Potential Further Issues

THE STATUTE LAW ISSUE

(8.6) EVASION of PROCEDURAL SAFEGUARDS in LEGISLATION.

Contention : That by proceeding now under the common law, I am somehow thereby managing to evade, the procedural safeguards built into the legislation on the Rome Statute Process, and which predictably would apply, were the offence of “International Aggression” to be incorporated therein, at some future date.

210 I have already set out elsewhere my arguments and contentions in relation to the implicit perspective of the First Defendant (Judge Workman - see @ s. 7.5.2) on the preferable method for a future incorporation of the crime of “international aggression” into English domestic law, namely by amendment to the International Criminal Court Act, 2000 (the “ICC Act”).

211 However, I predict a possible further gloss which could conceivably, although I must confess only barely so, be placed by some on the application of that proposition. Namely, that were the crime of international aggression to be so incorporated into statute in future, then it is entirely predictable that it would be subject to the same so-called ‘procedural safeguard” under the provisions of the ICC Act, as currently applies to the other offences already dealt with by that Act. Namely, s.53(3) of the Act provides as follows :

“ Proceedings for an offence shall not be instituted except by or with the consent of the Attorney General.”

212 So it may be contended that by proceeding now under the common law instead, under which there is no such procedural fiat, I am somehow thought to be evading that procedural safeguard.

213 Firstly, in response to that contention, I say, as I am bound to do, that since the crime of ‘international aggression’ has not, or even I may concede has not yet, been incorporated into legislation, though I see not any guarantee or certainty that it will ever be; none the less, it follows that the case for a legislative procedural safeguard simply does not apply to it, and that this is simply a fact of procedural life going to the difference between proceedings taken on statutory as compared to common law offences.

214 Secondly, however, and on more of a merits based perspective, the contention is without merit since, even though the offence is not directly subject to a statutory procedural fiat, never the less, it remains every bit as subject to both the statutory and common law safeguards over the conduct of criminal prosecutions generally as does any other offence.

215 Namely, were a summons to be issued, as I seek, then pursuant to the provisions of s.6(2) of the Prosecution of Offences Act, 1985, the Director of Public Prosecutions (DPP) can come in at any time and take over the conduct of the prosecution of that proceeding. Indeed, given the manifest public importance involved with such a proceeding it is entirely likely that he would do so. Having done so, it is well established that he then has a wide choice of mechanisms to ensure that, if he deems it “in the public interest” to do so, he can see to it that such a prosecution proceeds no further, in particular never see incorporation into a Bill of Indictment.

216 He can (a) simply notify the Magistrates’ Court that the prosecution is being discontinued pursuant to the provisions of s.23(3) of the Act of 1985, (b) he may formally apply to the Magistrates’ Court to have them agree to have the information withdrawn (Cooke v. DPP & Brent JJ (1992) 156 JP 497), and finally (c) he may simply offer no evidence to sustain the prosecution either at committal, or indeed thereafter at trial (Turner v. DPP (1979) 68 Cr App Rep 70).

217 It is conceivable that were proceedings to be stayed in such a fashion then judicial review of such a decision could lie on the basis that the stay had been ordered for reasons which were part of the 3-fold test laid down by Kennedy LJ in his judgement in matter of R. v. DPP ex p. “C”, namely that

“(1) if the decision was the result of some unlawful policy;

(2) if it was made because the DPP had failed to act in accordance with the Code issued pursuant to section 10 of the POA 1985;

(3) if the decision was perverse”

R. v. the DPP ex p. C [1995] 1 Cr.App.Rep. 136 @ p.141 B-E per Kennedy LJ.

218 Finally, however, even were the DPP not to be of the view that proceedings upon such a summons should be stayed, then above him there lies now both the Solicitor-General and ultimately the Attorney-General, and if such a summons were ever to lead to the signing of a Bill of Indictment for the Crown Court, then either of those law officers of the Crown, could decide to enter with that Court, a prerogative writ of Nolle Prosequi, the effect of which would be to stop such an indictment in its tracks. Furthermore, whilst such a procedure would doubtless be regarded as I trust unusual in such circumstances and would equally I hope lead to questions being asked in Parliament, it is my present understanding that it cannot in any circumstances be challenged in the Courts. see R. v. Allen (1862) 1 B.&S. 850 ; 121 ER 929.

219 Accordingly, and for these reasons there is no merit whatever, in point of law, in the contention as above. Were a summons, as I seek , to be issued and for the common law offence, then that in no way avoids, let alone evades, the very considerable and discretionary powers of the most senior public prosecutors and law officers of the Crown to intercede and decide whether or not such a prosecution was actually “in the public interests”. The Interested Parties having naught to fear from me on that score !

(8.7) CONCLUSION

220 This then concludes my examination of the respective merits of those contentions of law which go to the issue as to whether or not the Defendants, in the Courts below, possessed the requisite jurisdiction, to issue the criminal summonses which I sought. In addition, to those contentions, there are yet other and further arguments which go instead to the issue of whether or not, were those summonses to issue and the persons thereby accused (the “Interested Parties” to the present Claim) put to their trial, those persons would have a legal defence by way of lawful excuse or justification for conducting themselves as they have.

221 Such contentions might predictably touch upon such matters as the well publicised opinion of the Attorney-General, and which he offered to the Interested Parties that, in his view, the combined effects of three particular prior Resolutions of the Security Council of the United Nations (678[1990], 687 [1991] & the infamous 1441 [2002]), result in a case for holding that the use of military force against the State of Iraq, specifically in order to disarm it of the much vaunted Weapons of Mass Destruction, was authorised by the Security Council and therefore, presumably, lawful. Equally, perhaps, one is also aware of other even more fanciful and exotic justifications, resting on contentions with titles such action taken in the interest of ‘anticipatory self-defence’, or ‘humanitarian intervention’ and, of course, most famously of all ‘terrorist regime change’.

221 However, that is naturally not a matter which yet falls for determination, given that the subject matter of this present Claim, is essentially the question of whether or not the informations I laid before the respective Defendants, in the courts below, should have resulted in the issue of the summonses I sought. That is not a forum in which the Defendants could, nor ought, to ever have so much as begun to weigh in the balance the potential strength of any possible defence, which the accused person may be thought to have, and with due respect to them neither of them even so much as hinted at having done so.

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