States of America against Quilty, the last one was I, yes, this is N, and the last of them is Andrews v. Colorado, they are all part of the same Lexis printout and the other point was the one I mentioned from Berrigan and I intend to give your Lordship that at 2 o’ clock. Berrigan went to the US Supreme Court and I will give your Lordships a brief citation of that this afternoon but I did wish to emphasise to your Lordships the point that I took on Tuesday, a point relating to the competency and the point was a point in relation to the contravention, and moving from that section and the general parameters of the defence of necessity for future reference in the Law of Scotland to descending into a detailed consideration of the facts and it so happened that what I will ask my Lords to do and it may save, I don’t wish to give my Lords homework, but it may save time by indicating the passage to read my Lords is from page 133 through to 134 and the learned Sheriff explained in some detail her conclusions, and then when one reaches in particular page 135 of her report in the context of mens rea the learned Sheriff has gone through in effect a consideration of the Berrigan criteria. So the point really is just an identification in my marginal notes which concluded what the Respondents did had a practical effect and that is just a precis.

Secondly she concluded there would have been what I would call a qualifying emergency and she considered that the Respondents had no alternative.

Now, that is very much a shortened version that I have in mind in particular for my Lords.

LORD PROSSER: You don’t have the particular article?

MR. MOYNIHAN: I understand what she did and there was an article, a very long article, an American article in the various American cases which coincidentally include Berrigan and I think because the learned Sheriff had the article which my learned friend Mr. Mayer may draw your Lordships’ attention to but it did include Berrigan among the cases and I can accordingly assert as I say in my Mote of Argument the learned Sheriff in her consideration was aware of the Berrigan criteria although she would not appear herself to have considered in isolation that particular case.

I accept that there is a more detailed consideration of the Berrigan criteria which occurs at page 135 in the context of mens rea and I would see the factual inference as being transposable if one has to look at the defence of necessity. Whether she gave a more detailed consideration to my eye it matters not under which heading it is dealt with but she did consider these matters, and what I would suggest to my Lords and it is very brief and it will not take long this afternoon is that in answering Question 2 that the limits which are imposed by Section 123 conscious as one is of sub section 5, that is it appropriate for my Lords to take this question of the permitted point of necessity as a generality. To stick to generality and not to descend into the proposition of call 1.

LORD PROSSER: That is Call 1 for the Crown.

MR. MOYNIHAN: Proposition 3 where we are looking at what the Sheriff decided and that will be brief. Proposition 2 is not to descend to the level of a detailed consideration of the merits of this case. In other words I have stated my position and I will finish at this point. It is 1 o’ clock and I will finish my submissions after lunch but I should say we do not have all the evidential material, we have the Sheriff’s report, we don’t have the Transcript of Evidence other than excerpts which relate to the international law question but there is also the matter relating to the correctness of the acquittal which is what it comes to and your Lordships are considering the contravention and the intention of Section 123 sub section 5 and the reference is not to undermine the acquittal or the conviction. I accept there may be a way of doing both. In other words one could say that when one is answering the question of whether the acquittal was appropriate that doesn’t matter in fact, it leads to this general conclusion and all I am saying in relation to this is that the Crown has chosen in the Lord Advocate’s Reference, the Lord Advocate has chosen in Question 2 to pose what in my view is a general question and ought to be answered as a general question and that fits the bill, if you are asked general questions you answer it in a general way.

I would now intend to resume at 2 o’ clock and I have very little to say at 2 o’ clock.

After an adjournment for lunch.

MR. MOYNIHAN: My Lords, I exactly had reached a stage where I said I would want to correct one thing. I have concluded consistent with the limits that I agreed in the procedural meeting as to my function relating to the other Respondents. I have considered that given the limits I agreed as to my function I should not proceed beyond the stage I invited your Lordships to sustain an objection to the competency and relevancy on the analysis of the merits of the particular application of the defence of necessity to the circumstances of this case. The one point I wish to correct in what I have said this morning about the defence of necessity in that I said to your Lordships I have been looking at it from the analysis of a defence of necessity and accordingly my largest point was the two opposing acts, that committed by the Respondents and that committed by the State. The alternative analysis which was the one of mens rea has the Respondents not ever committing a crime because of the absence of mens rea from this type of crime.

LORD PROSSER: Unless it succeeds it means that no crime has been committed.

MR. MOYNIHAN: My analysis of weighing up crime against crime.

LORD PROSSER: That’s looking at it in different ways.

MR. MOYNIHAN: The reason I am making this sole point is that from my perspective as a lawyer and analysing this it may make little difference from the perspective of the viewpoint of the Respondents, from my perspective as a lawyer to debate crime against crime it may make little difference from debating the act against the potential for disaster. The Respondents’ position may be they are more able to define the act in terms of the mens rea.

LORD PROSSER: It would never have been a crime, no justified thing, it would never have been a crime, if they simply had not the state of mind that the law requires for determining any criminality.

MR. MOYNIHAN: The analysis would not be crime against crime but act to avoid a disaster.

LORD PROSSER: I hope we haven’t pressed you as you went along.

MR. MOYNIHAN: No, your Lordships have not. In relation to the final matter which is the extent to which your Lordships should consider the merits I have said that the learned Sheriff at page 135 of her report has very helpfully ticked off the various relevant criteria and I do not myself feel able to pursue the matter further.

LORD PROSSER: I don’t think one would want to press you in your special role.

MR. MOYNIHAN: I would ask my Lords in conclusion, and it is very difficult to give an answer to Question 2 in a yes or no form but because it depends very much on the precise formulation of the question but what I would invite is that in whatever formulation the question is ultimately posed or considered I would simply invite my Lords in whatever formulation the question ultimately comes to be put to take into account the factors which I have commended, which is that I factually hypothesise that as I said yesterday afternoon the conclusion can be drawn that the United Kingdom’s use or the United Kingdom’s policy towards Trident because it involves the threat of use is unlawful in Customary international law, and secondly that the illegality transmits automatically into Municipal law and is accordingly relevant to the assessment of the necessity, and thirdly, finally, that in considering the proper points of necessity whether as a stand-alone defence or as an ingredient your Lordships should apply Moss against Howdle and the objective standard in Howe and take into account as more directly applicable to this case the factors established in Berrigan.

Unless I can assist your Lordships further these are the statements which I would make.

LORD KIRKWOOD: The factors established…

MR. MOYNIHAN: The factors indicated in Berrigan. These would conclude my submissions.

