R v Jones (Margaret)

The House of Lords held that the international law crime of aggression, while recognised in public international law, is not a "crime" or "offence" for the purposes of section 3 of the Criminal Law Act 1967 or section 68(2) of the Criminal Justice and Public Order Act 1994. The court concluded that customary international law does not automatically create new domestic criminal offences in England and Wales and that, in any event, recognising aggression as a domestic crime would raise grave constitutional and practical difficulties (including the requirement to adjudicate on the lawfulness of the Crown's decision to go to war and interference with prerogative powers). The Lords further held that, even if aggression were a domestic crime, the objective reasonableness requirement in section 3 would preclude justifying the defendants' direct-action interference with military operations: private self-help to prevent perceived international wrongdoing is ordinarily unreasonable where state institutions and democratic processes exist to address such disputes.

The appeals arose from a number of prosecutions and preliminary hearings of protestors who in February and March 2003 obstructed or damaged military installations (RAF Fairford and Marchwood Military Port) to impede preparations for the UK/US campaign against Iraq. Defendants relied on defences including lawful excuse under the Criminal Damage Act 1971, the statutory right to use reasonable force in the prevention of crime under section 3 of the Criminal Law Act 1967, and on the contention that the planned war would have constituted the international crime of aggression (or crimes such as war crimes) and so justified their actions.

The appeals reached the House of Lords from (inter alia) the Court of Appeal ([2004] EWCA Crim 1981; reported [2005] QB 259) and the Divisional Court ([2005] EWHC 684 (Admin); reported [2006] QB 227). The certified questions concerned whether the crime of aggression could be a "crime" within s.3 of the 1967 Act or an "offence" within s.68(2) of the 1994 Act and whether such issues were justiciable in criminal trials.

The Lords examined (i) the relationship between customary international law and domestic law, (ii) historical and contemporary sources recognising aggression as an international crime, and (iii) constitutional and democratic principles governing the creation of domestic crimes and the role of courts in reviewing executive foreign affairs and military decisions. They accepted that aggression is recognised under public international law but concluded that: customary international crimes do not automatically become triable domestic offences; Parliament is the proper forum for creating new domestic crimes of the sort and complexity of aggression; and recognising aggression domestically would force courts to determine the lawfulness of state conduct in matters traditionally non-justiciable and within the Crown's prerogative. The House therefore dismissed the appeals. The Lords also addressed limits on self-help and civil disobedience and affirmed that an objective test of reasonableness under s.3 would ordinarily preclude the kind of direct action taken by the appellants.

Appeals dismissed. The House held that the crime of aggression under customary international law is not a "crime" within section 3 of the Criminal Law Act 1967 nor an "offence" within section 68(2) of the Criminal Justice and Public Order Act 1994. Reasons: customary international law does not automatically create new domestic criminal offences; Parliament, not the courts or executive, is the appropriate maker of new domestic crimes; recognition of aggression domestically would raise constitutional difficulties (involving adjudication on the lawfulness of state acts of war and entanglement with the prerogative); and, independently, the objective reasonableness requirement in section 3 would not justify the appellants' direct-action interference with the State's military preparations.

Appeals to the House of Lords from the Court of Appeal (Criminal Division) decision in R v Jones ([2004] EWCA Crim 1981; [2005] QB 259) and from the Divisional Court in Ayliffe v Director of Public Prosecutions ([2005] EWHC 684 (Admin); [2006] QB 227). Preparatory rulings were made at Bristol Crown Court (Grigson J) under section 29 Criminal Procedure and Investigations Act 1996. Leave to appeal to the House was granted and the conjoined appeals were heard in the House of Lords, which dismissed them on 29 March 2006.