Extracts from a report by {River}
Background
Expert witnesses for the defence
Evidence from the four defendants
Legal Arguments
Defence Counsel
The Verdict: 3 March 2000
Appendix: Prosecution: Opening Note
Background
Roger Franklin (72) a peace activist from Horsley, Sylvia Boyes (56) a Quaker activist from Birmingham, Marlene Yeo (68) a retired teacher from Loughborough, and Alison Crane (46), a local government officer from Stafford, all members of the Trident Ploughshares Midlands affinity group, were charged with causing criminal damage estimated by the Crown at £1000 +VAT) relating to 13th July last year when they entered the Nuclear Weapons Establishment at Aldermaston in Berkshire, a site for research into and manufacture of Britain’s Trident nuclear warheads. The four were defended by Barrister Steven Cottle and Solicitor Gareth Pierce. The trial follows action by the Trident Ploughshares 2000, Midlands Affinity Group (MAG).
The action started with an exchange of letters with the current management of the Atomic Weapons Establishment, Aldermaston, requesting admission to the AWE for the purposes of Inspection of the work and Communication with the workforce (IC, hence MAGIC 4). Access was politely but firmly declined by the management, claiming that legality and safety at the establishment were entirely a matter for Her Majesty’s Government.
Feeling this to be mistaken, that under international law every worker and every member of management was personally responsible for the preparations for nuclear war, and that the Health and Safety of the workforce and surrounding population are not being adequately safeguarded by the current, lax, safety regime, members of MAG attempted twice to gain entry.
The first time this was done quite openly, approaching the gates and asking for access. This being refused once more, four members of MAG returned on a later date and effected entry through the fence using cutting equipment. They also carried leaflets for distribution to the workforce and the means to “lock on” to machinery in order to delay their eventual removal from the establishment. These, the MAGIC four, Roger Franklin, Alison Crane, Marlene Yeo and Sylvia Boyes were therefore on trial an Newbury Magistrates court on a charge of Criminal Damage.
The prosecution had been warned in advance of the defendants intention to raise a defence under international law, but chose not to counter that defence, relying solely on the fact that the defendants were there without permission of the management and had cut fencing, again without management permission.
Three of the defendants represented themselves in court, while one of them was represented by a barrister. Some readers will know that this combination of represented/unrepresented is popular with protester belonging to all sorts of causes – it was used most effectively in the Seeds of Hope case, in which four women were acquitted of causing damage to a Hawk Jet preventing its export to Indonesia.
In the following I am reporting the substance of what was said: nothing is a direct quotation unless shown as such. Material in square brackets [thus] has been added by me when typing up.
At the beginning of the defence case, the magistrate was referred to points made by the defendants both in the written statements they had on them at the time of arrest, and in interview. In order to save time in court the magistrate agreed to read these privately. This was useful to the defence as two defence witnesses were only available that afternoon, but it does mean that I can’t summarize this evidence here.
Expert witnesses for the defence
Evidence by Professor Nick Grief
The first witness called for the defence was Prof. Nick Grief (“Good Grief”!), who is a Professor of Law and for the last two years has been Head of the School of Finance and Law. Before that he was at Exeter University for 17 years. His expertise in the area of international law goes back 21 years, starting with his Ph.D. studies which were in this area.
It was made clear by counsel that Prof. Grief was not called to instruct the court on the specific application of the law to the events in question – this is clearly entirely a matter for the court. Rather he was offering expert opinion to further the defendants defence concerning the relevance of international law. Whether the Trident weapon system is unlawful under international law depended in part on matters of fact concerning that weaponry, and he claimed no expertise in that area.
The first point he addressed concerns the relationship between international and domestic law. He referred to a passage from a House of Lords judgement by Lord Templeman in which it was clear that treaty rights are not included in English law unless incorporated by statute. This means that treaty rights and obligations are not enforceable in courts in the UK [except where they have been enacted by Parliament, and even then it is the Act that will be enforced by the court, not the treaty].
But, he said, Treaties are not the sole source of international law. Art 38 para 1 of the statutes of the International Court of Justice (ICJ) refers in subparas (a) and (b) to (a) International conventions, treaties, agreements, etc, all of which he would refer to as Treaty Law, (b) International custom.
Prof Grief’s contention was that there are two distinct sources of international law, custom and treaty. Treaty Law requires incorporation before it is a part of domestic law, but Customary International Law is a part of the common law [without the need for incorporation or adoption]. International Law does change over time, and English courts have recognised these changes accordingly – often even without there being any legislation.
He quoted the recent example of the extradition of Pinochet. He quoted Lord Millet saying, “Customary International Law is part of the common law” [sorry, I did not note the case here]. English courts have always had extra-territorial jurisdiction over crimes of international jurisdiction. Often the two sources of international law overlap or coincide. A treaty can encapsulate existing customary law, and that does not prevent the customary law still having effect as custom. He referred to the ICJ’s advisory opinion of 8th July 1996 on the Legality of the Threat or Use of Nuclear Weapons (AO). The AO was an authoritative statement of the current state of international law. Threats were identified as being illegal wherever it would be illegal to put the threat into practice. The opinion relied so heavily on Customary Law that it is effective in English law. It identified certain acts as criminal under international law.
The AO articulates rules of Customary International Law that are relevant to this trial; it is itself an authoritative statement of Customary International Law and is therefore, like domestic judicial decisions, a part of our common law.
The AO provides a number of different parts to the opinion, some of which were unanimous and others the result of a split vote:
It decided unanimously that any use of nuclear weapons should be compatible with international humanitarian law. This is part of Customary International Law as distinct from any particular obligation under any particular treaty.
Article 22 of the Hague Convention 1907 provided that the means of warfare cannot be unlimited and must be chosen so as not to cause unnecessary suffering. The protection of civilians is an important part of Humanitarian law, and springs from Customary International Law and from the dictates of public conscience.
The so-called Martens clause is now accepted to be part of Customary International Law – originally adopted as part of a convention in 1899, it is named after the Russian jurist who first proposed it. It provides that rapid technological advances cannot circumvent the intention of Humanitarian Law, civilians and combatants remaining under the protestation of it even when faced with new weapons.
Para 43 of the AO describes the nature of all nuclear war, and must be borne in mind by any state even when exercising the right to self defence.
Para 37 makes it clear that even in the most extreme cases of self defence, the force used must still be proportional to the military objectives and must still remain within the bounds of humanitarian law, which are described as intransgressible. The use of nuclear weaponry is described as scarcely reconcilable with those intransgressible bounds.
If the use of any weapon would infringe these principles [and Prof. Grief expressed no opinion either way on the effects specifically of Trident bombs] then it would be an unlawful weapon. Not only the use of such a weapon but also the threat would be unlawful, contravening International Humanitarian Law, which is part of Customary International Law, which is part of the common law of England and thus part of our domestic law. The ICJ “does not come down off the fence” in the dispositif of the AO, saying that it cannot conclude with certainty that all use would be unlawful, but the text and tenor of the opinion as a whole does incline towards that view. The court had not been supplied with circumstances or scenarios of any legal limited nuclear theatre, and would have needed to be provided with such scenarios in order to come to any conclusion about them. But in any case, for a lawful use to exist, it would need to involve weapons of much smaller size – for example the explosion of a very small warhead miles from anywhere.