LORD PROSSER: Mr. Mayer.

MR. MAYER: My Lords, I am conscious that your Lordships have had a long hard week and I rise to my feet at 5 past 2 and I would perhaps outline the structure of my submissions for your Lordships immediately.

LORD PROSSER: Well, if you have the propositions to start with and we can worry about vouching afterwards.

MR. MAYER: What I hope I can do is begin with setting out my position in direct response to the Crown’s position and do that by reference to the Crown’s propositions in their Note of Argument, and having dealt with the various propositions in the Crown argument which will necessarily touch upon substantive matters within the questions which I would turn to in their turn, and it may be my Lords that having stated my position in response to the Crown’s position and following Question No. 1 that I can exhaust my submissions.

LORD PROSSER: Don’t embark upon full submissions until we know what your propositions are. If we get a list of the propositions we can see how many of them, one falls to see whether they are vouched, and it may be possible to understand them.

MR. MAYER: I intend to stick fairly closely to the skeletal argument within the answers for the Second Respondent. These were indeed skeletal but I don’t intend to come to them until I have set out my whole position as it were quoad the Crown case so I can take your Lordships to these arguments in due course.

My Lords, Proposition 1 for the Crown is that “In a prosecution for malicious mischief if the Crown establishes on the evidence that the Accused deliberately damaged the property of another then apart from the defence of necessity the crime is complete. I don’t argue with that. The footnote 1 attached thereto or at least to the next line about proof of malicious mischief at common law…

LORD PROSSER: Are you referring to the Crown skeletal submissions?

MR. MAYER: Indeed my Lord. Before continuing my Lords I would say that the propositions don’t fall, they are not in parallel with the Crown’s questions and in that sense it is not possible to restrict what I say for instance about Proposition 1 to Question 1.

LORD PROSSER: I appreciate that. Of course it is rather then your contra, counter proposition that, it is your counter proposition we want to get at to get the shape of your argument.

MR. MAYER: What I would say at this stage about the first of the Crown’s assertions is that each Statute which is mentioned in the footnote asserts within it there is reasonable excuse and I would deal with the confusion within our Statutes in this area, and I would submit that there is clearly much confusion within our Statutes as there is within foreign Statutes.

LORD PROSSER: So we are concerned with a common law offence. I don’t think we are concerned with that.

MR. MAYER: I don’t take issue with the Proposition 1 my Lords, I take no issue with that. Proposition 2, “The defence of necessity is available in relation to a charge of malicious mischief.” I certainly don’t take issue with that. Proposition 3, “The defence is only available in very limited circumstances. Again I don’t take issue with that.

My Lords, I have certain comments to make which will structure my position on Proposition 3 for the Crown which I hope will be useful to set out before turning to any detailed submissions perhaps at a later date.

LORD PROSSER: So what is the counter proposition or counter propositions?

MR. MAYER: These can be stated by reference to the way in which the Crown set out their line and the first of those is that for the defence to be available and have envisaged for the jury’s consideration the evidence must be capable of showing that the Accused had no real choice when he committed the crime. I would simply point that out as a matter of law. Of course following directly on from my learned friend Mr. Moynihan there may be no crime because as your Lordship in the Chair says necessity destroys mens rea as a central element of the crime.

LORD PROSSER: If he had no real choice here otherwise it’s a crime that is pretty obviously a logistical matter. Is this the counter-proposition to that question?

MR. MAYER: No, that is simply a suggestion that there would be no crime and I take no issue with the learned authors certainly in Perka who mentioned the “remorselessly compelled by normal human instincts.” I take no issue with that. I also take no issue that there may be “no reasonable legal alternative” under reservation of all that has been said by my Lords particularly in discussion with my learned friend Mr. Moynihan about whether there is law by policemen or someone else, as a general proposition dealing with the abstract defence of necessity. I take no issue that there must be no reasonable legal alternative and I’ll come back to that with Moss and Howdle.

LORD PROSSER: What is your counter proposition?

MR. MAYER: I don’t have one as far as there must be no legal alternative. The next concept is that “there must be an immediate danger of death or great bodily harm to someone though not necessarily the Accused.” I pause there, to say that my proposition is that immediate danger is capable of inclusion of constant danger.

LORD PROSSER: So it may not be just before the hazard it may be interrupting the hazard.

MR. MAYER: Yes, but it must be someone positively identified. I take issue with that.

LORD PROSSER: Do you have an alternative definition for what you might call the victim, potential victim?

MR. MAYER: Yes indeed my Lord. The victim and the companion can be the whole world. The Crown go further than positive identification and say “and having some relation to the Accused.” Well I obviously take issue with that, except to say of course that the world may be other human beings.

LORD PROSSER: You see if a particular person claims he is justified in intervening I would have thought one would have expected some involvement with him, not just an involvement which everybody would have but you are saying this is universal, both sides, which clearly can be the whole world and that is each and every citizen of the world who is entitled to take action?

MR. MAYER: Yes, so the actor as well as the potential victim can be anyone.

The next part of that is the “Accused must have reason to think that the commission of the acts libelled will have some prospect of removing the perceived danger.” So there is that word “perceived”. I do not take issue with that. My Lords will have gathered that in the trial in the Court role there was no question of attempting to write in a kind of charter for every peace protester which could open the floodgates…

LORD PROSSER: I find a lot of the argument quite hard to follow. If you can stick to your propositions. You say that the commission of the acts will have some prospect of removing the various dangers, yes?

MR. MAYER: Yes, I say it is the emotional response which is certainly not enough to give rise to the defence of necessity.

LORD PROSSER: It is interesting the, in relation to the Court Appeal the Sheriff seems to think an intellectual response is more likely to justify in terms of necessity than simply a man’s gut feeling. I’m not at all sure I find that persuasive. It seems that intellectual people are just as capable of being silly or wrong or whatever. If we are talking about an immediate response and that suggests that is what we are talking about but I am not sure it’s worth repeating but what I am saying is that if one talks about an immediate response one is perhaps thinking of the stomach and the heart rather than the head, but anyway, you say that emotional response is not enough.

MR. MAYER: Not of itself my Lord, an emotional response might arise by mistake, it might arise in any number of ways which could clearly lead one into a wrong conclusion. What I say is there must be some element of reasonableness and the test of reasonableness of course is always there when the defence of necessity arises, so I don’t take issue with the word “reason” which the Crown have chosen to include. I find it every bit and no doubt more difficult to understand the perceived danger than your Lordships.

