Prosecuting Tony Blair and others

BACKGROUND DOCUMENT - RLM 009

NON - JUSTICIABILITY

The case for claiming that ‘crimes of state’ are “non-justiciable”.

On the face of it one would surely be forgiven for thinking that the concept of a “non-justiciable” crime is a non sequitir, an oxymoron, even a manifest nonsense ; and what is more ... one would be entirely correct ! If the facts of a particular case conform to the so-called ‘corpus delicti’ of a crime, the constituent elements of the legal definition of the crime, then how can it be that the law having thus defined the crime, the act is never the less “non-justiciable”, meaning incapable of being presented before and determined by a court of law, with the competent jurisdiction ? The fact of the matter is that it cannot, and yet experience and history demonstrates to us that, there is really no limit to lengths to which government lawyers and judges alike will try to go, when seeking to protect and defend our political rulers and government executives, from the practical consequences of applying a principled doctrine favouring the rule of law, and the legal accountability of state conduct.

Consequently, it becomes incumbent upon those, such as myself, who are prepared to put their heads above the common mass and say “J’accuse”, to distinguish carefully the case of an accusation of a crime, from those many authorities, certainly in the long history of the case law of this country, which might at first glance cause an uncritical observer to believe that some, if not all, state conduct, or “acts of state” as sometimes referred to, are always non-justiciable, or ‘non-cognisable’ which is an alternate term, and which would amount to saying that they are above or beyond the reach of the law. Certainly so far as concerns the practical issue of finding a law court willing to try the issue, with the further consequence that those individual politicians and agents of the state, who performed those prima facie unlawful, even criminal, acts as thereby not made immune from the law in practice.

It seems to me that this general issue of “non-justiciability”, as an issue of “jurisprudential principle”, arises in at last three different but closely related guises, to wit, firstly as a question of the jurisdiction of the administrative court on an application for judicial review of executive action ; and secondly, in relation to the principle underpinning the established civil law doctrine of “act of state” in a claim for damages against the state. The latter I have dealt with separately in a background paper dedicated to the topic. Finally, in the wider sense of matters which the courts, even when in exercise of their criminal jurisdictions, have chosen to categorise as “political” and thereby non-justiciable, especially in light of the authority of the House of Lords in Chandler -v- the DPP.

Judicial Review - and the recent authority of the “CND” case.

The Campaign for Nuclear Disarmament -v- The Prime Minister, et al. [2002] EWHC 2777

As to the accepted self-made ‘common law’ limitation on the jurisdiction of the courts, most especially the Administrative Court of the Queen’s Bench, when in exercise of their jurisdiction for “judicial review of administrative action”, such that the Crown when in exercise of certain of the most sensitive and controversial of its common law prerogative powers, has effectively been thereby placed beyond review or examination by those courts, I have thoroughly set out and explained my position on the matter in the exposition under the title “Crown Prerogative”. However, for the sake of clarity let me make it abundantly obvious that this is, in my submission, the very issue which categorises their Lordship’s recent decision in the “CND” case last December, in so far as their decision in that matter can be characterised as going to the jurisdiction of the Administrative Court.

This is naturally to be distinguished from the issue of that Court’s obvious lack of juridical jurisdiction to deal with the question of purely conventional international law which was placed, or at least which it was tried to place, before it. That was in effect ‘what is the legal meaning of (the infamous) Resolution 1441, in particular does it “authorise” the use of force by itself without need of any further resolution ? ’. No clearly domestic legal issue, the determination of which depended upon the answer to that question, such a the interpretation of a provision of a UK Statute, was advanced, in order to suggest a case for there being something in our domestic law upon which to ground the claim for a jurisdiction to determine that question, by a domestic court. It was, I respectfully submit, a forlorn attempt to seek an “authoritative” domestic judicial adjudication upon the legal meaning and effect of an instrument or action of a purely “conventional” international legal character. Namely, the making of an executive resolution by a conventionally constituted international organisation, the Security Council of the United Nations. In consequence of which, I further respectfully submit, the case was always bound to fail for want of juridical jurisdiction, entirely outside of and separate to the question of “non-justiciability”.

The Judgement of Mr Justice Richards.