The dispositif was decided on a casting vote of the president and therefore his comment that this decision is not to be interpreted as leaving the door open to the lawful use of nuclear weapons is significant. Unlawful use would be a crime in international law.
There is an obligation on the nuclear powers to negotiate in good faith, and to bring to a conclusion the elimination of all such weapons. If this court finds that there is an increase in the number or the effectiveness of Britain’s warheads, where would that fit into the UK’s good faith in pursuing such negotiations? At best it would seem to fit uneasily.
Geneva 1949, Protocol I, forbids the launch of an indiscriminate attack, an attack indiscriminately affecting civilian lives or objectives. This codifies customary international law, and it has also been ratified and incorporated into British statute law under the Geneva (Amendments) Act 1995, effective from July 1998. Any time after 20th July 1998, such an attack would therefore be illegal under Act of Parliament as well as under common law.
The Nuremburg principles (adopted by the UN in 1946, itself evidence of those principles being accepted Customary International Law) provide that complicity is itself a crime. Consequently the production at AWE of ingredients, the purpose of which is to be installed in a Trident missile, the purpose of which in turn is to cause the excessive loss of life, that production would fall within the ballpark of the Geneva Protocol I.
Article 2(4) of the UN charter, as a basic principle, prohibits the use of force under any circumstances, the only exceptions being self defence (but still circumscribed by Humanitarian Law) and where the security council specifically authorises it.
The limits imposed by Humanitarian Law are an additional element of Customary International Law that are so fundamental, so overriding, that no state is free to opt out of them under any circumstances. Cross Examination
[question not heard properly, but challenging theory of incorporation of customary international law from a particular House of Lords case] The speech of Lord Oliver in that case acknowledges the incorporation theory.
Are there not two alternative constructions that can be put on Lord Oliver’s words?
No, because on page 512 D to G he is speaking of Customary International Law as distinct from Treaty law.
The AO is not entirely consistent with the proposition that all nuclear weapons are illegal.
There are ambiguities, yes, but the president of the court warned that the conclusion cannot and must not be seen as opening the door to legality.
But not every nuclear weapon is illegal; nor would every use or every possession amount to illegality?
No court can conclude regarding every particular possible case. This court was not asked to decide about any particular use. They did comment that such use would be “scarcely reconcilable” with the demands of law.
They are not illegal if they are not being used?
[answer referred back to intransgressible principles]. Also there is an obligation to act in good faith towards disarmament: to do anything contrary to that good faith would not be prudent. Good faith is fundamental to the law of treaties under the Vienna convention.
You are not able to help the court over the facts at Aldermaston?
No.
Re-examination
If the reason for production was as part of a credible nuclear deterrent, would you agree that a weapon of mass production was not illegal because it was not being used?
No: it is illegal if it is retained with the intention of use. The whole idea of a credible nuclear deterrent is to cause indiscriminate suffering, which is incompatible with international law.
William Peden was called after Nick Grief
He is an expert who has worked alternately for Greenpeace and CND over a number of years, monitoring the nuclear industry. His manner was in marked contrast to Nick’s, laid back where Nick was formal; colloquial in his speech and delivery where Nick was academic; and the contrast was all the more marked for his following Nick in short succession.
He had brought a statement to the court which he adopted under oath. Again this saved the court’s time, but means that this report does not give the full picture as seen by the magistrate.
He said that the best place to go to see what AWE was about was their own workplan. This is not quite a public document, but was available from them if you “asked very nicely”. This referred to their work as “Our nuclear business” and “The British Nuclear Warhead Industry”. The strategic defence review (SDR) had reaffirmed the role of AWE for the future.
Its job under the SDR was as the centre of the spider’s web of British nuclear warhead production. It has three other tasks:
continuing trickle production of lifetime components needed for the routine refurbishment of the weapons
decommissioning of old warheads
to maintain capability and to work continuously on new designs for the successor to Trident.
Burghfield assembles the components that Aldermaston makes.
There is continuous decay of the Tritium in the warheads – Tritium is the “H” in “H-bomb” and makes it a bigger bang. [Physicist’s aside: Tritium is a form of Hydrogen, hence the term Hydrogen bomb. In the explosion, atoms of Tritium fuse together releasing huge amounts of energy, hence the term fusion bomb.] As the Tritium decays, the yield of the weapon slowly reduces. Also various electronic components decay over time and need replacement. According to the Tories when they were in power, Trident only had 160 nuclear warheads. This government has admitted building more, up to a maximum of 200. Given that Aldermaston and Burghfield can only produce 12 to 15 per year, flat out, it will be 2002 at the soonest before production of new warheads stops. Therefore it is safe to deduce that they were manufacturing warheads around the time of the MAGIC action in July 1999.
It is important to realise that the missiles themselves come from the US – Britain produces the warheads that the missiles deliver. Only 58 missiles were on order at the time of the general election – this government has ordered more in keeping with its stance of being tougher on defence than the Tories. Roger examined the witness
Can you help with the uncertainty about numbers of missiles and warheads?
A missile can carry up to 12 warheads, but only carries three on average. The Government has declared a limit of 48 warheads per boat.
[Reporter’s comment: it is not safe to assume that they are actually deployed as three per missile. In my analysis the military are likely to want to have a range of strengths of weapon, putting 8 or 10 on one missile and only one on another. The reference to sub-strategic strike seems to me to bear this out]
And there are four submarines but not all would be carrying warheads?
At any one time there are three boats available for use. It is also important that all 200 warheads could be deployed on a single submarine at any time.
And they are held at Coulport?
Most of them will be on the submarines, with a small number at Aldermaston and Burghfield. Each starts out with a yield of around 100kt which reduces as the Tritium decays.
Marlene examined the witness.
She started by inviting his comments on Behind Closed Doors, Inside The Citadel, and an article in the Observer of 24th October.
The people running AWE have derided the findings, have attempted to trivialise it, and tried to hide them from the public. These reports only reveal inside info from previous acts: if anything, the real situation will be far worse than this, certainly not any better.
and what are the consequences if it is not stopped?
This does depend on the amounts, but there has certainly been some contamination of the environment with toxin leaching off site – largely due to past mismanagement. There is no safe level – this stuff should not be leaching off site at all.
I am concerned about questions of imminence and the immediacy of accidents. What notice or warning would there be?
Their practice is not to admit anything. There have been cover-ups in the past. Nobody knows the extent of past Health and Safety breaches.
Would I be correct to take action now?
The danger always exists, often made worse by inadequate management but there would be a daily risk even if managed properly. There is of course some risk in everything we do, but the risk goes up exponentially with each further problem they have.
Cross Examination
Is AWE the only place where warheads are produced or stored?
It produces components for assembly at Burghfield, and does design and research.
The 160 warheads will be increased to 180?
Not according to the British Government.
AWE has been operating since 1951?
Yes.
And in all that time there have been minor incidents and slight contamination but no catastrophic incidents?
I completely disagree. To take one example, Blue Circle [the neighbouring cement works] was seriously contaminated when a flash flood washed high levels of Plutonium off the AWE site onto adjacent land. They had to dig up Blue Circle soil and it is still stored at Aldermaston.
Prosecution also challenged statements about production in July 1999, and was referred to in an answer given in response to a Parliamentary question by a Tory MP just before the recess of Parliament in 1998. The MP had hoped to show that New Labour was soft on defence, but had the opposite result. As a result of the figures given then, we can confidently deduce that weapons were still in production in July 1999.
