Fairford Five case moves through the courts

by: Margaret Jones and Louise James, solicitor, Stokoe Partnership

United Kingdom: The five-day hearing ended at Bristol Crown Court on May 2004. The defendants were bailed after a week on remand, and two of them, Paul Milling and Margaret Jones commented that they “have nothing to be ashamed of. The criminals are in Whitehall and the White House." The three cases of Paul Milling and Margaret Jones, Philip Pritchard and Toby Olditch, and Josh Richards have been joined for the purpose of pre-trial hearings.

Some of the defendants, Paul Milling and Margaret Jones, Philip Pritchard and Toby Olditch, and Josh Richards, wanted the courts to debate the legality of the war. It raised interesting questions as to what jurisdiction courts have in political matters, what can and cannot be raised in a court and what the defence can use as part of a criminal trial. These defendants argued that they had "lawful excuse" for their actions, because the war on Iraq was itself a crime. Part of the argument was also that the defendants believed they were acting to prevent destruction and death in an illegal war. Of course, this is not a debate about whether one can or cannot resist but how one can as well what limits can be placed on a defence that would not lead to unfair trial.

But, the courts disagreed. In May 2004, the judge, Mr Justice Grigson, accepted the prosecution's case that British government foreign and military policy cannot be examined as part of a defence in English courts and categorized the British government’s decision to go to war as a matter of “Crown Prerogative” - something a British domestic court cannot be allowed to decide or does not have jurisdiction to do so. The only allowance given to the “lawful excuse” defence was if it spoke only about whether crimes were committed in the way the war was conducted, and not about the legality of the war itself. But, this decision satisfied neither the defence nor the Crown, so they are both appealing.

The defence reaction was quick. Speaking on behalf of Jones, Milling and Richards, Mr. James Lewis QC argued that the judge's ruling makes it impossible for his clients to have fair trials. In the words of barrister Hugo Charlton, who is representing one of the defendants, any such ruling sets the British government above the law, because it allows the government “a James Bond licence to kill.” Their appeal was “fast-tracked” to late June 2004.

The immediate effects of this appeal are that a number of other related cases have been postponed among which is that of fourteen Greenpeace activists convicted after an anti-war blockade of Southampton harbour last year.

Source: Margaret Jones and Louise James, solicitor, Stokoe Partnership