However, it cannot be denied but that once the opportunity was thereby afford to them, it was leaped upon by their Lordships with fervour, to say a lot about the general “non-justiciability” of certain prerogative acts of the Crown, most especially the decision to use armed force. In particular, Richards J had this to say at one point :

“A plain purpose of the present claim is to discourage or inhibit the Government from using armed force against Iraq without a further Security Council resolution. Thus the claim is an attempt to limit the Government’s freedom of movement in relation to the actual use of military force as well as in relation to the exercise of diplomatic affairs and defence. In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision. I reject Mr Singh’s submission that it would be permissible in principle to isolate and rule upon legal issues e.g. as to whether the decision was taken in breach of international law. The nature and subject matter of such a decision require it to be treated as an indivisible whole rather than breaking it down into legal, political, military and other components and viewing those components in isolation for the purpose of determining whether they are suited to judicial determination. The same objections of principle apply to an attempt to isolate in advance a potential legal component of a possible future decision with a view to limiting the Government’s freedom of movement when taking the decision itself.

In the course of argument I suggested that justiciability might be an aspect of discretion. The contrast drawn was with the court’s jurisdiction. Whilst I adhere to the view that justiciability is not a jurisdictional concept, it seems to me on reflection that it engages rules of law rather than purely discretionary considerations. They are rules that, in this context at least, the courts have imposed upon themselves in recognition of the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibilities of the executive under our constitutional settlement. The objections on grounds of non-justiciability therefore provide a separate and additional reason for declining to entertain the claim.”

Whilst I may regret, nay lament, Richards J. reiteration of the craven judicial attitude of today’s Queen’s Bench, whereby he considers it “unthinkable” that our judiciary could even so much as “entertain a challenge” to a Government decision to authorise the use of armed force against a third country, I find solace in the fact that by his very use of the expression “challenge”, and more especially in his later explanation, couched by his boastful pronouncements of judicial timidity, is based on “the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibility of the executive under our constitutional settlement. Doubtless music to the ears of the executors of the State’s will, it must be I submit necessarily interpreted as being limited to the issue of the “justiciability” of a matter of executive action subject of a claim for “judicial review”.

I must confess but that it had always been my firm understanding that, the purpose for the very existence a jurisdiction for “judicial review of administrative action”, whether that be of the executive or otherwise, was that the Court thus exercising administrative law remedies thereby never sought, in any circumstances whatever, to substitute itself, or its own view, for that of the executive or indeed other ‘decision-maker’, on the “merits” of a political or diplomatic decision ; but rather instead, always merely sought to act as guardian and monitor of the public interest, in a truly democratic and constitutional society, so as to ensure that whatever the political or diplomatic merits of a Government policy for example, the actions and decisions of the executive were always carried out lawfully and with due regard to administrative law propriety and fairness. Why that acid test on the proper and lawful “demarcation” between the role of the judiciary on the one hand and that of the executive on the other, should suddenly be altered because the “subject matter of the exercise of the prerogative power” varies, is quite frankly beyond me.

It seems to me that either you believe in the notion that Government should always be conducted lawfully, or you don’t. Once you start to make exceptions and exemptions for especially “important” and “controversial” areas of Government action, such as ordering the use of armed force whereby thousands upon thousands of people will die and many thousands more will be maimed for life and condemned to live out a human tragedy ; it seems to me that you have given up for ever, nay abandoned, the pretence of government by “the rule of law” in a civilised society as a matter of principle. Instead, you’ve condemned “law” to a set of rules for the observance of gentlemen whilst at play, and before they then may have to concern themselves with any “real business” as executors of the “state’s will” in what they deem to be the public interest in “national security”, then comforted by the knowledge that such matters are subject only to “the law of jungle”.

The Judgement of Lord Justice Simon-Brown.

Perhaps, the real truth of the matter is better gleaned from the earlier observations of Simon-Brown LJ, in his leading judgement in the case, when he gives his opinion on the evidence presented to the Court by a Mr Ricketts, who holds title of “Director General for Political Affairs at the Foreign & Commonwealth Office” (really !) ,

“... Even, however, were all this not obvious, we would at the very least be bound to recognise Mr Ricketts’s experience and expertise in these matters and that the executive is better placed than the court to make these assessments of the national interest with regard to the conduct of foreign relations in the field of national security and defence. We could not properly reject Mr Ricketts’s views unless we thought them plainly wrong. Lord Steyn in Rehman, albeit finding it “well established in the case law that issues of national security do not fall beyond the competence of the courts”, then added: “It is, however, self-evidently right that national courts must give great weight to the views of the executive on matters of national security.”