There was no re-examination, and that concluded the testimony of William Peden, and the court rose for the day. The prosecution witnesses and the first two defence witnesses were all heard on Wednesday 16th February, and the court rose to consider its judgement late on Thursday 17th.
[Once again can I remind readers that this is not a verbatim nor a complete report. I am however attempting to faithfully represent the overall direction of the proceedings, and certainly hope to include all the significant points, whether for us or against us. I am a member of MAG and am not therefore even attempting to be unbiased, though I do think we need to take care to understand any points that are made against us. My own comments are enclosed in square brackets, like this paragraph.]
Frank Barnaby was the third defence witness
He was the first witness called on the Thursday morning, 17th February. The magistrate commented that he was not sure that attendance was the best use of the expert’s time. [I am not clear whether His Worship meant that he already had extensive judicial knowledge of the issues, or simply that he would have accepted a written statement from the witness, rather than having him attend in person]. He did not, however, refuse to hear him.
Frank has had training in nuclear physics, and did research at AWE on the effects of nuclear explosions. He has been a director of the Stockholm Peace Research Institute (SPRI). The magistrate commented that his CV was excellent.
Do you have knowledge of the particular warheads deployed on Trident?
No. Within the business they are assumed to be similar to those deployed on US Trident missiles, based on the fact that AWE and US scientists regularly meet.
So there is more information about the W76 [US Trident warhead]?
Yes, there is much more openness in the US.
The witness confirmed that he understood his duty of impartiality under oath, and then adopted his written statement on oath.
In certain circumstances, considering the lower limits of the size of a nuclear explosion, is it possible for a nuclear weapon to be used within the confines of International Humanitarian Law?
No.
What in their nature prevents this?
A nuclear warhead contains 200kg of conventional explosive, and in theory you could indeed add what you liked to this. However, conventional bombs can be produced up to 1 tonne, and so it would be an absurd thing to produce a 1 tonne nuclear weapon because of the cost. In practice you would not go below about 1 kT, for example a nuclear landmine is around 1 kT.
[note on units: MegaTonne = 1MT = 1000 kT; kiloTonne = 1kT = 1000 T, Tonne = 1 T = 1000 kg, and a 1 T bomb can be made most cheaply with conventional explosive technology. This does not refer to the actual mass of the bomb, not even with a conventional weapon. It refers to the amount of TNT that would be needed to make the same-sized bang]
The likely minimum for a ballistic warhead would be a few kT. A one or two kT explosion would be a very large one indeed – the blast and heat would destroy entirely the centre of a large city, the radioactivity reaching even further. In contrast, even the largest terrorist explosions are around 1 Tonne.
Lowest yield warhead on US Trident?
100 kT – the US don’t share the idea of a sub-strategic weapon.
Our governments statement about a sub-strategic weapon, would that imply a lower yield?
That is not actually said. An alternative reading is that it means a missile carrying just one 100kT warhead, rather than several. At Hiroshima and Nagasaki about 40% of the population of those cities were killed instantly, and a Trident warhead is around 8x the yield of Hiroshima. It is hard to separate our nuclear deterrent from the US – we are not expected to use it separately.
[asked about the size of our deterrent]
The currently announced levels mean there are fewer warheads deployed on Trident now than were deployed on Polaris. You also have to take into account the increased effectiveness of the targeting, and the fact that one Trident missile can deliver warheads to separate targets, which Polaris couldn’t.
… servicing?
Half of the Tritium in a warhead would decay in 13 years, so without servicing, the yield would steadily drop. Some non-nuclear components need to be changed as well.
Could you use any of these warheads within the confines of International Humanitarian Law?
I think not. They are deployed as a threat to attack, to deliberately cause so much damage as to deter them from attacking us in the first place.
How big was the Manchester bomb? [An IRA terrorist bombing]
Around 1 Tonne.
[about targeting Aldermaston]
No doubt that it is high on the target list. For this sort of target you would use an airburst, that is explode the device some 10 to 100 metres above the ground. For other sorts of target you’d use a groundburst. Newbury, Reading, and Oxford would all be seriously damaged by such an attack. Not only that, but Aldermaston would definitely be targeted by several warheads and the damage would be immense.
[reporter’s comment: especially as the inaccuracies of targeting, and the effects of the previous blasts, would mean the explosions were scattered around AWE and not all be direct hits]
People living in a big circle have every right to be worried about the possibility. I personally would move out, at least as far away as I am living now!
…effects of known emissions from Aldermaston?
Any release of radioactivity is a problem. Plutonium is the most worrying isotope – you can be harmed by inhaling 17 microgrammes, a very small particle that you would barely see with good eyesight.
[One million microgrammes make a gramme, about 28 million make an ounce]
Tritium is also released – its effects are controversial. One reputable group of experts believe it is taken up by the DNA and leads to genetic defects and cancer. I personally believe that much more importance needs to be placed on Tritium than is indicated from its radiological effects alone. The crucial thing is to keep all radioactive materials out of the human body: any dose will cause some fatalities.
… effects of the whole nuclear system on the human race as a whole?
Yes. The atmospheric tests certainly caused a large number of deaths. The nuclear material released in those tests circulates throughout the hemisphere in which they were exploded. Even without a nuclear war, people are suffering from the same effects, only less dramatically. There is no way of containing these effects.
… Chernobyl…?
Adds support to those who need convincing: But the experts already knew the effects.
Are these weapons actually in use?
Yes, one submarine is on constant patrol.
Not merely on exercise?
Part of their being on patrol may include military exercises or oceanographic research, but they can easily be put on station very fast. “Ready for Use” is part of NATO policy.
…”Taken off Alert”?
There is an element of truth in this – they were totally integrated so that they could be used at the drop of a hat, but even now the operational policy is that they can be used very soon indeed. Also our submarines are integrated with the US, and their submarines are on a much higher state of alert.
Do you know of any particular incidents around last May or June time?
No.
The prosecution cross-examined the witness.
The US W76 … isn’t your evidence just hearsay from the defence community?
I object to that word. Papers have been written by those who have direct knowledge.
But you are not able to say that our warhead is the same?
I can definitely say it is not the same, but it is almost certain to be similar. The missile comes from the US. The warheads have to be placed round the top of the missile, so there is clearly a volume constraint. The physical size must be the same; volume, weight, geometry.
…fewer strategic weapons now?
Yes, The Government announced that there would be no more than 48 on any one submarine. So 160 warheads will need to be extended to 180 or 200. Theoretically each missile can carry up to ten warheads; the government said they’d keep to an average of three.
… deterrence?
It means that you target the other persons’ cities and destroy them.
How immediate is the threat of war?
Scenarios can develop over minutes or hours.
Surely the idea of a retaliatory threat is that it is immediate. There would be no need for the other side to target a centre like AWE that has to do only with manufacturing?
Targetting is a complicated business. Nuclear policy in Russia is one of “Launch on Warning”; that is you launch all your missiles before the incoming missiles arrive. It would be inconceivable that the target set did not include the manufacturing facilities on the other side. There are about 10,000 warhead in the former Soviet Union, all prepared for sudden strike. It is incredibly hard to find 10,000 targets, and to suggest that they would have missed out Aldermaston would be absurd.
Re-examination
How big are the warheads?