LORD PROSSER: Well, it was a different context altogether and obviously it was not merely as to the danger but as to the danger perceived by the actor or they wouldn’t have reacted to it.

MR. MAYER: The case is about real danger rather than perceived danger but it may amount to the same thing. Obviously I take exception to that statement that “On no view of the facts narrated in the Sheriff’s report could the Court have legitimately the defence of necessity available for the jury’s consideration.

LORD PROSSER: Again what is the counter-proposition?

MR. MAYER: The counter-proposition is taken together with the next line my Lord, that there was no evidence that there was immediate danger of death or great bodily harm to anyone, and the counter-proposition is that, at the risk of sounding infantile, yes, there was.

LORD PROSSER: Was there evidence of immediate danger of the type mentioned?

MR. MAYER: I can certainly point the Court to this in due course.

LORD PROSSER: You could argue if one were to look at that for a moment, we could look at the propositions.

MR. MAYER: I would say there was, it is crucial to answering Question 2, I would say it is crucial that there was sufficient evidence of such immediate danger or death or great bodily harm to anyone such as to found the defence absolutely and that is, that would be the first leg of the defence of necessity, a crime was being committed and a right arose to prevent it, and thus these facts then flow and then on to the test of proximity and so on and the acts which flow are not criminal, they weren’t criminal. I am conscious that this is not an appeal but I have difficulty with the next sentence my Lords which is “Even if such immediate danger of death or great bodily harm existed” which the Crown says there must have been no other means of avoiding it before an accused is permitted to commit acts libelled,” and I would simply suggest that the act or acts libelled are the only way of avoiding the danger and as I say, that can’t be right.

LORD PROSSER: Why do you say that?

MR. MAYER: It can’t be, it can’t be correct in law to say that there are perhaps two means of avoiding the danger and the actor chose the first and not the second so to say well, there was another means of avoiding it therefore you are guilty. This is not an appeal but I say that I would put the proposition the other way around and say but for the actings, whatever they may be, the danger could not be avoided.

LORD PROSSER: What is the difference between that and the Crown proposition?

MR. MAYER: The Crown proposition seems to suggest that in any given set of circumstances there will be one way of avoiding the danger.

LORD PROSSER: But in that argument whatever it may be the danger could not be avoided and are they the sole means of avoiding it?

MR. MAYER: Yes, they, the acts, may be right and may be wrong, but it seems to me that no other means of avoiding it seems to suggest a single route to effectiveness.

LORD PROSSER: What I’m trying to get at is normally a proposition where it is expressed that people are saying that is the only way of avoiding danger that is of specific importance, but perhaps there is some other way of formulating a way of avoiding danger.

MR. MAYER: That is not the biggest point on my list.

LORD PROSSER: Well, we can leave it at that and we can come back to it.

MR. MAYER: I take no exception that there must be some prospect that committing the acts libelled will remove the perceived danger, there must be some connection, the actor can’t act in a vacuum, there must be some prospect that would tend to give rise in my submission to the concept of reasonableness, some consideration must be given to that.

LORD PROSSER: As it is stated you wish to accept that?

MR. MAYER: Yes, and then lest there be any doubt about it “apart from the defence of necessity it is not a defence to commit a crime to prevent the commission of another” crime. I accept that as well because it would seem to flow from the Proposition 2 for the Crown.

And turning to 3(2) which is the Kent point if I can put it that way, which in my submission has been flattened by my learned friend Mr. Moynihan’s submissions and the comments of my Lords.

LORD PROSSER: It is quite useful to know, it is useful when anyone who speaks down the line as it were can see whether they adopt all that has already been said, or if there is one point on which you don’t want to adopt?

MR. MAYER: I am just coming to that, yes, Miss Zelter’s submission was an extremely wide one, and also extremely deep, and I find myself in concurrence with nearly all of it and I would have to say that I would adopt it.

LORD PROSSER: You say I suppose the position, the position adopted by Miss Roder and the submissions by Miss Zelter are adopted.

MR. MAYER: The only part of my learned friend’s, Mr. Moynihan’s submission which gave me any reason for concern was, and he may have dealt with this at the very end of his submissions, that he didn’t go far enough past my proposition which was that the women committed a crime to prevent another crime, that is not what the Sheriff found.

LORD PROSSER: Is this just the linguistics “committed or otherwise a crime to prevent another crime”.

MR. MAYER: My Lord is always a step ahead of me that is correct my Lord, the women committed a crime to prevent another crime but apart from that niggle I have adopted my learned friend’s Mr. Moynihan’s submissions, but I intend to go a little further when I get the opportunity to go into the American case for the Berrigan test, although having been through the Supreme Court applied in the Statute of Pennsylvania and nowhere else I won’t delve into that for the moment, but other than that I do adopt his submissions.

LORD PROSSER: I think everyone appreciates that the decision only applies in its individual jurisdiction but Mr. Moynihan’s submission as I said was the Berrigan formulation but there has also been something in Scots Law, so at least the principles, the general principles even if they are not absolutely and necessarily exhaustive, are there.

MR. MAIR: I’m happy to accept that the Berrigan criteria forms part of my criteria which ought to be applied by these Courts, this Court.

LORD PROSSER: But there are others you want to add.

MR. MAIR: Yes.

LORD PROSSER: What are these?

MR. MAYER: Well, I might have to delve rather deeply to find my notes on Berrigan but I intend to deal with that.

LORD PROSSER: It may not be the language.

MR. MAYER: I see the point in Kent at 3(2) that the submission on the law has moved particularly through the comments of the Lord Justice Clerk Ross and th other judges in Collins, and it does not, the Law of Scotland does not any more permit the situation where a charade is being gone through in the form of speaking to a jury whilst knowing the outcome.

LORD PROSSER: Again you adopt Mr. Moynihan on that.

MR. MAYER: Yes.

LORD PROSSER: Yes.

MR. MAYER: My Lords Proposition 4 for the Crown is that “It is incompetent to lead evidence as to the content of Customary international law”, that is really a question of law and I hope to be turning in a few moments to my submissions on that, but basically my position is that it is not only Scots Criminal Law which is applied in Scottish Criminal Courts. If other laws such as the ECHR or Customary international law for instance are applied then they are applied as Scots Criminal Law.

LORD PROSSER: Could you just clarify that, you said if they are applied as Scots Law.

