Jones & Ors v Gloucestershire Crown Prosecution Service

For the purposes of Criminal Law Act 1967, section 3, a crime is an offence in domestic law. A rule of international law may form part of English law, but it creates a domestic crime only where it is sufficiently certain and capable of attracting penal consequences in domestic courts.

The international crime of aggression did not meet that standard. The statutory defence of lawful excuse under Criminal Damage Act 1971, section 5, turns principally on the defendant’s honest beliefs. It contains no additional requirement that the threatened damage to property be unlawful. Necessity remains a domestic defence to a domestic offence and does not require determination of the legality of the executive’s decision to wage war.

The appellants faced charges arising from attempts, or intended attempts, to damage equipment and aircraft associated with RAF Fairford shortly before the 2003 war in Iraq. They said that they acted to prevent an unlawful war and anticipated war crimes.

At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, Grigson J ruled on the availability of necessity or duress of circumstances, lawful excuse under section 5 of the Criminal Damage Act 1971, and prevention of crime under section 3 of the Criminal Law Act 1967. The defendants and the prosecution each appealed aspects of those rulings.

The central issue was whether the proposed defences required an English criminal court to determine the lawfulness of the United Kingdom’s use of force in Iraq.

1. The appeals were dismissed, subject to clarification of the scope of necessity. The court upheld the judge’s conclusions on section 3 of the Criminal Law Act 1967 and on lawful excuse under section 5 of the Criminal Damage Act 1971.
2. Section 3 protects reasonable force used to prevent a crime in domestic law. International law may be incorporated into English law where an established rule is sufficiently certain. That does not mean that every internationally proscribed act is a domestic criminal offence. The alleged crime of aggression could not be treated as such an offence because there was no settled international consensus as to an essential element of that crime. It therefore could not found a section 3 defence.
3. Section 5(2)(b) of the Criminal Damage Act 1971 imposed one objective question: whether, on the facts as the defendant believed them to be, the damaging act could be said to have been done to protect property. The beliefs that property was in immediate need of protection and that the means used were reasonable need only be honestly held. The statute did not add a requirement that the anticipated damage to the protected property be unlawful.
4. Necessity or duress of circumstances is a domestic defence to a domestic offence. The governing inquiry concerns an imminent danger of death or serious injury, the defendant’s responsibility for those threatened, and whether the act was reasonable and proportionate. The executive’s declaration and waging of war was a lawful exercise of prerogative power. The defence, if factually available, had to be assessed by reference to the defendants’ beliefs without deciding whether the war itself was lawful.
5. Accordingly, none of the proposed defences required determination of the legality of the war. It was unnecessary to decide the separate issue of justiciability.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 1981, the court upheld the material preparatory rulings and held that the legality of the war did not arise for determination through the proposed defences.
• Bristol Crown Court (Grigson J) — At a preparatory hearing on 12 May 2004, rulings were made under section 29 of the Criminal Procedure and Investigations Act 1996 on the proposed defences. Leave to appeal was granted.