About 4ft tall, a quarter of a tonne, conical. They are MIRVed, so that targets can be hundreds of miles apart. The warheads ride on a so-called “bus” and get dropped off as the bus is coming up to their individual target. [MIRV = Multiple Independently-targeted Re-entry Vehicle] The Government say there will be “up to” 200 in the country.
[Reporter’s comment: with 48 on each sub, this suggests that at any one time maybe 8 of them will be in pieces at Burghfield, or in transit around the country, or held at Coulport. This is consistent with William Peden’s comment that there would not be any stored long term at Coulport. Apart from anything else they are less vulnerable to the likes of us when they are on the subs! My *guess* is that they are only briefly held in RNAD Coulport prior to installation or prior to their return to Burghfield for servicing. This guess disagrees with some fellow activists who believe there are huge piles of them stored at Coulport]
Evidence from the four defendants
Following reports will detail the defendant’s own testimonies, and the legal submission by the defence. The four defendants all gave evidence after the experts had completed their testimony.
Roger Franklin went first, and as he was representing himself he spoke from the witness box without the prompting of questions. The court being without an usher that Thursday, his DIY testimony commenced with him swearing himself in by reading the affirmation from the card left on the shelf in the witness box. He then identified his written statement to the bench, and confirmed that he wanted to adopt it as testimony. He then referred back to the affirmation he had made, commenting that nobody, in fact, is capable of telling the whole truth about nuclear bombs.
It is time to put Trident on trial, to put Deterrence on trial.
There have been two major articles by General Butler maintaining that deterrence is dangerous, ineffective, and he wants to see it stopped. McNamara too has changed his views – when these people start doubting, then the rest us of need to be concerned.
I am here with a Ploughshares affinity group. Ploughshares began with 8 nuclear protesters breaking into a weapons factory and breaking a nose cone with a hammer. They were accused of trespass but the real trespass was against the minds of a public who did not want these issues to be bothering them. These issues: Trident, Deterrence, and Ploughshares are all part of the background to this rather ridiculous little crime of cutting fences.
This was not some sort of prank, but a seriously thought out action arising out of a lifetime of action, and the place chosen to cut the fence was one of the key places where they manufacture the weapons.
I have a lawful excuse under the criminal damage act: to protect property that was in immediate need of protection. There is a continuing threat to property from the existence of these weapons. Elected officials follow advice from permanent officials that we should keep these weapons – people like Nixon and Reagan have had the power to choose whether to use them or not.
Nicholas Humphreys tells a story of his hedgehog, Ajax, who hibernated under a pile of wood and bracken. As time went on and the humans piled up more and more wood he must have felt more and more secure, but in fact he was getting closer and closer to November the fifth when he would be burnt to death. Similarly we are building up bigger and bigger piles of these things, creating the illusion of more and more security: but in fact bringing the holocaust ever closer.
This action was a scream in protest against 54 years of collective madness.
In the Second World War, air raids against enemy cities became an accepted way of waging war, and we adopted the Nazi practice of total war. In the face of the mesmerising effect of these weapons it is urgently necessary that we all do the rethinking that Butler has done.
When is nuclear war imminent?
It is always imminent, like the threat of the sword hanging over Damocles, and therefore there is always lawful excuse for any action taken to prevent it. This particular act was obviously a token act. In Scotland recently a rather less token act had convinced the Sheriff.
I have been locked up before for refusing to pay taxes. What is happening now is a chance to explain my concern in a public forum. I see this court as offering some sort of hope. Trident Ploughshares has been noticed by the media, and the media don’t notice anything unless you do something.
If no court accepts this as a case, then the national laws of this and other lands are no longer adequate for dealing with a total lapse of morality.
There being no questions from other defendants and none from the Crown, Roger completed his testimony completely without interruption of question.
Alison Crane was the second of the defendants to testify, following Roger. Alison was represented, and therefore gave much of her evidence in answers to questions, but I have not reported the questions themselves unless they seem necessary to understand Alison. The formalities duly completed, she confirmed that she had read various articles before the night of the events in question.
I’ve been interested in peace since I was at school, and joined CND in the early 80’s. My children were born about the same time – they are now 13 and 16.
I work in local government.
There is a constant risk of nuclear war – in 1995 the Norwegians fired a research rocket and it was detected by Russian radar. For five minutes Russia was on full nuclear alert till the radar confirmed the rocket was not going to hit Russia after all. Like the Russian nuclear forces the status of Trident is similar – ready to fire at short notice .
You were aware of this incident at the time of your action?
Yes.
What is the position of AWE?
It is involved in the manufacture of components for Trident. Trident offers a significant enhancement to the British nuclear deterrent. It may have less yield but the warheads are independently targetable and more accurate.
In the final sanction of a nuclear strike the focus of British targeting has moved from Moscow itself to various command and control centres around Moscow. The effects on the civilian population in and around Moscow would be, if anything, worse.
We have announced that we intend to keep it on patrol for at least 20 years – a potent potential threat.
Three Tridents are on patrol at all times, still geared up for war. Routinely the notice-to-fire might be measured in days, but this can and will be reduced in times of crisis.
[the intention of this part of the evidence seems in part directed towards our lack of any intention to honour our national obligation to negotiate towards the elimination of these weapons; and in part that is a continuous threat that is in itself a crime I missed a brief part of Alison’s testimony at this point; apparently she said that, had they not been stopped, then she would have attempted to talk to the workers to persuade them to stop what they were doing, and would have locked on to a machine to prevent work and to prevent her early removal from the site.]
Suppose it is said that there is too tenuous a link between, on the one hand, trying to talk to the employees, and protection of property on the other hand?
That is why it had to be at Aldermaston, where the parts are manufactured; without Aldermaston none of this could continue. I firmly believe in the humanity of the Aldermaston employees and their ability to begin the process of change.
When I was sworn in I did not take the oath but I affirmed: that comes from my Quaker beliefs: I always tell the truth anyway so an oath would make no difference. And as a Quaker I expect everyone to be capable of change, I know there is good in everyone.
Alison read out part of a leaflet about the traditional Quaker Testimony of Peace. I am frightened by the consequences of the Government in my name unleashing these weapons, and it’s appalling that they are doing it in my name.
She was shown a map re. the consequences of a command and control strike on Moscow, and confirmed it predicted the immediate death of 2.5 million people.
Where is the imminence?
An accident can occur at any time.
Are the employees not well aware of the dangers?
I would hope so, but they are not given the full picture. The accidents we know about haven’t been fully reported, and they are enough to raise concern about what we don’t know. The continuous emissions are also worrying as there is no safe dose.
She was shown a photocopy of a “Citizens Complaint”, a document signed by all four defendants and by three others; she confirmed it set out what was in her mind as of May 1999. There were also other matters of concern that she was already aware of that were not in that statement – for example the continuous leaching out.
So why should the learned magistrate think you were there in July?
I’ve always been concerned with the environmental aspects; that in itself is sufficient justification. Ploughshares is specifically about preventing crime.
Do you believe any use or threat to use these weapons can ever be lawful?
I’m not commenting on nuclear weapons in general; I don’t think any threat or use of Trident can be lawful, because it is just too powerful for lawful use.
Having up to now been questioned by her barrister, Alison was now questioned by Marlene, who started off by asking about staff and police awareness of their responsibilities.
One of the MOD police had actually testified in this court that he did not accept any responsibility for carrying out orders. The Health and Safety report that has been published does not give the full picture; employees are not aware of their responsibilities on the defence side of things.