MR. MAYER: A little further down in the middle of that passage “In no case in Scotland has evidence been admitted in relation to the content of International Law” and it cites the case of Mortenson against Peters, and my position is that is not strictly right, the author of that sentence has focused on the doctrine of parliamentary supremacy.

LORD PROSSER: That is not correct in fact, that is not the case in law, or is it?

MR. MAYER: The problem for me is that the institutional commentators in the textbooks, don’t go on to cover the evidence which I will be turning to later.

LORD PROSSER: The evidence in the sense of testimony.

MR. MAYER: Yes, no testimony of such a kind was led in Mortenson against Peters for the reason that the parliamentary supremacy was not then what it is now.

LORD PROSSER: But since you yourself say that Customary international law would be applied as Scots Law even if testimony is appropriate in order to reach a conclusion as to what the Scots law says that source of testimony ought to be led outwith the presence of the jury because it is a decision for the judge and not the jury.

MR. MAYER: Yes, that would be my position.

LORD PROSSER: That is adopting Mr. Moynihan again.

MR. MAYER: I accept in the Court below that was not done. I do accept that in relation to Conventional international law that T Petitioner is clear law and I would respectfully associate myself with that but your Lordship in the Chair comments about ascertaining this that international law can be ascertained by reference to the treaties and conventions textbooks, and in my submission that is a short step from the textbook to the textbook writer.

LORD PROSSER: This is really allowing matters to be raised which I think are useful to have the writers’ thoughts rather than express conclusions.

MR. MAYER: I’ll make a formal submission on that.

LORD PROSSER: Yes.

MR. MAYER: I’m conscious I am not stating many propositions.

LORD PROSSER: You are sifting through some of the smaller things rather than…

MR. MAYER: I thought I had set out my propositions in the skeletal argument and I have tried to set out the position. The Crown seems to accept that “any alleged rule of customary law must be shown to be,” valid and I scratch my head and ask how that is to be done and refer in my formal submissions to the writers, the appropriately qualified writers of these textbooks.

LORD PROSSER: You are satisfied that it is indeed law.

MR. MAYER: Yes, whilst as I have said I have in mind for your Lordships the evidence used and continuing on this I have conceded that a third rate academic may not be an individual who can speak to the course of Customary international law.

LORD PROSSER: I don’t believe they ever said that. I’m not sure you would want to establish that.

MR. MAYER: But that was certainly in my mind in drafting the list of witnesses for the Court below and whilst I have that fresh in my mind I can answer if I may at this stage a question by my Lord in the Chair about when was the list of witnesses made, for the Defence, made available to the Crown and I realise this is perhaps not the most convenient moment to do so but while it is fresh in my mind I can say the answer is timeously.

LORD PROSSER: I mean in regard to No. 4, I mean you would accept what Lord Oliver said in Maclaine Watson that it is not for this Court to legislate a rule into existence, a rule of Customary international law, particularly on basically an inadequate basis.

MR. MAYER: Absolutely, my Lord. Proposition 5 is “There is no general rule of Customary International law (or for that matter Conventional International law) prohibiting the United Kingdom from possessing or deploying nuclear weapons”. What I will say is that there is such a rule, not a principle but it is a well understood rule which arose from principles.

LORD PROSSER: In relation to deployment?

MR. MAYER: And my further submission is this that that is a proposition which I don’t think has been mentioned there at all, as that says, “No such thing as mere possession of a fleet of Trident 2 nuclear submarines each armed with live, targeted, 100 kiloton thermo-nuclear weapons, thermo-nuclear warheads.

LORD PROSSER: To get away from the possession whatever it may be?

MR. MAYER: Indeed, without setting out in my submissions my Lords will see that in the example of seeing an ornamental sword which could simply be that but it may be used as a club, not a sword.

LORD PROSSER: There is a distinction in the situation where there has been a more positive deployment, and we know that, you say that gets rid of possession and you also submit that there is a general rule of Customary international law against deploying in the way you have described.

MR. MAYER: Yes, I do, and that really arises from Article 6 of the Nuremberg principles here, transposed into the Nuremberg Charter in Article 6 which was adopted by the International Law Commission, an organ of the United Nations. So at the moment I would say International Law in 1950…

LORD PROSSER: I’m a little puzzled by saying the Nuremberg Principles were transposed into the Charter. Surely the Charter was earlier than the…

MR. MAYER: No, what happened was the principles came out of the trials and they were formulated into the Charter and sent to the International Law Commission and they are formulated into law. The United Nations takes the view as your Lordship rightly says that is not a legislative body so it doesn’t write the legislation.

LORD PROSSER: Nor does the Commission.

MR. MAYER: It adopts ideas and when the ideas are adopted they then pass into law and then are adopted and the nations within the International Law Commission steps in and re-formulate the ideas as members of the United Nations into a legal framework.

LORD PROSSER: That doesn’t make them international law unless they are assented to in the usual way.

MR. MAYER: In my submission that would be the principle because although the United Nations does not write the law they have been written into legal language by the International Law Commission, the ILC, and there remains Customary international law and it can be regarded as having much of the character of conventional law because of the clear way in which they are written out, full stop.

LORD PROSSER: That is the comprehensive way they have been written but we haven’t really been addressed on that.

MR. MAYER: My Lords, on that point it may be convenient for my Lords to note that as far as Question 2 of the Lord Advocate’s is concerned my answers I hope are set out in a logistical framework but the premise of it is that if a crime against humanity is being committed then humanity has the right to defend itself by appropriate means.

LORD PROSSER: Well, when you say it has a right to defend itself by appropriate means, really, what does that mean?

MR. MAYER: One must pass the test of proximity and proportionality.

LORD PROSSER: You mean an individual can claim he is acting for humanity if he has the requisite proximity.

MR. MAYER: I don’t want to delve too deeply at this early stage.

LORD PROSSER: We have got the proposition.

MR. MAYER: Now, at Question 5 we have the deployment of nuclear weapons to have them in a state of readiness for war.

LORD PROSSER: Are you differing from Mr. Moynihan on this?

MR. MAYER: No, I hope to be adding something my Lord because I shall be pointing my Lords to certain authoritative materials in an attempt to assist my Lords with the difficulties in the political language.

LORD PROSSER: Okay.

MR. MAYER: And Hansard will be amongst those documents.

LORD PROSSER: That will clarify the language which is used.

MR. MAYER: It will go a long way in my submission to clarify it.

LORD KIRKWOOD: Are they talking about deployment for use in a war?