Mr Ricketts’s statement, of course, is directed rather to the reasons why the government for its part should not be required to state its position on the meaning of Resolution 1441 than to why the court should not grant an advisory declaration on the point. Clearly, however, the one follows from the other. The logic is inescapable. On the international plane, as a matter of practical international politics, other States do not make nice distinctions between legal assertions by government and declarations of law by national courts. But, that aside, any declaration by the court would as a matter of practical reality embarrass the government no less than were it to state a definitive view itself. By constitutional convention the government will always comply with decisions of the court. Whatever the court were to declare the instrument to mean, the government could not ignore that ruling or assert some different meaning in its dealings with other States. And, indeed, the objections go further still. Were the court even to embark upon a hearing of the substantive issue the government would be placed in an impossible position. In practice it would be forced to adopt and argue its position before the court, the very thing that Mr Rickets indicates would damage the conduct of our international relations. The objection, in short, is not merely to the court ever granting an advisory declaration, but in addition to the court even embarking on the argument. “

So here then we have the true explanation for the Court’s unwillingness to “entertain a challenge” to examine the legality of the policy of the executive, for whilst the Court doubtless accepts and does not question the Crown’s express and oft repeated acclamation that, in regards to its conduct with other nations in this World, it will always act in strict and diligent accordance with its obligations and duties under international law ; nonetheless it would apparently prove too ‘embarrassing’ and ‘harmful’ to the Crown’s interests, in the conduct of those foreign affairs, were it to have to argue and demonstrate, before a court of law, what in fact its understanding of its international legal obligations and duties were !

Simon-Brown LJ not merely suggests, but proudly declares, that in the face of such a naked proclamation of the doctrine of “réàl-politique” as practised in today’s forums for international politics and diplomacy, his court is not the place wherein to navigate through such supposedly delicate nuances, to seek out the naked and more than potentially embarrassing truths regarding the legality and lawfulness of such putative actions and decisions. Indeed, having now read, in virtually his next breath, Simon-Brown’s LJ own assessment as to the likely character and quality of our Government’s conduct in such matters, I am more than inclined to agree with him. He states,

“As already indicated, even assuming we had jurisdiction to decide the question of international law upon which our ruling is sought, there would need to be compelling reason to do so. The reason advanced by CND is, as stated, to guard against the United Kingdom going to war under a mistake of law. How real a risk is that, however? I am bound to say that for my part I think it no more than fanciful. Plainly the government has access to the best advice not only from law officers but also from a number of distinguished specialists in the field.”

In fairness to Simon-Brown LJ one cannot be absolutely sure that he is not here stating, as it were tongue in cheek, that whatever the Crown’s future conduct may be, which we now know in the event was for war without any further resolution, it will at least know whether it is acting lawfully or not. However, in so far that contrary wise it can be reasonably inferred that he is here suggesting that the Crown would never “knowingly” act unlawfully, and that since it has access to the very best of legal advice, it follows that for all practical and probable purposes it will therefore not act illegally ; this demonstrates a naiveté and innocence about Simon-Brown’s LJ grasp, on the domestic realities at least, regarding the execution of a doctrine or policy of “réàl-politique, such that he at any event is most clearly not competent to judge such a matter, on an application for a “judicial review” of such an executive decision to so act.

The “CND” authority is limited to the jurisdiction for “judicial review of executive action”.

All of that aside, however, the only point of relevance as to this entire line of authority is simply that, everything the Administrative Court here had to say about the “non-justiciability” of the claim by CND, is par excellence a reaffirmation of the unwillingness of that Court to exercise, a self-made jurisdiction, so as to subject such a matter as this to the examination by way of a “judicial review”, even for merely declaratory relief alone.