And finally, was questioned by Sylvia
Have you written to your MP?
Yes, we have exchanged so much correspondence that my MP recognises my interest and has sometimes even written to me to draw my attention to some development.
Is this government open about defence policy?
The Strategic Defence Review is more open than anything we knew previously. My MP believes that Government policy is consistent with international law but won’t tell me even one way that these could be used legally.
Marlene Yeo was the third of the defendants to testify, following Alison. She was unrepresented, and gave the bulk of her evidence referring to notes she had brought with her. Her testimony contained a mixture of evidence and legal argument. Marlene speaks English fluently and with a German accent – the relevance of this point will be seen during the Moral Defence below.
On being invited by the clerk to swear herself in using either the “religious” or the “non-religious” version, Marlene said that she wished to affirm but she did not accept that the affirmation was non-religious.
I am going to offer three distinct defences to the charge:
Necessity; – International Law; – and The Moral Defence.
Necessity
I am advised that for this defence to work in law I must show – a pressure on my will consisting of an objective danger (to myself or to others); – proportionality; – that I was impelled by reasonable belief; and – that a sober person would have responded as I did.
AWE is part of an interlocking system. This time I took action at Aldermaston but at other times it has been at Faslane, Coulport, and Derby; they are all involved. [see note at end re . the action at Derby]
The Dangers
The dangers are indeed objectively real. At any time a nuclear missile might be fired. There are always three submarines on patrol. Coupled with the policy of first strike the Government could decide to attack a perceived enemy at any time. Another danger is that another country, threatened or provoked by British nuclear weapons might launch an attack to try to get their retaliation in first.
We heard evidence yesterday of Judge Weermantry’s dissenting opinion to the ICJ AO. Nuclear explosions and the resulting radiation would damage the environment and future generations.
Proliferation: our weapons are a danger because they are seen as an invitation to aspiring nuclear states to follow our example, as in India and Pakistan. Incidentally they have more justification than Britain because at least they face an enemy, each other, whereas we face no enemy now.
There is an objective imminence due to the possibility of accidents, which may occur at any time. This is a reasonable fear as humans are fallible, as too are their machines. Humans can be forgetful, irrational, or careless. Too many vested interests exist to ensure the cover-up of accidents.
General Butler’s address; “Behind Closed Doors”, the Observer article, they all give a long list of known accidents, but accidents known only in retrospect. John Croft, director of safety at AWE agreed with this report. The fact that we only ever hear of accidents afterwards, confirms just how reasonable is my belief in there being a danger at any time.
Recently Hunting Brae, [the current managers of AWE] were in court here, in this very court, for illegally discharging Tritium. These discharges had been concealed from safety inspectors.
I fear for safety at Rolls Royce, Derby, where weapons-grade Uranium is delivered and turned into nuclear reactors [to power the submarines]. I fear for the safety of my own grandchildren who live near there.
I fear accidents on the roads: components are taken from Aldermaston to Burghfield, and the bombs are taken by road from there. Weapons-grade plutonium is taken to Derby by road.
Nuclear convoys are regularly stopped by protesters even in built up areas – how easy it would be for terrorists to do the same, causing much more danger.
I fear accidents at sea, inside the submarines. The danger of accident is ever present. The reported accident on HMS Vanguard, at that time carrying 96 warheads, was averted more by luck than by good judgement.
Proportionality
Compared to all these dangers, cutting a fence is not excessive. We intended to talk to the staff – this was a serious attempt, not a token action.
I want to disassociate myself entirely from Roger’s comment about it being a token action, a comment which I don’t really think he believes either. We were careful not to harm any living thing. The imminence is real – it is impossible to wait until a serious accident occurs. Proportionality has to be judged in the context that we acted as part of a general chain of protest by Trident Ploughshares 2000, a chain involving over 440 people. My own small action was part of these larger actions. A single snowflake can do little, but as part of a blizzard it can have a huge effect.
Communication is not a token gesture: there is more chance of policy changes occurring through communication than through direct action on its own. It was not possible here to do a seriously damaging action as I am not sufficiently knowledgeable to avoid unleashing the very dangers I am trying to avert.
Reasonable Belief
My beliefs are long held. CND, Aldermaston marches.
When I joined Ploughshares I wrote to my Chief Constable asking for an interview. I asked him either to arrest us for conspiracy, or alternatively if he did not think our plans were illegal to supply transport to enable us to tackle these illegal weapons ourselves.
I wrote to the Attorney General and to the Lord Advocate.
We wrote, twice, to the management of AWE and our request for an interview was refused. We asked to be admitted on our citizens complaint.
There was a complete lack of response to all the normal legal approaches. Only then did I take actions that would otherwise have been criminal.
The preparation for using Trident is unabated by the end of the cold war, illustrating the creeping irrationality of nuclear warfare.
Reasonable Person
I have letters here from the clerks of my monthly meeting and preparative meetings saying that my actions accorded well with Quaker tenets.
[Letters were handed to the magistrate. Preparative meeting is the decision-making meeting of a local Quaker meeting, and Monthly meeting covers a group of preparative meetings – so Marlene is here producing evidence of her religious faith as well as of the reasonableness of her judgement]
The Quaker Peace Testimony has always been about deeds, not creeds.
International Law Defence
Humanitarian Law and normal morality are binding on nations and on individuals. I refer back to the testimony of Nick Grief. Trident is incompatible with those limitations. It cannot be limited to military targets but would inevitably harm both civilians and neutral countries.
Our Government believes it is legal: but I wrote in March “Please furnish one detailed example of how, when, and where a single 100kT warhead could be used lawfully”. I have not had a reply, except to say that “before any action was taken the Government would look at the legality”.
The only possible use the ICJ could not rule out was that taken in extreme cases of self defence where the very existence of the state was threatened – an unlikely time for the Government to have a little investigation of its legality!
Britain has signed the Non-Proliferation Treaty (NPT). Signed, but even if we hadn’t, it has been adopted as part of the AO. Now firstly, Polaris to Trident is not a de-escalation: Parliamentary spokesmen have described it as an enhancement. The damage done by one warhead is quite enough; I personally don’t want to quibble over whether we have 160, 180, or 200 of them.
Secondly, the treaty promises that they will not be used on non-nuclear states. The Strategic Defence Review, and Hansard quoting Rifkind, both suggest we could use them against rogue regions, against biological or chemical weapons, or to protect the vital interests of Britain anywhere in the world.
The validity of the NPT in International Law was accepted in dealings with Iraq, etc. Surely they are equally valid for Britain? The principles of International Humanitarian Law demand that we protect civilians, neutral countries, and that weapons used are not disproportionate to the military objectives hoped to be gained. The UK Parliament itself has said that nuclear weapons are weapons of mass destruction, (see the schedule to the Scotland Act.)
Nuremburg Principles
The company responded to our letters that it is the UK Government that determines policy. My arresting policemen knew of breaches of the law, but said “I am an employee of the MoD and it is nothing to do with me”.
Under the fourth Nuremburg principle you cannot say you are just following orders. The German businessmen supplying poison gas were sentenced to death at Nuremburg. The Nuremburg principles have a particular resonance for me as a German. We are often told that as individual German citizens we did not do enough to prevent the mass killings. Now I am faced with a similar situation and I do not want to be criticised again for not doing enough.