MR. MAYER: For use in a war.

LORD KIRKWOOD: In other words you have got to have the war.

MR. MAYER: If I can put it this way my Lords. I can put it no better than I pur it earlier and I’ll come to this question in due course about when Trident is at sea it is at war.

LORD KIRKWOOD: It is at war.

MR. MAYER: Yes, it is at war, even if no-one messes, and I use the word “messes” with the UK.

LORD PROSSER: Even if no-one is messing with the UK at any particular time when Trident is at sea one can say Trident is at war, is that what you are saying?

MR. MAYER: It is one of those paradoxes but it is not an answer.

LORD PROSSER: It is not an answer it is a paradox.

MR. MAYER: That’s right.

LORD PROSSER: You are saying even if no-one messes with the UK, even when no-one is messing with the UK, is that right?

MR. MAYER: Yes my Lord.

LORD PROSSER: So that is another proposition which I don’t think we have covered already.

MR. MAYER: There is some repetition in my Submission 5 that “There was (and is) no evidence in fact and no basis in law to conclude that the United Kingdom was in breach of any of its International obligations. There was (and is), in any event no justification in law for damaging and destroying property in pursuit of an objection to nuclear weapons”. Well, that I trust I have met squarely by reference to the evidence of Professor Rogers and Miss Johnston, the UN observer, given it may be useful and if I can deal with Professor Rogers on the UK policy between pages 10 and 16 of his evidence and then on threats which can be read at pages 20 to 30.

LORD PROSSER: It is important to get through your propositions.

MR. MAYER: If my Lords might read this material during the break, on the concept of constant danger Rogers is found at pages 39 to 42. So far as the list of countries which are registered both in plenary session and outwith plenary session, this was official and unofficial protestations about the threat from Trident and my Lords may care to read Miss Johnston from page 69 to 75 where I took from her specific lists of countries and any dates which she could…

LORD PROSSER: How do these protestations link to the issue with which we are concerned?

MR. MAYER: Because at 5(1) the Crown say that there was and is no evidence.

LORD PROSSER: It is how the protestations fit into…?

MR. MAYER: Protestation and threat and the threat is my position for the crime, a crime having been committed there is the right to intervention.

LORD PROSSER: Is the threat in the mind of the hearer?

MR. MAYER: That is correct.

LORD PROSSER: The protestationdoesn’t tell me anything. If it came from someone who felt threatened it might be indicative of there being a threat.

MR. MAYER: Protestation is the mechanism used in the UN.

LORD PROSSER: I am trying to analyse its relevance and what you are saying is it is evidence of actual threat that there is ascertained a threat otherwise what has the protestation got to do with it?

MR. MAYER: It is one side of the equation, the solution to which is threat and on one side you have the protestation of nations and on the other side you have the facts about deployment and the evidence about that.

LORD PROSSER: That is the proposition I’m not sure I understand.

MR. MAYER: Central to that and really central to my submission on the Question 2 is the Crown asserts that the UK has not at any time made a threat to use nuclear weapons and that is in my submission an assertion of fact which deals in the abstract with the evidence by reference to the Court below and the lists which are pointed out quoad Rogers and Johnston and one can see that this is not right, and it therefore follows that the rest of that small paragraph is not right.

LORD PROSSER: It is like one might see with large numbers of people from the home side shouting off-side shows that someone was offside, or is that an unfair comparison?

MR. MAYER: No.

LORD PROSSER: I am puzzled by this.

MR. MAYER It will be my fault my Lords. Large numbers of people shouting offside in the UN and elsewhere is the first indication perhaps and certainly the most spectacular indication that there has been the off-side.

LORD PROSSER: Not if all the voices come from the supporters of the other team.

MR. MAYER: That’s right, trying to keep to your analogy.

LORD PROSSER: I am puzzled by this proposition so if you’d rather move on we can come back to it.

MR. MAYER: What I say my Lords is that there is evidence from the home side as it were that they in fact are offside and I was really talking about the kind of language which the British government has used.

LORD PROSSER: If the UK does have it I can see it being relevant.

MR. MAYER: Well put together they of course make much more sense than they ever do apart. The next issue the Crown ascertained is that the “International Court of Justice” which is “in its advisory opinion did not question the legality of the position or deployment of nuclear weapons.” Well, if one equiparates deployment with threat then of course it is blindingly obvious now that that Crown assertion is not right. And there is no such thing as mere deployment, there is a purpose to the deployment of thermo-nuclear submarines.

LORD PROSSER: You say that deployment implies threat.

MR. MAYER: Yes.

LORD PROSSER: You can’t say it implies threat any more if it is a non-deterrent.

MR. MAIR: I am simply setting out for my Lords the interpretation of the dispositive of the ICJ opinion at paragraph 105 A-F and at the risk of repetition I would say the repetition arises on the Crown argument, “There is no rule of Customary international law justifying a private individual in Scotland from 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”, and as I say, there is such a rule in Customary international law, and it is Nuremberg Article 6.

LORD PROSSER: I think it is fair to say that Mr. Moynihan relied rather on the ordinary Rule of Scotland Law which might justify this case in terms of the Accused but it isn’t under Customary international law, so there is also custom, and that is a major proposition in the Nuremberg material.

MR. MAYER: Yes.

LORD PROSSER: Tells us where an individual may intervene in that sort of way to prevent a crime.

MR. MAYER: I am happy that your Lordship has used the words in that sort of way. There is a good deal of confusion in my submission within the concept of whether or not one has an obligation or duty to do, to prevent things.

LORD PROSSER: Yes.

MR. MAYER: Or a right. It was never ascertained in the Court below that there was an obligation and I am careful to say this is where Professor Boyle gave evidence.

LORD PROSSER: That is very much another matter when you’re speaking of international law, that is saying it is justifiable taking this line of action to stop a crime or an unlawful action. You are saying that is the link with that proposition?

MR. MAYER: Yes.

LORD PROSSER: If it is the same proposition.

MR. MAYER: Yes, I think I am very conscious that with your Lordship’s skills, or analytical skills that would outstrip mine but can I flag up that the Nuremberg reports some of which I will turn to, express a duty to act.

LORD PROSSER: But there would be a great difficulty with that if we are looking at the references there, what we would be concerned with is the people who are involved in the commission of something and questions are raised as to their answerability, if you follow what I mean. This is in connection with the actual duty to do something, but none of these really concern us as to whether someone who is not otherwise involved in the preparation or the commission may or may not intervene to stop it.

