Prosecuting Tony Blair and others

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Contention 8:

The finding by a municipal criminal court that a universal norm or “jus cogens” principle, establishing an offence under customary international criminal law, has been adopted by the domestic common law, without reference to any statutory enactment ; does not offend against the modern rejection of “judicial legislation”, based upon its repugnance to the constitutional separation of powers. Since such a finding is in no way demonstrative of, or implicit upon, any “law making” exercise by the judges who make the said finding.

It was a part of the case for the Commonwealth, in defence of the Government Respondents in Nuyarimma v. Thompson, that any attempt to adopt [incorporate] the international customary law crime of genocide, part in parem a crime against humanity, into the Australian common law, would offend against the well established contemporary common law principle against the possibility of judicial legislation, in the sense of allowing judges to make conduct a criminal offence which it had not hitherto clearly been. This contention is equally clearly implicit in the First Defendant’s reasoning, as challenged in the present Claim (as to which see esp. part.7.5 @ p.40 of the Statement of Claim).

The most renowned modern exposition of this well known principle was as expounded by their Lordships in the matter of Reg. v. Knuller (Publishing) ltd. [1973] AC 435 (HL{E}). For example, in relation to the charge of “conspiracy to outrage public decency”, Lord Reid said (@ p,457H et seq.):

“ I think that that the objections to the creation of this offence are similar in character to but even greater than the objections to the generalised offence of conspiracy to corrupt public morals. In upholding the decision in Shaw’s case we are, in my view, in no way affirming or lending any support to the doctrine that the courts still have some general or residual power either to create new offences or to so widen existing offences as to make punishable conduct of a type hitherto not subject to punishment. Apart from some statutory offences of limited application, there appears to be neither precedent nor authority of any kind for punishing the publication of written or printed matter on the ground that it is indecent as distinct from being obscene.”

Equally there is also the following short passage from the opinion of Lord Diplock (@ p.479 G) :

“ The constitutional setting in which judges in earlier centuries claimed the power to create new criminal offences has long since passed away. To have reasserted it in 1962 .. [re Shaw’s case] .. was, in my view, an unacceptable judicial usurpation of what has now become an exclusively legislative power. “

Finally, there is the view of Lord Simon of Glaisdale on the topic ( as @ p. 490 F) as follows :

“ Thirdly, in this connection, it has been suggested that the speeches in Shaw v. Director of Public Prosecutions indicated that the courts retain a residual power to create new offences. I do not think they did so. Certainly, it is my view that the courts have no more power to create new offences than they have to abolish those already established in the law ; both tasks are for Parliament. What the courts can and should do (as was truly laid down in Shaw) is to recognise the applicability of established offences to new circumstances to which they are relevant. “

These opinions were fully reinforced by their Lordships, were such needed, only 2 years later, in the matter of Reg v. Withers [1975] AC 842 (HL{E}). Take for instance the speech of Viscount Dilhorne (@ p.857 H et seq.) as follows :

“ It is now clearly established that the courts have not now power to create new offences ( Reg. v. Knuller (Publishing etc.) Ltd [1973] AC 435), but as late as 1801 a different view appears to have been held. On the demise of the Star Chamber the Court of the King’s Bench assumed its mantle and the power to declare conduct to be criminal which had not before been so treated. In those days Parliament met but seldom and concerned itself less than now with the criminal law. “

Accordingly, there is no question as to the authoritative existence of there being a bar against new ‘judge-made’ criminal offences. The question is how does that principle apply, if at all, in relation to the attempt to adopt [incorporate] offences from customary international criminal law ?

The issue was fully and authoritatively canvassed by Merkel J. in Nulyarimma v. Thompson, with whose views on this topic at least his brethren (Wilcox & Whitlam JJ.) did not expressly dispute, and the reader will not be surprised to learn that I fully adopt and commend his conclusions (@ para [176] to [179] on pp.665 to 666) as follows :

“ 176. For present purposes I accept that Knuller and Withers establish that in municipal law the function of creating new offences now rests with Parliament and that such residual power as the courts may have retained to create new criminal offences has now lapsed. Plainly, strong policy considerations support that conclusion. The declaration of acts as criminal where they have not been seen to be so before usurps the proper role of Parliament. The exercise of courts' power to create a new offence will also introduce an unwarranted uncertainty into the criminal law. Certainty as to the law, which enables individuals to know which actions are criminal and which actions are not criminal is an essential element of the criminal law. Further, any change in the criminal law requires a value judgement that is better left to Parliament. As Brennan J stated in Dietrich v. the Queen (1992) 177 CLR 1 at 320:

"Changes in the common law are not made whenever a judge thinks a change is desirable. There must be constraints on the exercise of the power, else the courts would cross ´the Rubicon that divides the judicial and the legislative powers'." (to adopt Lord Devlin's phrase in his memorable paper "The Judge as Lawmaker", in The Judge (1979))”

177. However, the authorities are concerned with the "creation" of new offences under municipal law and not the adoption into municipal law of offences under international law. In my view the latter situation was not considered in, and is not governed by, the decisions in Knuller or Withers. That is not to say that the same, or similar policy considerations that underlie those decisions should not lead to the same conclusion.

178. Neither the creation of uncertainty nor the imposition of a value judgment are involved in determining whether genocide, as a crime of universal jurisdiction under international law is to be adopted as part of municipal law. As pointed out earlier, the requirement of certainty creates no difficulty in the present case as the definition of the crime and procedures for its prosecution and punishment in the domestic courts are sufficiently certain. The evolution of the prohibition against genocide to the status of jus cogens and its adoption in the common law does not involve the creation of a new standard leaving potential offenders uncertain as to whether they have, or have not, engaged in criminal conduct. In that regard international criminal law refuses to countenance retrospectivity (Polyukhovich at 575 per Brennan J). Also, as explained above, there is no value judgment, as such, involved in the common law adoption process; adoption of a universal crime, such as genocide, into the common law will occur because established criteria for adoption of customary international law into municipal law have been satisfied rather than because it is "desirable" to do so.

179. That leaves only the primary policy consideration being that, by adoption, the courts are usurping the role of the legislature. The reasons discussed earlier for not requiring that there be legislative adoption in respect of customary international law generally, and in particular in respect of universal crimes, in my view afford an answer to this consideration. The courts are not creating a new offence by reference to the courts' view of public policy; rather the courts are determining, by reference to criteria established by the common law, whether by adoption, municipal law is to recognise and therefore receive that which has evolved into a crime of universal jurisdiction in international law.”

I am bound to observe that this approach is entirely harmonious to, and consistent with, the analysis I proffered in my Statement of Claim (as to which see esp. para.136 @ p.40).

Whilst Merkel J. seeks to justify his conclusions especially by reference to the twin public policy prinicples of “certainty in relation to the scope of the criminal law” and the undesirability of leaving “a legislative value judgement to the courts” ; I am happy to contend that, in the modern era, the principal public policy consideration engaged by the prohibition on judicial legislation is naturally, once again, the constitutional separation of powers.

Thus, that further, the established mechanisms and processes whereby those elements of customary international criminal law, upon which I rely in the present Claim, came to be created, comprise the well settled and international accepted norms for the approved legislative establishment of international crimes, not reliant in any manner upon judicial action, save only in so far as regard the Nuremberg Judgement, which was subsequently ratified and affirmed in the only appropriate political forum, namely the General Assembly of the United Nations.

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