So be it. I do not seek the leave of that, or any other court, to “challenge” or “object” to the administrative law propriety or even legality of “the decision-making process” which led the executive government of this country, that legal creature or entity which we call “the Crown”, to order and cooperate in the act of naked international aggression, whereby last week we, together with the government of the United States, simultaneously invaded the sovereign territory of the Republic of Iraq by the use of land, sea and air forces. I do not seek to “challenge” the administrative legality let alone the ‘procedural propriety’ or 'reasonableness' of that decision making process. Frankly, let me concede, for the sake of argument, that that decision was made with perfect legal rectitude and is beyond error, even if it were not already beyond challenge by way of judicial review. Having thus so “properly” made that decision, I now accuse those political leaders and ministerial executives, named in my informations, who have now acted to carry it out, in all of its bloody consequences, of having thereby committed a crime.

Furthermore, not just any old breach of the criminal law, but a violation of the most fundamental norms of customary international behaviour, essential to the preservation and maintenance of international peace and security and against the undoubted customary laws of all civilised nations developed down through the centuries, and which keep this World one step away from Armageddon. I accuse them of having thereby committed a crime against the peace of the World. I accuse them of being “arch-criminals”. It may be that had the Administrative Court chosen last December to offer some kindly judicial guidance to the executive on the lawfulness of their scope for future action, it might have had some influence for good, in the sense of lawfulness, over the future conduct of government action. It might not. Whatever the case may be, in the event the Court refused to so much as “entertain” the argument, and the Executive then proceeded, entirely predictably, as they now have. So be it. That is now a matter which their Lordships must deal with as a matter of their conscience (since as I understand it CND does not propose to appeal their decision), and may the Lord have mercy upon their Lordships souls.

However, if the “act” (as opposed to the mere administrative process which lead to the decision to so act, the so-called “decision making process”) be a “crime”, which I assert it most assuredly is, if it constitutes the corpus delicti of the offence of which I have now set out the constituent components elsewhere in great detail, then it is no longer merely a matter for the conscience of their Lordships, or indeed of the accused persons alone ; it has now become a matter for the determination of the public conscience as a question of the ordinary common criminal law of the land. It has now become a matter for the exercise of a system for the enforcement of criminal justice, according to the law and by due process. Let the accused criminal defendants be put to their trial, before a jury of their peers, and let justice be done, “though the heavens fall ... let justice be done”, or else let us abandon all pretence that this nation is a civil “democracy” governed by a system subject to the rule of law.

The Authority of Chandler -v- the DPP (1962)

The Facts of the Case.

There is one leading and most noteworthy modern authority on the application of the doctrine of ‘non-justiciablity’ or ‘non-cognisability’ as it has also been termed, to an issue relating to the prerogative for the “defence of the realm”, and which derives from the trial of a purely criminal cause or matter. Consequently, it is most important that this authority deserves a particularly close examination. The case concerns an appeal brought from the trial of certain prominent members of the 'Committee of 100’, a forerunner to CND, on charges of conspiracy to incite others to enter a prohibited place, to wit the RAF Wethersfield air base in Essex, being a prohibited place under s.1 of the (infamous) Official Secrets Act, 1911. (Lord) Bertrand Russel and the other eleven defendants, were convicted on the evidence of their leaflet calling upon antinuclear campaigners to protest, against the deployment of US nuclear strike bombers being stationed at the air base, by staging a mass trespass to symbolically blockade the runway on a particular day.

In order to make out the charge, under the statute, the prosecution were burdened with establishing, inter alia, that the intended entry onto the prohibited place would be for a purpose “prejudicial to the safety and interest of the state”. The Defendants maintained before the judge at their trial in the Old Bailey that they should be allowed to put the case to the jury that their purpose in persuading protesters to enter the base (ie of obstructing and preventing the operations of the US nuclear fighter-bombers), far from being ‘prejudicial to the safety and interest of the state’ was, in point of fact, motivated by a genuine and deeply held belief that such activities would promote the safety and best interests of the state, as against what they saw as the dangers and malign influence of the ongoing nuclear operations being there conducted by a foreign power all be it at the invitation of the Crown, and which made the place a target for pre-emptive or retaliatory nuclear attack.