It may be that there is something in the Nuremberg material that tells one about that. This is what you were referring in the Nuremberg material, but whether it tells us what outsiders may or may not do…

MR. MAYER: Yes my Lord, on the Nuremberg point it is a major proposition of mine that if the Nuremberg laws are good enough to use for the prosecution of war criminals or other, any other crimes against humanity, and I thinking of the Pinochet case, then they are good enough to use as a defence.

LORD PROSSER: Yes, so you are seeking to look at the proposition to see whether it rules out the need for intervention or whether there is a disassociation from intervention.

MR. MAYER: That I trust is set out.

LORD PROSSER: All I know about the Nuremberg history, I don’t know about the material but I’m conscious that anything in the Nuremberg history may have raised this question of a person who is not otherwise involved in the preparation or commission having an obligation to intervene but I don’t recall anything of that kind. It was all about people who were involved in committing, assisting, preparing, and whether they could dissociate themselves and how they perhaps had to do that, so there is material there, about someone not otherwise embroiled in that way, having a right or duty to intervene.

MR. MAYER: I have to say that until last night I was under the clear belief that we were relying on Professor Boyle, but I had in mind for the first time an assessment of a case US v. Goring et al which says it has a duty.

LORD PROSSER: I wasn’t myself aware of anything that touched on a person not otherwise involved but you say there is such material in the Nuremberg material.

MR. MAYER: All I am saying is that in my respectful submission that is the position as my learned friend dealt with last night.

LORD PROSSER: You say there is…

MR. MAYER: Available and that will be available for your Lordships.

LORD PROSSER: Does that really complete the list of propositions or counter propositions?

MR. MAYER: I was trying to set out the propositions in general on my position quoad the Crown argument.

LORD PROSSER: I am just wondering for the best use of time, it may be it is best to take that major proposition about Nuremberg because if it is a, as it were a refinement of the things said by Mr. Moynihan I would just suggest that it may be better to get into the Nuremberg material rather than lose the point.

MR. MAYER: I am conscious of that. There are two large issues for the Court in my submission and one is whether testimony might now be allowed before your Lordships on the content of Customary international law, the position within the trial at which this is said would take place, and whether there has been examples of that in the past in Scots Law, and pointing this Court to those.

LORD PROSSER: It is testimony given to the judge not to the jury as an aid to the judge to make up his mind.

MR. MAYER: Yes indeed. This is a question which in my submission is quite appropriate to raise within the Lord Advocate’s Reference.

LORD PROSSER: Yes, Mr. Moynihan has dealt with that and he suggested that it is legitimate for the judge, for the judge’s discretion to decide to hear such testimony. Do you wish to expand on that?

MR. MAYER: My Lord in the Chair was particularly concerned with this matter, and the question is how does one establish the content of Customary international law, and at the risk of embarking upon Question 1 I hope to demonstrate to the Court that There are two main ways in which that is done and has been done in Scottish Courts, and certainly been done in the English Courts and I have a submission to make on that.

The other major issue of course is whether I am correct about the United Kingdom engaging in a continued crime against humanity, and that in my respectful submission would take me a good deal longer in addressing my Lords than your Question 1.

LORD PROSSER: If you want to spend a lot of time on the meat of something and go into the Nuremberg matters but when you say that you may think it is more suitable to do something else, I don’t know, you may wish to go into Nuremberg on this matter, but it is up to you. This may be something that you may not be able to complete within such time as we have.

MR. MAYER: I don’t think so.

LORD PROSSER: Well anyway, let’s look at the question of the testimony, I think this is a matter you have touched upon, of when and how.

MR. MAYER: My first submission in regard to Question 1 is that your Lordships should answer Question 1 by upholding my plea-in-law in the affirmative, that this question should be answered in the affirmative.

LORD PROSSER: Are you saying you want an affirmative answer?

MR. MAYER: Yes. My first point is there doesn’t seem to be a rule of law on this point hence the Lord Advocate’s reference, and the second point is that on reading the expert opinion in this regard in relation to what I would call the Trident-related trials as is routinely done in England in criminal courts to rebut the Trident protestors necessity defence.

LORD PROSSER: Because it is a necessity argument, that’s not really a matter for…

MR. MAYER: No.

LORD PROSSER: It is not Customary international law.

MR. MAYER: They are just what we ought to do in our Courts where the necessity defence arises and the Crown has to rebut it, and I am simply pointing out that as a matter of routine rather than exception necessity defences are raised by Trident protestors.

LORD PROSSER: Have they ever succeeded, the Trident protestors? I’m not sure we are concerned with protestations anyway, have they ever succeeded?

MR. MAYER: As a matter of law, no, but your Lordships will recall the case in Lancaster.

LORD PROSSER: If you’re looking at a particular case, is it a reported case?

MR. MAYER: The case of the Hawk jets which was Liverpool Crown Court where Hawk jets were bound for East Timor containing cluster bombs which were to be used for the fire bombing of villages and Miss Zelter and others managed to stop that, raised a necessity defence which was approved of by the jury in the Crown Court.

LORD PROSSER: You mean they were acquitted?

MR. MAYER: They were acquitted.

LORD PROSSER: The jury acquitted?

MR. MAYER: Yes.

LORD PROSSER: The judge allowed it to go to the jury and the jury acquitted on, apparently on the necessity defence because there was no other defence, so that was the reason that was pled to them.

MR. MAYER: That is the only case in England where such a defence has succeeded.

LORD PROSSER: That seems to be a rather different matter. I thought we were talking about the leading of expert evidence. What is the point in that case?

MR. MAYER: The point is that the Crown are aware, perhaps more aware in England of the routine nature of Trident-related Summary Trials.

LORD PROSSER: This is in relation to the procedures in England, you say that routinely something is done. Are there reported cases, if there are reported ones and we have the reference. If not could you be a little more specific?

MR. MAYER: I don’t think there are any reported cases.

LORD PROSSER: What is it you say is routinely done?

MR. MAYER: Experts are brought along usually from the Ministry of Defence.

LORD PROSSER: That is not evidence of what the law is.

MR. MAYER: It is to rebut any testimony of the threat of a crime being committed by the Government, but that is taking us away from my submission on whether an expert testimony can competently be raised in Scottish Criminal Courts.

LORD PROSSER: Could we distinguish between the expert testimony from lawyers who might come along on Customary international law, the kind of person who has written a law book, is it routine for non-lawyers to come along and give testimony?

