IN THE WESTMINSTER MAGISTRATES’ COURT
IN THE MATTER OF THE LAYING OF AN INFORMATION
BETWEEN
ANGELA ZELTER
Informant
AND
THE SECRETARY OF STATE FOR DEFENCE
Accused
ADVICE (PART II)
As to the domestic criminality of the use of certain weapons
Robert L. Manson LLB (Hons) Lon
(Ven. Cambs.)
r_manson@sky.com
01239 615921
Assistant to the Lay informant
(Legal matters)
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Subtitle :
Jumping Legal Hurdles and Undermining Procedural Fences
Contents
Para.
Page
•
Introduction
1
3
•
Military Advantage versus Civilian Harm
2
3
“Military advantage” is distinct and distinguishable
from “Military necessity”.
5
5
The adjectives “concrete and direct” having been added
to “overall military advantage” must be given a particular effect.
7
6
“Political Objectives” or “Strategic Purposes” are different
and distinguishable from strict “Military advantage”.
8
6
12
8
•
Primary Prosecutorial Posture
•
Conspiracy and Conditional conspiracy are criminalised
•
Conspiracy is separately criminalised under the Act
14
10
Conspiracies are criminal even though contemplating
only conditional circumstances
19
12
The Mental Element of the Crime requires “knowledge”
as well as “intent”.
How high is the order of “knowledge” which has to be proved ?
•
10
16
24
Evidence of preparatory measures & targeting plans
16
20
the importance of evidence relating to
contingency target planning
34
21
Medical, Structural and Environmental Effects Evidence.
37
22
Contingency Targeting : Options & Scenarios
39
23
•
The “Moscow Criterion”
44
26
•
‘Load-out’ per SSBN Boat
50
30
•
Non-application of the “Prerogative/Crown Immunity”
or “Prohibited Subject Area” doctrines.
54
32
•
Conclusions
61
35
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1)
Having now set out in Part I of this Advice earlier, the relevant legal history on the
development of that aspect of International Humanitarian Law, which deals with and
discloses the crime of “launching a disproportionate attack”, and then also covering the
legislative history of its subsequent incorporation into domestic English criminal statute; I
now continue in this second part, by dealing with the various aspects of both the law on
elements of crime, practical evidentiary principles and on various constitutional principles,
which it is foreseen will become engaged in practice by the pursuit of a practical prosecution
with respect to the same.
Military Advantage versus Civilian Harm
I begin with the questions as follows:

Legal significance of the expression “concrete and direct overall military advantage
anticipated”- to be judged as a question of fact and not law.

Non application of expression to strategic or political advantage instead – but limitation
to strict military objectives alone.
2) Once again I choose to begin with a quotation from the relevant section of the “Official
Commentary” of the ICRC (the “International Committee of the Red Cross”) in relation to, in
this instance, from that part of Article 51 of the First Additional Protocol to the Geneva
Conventions (1977), “Protection of civilian population” – sub- paragraph 5(b) and which is
the acknowledged progenitor of Article 8.2(b)(iv) of the Rome Statute.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary - Protection of the civilian population
Ҥ 1976. The ' second type of attack ' envisaged in paragraph 5 includes those which
have excessive effects in relation to the concrete and direct military advantage
anticipated. Once again there were long discussions in the Diplomatic Conference and it
was difficult to come to an agreement. The formula that was adopted is very similar to
that proposed by the ICRC. (31) It is based on the wording of Article 57 [ Link ] '
(Precautions in attack) ' relating to precautionary measures. Committee III had suggested
either a straightforward reference to Article 57 [ Link ] ' (Precautions in attack) ' or
reproducing the formula used in that article. Finally, the Drafting Committee, which was
requested to resolve the question, opted for the second solution. Thus reference may be
made to Article 57 [ Link ] ' (Precautions in attack) ' for further details.
....
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§ 1979. Comments were also made in various quarters that paragraph 5(b) authorized
any type of attack, provided that this did not result in losses or damage which were
excessive in relation to the military advantage anticipated. This theory is manifestly
incorrect. In order to comply with the conditions, the attack must be directed against a
military objective with means which are not disproportionate in relation to the objective,
but are suited to destroying only that objective, and the effects of the attacks must be
limited in the way required by the Protocol; ' moreover, ' even after those conditions are
fulfilled, the incidental civilian losses [p.626] and damages must not be excessive. Of
course, the disproportion between losses and damages caused and the military
advantages anticipated raises a delicate problem; in some situations there will be no
room for doubt, while in other situations there may be reason for hesitation. In such
situations the interests of the civilian population should prevail, as stated above.”