However, it came perhaps as not too much of a shock to them when the trial judge, Mr Justice Havers (later the Attorney-General), ruled that the matter was not an issue which he was prepared to allow to go to the jury. Accordingly, he refuse to admit evidence from the defence, or cross-examination by them of prosecution witnesses, tending to show the danger arising from the presence of the nuclear strike aircraft. Instead, he directed the jury at the conclusion of the trial that, if satisfied that the purpose of the protest had been to obstruct or interfere with the ‘proper’ functioning of the base, then that alone was sufficient to prove the case for the Crown.

The Opinion of Lord Radcliffe.

The Defendants, who naturally were convicted and imprisoned, appealed first to the Court of Appeal and thence to the House of Lords. The leading opinion, on this subject, was offered by Lord Radcliffe, as follows:

“ The Appellant’s counsel said that he wanted to call evidence on such matters as the devastating effect and consequences of nuclear discharge, the dangers arising from accidental explosions, the technically difficulty of distinguishing approaching nuclear missiles from other harmless objects in the sky, the possibility and indeed likelihood of retaliation to this country if we set ourselves up with nuclear armament. Now some of these arguments or considerations do, no doubt, rest on a basis of fact or expert knowledge and properly qualified persons could give evidence before a jury as to the view or opinions based on such facts or knowledge : some, on the other hand, are intrinsically no more than matters of political decision or judgement. But, even if all these matters were to be investigated in court, they would still constitute only various points of consideration on the ultimate general issue, is it prejudicial to the interests of the state to include nuclear armament in its apparatus for defence ?

I do not think that a court of law can try that issue or, accordingly, can admit evidence on it. It is debarred from doing so merely because the issue is what is ordinarily known as ‘political’. Such issues may present themselves in courts of law if they take a triable form. Nor, certainly is it because ministers of the state have any inherent general authority to prescribe to the courts what is or is not prejudicial to the interests of the state. But here we are dealing with a matter of the defence of the realm and with an Act designed to protect state secrets and the instruments of the state’s defence.

If the methods or arming the defence forces and the disposition of those forces are at the decision of Her Majesty’s ministers for the time being, as we know that they are, it is not within the competence of a court of law to try the issue whether it would be better for the country that the armament or those dispositions should be different. The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country’s best interests. I may add that I can think of few issues which present themselves in a less triable form. ... The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends upon an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for a judge or jury.”

(my emphases)

Chandler -v- the D.P.P. [1962] 3 AllER 142 HL(E) @ pp 150-151.

What the defendants in Chandler sought to argue and put before their trial court for a judicial determination by the jury, was manifestly a non-justiciable issue, namely ‘was it or was it not in the best interests of the state to posses nuclear weapons ?’ Such a question is wholly different and distinct from that which would be posed before any putative jury were the present informations to be brought to trial. Here the question that is being asked is whether or not the accused persons, albeit having decided to act in the unfettered exercise of a common law Crown prerogative in the defence of the realm, and having thus determined to invade the territory of the State of Iraq by force of arms, and as I allege, without the justification of acting in self-defence or even upon the authority of and at the behest of the United Nations Security Council, have in so doing committed a crime ? Have they thereby broken the ordinary criminal common law of the land ?

That is an entirely separate and distinguishable question, which is worlds away from the issue dealt with in Chandler. I do not call upon any court to review the 'propriety' or of the defence policies of the Crown, still less do I seek to challenge before a jury whether or not what has been done by the duly appointed minister of the executive is in ‘the best interests of the state’. That is manifestly not merely a ‘political’ question but more over a non-justiciable matter. What I am doing is alleging the commission of a crime. That is the breadth and depth of the allegation. No more and no less. What ought to be the defence policy of the Crown, is manifestly a matter for the duly appointed ministers to decide, following the usual forms of the government in a so-called ‘parliamentary democracy’. In so doing, as I have already conceded above, they have an unfettered discretion, which presently lies beyond the administrative law review powers of the courts of judicial review.

However, as with all subjects of the Crown, ministers also are bound to observe the ordinary law of the land, even in the exercise of their unreviewable prerogative powers ; and, if a criminal offence has been committed, then even though that also may have occurred in the course of what may be properly considered a ‘political’ decision, as Lord Radcliffe himself puts it “such issues may present themselves in courts of law if they take a triable form.” The present informations, it is respectfully submitted, are one such ‘triable form’ and are thus verily ‘justiciable’.