MR. MAYER: Yes, apparently so.

LORD PROSSER: Yes, in situations, are you saying that is routine?

MR. MAYER: In that regard that is pertinent to this issue and I am trying to help your Lordship.

LORD PROSSER: This was dealt with already if you have non-lawyers you say it is routine to have experts on the defence policy. It sounds like evidence of Government policy which would have an effect…

MR. MAYER: It would have an effect.

LORD PROSSER: It’s not really expert evidence, it is factual evidence as to what the policy is.

MR. MAYER: That is my understanding.

LORD PROSSER: I think one can see the points which are led by the Crown.

MR. MAYER: Yes.

LORD PROSSER: Not supplying information to go and talk to the defence. You are saying there are cases where the Crown have a particular case to show what the policy is.

MR. MAYER: What I am saying is that the Crown is well aware in England that the Trident protestors, of which there are many, there are many Summary Trials and a necessity defence is also raised and they always counter…

LORD PROSSER: I think it is the expert evidence, it doesn’t seem to me it is the expert evidence in the sense of opinion evidence, it is simply evidence more knowledgeable on the fact of policy.

MR. MAYER: I would respectfully agree with your Lordships.

LORD PROSSER: That’s okay.

LORD PENROSE: You began by saying in your first submission in relation to Question 1 which was relating to Scottish Criminal procedure and leading evidence concerning international law, the first point you had to make was that there did not seem to be a rule of evidence on the point, hence the question posed by the Lord Advocate, and the second point was that leading expert evidence in this regard is routinely done in England to rebut the Trident protestors’ necessity defence.

MR. MAYER: Yes, I was trying to lay England side as unhelpful to the Lord Advocate’s question.

LORD PROSSER: Whatever is in the English cases and it’s merely evidence of fact but as to policy it has got nothing on that, and also on the international law as far as lawyers giving evidence on the law is concerned you don’t know of any examples.

MR. MAYER: I don’t.

LORD PROSSER: I think at least on that you don’t have any specific example of lawyers giving expert evidence as to Customary international law.

MR. MAYER: It has been pointed out to me that part of Miss Zelter’s submission included Reference 9(33) on page 43 of her submission and the reference to Professor Grief, that was Nicholas Grief who is an international law expert.

LORD PROSSER: This was in Miss Zelter’s statement. Can you give me the reference again?

MR. MAYER: Yes, 9(33).

LORD PROSSER: Yes.

MR. MAYER: At page 43 where Professor Grief is said to have appeared in about 5 cases and they are all cited, they appear to be unreported cases.

LORD PROSSER: The point about that is these were matters known to Miss Zelter.

MR. MAYER: Yes. It appeared that it was forgotten. Now, turning to Scotland there is also Walker on Evidence, Dickson and Macphail and Rules of Court and I can find no exclusionary rule.

LORD PROSSER: You don’t think the Crown could point to anything so you don’t…

MR. MAYER: However in my submission there are instances where in this case because directly before your Lordships there is the question of ascertaining international law Courts and they had to see through foreign law as it were, so the only way of determining a pattern sufficient to justify calling it a pattern really would be to look at foreign law which of course is required to be proved in Court.

LORD PROSSER: You say there is a total distinction between proving of foreign law which, where an issue arises in the Scots Courts and is disputed because if it was Scots Law where it had occurred and there is a particular foreign law you say there is no question of proving that but as to what happens in foreign law is it right that chapters of foreign law and, or international law would have an effect on Scots Law. Does one glean a pattern from the English law?

MR. MAYER: One gleans a pattern from the Trendtex case and I think my Lords have the Trendtex case and this is what I was intending to come on to.

LORD PROSSER: But I wasn’t stopping you going on to that but I did have Trendtex, what does it say? Do you want to go on to that then?

MR. MAYER: My Lords, I have prepared copies. It was too late to get these on to the list of Authorities for your Lordships and everyone round the table. I was trying to find one where there was a version of the Law of Scotland where proof of Customary international law has been required for the proof of witnesses and it seems to me that Bell’s Commentaries Volume 1 and the Principles of Mercantile Law is somewhat helpful and there are A3 pages. At page 547 in the third paragraph from the top your Lordships can see that the learned author says, “The maritime law, however, partakes more of the character of international law than any other branch of jurisprudence; and in all the discussions on this subject in our courts, the continental collections and treatises on this subject, and the English books of reports, have been received as authority by our judges, where not unfitted for our adoption by any peculiarity which our practice does not recognise. Of these authorities it may not be entirely useless to make a slight enumeration.”

LORD PROSSER: That would be where one started citing foreign decisions.

MR. MAYER: Yes.

LORD PROSSER: But it is really pretty clear in the English textbooks but that is not to do with oral testimony.

MR. MAYER: No, I appreciate that.

LORD PROSSER: It is the customs of the Maritime States. I don’t think there is much oral evidence mentioned in there, where do we come to something about oral testimony?

MR. MAYER: My point here is that if one finds the Customary international law by looking at foreign law your Lordships will see in Item 2 under page 549 the reference is made to Mercantile Law.

LORD PROSSER: It is getting warmer.

MR. MAYER: The next one is that one either has to be looking at what somebody else has done or not, but the point is a number of different systems of jurisprudence have to be examined in order to find one point of Customary international law here.

LORD PROSSER: But surely if it were being looked at in the ordinary way of submissions and we analysed it and you were proving what the, for example Dutch Law is, you would look at it in the same way as we would look at a Canadian case, you would have to start proving under the Canadian law, you would just look at that, because there have been some very good judges in Canada.

MR. MAYER: Yes my Lord, the other part of the reference is a photocopy of MacMillan on Scottish Maritime Practice at the bottom of page 3. “In determining the principles to be followed, the decisions of foreign tribunals which in Scotland have the greatest weight are those of the Admiralty Division of the English High Court. The maritime law of Scotland is therefore British and not Scottish law…” and he goes on in the next large paragraph to say – “In such cases, therefore, it is necessary to blend the two codes, and it has been pointed out that in England” – as is, of course, equally the case in Scotland – “the judge of the Court of A|dmiralty does not cease to ’be a judge’”.

MR. MAYER: So that is an indication that it is not necessarily exhaustive of the present system that one needs to look through the eyes of a foreign system before discovering a single entity called Customary international law and the point is better made on the subject in Trendtex which is in my bundle of Authorities which have arrived in dribs and drabs.