Under the seventh Nuremburg principle complicity itself is a crime. I am now an ordinary British citizen; I vote and am taxed like anyone else, and I do not want to be accused of complicity. This is even more so as, unlike my parents, I live in a benevolent democracy – I don’t risk being killed for stepping out of line, as they did.
In the ICJ AO all 14 judges, all people of international standing in law, unanimously agreed that any threat or any use should also be compatible with the requirements of International Humanitarian Law.
Sheriff Gimlet in Greenock and a German court in Stuttgart have both held that defendants were acting lawfully in the face of imminent dangers to themselves and to others. International Humanitarian Law is based on public morality of modern countries and can be upheld by their courts. Which brings me to my last defence:
The Moral Defence
I come from a family of lawbreakers. My parents harboured escaping prisoners during the Nazi time, breaking the laws of the democratically elected Nazi regime. Nobody in this court today would say that they were wrong to do so. In recognising that, we are recognising that there is always a moral defence available: that each of us reserves the right to break the law when the law conflicts with basic humanitarian standards.
The laws of which State? I don’t really think that the particular national border is relevant – I am concerned with humanity.
Cross Examination
The Crown started by saying that he had not cross examined either of the first two witnesses, and he hoped that Marlene would not take it personally if he now asked her some questions. Marlene replied that on the contrary, she regarded it as an honour.
You have signed a pledge not to harm anyone, including yourself, as part of your activities. Therefore in coming to Aldermaston on the day you did you must have chosen a time when there was no particular danger. Was there an actual nuclear strike occurring at the time of your action?
No.
And no actual accident occurring, given your pledge not to harm yourself?
On the contrary, I was very interested to hear from the police witnesses that it was hard for them to hear what was going on due to the fact that the emergency pumps were running at the time. This was not in our minds as we met up, and had our picnic under the starlight. But we all knew that an accident could occur at any moment, without notice – that is why we had to act to get rid of the risk now. We acted as part of a chain of protest going back 50 years, even the most minor details contribute to that school of thought, part of a chain that also includes 185 arrests in one day alone in Faslane.
Is what you are saying now the same as the thoughts you had in July?
My previous statement, prepared before the action, also shows my serious concern over the danger.
Marlene went on to say that it was unfair for the prosecutor to seem to imply that she might have adopted these views after the event – and the magistrate interrupted to say it was a fair question for the crown to have put, and that her answer referring to the pre-existing statement was a full answer to it.
The prosecutor declined to ask any more questions, and there was no re-examination.
[note re Derby: Marlene’s reference to taking action at Derby refers to the “Disgrace the Base” action in October 1998, at Rolls Royce in Derby, where the nuclear reactors that drive Trident submarines are built. That action coincided with actions called all over the world as part of the Abolition-2000 alliance. We had not attended as an affinity group, but in the event several of us separately supported the action and the result was that we were quite inspired as a group. Eleven people faced charges after the Derby action, quite similar to the charges faced by our defendants now, so their court case has helped ours. Many thanks to everyone involved with the Derby action and the subsequent court support; and especially to the Eleven]
Sylvia Boyes was the last of the four to testify, following immediately after Marlene. [I don’t feel I have done justice to Sylvia’s testimony: in particular reading these notes back in places they seem disjointed. I have often failed to capture the powerfully emotive links that she makes between topics that logicians would tend to separate. Her testimony was much more moving and effective in real life than I have been able to portray it.]
Sylvia started by asking if the court would view a few minutes from the War Game, in part because it was part of what made her feel she needed to act, and in part, as we are talking about things that are far removed from people’s experience and none of us can find words to express the reality of nuclear war.
The magistrate said that he did not want to stand in her way; but advised her that he really did not feel that the video would add to his judicial knowledge at all. After a little more discussion Sylvia left off her request.
She was unrepresented so gave testimony without the prompting of questions.
I don’t dispute the acts of that morning. They were planned a long time in advance. We exchanged letters, and received answers from Hunting Brae, and had a prior visit, all over a period of time. This was in the context of Trident Ploughshares 2000, itself in the context of a long-term peace campaign.
It was not a symbolic action: my intention was to go further in. I was fully aware that there were dangers involved. Had I got to a building, I would have fastened myself on to prevent workers from working and to give myself a chance to talk to them, but as a matter of fact we were stopped.
Magistrate: Can you not talk your way in?
We have tried that. We were there preventing crime. If the law is to have any meaning then ordinary people should be able to understand it. First we have to prove that a crime is being committed, and we have established that: they are preparing for crime by making components and by researching for the future.
AWE is an ongoing criminal venture. And I know these things are a crime, I absolutely affirm to you that I know they have such power that they can never be used lawfully. Because I myself have not actually experienced their effects you could suggest that I can only say that I believe; but actually it is much stronger than that, I know, I do know, that these things have to be against international law.
I know that Trident is illegal for all sorts of reasons. Not only in the future if it is ever used, but illegal now, and it would be too late if I waited.
I am also doing it for all the people who are already suffering for our nuclear policy. As I said to start off with, I can’t find the right words; what is the rational response to such a horror? And if I really felt the full horror, how much more would I do? We have established that weapons of mass destruction are illegal, and the Trident is a weapon of mass destruction.
The ICJ AO is not created anew: it came out of all the laws and treaties that came before. To protect civilians. The UN charter – the UN, not some NGO, has strict legal authority.
Sylvia read out the preamble to the UN charter in full.
The Government puts great emphasis on the UN and on our part in the security council, and yet Britain abstains or even votes against all General Assembly resolutions to begin working towards even multilateral disarmament.
This is not something I have just taken on this year. I know our holding of Trident is illegal. We are part of the problem, not part of the solution. We have the Geneva convention, with the added protocols ratified and adopted by parliament, yet there seems to be some idea that it doesn’t apply to nuclear weapons!
But it is not the kind of weapon that matters: it is the results that are taken into account. Somewhere right now under the sea is a commander who can’t see the enemy, who can’t see anyone, who will obey orders to …
We have the International Criminal Court (ICC): Robin Cook the Foreign Secretary supports the ICC; that is happening right now, and at the same time refuses to discuss issues of nuclear weapons. I know that Trident nuclear weapons are illegal. My actions were reasonable in the circumstances. We know the effect of Hiroshima.
Other people are doing other things, nuclear testing in the Pacific – there are horrendous accounts given in official circumstances of the effects on the peoples of the South Pacific. There is the destruction of the food chain in the sea when the Western people decided to test their weapons there.
Chernobyl – I was living in Yorkshire at the time when mums were afraid to give their children milk to drink; Sellafield; Nuclear waste; Rusting nuclear submarines; we just do not know what to do with all this nuclear waste.
After an earthquake, nature is reborn, blooms again like the human spirit. The nuclear age is destroying the species.
I was in this very court in 1985 – the court heard all these things then but allows them to continue. Hunting Brae can’t find answers to the problems we’ve created.
The Government is not taking its responsibilities seriously. MAD they call it: M-A-D, and now a limited nuclear strike.
Look at the use of DU [Depleted Uranium] in Iraq and Kosovo – a weapon with nuclear capability that all can use, and yet in Iraq one of our concerns was with their nuclear weapon development. Our actions were justified and legal in the circumstances.
By the time I joined TP2000 I had campaigned for 20 years against war, especially nuclear war. I joined TP because it is laid out in such a way as to be nonviolent. I’ve done all the other things: peace groups, meetings, letters: I don’t know how many I’ve written, and now we have Generals changing their tune: I don’t feel there is anything I can say that will add to the argument. All I have got left is myself: me physically moving in to where they are.
