R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant))R v. Milling (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. M (Appellant))R v. Olditch (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. O (Appellant))R v. Pritchard (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. P (Appellant))R v. Richards (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. R (Appellant)) (Conjoined Appeals)Ayliffe and others (Appellants) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)Swain (Appellant) v. Director of Public Prosecutions (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

The international crime of aggression does not automatically form part of English criminal law. New domestic offences are for Parliament to create. Although aggression is sufficiently certain to constitute a crime in public international law, it is not a “crime” under section 3 of the Criminal Law Act 1967 or an “offence” under section 68(2) of the Criminal Justice and Public Order Act 1994.

Reasonable force under section 3 is judged objectively on the facts honestly believed, within the setting of a functioning democratic state. Citizens must normally use the police, courts and democratic process. Self-help may be justified only where serious unlawful harm is imminent and official assistance cannot practicably be obtained. An honest belief that government action is unlawful does not justify criminal direct action against military facilities.

Twenty anti-war protesters obstructed military activities or damaged, or allegedly planned to damage, property at RAF Fairford and Marchwood Military Port shortly before hostilities began in Iraq. The Fairford appellants awaited trial on charges including conspiracy, criminal damage and attempted arson. The Marchwood appellants and Valerie Swain had been convicted of aggravated trespass and, in some cases, criminal damage.

In R v Jones (Margaret) [2004] EWCA Crim 1981, the Court of Appeal held that aggression was not a crime for section 3 of the Criminal Law Act 1967. In Ayliffe v Director of Public Prosecutions [2005] EWHC 684 (Admin), the Divisional Court followed that decision and dismissed the appeals against conviction.

The common issue was whether the customary international law crime of aggression formed part of domestic criminal law and could therefore support the statutory defences. The House also considered whether private force used as civil disobedience could be reasonable in a functioning democratic state.

1. Disposition. Lord Bingham and Lord Hoffmann delivered the substantive speeches. Lord Rodger and Lord Carswell agreed with both; Lord Mance agreed with their conclusions and expressly endorsed Lord Hoffmann’s reasoning on self-help. The House unanimously dismissed all the appeals. The Fairford proceedings were to return to the Bristol Crown Court for trial.

2. Status of aggression. Per Lord Bingham, Lord Hoffmann and Lord Mance, aggression is a recognised crime in public international law. Its core elements have been sufficiently certain since 1945. The unresolved questions about the International Criminal Court concern the conditions for that court’s jurisdiction, rather than the existence or essential definition of the crime.

3. Reception into domestic criminal law. Per Lord Bingham and Lord Hoffmann, customary international law is a source of English law, and some established international crimes have historically been received into domestic law. Reception is not automatic, however. Following Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435, courts have no residual power to create new offences. In a modern democracy, Parliament alone decides which new conduct attracts criminal punishment. Parliament’s enactment of genocide, torture and war-crime offences, while omitting aggression from the International Criminal Court Act 2001, reinforced that conclusion.

4. Statutory meaning and constitutional context. “Crime” in section 3 of the Criminal Law Act 1967 means a domestic crime. “Offence” in section 68(2) of the Criminal Justice and Public Order Act 1994 similarly means an offence under the relevant domestic jurisdiction. Aggression satisfies neither description. It is also a state and leadership crime whose domestic prosecution would require adjudication upon a state’s decision to wage war. The discretionary character of foreign affairs and deployment of the armed forces provides a further compelling reason against judicial assimilation without specific statutory authority.

5. Reasonable force and self-help. Per Lord Hoffmann, in reasoning accepted by a majority, section 3 requires objective reasonableness on the facts honestly believed. Reasonableness is assessed in the actual social setting of a state possessing police, courts and democratic institutions. Citizens must ordinarily seek official protection or lawful adjudication. Private force may be justified where serious unlawful harm is imminent and help cannot arrive in time, but the law does not tolerate vigilantism. Even if aggression had been a domestic crime, obstructing the military activities at Marchwood and Fairford would not have been reasonable.

6. Trials of direct-action protesters. A justification issue arises only where proved or admitted facts could support it. Without such a foundation, the issue should be withheld from the jury. Evidence and disclosure directed merely to proving protesters’ opinions about the legality of government policy are irrelevant.

1. House of Lords: In R v Jones and conjoined appeals; Ayliffe v Director of Public Prosecutions; Swain v Director of Public Prosecutions [2006] UKHL 16, the House unanimously dismissed all appeals. The summary convictions remained in force, and the interlocutory Fairford proceedings returned for trial.

2. Court of Appeal (Criminal Division): In R v Jones (Margaret) [2004] EWCA Crim 1981, [2005] QB 259, the court held that aggression was not a “crime” under section 3 of the Criminal Law Act 1967. It dismissed the Fairford appellants’ challenge to Grigson J’s preparatory rulings.

3. Divisional Court: In Ayliffe v Director of Public Prosecutions [2005] EWHC 684 (Admin), [2006] QB 227, the court followed the Court of Appeal and dismissed the Marchwood and Swain appeals by case stated.

4. Lower courts: Grigson J ruled at a preparatory hearing that the Fairford defendants could not rely on aggression to justify interference with the exercise of the war-making prerogative. District judges at Southampton and Cirencester rejected corresponding defences and convicted the Marchwood appellants and Valerie Swain.