LORD PROSSER: This is to be found in?

MR. MAYER: The Crown refer to Trendtex and the actual case is in the bundle with the green flags and the point about Trendtex was that whether the State of Nigeria acting through its organisation, the Central Bank was liable and allied to an Action in the English Courts at the instance of Trendtex and if I could refer your Lordships to page 555 on my copy.

LORD PROSSER: Queens Bench 1977.

MR. MAYER: Where Lord Denning is examining the Doctrine of Absolute Immunity and the purpose of that Action which at the top of the page and I am not interested in the Doctrine but I’m interested in the procedure and how they established Customary international law and it was decided that the Bank of Nigeria may be liable and this is under “The doctrine of Absolute Immunity” and over the page at 556, having looked at these two Doctrines and trying to find which one ought to be applied Lord Denning in doing that exercise firstly applied these Doctrines some of which state that absolute immunity is restricted and that is leading up to page 556, “Are we to follow likewise?” and the first question is “Seeing this great cloud of witnesses, I would ask: is there not here sufficient evidence to show that the rule of international law has changed? And his Lordship then goes on to innovate saying “We must take the current when it serves or lose our ventures”, and that is citing Julius Caesar and Shakespeare and this is relating to oral testimony.

LORD PENROSE: Where does that appear? I have not seen it.

LORD PROSSER: It sounds as if they were giving evidence as to the municipal law and that is a matter that has to be established by evidence.

MR. MAYER: Sometimes one can look through the spectacles.

LORD PROSSER: If you want to establish the law of a foreign country it has to be proved by fact, it is either a relevant fact and a relevant fact requires testimony but there is no, nothing to tie up between that and how you establish Customary international law by evidence as to what Customary international law is, and what is suggested is that there has to be proof of German domestic law and in the exercise undertaken in this case that appears to be for the Court below, so that it didn’t know whether the Bank of Nigeria would be liable as there didn’t seem to be a rule. So apart from the “great cloud” where on earth does one find anything about having such witnesses?

MR. MAYER: We can deduce that from page 555 where your Lordships will see from The British Year Book of International Law a provision….

LORD PROSSER: We’re talking about oral testimony.

MR. MAYER: The fourth line from the bottom. “We have been given a valuable collection of recent decisions…”

LORD PROSSER: We are not talking about being given collections, we’re asking a quite specific question as to where one finds anything about testimony having been given by any witness.

LORD PENROSE: I mean in this great cloud of witnesses I would generally expect them to be human beings, so where are the people who give oral testimony?

LORD KIRKWOOD: There is a reference as to how the Court ascertains international law in the submissions made, from the full submissions which we find at 538 letter C, “When the Courts want to find out what international law is they do it on a international scale, referring to decisions in” a number of countries and you find again the relevant rule which must be satisfactorily proved and anything which indicates the Statute and for that task the Court has to look at the contemporaneous sources and ascertain the Crown’s position and there is no reference that I can see of a lawyer having given evidence about it.

MR. MAYER: Page 547. It may be apparent that there is a full explanation there but I have not yet been able to demonstrate to your Lordships this same point.

LORD PROSSER: These are statements by pretty distinguished people, from Mr. Bingham and Sir Patrick Knee on the other side and there doesn’t seem to be any suggestion that testimony would be appropriate.

MR. MAYER: Notwithstanding my Lord Penrose’s observations that sometimes a Court’s skills aren’t tangible in relation to human beings.

LORD PROSSER: Having used the expression that is clearly in another context and in that exercised in Trendtex you say there is a point that indicates that is what you have suggested but there is no other indication that it arose.

MR. MAYER: No, that is correct my Lord.

LORD PROSSER: Can we pass on from Trendtex.

MR. MAYER: And the other Authority which I would refer my Lords to in this regard is the Statute of the International Court of Justice itself where it occurred to me that if the International Court of Justice did not know what Customary international law was on a particular point may have had a mechanism for finding out, and the Statute I would refer to is in the bundle at letter K and it’s the first volume before letter K.

LORD PROSSER: It is not tagged.

MR. MAYER: They are not tagged but there is an index at the front of the bundle.

LORD PROSSER: The front of the bundle.

MR. MAYER: Your Lordship has looked at Article 38 in this already and I think it was at that stage that your Lordship in the Chair when Article 38 was being discussed made the comment which I would in my submission take a lead from the fact that there are various things and subsidiary matters mentioned about the determination of rules of law.

LORD PROSSER: This is in the written material we have looked at.

MR. MAYER: And if one goes to Article 30 one sees a reference there to some of the points and then in Article 32 on page 2 there is reference to the right to vote and there seems to be a number of voters.

LORD PROSSER: We had got to the point where we were talking about assessors and this Court can’t assess assessors. Let’s go on to what you said about, something about witnesses.

MR. MAYER; Articles 50 and 51 my Lord and Article 51 follows on from that and deals with the relevant question being put to the witnesses and experts under the conditions laid down by the Court and there is reference to the procedure in Article 30.

LORD PROSSER: I see that – what has that got to do with the law. Of course there may be matters which require the evidence of experts in a Continental sense, but where is that indicated?

MR. MAYER: The terms are wide open to encompass both.

LORD PROSSER: Yes.

MR. MAYER: And the Court is careful to insert the words, “both witnesses and experts”. So I cite that for what it is worth in my respectful submission.

LORD KIRKWOOD: But in practice is there any case where an International Court of Justice reported cases where lawyers have given evidence on international law?

LORD PROSSER: That could be a pretty exhaustive kind of task.

MR. MAYER: The first example I could find is in the ICJ Advisory Opinion that we have discussed already.

LORD PROSSER: Yes, everyone knows that. Are you speaking of a representation of the whole lot where there were witnesses and then you can make submissions and representations but is there an example of a witness giving evidence?

MR. MAYER: I haven’t found one my Lord.

LORD PROSSER: That doesn’t need elaboration.

MR. MAYER: These are my submissions which were designed to try and assist the Court.

LORD PROSSER: Right.

MR. MAYER: It did seem to me worthwhile to aim at the possibility of seeing international law through the eyes of foreign law and also to see a Court above as it were in the context of international law. So these are my submissions my Lords on Question 1 and as it is now quarter to 4 I am in your hands.

LORD PROSSER: Well, if you have covered at least the minor points and there are a few further matters that you wish to explore then this may be a convenient point to adjourn so we can adjourn now and we can pick up your submissions at a later date.

Adjourned.