Potential Further Issues

8.5 ‘MALA FIDES’ , ‘ABUSE of PROCESS’ & VEXATIOUS LITIGATION.

The Contention : That in seeking to obtain a summons against the Prime Minister, and certain of his Cabinet colleagues, for carrying out what they honestly perceived to be necessary in the public interest in the preservation of national security and the defence of the realm, the Court has an ‘inherent jurisdiction’ to dismiss such an information as being mala fides, an ‘abuse of process’ and/or an attempt at vexatious litigation.

8.5.1 The Law on the contention.

205 The application of this so-called “inherent jurisdiction” in a criminal court, to prevent an “abuse of the process” based on the vexatious etc. motives of the informant, to the question of the issue of originating process by way of summons, was authoritatively set out in R.-v- Bros (1901) 85 LT 581; 66 JP 54. The High Court refused to issue a prerogative writ for manadamus, commanding the justice concerned to issue a summons to the applicant, even though the information which had been preferred prima facie disclosed an offence within the jurisdiction.

206 The Court held that if the magistrate was of the reasonable opinion that if the summons were issued and the offence subsequently proved, he would nevertheless dismiss the information at the hearing on the grounds that the case was entirely motivated by the vexatious attitude of the informant toward the accused party and would serve no other practical result but to give vent to the informant’s vexatious motives, then the magistrate was perfectly entitled to use his discretion to refuse the summons in the first instance.

207 The three recognised heads under which a the bona fides of a Party to proceedings are customarily questioned are “malicious”, “frivolous” and/or “vexatious”. Jowitt’s Dictionary of English Law (1959) describes each respectively as follows :

“Malicious : malice in common parlance means ill-will toward a person, but in its legal sense it means a wrongful act done intentionally (whether malice be implied or express) without just cause or excuse. So long as a person believes genuinely in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair.

Frivolous : A proceeding is said to be frivolous when it is based on facts which disclose no genuine or recognised cause of action. That is to say when the assertion that the conduct complained of as unlawful is so manifestly tenuous or artificial in its construction, that it cannot be taken seriously by anyone acting judicially. So that it may be reasonably inferred that the cause or action is not brought in order to seek genuine relief.

Vexatious : A proceeding is said to be vexatious when the party bringing it is not acting bona fide, and merely wishes to annoy, upset or embarrass his opponent, or when it is not calculated to bring about any practical result. Such a proceeding is often described as ‘frivolous and vexatious’ and the court may stay it on that ground, both under its inherent jurisdiction and occasionally under prescribed rules depending on the court.”

8.5.2 My Statement on motive

208 The following is extracted from my statement provided to the Defendants, together with the Informations and regarding my motives for laying them.

“ I cannot conceive of how it could be in any perspective that, given the detailed and comprehensive nature of the exposition of legal argument I propose to and have herewith set out in support of this my application for summons, any reasonable person, themselves acting honestly and not tainted by improper motives, could consider this application in any way ‘malicious’ or ‘frivolous’. As to ‘vexatious’ I have this to say.

Whilst it may be inevitable that in the case of the commencement of many types of prosecution, such as for example an allegation of vote rigging before the Electoral Court, may result in some or indeed very serious embarrassment for a sitting politician, even when such proceedings are entirely properly motivated ; it is also true, and I fully accept, that were the magistrate(s) to be satisfied that this were the sole or even principal purpose in an Informants’ motive for laying the information, that may well enable them to genuinely question the bona fides of the Informant and term the proceeding “vexatious”.

I ask the Justice(s) reading this statement to accept that this Informant has waited as long as I practically could have done so, indeed many would say too long, to allow for the Accused Persons to explore all possible diplomatic, political and other non-violent measures to achieve their ambitions with regard to the State of Iraq, before resorting to the unlawful use of armed force by way of aggression in their international relations with the Republic of Iraq.

I could have chosen to have proceed earlier, purely under the "inchoate" aspects of a Crime Against Peace (see for instance Principle VI (a) [ii]), but such conduct could arguably have been said to be precocious and prejudicial to or hamper or interfere with the delicacy of those diplomatic or political negotiations on the international plane, especially in the United Nations, while seeking a peaceful resolution. Indeed, such a criticism formed much of the basis upon which the Administrative Court, chose in December last, to decline to grant leave to "CND" to hear their claim that the infamous Security Council Resolution 1441 did not "authorise" war or the “use of armed force” as a matter of international law (see esp. judgement of Simon-Brown LJ [2002] EWHC 2777 as above @ s.8.2 ).

I have chosen not to do so, but have instead awaited until the initiation of the evil deed itself before choosing to act, in order specifically to avoid the allegation of interfering in or embarrassing the Government in the conduct of its delicate negotiations in the international arena. As I write this script, United Kingdom diplomacy, it should be noted, is currently being delivered to Baghdad via the business end of a submarine-launched cruise missile. Whilst doubtless a technical marvel. not, I would submit, a delicate business at all.

I invite the Justices reading this to examine me as to my motives, for as long and as deeply as they wish. I appear before the Court in order to inform it of what, I whole heartedly believe to be, the commission of the gravest, most heinous, most hideous crime imaginable, in the history of criminal conduct, both in international customary law and against our own common law; namely the commission of a Crime Against Peace, an act comprising in a Breach of the Peace of this Nation State every bit as much as of the World entire ( hostis totus mundus ), and thereby against the peace and tranquillity of this Realm, erstwhile the envy of less peaceful lands. I believe the conduct with which I have charged the accused persons to be not merely a flagrant and contumacious insult to the laws of all civilised nations, the respect for and observance of which the future peace of this Realm and indeed of this World depends, but moreover to be a defilement and violation of the long and proud history of this nation state in the formulation, development and application of those very same laws of civilised nations, most especially of course as propounded by us at Nuremberg.

Accordingly, I do so accuse, pro bono publico, pro bono justitia, pro bono pacem. I submit that this is not merely a faultless motive ; but moreover the only and very proper motive for ever resorting to the protection of this honourable court. “

209 Having thus set out the fundamentals of my motivation neither of the Defendants took me up on my offer to be questioned further as to my motivation, and neither of them cited, even obliquely, any doubt as to my bona fides, in reaching their decision. Accordingly, I respectfully submit that it does not lie in the jurisdiction of this Honourable Court, to now raise this issue, and for the first time, as in any way a justification, express or implied, for those decisions respectively.

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