Report 6 - Legal submissions

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Report 6 Legal submissions about what is put to the jury

At the end of a trial in an English court the prosecution speak to the jury, then the counsel for each defendant, and last of all the judge.

Before all that happens the prosecution and defence get a chance to tell the judge what they think he should say in summing up, and he has to tell them roughly what he is going to say. This means that both sides can prepare their speeches after they know what the judge will say.

This report covers the submissions made by both sides about the judge's summing up.

The crown spoke first. Mr Heyward (their international law expert) referred to the defendants defence under section 5.2(a) of the Criminal Damage Act.

The defendants had said they believed the British people were the true owners, the ones who should make decisions. But in fact there was no doubt that the legal owners were in control of the submarine.

We have to take the evidence of the defendants as read, and on the basis of that evidence is their defence relevant?

The defendants themselves had made a distinction between the legal position and what they referred to as constitutional or legitimate owners. The fact that they themselves acknowledge the difference leaves it open to Your Honour to rule this defence out.

The word "entitled" must mean entitled under the law of England. It must also be understood in the light of section 10 of the same Act, where property can be understood as belonging to any person
- having custody or control
- [ ... ]
- having a legal charge over it

The defence under 5.2(b) falls because the evidence does not meet the requirement of imminence and also the act is too remote.

Again with the defence of Necessity there is no imminence.

He referred to the cases of Willer, Conway and Martin. In the first two the threat was of immediate attack, and the third involved a suicide threat.

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The defence argued that the section 5.2(a) defence could be put to the jury, and moreover that it must by statute be left to them.

He acceded to the position that the MoD had contract law rights, but it was equally clear that the defendants believed that the British people were the righteous or constitutional owners of any property not in private hands.

These two are not inconsistent - both defendants believed that the British public were entitled to consent to the disarmament and both defendants believed they would have so consented had they known the full facts.

The statutes are clear, and the case of Blake doesn't help us

Judge: the facts of Blake don't help us except that the word entitled meaning legal rights.

As soon as the defence has been raised the defendant has a belief and the matter is one for the jury

Judge: there is a distinction between legal and moral claims

Annika referred to legal compared with constitutional terms.

The editors of [ the law book ] refer to the test being "inconveniently subjective". The test is inconveniently subject, and having been raised must be put to the jury to test that purely subjective belief.

This belief is also relevant to the issue of mens rea [ Latin: "a guilty mind", part of what has to be proven for most crimes in England and Wales ].

If the jury accept her belief that makes her not guilty. To withdraw it from the jury would be going behind the statute, both as regards to section 5.2(a) and mens rea.

The prosecution have never challenged her belief, only the logistics of it.

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Judge's ruling:

The defence has canvassed matters relevant to 5.2(a).

The use of the word "entitled" must be defined to some recognised rights of property, or for and on their behalf, not for some third party having some moral or righteous claim, nor does the defendants' belief bring them within such a judgement.

Also persons must be an identifiable group.

Both defendants drew a distinction between property and moral rights.

The defence of section 5.2(b) did not arise.

Neither is there any conceivable evidence of imminence.

The cumulative effect of my rulings is that there is No Lawful Excuse.

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There was one more detail, a particularly English touch. The crown pointed out that one of the defendants was unrepresented, and that as a professional convention it is "not done" for a barrister to speak against such a defendant. It would therefore be necessary to explain this to the jury, so that they did not think she was picking especially on Annika.

We went home, leaving the closing speeches for the next day.