(emphasis added)
3) However, this is not to suggest for a moment that there is universal consensus on the
inevitably controversial issue as to where to draw the correct balance as between what are
in reality always competing considerations – namely “military advantage” versus “excessive
civilian harm”. In reality, and I imagine not in the least surprisingly, this continues to be an
ongoing subject of disputation, disagreement and general discourse as between, on the one
hand, those who favour greater discretion being placed in the hands of military
commanders in the field, faced with the realities of the battlefield including the notorious
“fog of war” issues, as against on the other hand, those who seek the broadest possible
practicable protection for non-combatant civilians, the innocent and defenceless victims of
International armed conflict.1
4) There is, however, now I think a certain emergent consensus surrounding certain aspects or
elements of the test, which it is important to state and bear in mind. They would certainly
include, but are not necessarily limited to, the following aspects:
1
see for instance WORKSHOP REPORT 21 MAY 2009
PROPORTIONALITY IN WAR SYMPOSIUM CONVENED BY
THE OXFORD INSTITUTE FOR ETHICS, LAW AND ARMED CONFLICT
http://www.elac.ox.ac.uk/downloads/ProportionalityinWarWorkshopReport.pdf
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“Military advantage” is distinct and distinguishable from “Military necessity”.
5) Especially, in the sense that in the latter instance there may well often be a minimal position
or strategy which, in the military view, must be pursued in order to achieve a particular
military objective. For example, where military advice maintains it is “necessary” to remove
all opposing military forces from a particular location, such as a town or village, when it both
blocks any advance of friendly forces through the area and commands fire power over the
area of such a potential advance. The removal of such enemy forces may well then be a
“military necessity” as a prerequisite to the advance of friendly forces. However, the
“military advantage” which is attained or brought about by achieving that said “military
necessity”, may well need to be assessed independently in terms of a wider “overall”
military objective in pursuing or making such an advance in forces per se. For example – it
may well prove possible to achieve those “wider military objectives” by means of bypassing
this particular battlefield entirely, and instead advancing elsewhere, or alternately by forcing
the withdrawal of the occupying opposing forces by other military means. In such
circumstances, it is consideration of the wider “military advantage” as a whole, which is
relevant to the balancing test here in issue, and not just the claims to immediate “military
necessity”, as determined by reference to a particular existing balance of forces, present in
a particular location and at a particular time.
6) In this regard, it is I suggest particularly worth noting, that when the Crown signed the First
Additional Protocol (1977) to the Geneva Conventions (1949), in its Declaration of
Ratifiation, it stated as follows:
"e) In relation to paragraph 5(b) of Article 51 and paragraph (2)(a)(iii) of Article 57,
that the military advantage anticipated from an attack is intended to refer to the
advantage anticipated from the attack considered as a whole and not only from
isolated or particular parts of the attack;
(emphasis added)
which is a position, I would suggest, wholly consonant with this distinction which I am
making as between “military necessity” and “military advantage”, though that may well not
have been the intention !
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The adjectives “concrete and direct” having been added to “overall military advantage”
must be given a particular effect.
7) The “effect” referred to is perhaps little other than comes from the application of the
natural and ordinary meaning of the words used, but nonetheless it’s worth stating for all
that. Namely, advantages that are wholly, or indeed partially, “speculative” – as in “hopedfor”, “ideal” or “optimal” are not applicable by reference to the need for outcomes to be
“concrete” instead. Equally, advantageous outcomes that are “indirect”, “incidental” or
“secondary”, by the same logic, are not applicable by reference to the need for them to be
“direct”. In particular, it follows that any advantage which was unforeseen or not planned in
the planning and preparation stage, cannot be relied upon in relation to any subsequent
justification for the degree of “overall military advantage” in the event attained .
“Political Objectives” or “Strategic Purposes” are different and distinguishable
from strict “military advantage”.
8) The body of International Humanitarian Law (“IHL”) as deals with international armed
conflict, known for short as the “laws of war”, are strictly divided by jurisprudence into two
separate and distinct parts. The laws which apply to the resort to the use of armed force in
the first place, known as the “jus ad bello”; and then those which apply instead to the
conduct of the armed conflict once it has started, known as the “jus in bellum”. The law on
“proportionality” in the course of an armed attack is, naturally enough, an example of the
latter, and therefore under the applicable principles of international law jurisprudence, the
definition has to be limited in relation only to elements which pertain and are contingent
upon the “conduct” element, and not otherwise. It follows that matters which go beyond
the limits of simple war fighting conduct, and stray instead into areas such as the broader
political objectives and/or national strategic purposes and interests etc., are outside of the
ambit or jurisdiction covered by the application of this part of IHL. The following passage 2
perhaps encapsulates the concept equally as well, as follows:
2
“ POLICY BRIEFING : DECEMBER 2010 APPLYING THE PRINCIPLE OF PROPORTIONALITY IN COMBAT
OPERATIONS JANINA DILL RESEARCH FELLOW IN SOCIO-LEGAL STUDIES, UNIVERSITY OF OXFORD
http://www.elac.ox.ac.uk/downloads/proportionality_policybrief_%20dec_2010.pdf
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“The law of conduct in war (IHL) is separate from the law governing resort to force.
