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Five anti-war activists facing trial for trying to stop US bombers taking off from RAF Fairford in Gloucestershire to attack Iraq were given an unprecedented go-ahead yesterday to tell the jury they were acting to prevent war crimes.
Mr Justice Grigson ruled at Bristol crown court last month that the five were barred from pleading that they acted to prevent an unlawful war, because issues of foreign policy, including decisions to launch a war, are covered by crown prerogative and cannot be questioned in a court of law.
But in the first ruling of its kind, the judge held yesterday that this would not prevent them arguing at their trials that they were using reasonable force to protect property or to prevent what they honestly believed to be war crimes.
The judge rejected prosecution arguments that because the legality of the war itself could not be questioned, the defendants should be barred from raising any of three defences based on attempts to prevent the effects of the war.
He ruled that the defences - which would entitle a jury to acquit them of what would otherwise be crimes - should be allowed to go to the jury. The first defence is that they were acting through necessity - that they reasonably believed Iraqis would be killed or seriously injured and that they acted reasonably and proportionately to try to prevent it.
Their second defence is that they were trying to prevent a crime, a defence allowed under the Criminal Law Act 1967. They say that the manner in which force was to be used amounted to a war crime.
The third defence is "lawful excuse", which applies only to cases of criminal damage. This is available where a defendant believes his actions were reasonable to prevent danger to property - in this case, the property of the Iraqi people who were about to be bombed.
Both prosecution and defence are appealing against the judgment. The defence hopes to overturn the ruling barring any inquiry into the legality of the war, and the prosecution argues that the defences of necessity and lawful excuse should not be available where action is taken to prevent use of force in a foreign country.
The crown court is bound by an earlier high court ruling, in a case brought by the Campaign for Nuclear Disarmament, that the English courts cannot inquire into the legality of a decision to go to war. But that ruling would not be binding on the appeal court.
The five are accused of offences connected with break-ins at the base in March 2003, days before the launch of the attack on Iraq, and attempts to damage bombers, support vehicles or runways. Philip Pritchard and Toby Olditch, from Oxford, are charged with conspiring to cause criminal damage at the airbase and possessing articles including bolt cutters and glue with intent to destroy or damage property.
Margaret Jones, 55, of Bristol, and Paul Milling, 58, of Birmingham are accused of conspiring to cause criminal damage to property including a fuel tanker and trailers.
Josh Richards, 30, of Easton, Bristol, was arrested trying to get into the base with pliers, cigarette lighters and containers of petrol mixed with detergent. He faces charges of attempted arson. All five deny the charges. They face three separate trials in June and July.
Modoracle
Mr Justice Grigson ruled at Bristol crown court last month that the five were barred from pleading that they acted to prevent an unlawful war, because issues of foreign policy, including decisions to launch a war, are covered by crown prerogative and cannot be questioned in a court of law.
But in the first ruling of its kind, the judge held yesterday that this would not prevent them arguing at their trials that they were using reasonable force to protect property or to prevent what they honestly believed to be war crimes.
The judge rejected prosecution arguments that because the legality of the war itself could not be questioned, the defendants should be barred from raising any of three defences based on attempts to prevent the effects of the war.
He ruled that the defences - which would entitle a jury to acquit them of what would otherwise be crimes - should be allowed to go to the jury. The first defence is that they were acting through necessity - that they reasonably believed Iraqis would be killed or seriously injured and that they acted reasonably and proportionately to try to prevent it.
Their second defence is that they were trying to prevent a crime, a defence allowed under the Criminal Law Act 1967. They say that the manner in which force was to be used amounted to a war crime.
The third defence is "lawful excuse", which applies only to cases of criminal damage. This is available where a defendant believes his actions were reasonable to prevent danger to property - in this case, the property of the Iraqi people who were about to be bombed.
Both prosecution and defence are appealing against the judgment. The defence hopes to overturn the ruling barring any inquiry into the legality of the war, and the prosecution argues that the defences of necessity and lawful excuse should not be available where action is taken to prevent use of force in a foreign country.
The crown court is bound by an earlier high court ruling, in a case brought by the Campaign for Nuclear Disarmament, that the English courts cannot inquire into the legality of a decision to go to war. But that ruling would not be binding on the appeal court.
The five are accused of offences connected with break-ins at the base in March 2003, days before the launch of the attack on Iraq, and attempts to damage bombers, support vehicles or runways. Philip Pritchard and Toby Olditch, from Oxford, are charged with conspiring to cause criminal damage at the airbase and possessing articles including bolt cutters and glue with intent to destroy or damage property.
Margaret Jones, 55, of Bristol, and Paul Milling, 58, of Birmingham are accused of conspiring to cause criminal damage to property including a fuel tanker and trailers.
Josh Richards, 30, of Easton, Bristol, was arrested trying to get into the base with pliers, cigarette lighters and containers of petrol mixed with detergent. He faces charges of attempted arson. All five deny the charges. They face three separate trials in June and July.
Modoracle