To get to where I can act, these places are always surrounded by fences, dogs, radio, I do have to be prepared to cut the wire. Me placing myself in that position – Greenham common; Iraq – I was part of the Gulf peace team, placing ourselves in the way in the hope that would stop the bombing. I have done all I could do in those circumstances.
I have also been a Quaker for a long time: attending since 1972 and a member since 1979. I became involved with the Quakers because with the Quakers the peace testimony is not just about words, it is about demonstrating our testimony.
Any social change in the past has come about because ordinary people put themselves in that position: slavery and so on. Most of the things they opposed were legal at the time – we must not put the law on a pedestal.
Even if I knew that nuclear war was a total bluff, I would still oppose it because others would feel threatened. Trident is deployed right now, and I acted for my children and my grandchildren. Do I really have to wait till there is a really bad accident? Till there is a nuclear war? I really cannot accept it is my duty to do that. And if that was my legal duty, in the face of something that is so totally wrong I would disregard the law totally.
Sylvia read out a poem.
She was then examined by the defence Counsel
What did you expect to happen if you had been able to persuade employees of the error of their ways?
They could have left their employment, even if only one or two reconsidered then a few more might start thinking, work from within for change.
Cross Examination by the Crown
In your interview you said you intended to lock yourself into a building, as you again said today. But in fact you locked on elsewhere, you locked yourself to a perimeter post?
Only when I knew we had been seen, and I knew I could not get through the fence.
Nowhere does your statement mention any intention of talking to workers?
True, but we were carrying leaflets addressed to employees as “you”.
Why did you not organise a mass action to talk to the employees on their way in?
We have done that on other occasions. It can be very hard to get talking when so many people arrive for work all at once, and all the cars go past without stopping. All the time we are talking to them; and our actions are fully accountable.
You said you would disregard the law?
If the law did not speak out, then I would disregard it.
Legal Arguments
The prosecution made a brief legal submission referring to the case of Chamberlain v Linden, which in turn considers Hill v Hall. The point of this case law, he said, was that there has to be more than simply a risk at the time you take action; there has to be a real present need. Other than this the prosecution made no summing up at all.
The magistrate then asked the defence in what order they would like to present their final remarks. Although up to this point in the case Roger had gone before Alison’s counsel, he suggested that it might be more convenient if counsel went first and then Roger could add anything that he felt counsel had missed. As this is what the defendants had already agreed to ask for, the magistrate’s suggestion was accepted without discussion!
Defence Counsel
There are three broad defences, one of them subdividing into two.
Under the Criminal Law Act 1967
That of necessity/duress.
Under sect 5(2) of the Criminal Damage Act.
Magistrate: 1 and 3 refer to the same lawful excuse.
Counsel: I feel it is proper to keep them separate, as they each raise quite distinctive issues. But first I would like to raise the question of the criminal standard of proof. Each of these defences having been raised, it is up to the prosecution to disprove the defendants’ reasonable belief, and it is, separately, up to the prosecution to disprove their honestly held belief.
Regarding the defence of duress in XXXX [case handed up to bench] the judge did not leave the defence to the jury, but the court of appeal held that it should have been left to the jury. Now it is true that the defendants cannot rely on an unreasonable belief of fact, but it is for the prosecution to prove, as a fact, that that belief was unreasonable.
Turning now to the first difficult question.
In the House of Lords decision XXXX, are the dicta of Lord Templeman and Lord Oliver effectively a shut out to the defendants? As the prosecution put in their opening note, you should dismiss this defence as irrelevant – that would be consistent with the view that it is a shut out. So the first difficult point is whether International Law makes any difference to these three defences. What was most apparent in that case was that arguments on Customary International Law were not dealt with.
We have the arguments on customary law in Trendex – on pages 553, four have two schools of thought, the doctrines of Transformation and of Incorporation. These views cannot be dismissed. The Reynall case does not answer the defendants’ submission that Customary Law provides a different answer to that provided by the House of Lords regarding the Law of Treaties. This was the essential point concerning derived rights and obligations under the 6th International Tin agreement, as I hope the court was assisted by Prof. Grief in recognising.
The ICJ AO refers to the Martens clause, described by Prof. Grief as having become an accepted part of customary law. It is not for us to disagree with a witness of his calibre without any contrary evidence from the prosecution.
These are cardinal principles, and you can only get beyond the Reynall case if you are with me that there exists such a thing as Customary International Law.
Lord Denning affirms it.
The ICJ AO gives the law at one particular time. Since then the law has moved on. An example in statute law is the Geneva Convention (Amendment) Act 1995. Passed after the AO, International Law on this matter now arrives in two separate vehicles, by Custom and by English statute. It explicitly rules out intentionally directing an attack on civilians.
When the UK Government makes representations that use of these weapons would be according to the laws of armed conflict, then you are a tribunal of fact; It is for you to find whether or not International Humanitarian Law prohibits weapons of mass destruction guided by the above.
The next difficult question is whether or not the weapons or warheads produced at Aldermaston have such capabilities as to fall into that finding.
I invite you to find that a nuclear missile is a weapon of mass destruction. In this you may be assisted by the evidence of Mr. Barnaby. The scenario offered by the UK Government before the ICJ is quite different from the credible nuclear deterrent manifested in the routine patrol of Trident submarines. There is both a qualitative difference, and the message that is sent to the rest of the world in order for the nuclear deterrent to be credible.
It does have a capability that goes far beyond that suggested to the ICJ, otherwise it would not be a credible and effective nuclear deterrent. You may feel you don’t need to answer that question, but overwhelming evidence to the contrary has not been answered by the prosecution at all. It is not a matter of faith: it is simple to identify that maintenance of a credible nuclear deterrent means deploying the means of obvious mass destruction: that is their purpose: you hit us and we’ll flatten you.
The next question is whether threat and use stand together. I ask you to adopt the reasoning of the ICJ. The Sheriff in Greenock: adopt her reasoning; common sense: adopt your own common sense.
There is one step further: production. I rely on the same words. There is a clear distinction of facts with those of the Hill v Hall case. There the aim was that simply by cutting the fence they felt they could cause the removal of the base. I hope the distinction in facts is clear compared to what was intended here. The purpose was as set out in the leaflet. There can be no question about what that purpose was. There is therefore a reasonable distinction for me to make, and a reasonable distinction for you to find.
[Reporters note: Hill v Hall is a precedent binding on this court, coming as it does from a higher court. The magistrate cannot be asked to overrule it or reverse it; nor to ignore it once the prosecution has raised it. But if the two cases are significantly different then the precedent would not apply as it would effectively be irrelevant. In lawspeak such a difference is called “a distinction”, which is why Stephen uses that particular word several times in the above]
Next I’d like to deal with the second part of the lawful excuse: to protect property rights where these are in immediate need of protection. The first link here is that there was a need to bring to staff’s attention the serious breaches of international law. The second, distinct and separate link, was to bring to the attention of the workforce the hazards endemic to the handling of nuclear materials, about safety concerns and damage to neighbouring property due to breaches in safety procedures.
Indeed we heard from William Peden that many breaches are not reported through proper channels. Hence the defendants need to get in there and lock themselves on, in order to talk to the workforce.