The evidence of the executive on the requirements of national security is conclusive.

Moreover, the issue raised in Chandler, by reference to the particular textual components of a statutory offence, was prima facie a question of fact, certainly as it related to the question of the safety of the country as opposed more precisely to the ‘interests of the state’. That was on the face of it a matter to be determined on the evidence. In particular, whether the possession of nuclear weapons per se, and more particularly the stationing of nuclear armed allied forces in the Realm, was prejudicial to the safety of the country. However, on such matters it has always been the preferred position of the courts to hold that the evidence of the duly appointed or most relevant officer of the executive will be deemed conclusive of the facts.

Thus in Chandler, particular reliance was placed by Lords Fraser, Scarman & Roskill, upon a passage from the opinion of Lord Parker of Waddington in the Privy Council, in the mater of The Zamora [1916]. The case concerned the rules to be administered and observed by a “prize court” when requested by the Crown to surrender up a foreign ship seized in ‘prize’ during the course of hostilities. He observed as follows:

“ With regard to the first of these limitations, their Lordships are of the opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving the national security, as conclusive of the fact. .... Those who are responsible for national security must be sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public. “

The Zamora [1916] 2 AC 77(PC) @ p.106

As was rightly pointed out by Lord Scarman in the “GCHQ case” ( [1984] 3 WLR 1174 HL(E) @ p.1191f - see the background paper on the “Crown Prerogative”) these remarks of Lord Parker’s are directed specifically to examining a ‘rule of evidence’, rather than, as was suggested by some, setting down any absolute rule of substantive law on the non-justiciability of acts of the Crown in the field of national security. What was said was simply in conformity with the long held view in the courts that the view expressed by the appropriate official in the executive as to what is required to be done in the interests of national security should be considered by the courts as incontrovertible evidence and conclusive of that fact. The matter was perhaps best placed in its proper perspective by Lord Devlin in Chandler, when he said :

“ When Lord Parker of Waddington in The Zamora said that “ those who are responsible for the national security must be the sole judges of what the national security requires”, he was not, I think, laying down any special constitutional doctrine about the powers of the Crown in relation to national security. He was simply stating the reason why the court should declare those powers to be discretionary. The cases cited by the Attorney General are, I think, essentially decisions on the extent of the prerogative powers at common law in relation to the armed forces and the defence of the realm and show that, as is to be expected, those powers carry with them the same wide discretion as is now commonly conferred by statute.

The second comment is that inquiry is not altogether excluded. The courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse. This is a familiar doctrine in connection with statutory powers. In relation to the prerogative, it was expressed by Warrington LJ in Re a Petition of Right in the proviso which he made to a genereal statement of principle. Lord Parker of Waddington in the dictum to which I have referred accepted Warrington LJ.’s statement of principle and added his own qualification in the words ‘as a rule’. There is here no question of abuse of power so that I need not pursue this point further.”

Chandler -v- the DPP [1962] AllER 142 HL(E) @ p.158b.

Lord Devlin here simply exemplifies a rule of the law of evidence, long respected in analogues cases, and specifically enunciated by Lord Parker (in The Zamora) and Warrington LJ ( in Re a Petition of Right), by reference to the already conceded principle of the unfettered discretion granted to the Crown in the exercise of the defence prerogative at common law. The reference in the case of Re A Petition of Right (1915) suggests that where “bad faith” is alleged in the exercise of a discretionary power, then the general presumption of the irresistibility of the Crown may no longer apply. Ergo where much more than mere “bad faith” or “excess” is alleged, but rather the actual and positive abuse of prerogative power to the point of the commission of a crime is alleged, then, a fortiori, the general presumption in favour of non-justiciability should certainly no longer operate.

No specific legal challenge is made to any alleged political 'necessity' for the war.

Howsoever, the issues on the correct rule of evidence may be, since the prosecution sought by the present informant will not even seek to touch upon the political wisdom, military effectiveness or administrative propriety of the exercise of the Crown’s unfettered prerogative discretion in the interest of national security, I need not examine the issue of the general non-reviewability of the Crown’s evidence, as to the requisite policies and dispositions needed to defend this country. It is not alleged by the present informant that in order to make the attack on the State of Iraq unlawful I must and can establish that it was politically, diplomatically and/or militarily or otherwise unnecessary, in the interests of national security or for the defence of the realm.