Regarding the Chamberlain and Linden case, the wall had been there for three years – again there was a submission that there was no immediate need of protection, and this was answered as being evidence of a present and continuing need to remove the obstruction. Immediate = present need.
Overall, the sincerity, the striking dignity, the profound nature of the evidence all incontrovertibly lead you to the conclusion that the defendants had an honest belief that use, that threat of use, and that therefore production was in breach of international law. When the UN is alarmed by a threat, I suggest that cannot be objectively judged to be an unreasonable belief.
This is backed up by a number of judges in the ICJ, and by Mr. Barnaby. Sect 3 of the Criminal Law Act …[reads from Stone’s Justices’ Manual]. This was referred to in the Hawks decision. British Aerospace were selling Hawk jets to East Timor where they would be used in breach of international law… lawful excuse is still there in common law even if not codified in statute.
I invite you to follow the common sense conclusion that if Trident truly is an effective nuclear deterrent it must by its own nature then fail to comply with international law. …production is clearly in contrast to acting to pursue negotiations in good faith to achieve the elimination of these weapons.
The prosecution have to disprove the defendants’ honest belief, their reasonable belief that they were doing what was reasonable to prevent crime.
I turn now to Necessity, and ask you to consider whether Marlene Yeo was so threatened, so alarmed, so actively concerned, that she felt impelled to act.
And lastly: I adopt this article by Lord Murray addressing the legality of Trident – a simple erudite setting out of the position.
The big question is that you do have to accept that there is a branch of law called customary international law. I ask you to acquit on the basis of their belief in the immediate need for the protection of property, to avoid the consequences of nuclear accident and nuclear war, on the basis that what they did was reasonable having regard to the circumstances. The fact that businessmen were shot at Nuremburg for production, informed their belief in the existence of a present need for action.
Two of the unrepresented defendants each then spoke briefly.
Roger
When I was involved in a bump in my car the premiums went up. The company said that in their experience those having small accidents were more likely to have large ones. My actions will have had some small effect irrespective of whether you convict or not.
Marlene
My defence of necessity was put together without reference to Archbold, and I did not stress immediacy. I feel that my evidence did nonetheless cover this point. I was asked in cross-examination if at the time of my action there was a nuclear strike occurring. Is it really a sound basis of conviction to suggest that I am guilty because I did not wait for such a strike?
International Law is not part of my necessity defence – the danger is inherent from the manufacture. I have appealed to you as a magistrate, and I want also to appeal to you as a fellow human being, to your humanity.
Sylvia declined the chance to say anything further.
The magistrate said that this is where he’d love to pass the matter over to a jury – and got appreciative laughter from everyone present. He then said he would not be able to give an immediate answer, nor even one next morning, as he had been given so much to think about and he wanted to do some research before giving judgement. He suggested some dates the following week, but after everyone had consulted diaries a 15 day delay was agreed. He also agreed to Marlene’s request that, in view of the distance people had to travel, he would give judgement at 11am rather than 10am. Bail was extended and the court rose.
The Verdict: 3 March 2000
The Midlands affinity group, Alison, Sylvia, Roger and Marlene, were given a guilty verdict today at Newbury Magistrates’ Court. The magistrate took time to explain his verdict but ruled that he could not consider international law if it was not incorporated by statute. Only Sylvia was fined £100, in the light of her record, but all four were landed with hefty compensation orders, £250 each for court costs and £291 for their share of the damage to the fence.
Afterwards Sylvia spoke of the hypocrisy that allows us to make grand statements about the need to bring war criminals to justice and at the same time to rely on a dubious interpretation of the law to defend the criminal activities of our own state. The verdict stage of the trial was covered by BBC South and the Press Association are circulating a story. The trial has been well timed to prepare the media for the Aldermaston camp in May.
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PROSECUTION: OPENING NOTE
The defendants are all charged with causing criminal damage at the Atomic Weapons Establishment based at Aldermaston on 13th July 1999. They were acting in Joint Enterprise, claiming to be members of a group called Trident Ploughshares 2000 Midlands Affinity Group whose aims were inter alia to disarm the United Kingdom’s nuclear deterrent before January 2000.
They are jointly charged that
’On 13th July 1999 at Aldermaston in the County of Berkshire without lawful excuse damaged perimeter fences to the value of 1,500 pounds belonging to The Atomic Weapons Establishment (AWE) intending to damage such property or being reckless as to whether such property would be damaged.’?
Contrary to Section 1(1) Criminal Damage Act 197l
At around 01:15 hours on Tuesday 13 July 1999 the defendants set off an alarm and were observed at the inner perimeter fence by video surveillance [P.C. Mallet]. They had gained access to this area by cutting through the outer fence. Police units were dispatched to the location and witnesses [PC Parks and PC Jarvis] describe all four defendants appearing to be employing bolt cutters. Five sets of bolt cutters were seized when the defendants were arrested. Also seized were, junior hacksaw blades, a hammer and a jemmy. The defendants further attempted to hang a banner from the fence. There is no de minimus rule in respect of criminal damage and the act of draping the banner in itself constitutes the act of criminal damage.
The defendants Boyes, Crane and Yeo state that they were responsible for cutting the perimeter fencing. In her defence statement the defendant Crane denies cutting a particular fence but appears to suggest that she would have sought to have committed a further act of criminal damage on that fence by lock herself by a ’D’ lock to it. That did not occur and the Crown relies upon the fact that the defendant Crane admits criminal damage to other perimeter fences. The defendant Franklin is interviewed and when given the ’special warning’ does not answer specific questions about the criminal damage of the fence. He admits the damage in his defence statement.
The defendants rely upon the defence of lawful excuse afforded by Criminal Damage Act 1971 s2(b) Archbold, D1953, 23-47, ’Any person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse.
(b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed:
(i) that the property, right or interest was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
The Crown rely upon the decision of the Court of Appeal in R.-v-Hill and Hall (1989) 89 Cr.App.R74, Archbold, p1954, 23-49. The acts of the appellants, cutting the perimeter fence of a nuclear level military establishment was held to be too remote from the eventual aim at which they had targeted their aims to satisfy, i.e. protection from nuclear attack and further it was found as fact that there was no evidence to justify the applicant’s belief that there was need to protect from immediate danger. It is submitted that the defendants’ assertions that they cut the perimeter fences to gain access to the A.W.E. to talk to the staff, distribute leaflets and possibly enter a building, but not a dangerous building [Interview of Boyes] can not be held to be acts which would or could assist in the ’immediate protection’ of anything.
The Defendants rely upon the decision of a lower court in a different jurisdiction. The Crown submits that the unreported case of Roder, Zelter and Moxley in the Scottish Sheriff’s Court at Greenock as a matter of precedence and jurisdiction it has no bearing upon the matters before the court.
The Defendants appear to argue that the decision of the International Court of Justice handed down on 8 July 1996 declares that nuclear weapons are illegal. This interpretation is incorrect. The Crown submit that this decision is in any event not binding. It is submitted that even if the decision were to be construed to assist the defendants that their proper redress would be through the courts and not by criminally damaging the property of A.W.E.
The Crowns case is that the four defendants acted together in inflicting criminal damage on the perimeter fencing of A.W.E. on l3 July 1999 and that the court should reject their submissions that they had a reasonable excuse.
ANDREW DOWDEN
HARROW ON THE HILL CHAMBERS
FEBRUARY 2000