Even if I should be of such a political etc. belief, such a position surely forms no part of the case for prosecuting. Equally, and by the same logic, if it be that such an assertion by the accused persons is indeed made in order to explain their actions, then so be it. That amounts to nothing less than a complete confession of their crime; for such political, diplomatic or military imperatives, whether valid or not, are no defence or excuse for the crime alleged. As the Court of the King’s Bench said in the notorious matter of Entick -v- Carrington (see the background paper on the Crown Prerogative) “ It is said that it is better for the Government and the public to seize the libel before it is published ; if the Legislature be of that opinion they will make it lawful”.

Conclusions.

Let me begin my conclusions by reiterating those well established common law limitations on jurisdiction which I have already and readily recognised and acceded to elsewhere and above. Firstly, that there is a well established common law limitation on the jurisdiction of the courts, when in exercise of their administrative law function for judicial review of executive action, whereby decisions taken on behalf of the Crown, are unreviewable, if they have been undertaken in exercise of its undoubted prerogative in the fields of national security and the defence of the realm . Moreover not merely unreviewable but more specifically that the courts will not even entertain argument, based wholly or in part, upon the presentation of such issues in such circumstances.

Secondly, that as a well established rule of the laws of evidence, where any fact in issue before a court depends, again either wholly or partly, upon the determination of the requirements or needs of the state, in exercise of the executive’s solemn obligations in the interests of national security or for the defence of the realm ; then the courts shall always the evidence of the duly appointed, or most relevant, minister or servant of the Crown on the matter, as being conclusive of the fact(s).

All of that accepted, however, I still maintain with full confidence that there is nought in any of the jurisprudential logic which underpins such rules, to even so much as suggest that it then follows that, an allegation of the commission of a criminal offence, under the common law, and which arises out of the carrying out of such decisions, is similarly beyond the criminal law jurisdiction of the courts which administer the ordinary criminal justice system of this country ?

Furthermore, that such a suggestion is in practice not merely out of harmony with the principles of the unwritten constitutional settlement in this country, but moreover, is a thinly veiled assault upon the very foundations of the peace of the realm as guaranteed by the terms of the legal contract between the Sovereign and her subjects, and which in turn legally establish and underpin the presumption of allegiance to her of her subjects on the one hand, and the guarantee of the state’s respect for their liberties and freedoms in life, liberty and property on the other.

In the final analysis, what is called for here, as with so much else in life and law, is the drawing of a balance, all be it not, as I see it, that it needs to be an especially ‘fine’ one. On the one hand, and pursuant to a strict adherence to the doctrine of the separation of powers, ensuring that the courts, as the manifestation of the judiciary, at no time and in no manner become a forum for debate or determination regarding the ‘merits’ of the policies, decisions and actions of the duly and constitutionally appointed executive. Whilst, on the other hand, always upholding the ‘rule of law’ as the ultimate arbiter of the acceptable exercise of sovereign power in the land, where a so-called parliamentary democracy exists only due to observance of that law, and thus never permitting claims to ‘political imperative’ or ‘executive necessity’ to amount to a justification or excuse for unlawful conduct by the executive.

In this final matter, one may have especial regard I submit to words of His Majesty’s Attorney General, Sir Hartley Shawcross QC MP (as he then was) when summing up the case for the prosecution on behalf of the Crown before the International Military Tribunal on the Punishment of Major German War Criminals at Nuremberg, when prosecuting the very charge laid in the present informations and addressing himself to the argument put on behalf of the Nazi Defendants that their conduct had been political and motivated entirely by and on behalf of the German State rather than in any personal capacity, and thus by the recognised laws of nations was not cognisable before the courts as any crime for which an individual was personally responsible :

“ The truth is that this attempt to clothe crime with impunity because the motive was political rather than personal invokes no principle of law but is based on arbitrary political doctrines more appropriate to the sphere of power politics than to that in which the rule of law prevails. “

Sir Hartley SHAWCROSS QC MP -Closing Speech

26 July 1946 Vol.19 - Session 187 @ p.428

The Trial of German Major War Criminals sitting at Nuremberg, Germany

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