It follows that the only legitimate goal in war is to defeat the enemy militarily.
Correspondingly IHL does not allow conduct in war to be directly linked to the
ultimate political goal of an armed campaign. As a result, the positive side of a
proportionality calculus cannot be constructed in terms of its ultimate strategic or
political objective, for example to overthrow an illegitimate regime, but only to the
proximate end of achieving a military advantage. “.
9) It follows that, and in this instance I suggest most crucially, considerations going to
questions of the likes of “how to win the war”, “how to preserve our national existence” and
in particular “how to retaliate with sufficient force so as to deter further escalation” are all
matters going to broader strategic and political concerns, well outside of and beyond the
scope for application of the term mere “military advantage”, and therefore outside of and
beyond consideration for justification within the application of that term when used as here
in the definition of a crime.
10) However, beyond the helpful guidance which can be attained from these rather limited
considerations, in the end the decision in practice as to where the point of balance lies in
any particular instance, is really “a question of fact” for the judges of fact to decide in each
individual case. So where, as here, we have in contemplation the prosecution and trial of an
indictable only offence under statute, that means in this country a Crown Court jury, duly
empanelled and sitting as what was once referred to famously as “a little Parliament”3.
11) That said it can only be helpful to know how oft repeated, by the State officials of the Crown
to those in Parliament proper Assembled and elsewhere, has been the mantra that Her
Majesty’s Government both acknowledges and implements this particular rule of law itself,
and indeed admonishes and implores others to do so likewise. To that end I have attached
hereto a statement (Appendix 01) setting out some several instances of the same.
3
“Each jury is a little parliament. . . . No tyrant could afford to leave a subject’s freedom in the
hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice
and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”
SIR PATRICK DEVLIN, TRIAL BY JURY 164 (1956)
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Primary Prosecutorial Posture4.
12) Having now just set out the relevant law, specifically concerning the legal definition of the
expression “military advantage” as restricted in its use to connection with only “war
fighting” or “armed conduct” senses, and thereby excluding “political objectives” and/or
“strategic purposes” instead, it then becomes most advantageous to now set out my
primary prosecutorial posture. That is to say, the principal way in which I say this law should
be applied to the facts of the theory of the crime in the current instance, in this case of
course especially with respect to the application of that element of the crime described by
the words“… clearly excessive in relation to the direct and overall military advantage
anticipated”. I fully predict that this will be regarded as clearly the most conceptually
complicated, but also technically vital, aspect of the prosecution theory of the crime to
present – especially so here where these words are to be applied not in relation to the facts
of an actual event, which has already taken place in the past, but rather in relation to a
conspiracy to pursue a course of conduct in the future, and what is more only to so pursue it
in certain conditional circumstance.
13) It will be the primary prosecution contention that, any actual future use of the UK Trident
Nuclear Weapons system would represent the accomplishment of at best a “strategic”
and/or “political” action or aim, rather than any actual “military” or “war fighting”
operation. To this purpose I rely principally on the stated policy position or posture as
currently stated by the Government itself. Let us contemplate the following statements, per
(a) in July 2013 the Government produced a paper setting out a formal review of Alternative
weapon systems to the straightforward so-called “like-for-like” replacement of the current
Trident SLBM system5. This was at the behest of the Lib-Dem element of the ‘government
4 the term "Posture" is used here in its technical or legal term of art sense, namely where each party to a
proceeding advances a "Theory" of their case, which is divided into two parts – the "Scenario" or set of facts
upon which they rely, and the "Posture" or legal interpretation/construction which they say ought to be
applied to those facts.
5
HMG :Trident Alternatives Review :16 July 2013 ,
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coalition’, who were firmly politically opposed to that “replacement” policy. However, the
document also affords a particularly helpful insight into the Government’s stated position
with respect to the purpose it sees as fulfilled by the British Nuclear Deterrent, which would
be required of whichever particular future system was chosen. For instance, at §5, p.3 says:
“The UK‟s deterrent was assumed to remain a political tool of last resort rather
than a war fighting capability “
Then again at §1.3 on p.13 it says:
“The fundamental and enduring premise is that the UK deterrent will remain a
political tool of last resort rather than a war fighting capability; its use is only to be
considered in the most extreme circumstances. “
(b) the following year (2014) saw the House of Commons Defence Select Committee
conduct an enquiry into “Deterrence in the twenty-first Century”6. The written evidence
submitted by the Ministry of Defence to the Committee provides an even more detailed
insight into the Government’s continuing position with respect to this particular issue. For
instance, at §3, p.1
“ Ultimately, deterrence and coercion are about conditioning or changing the
perceptions of a potential opponent in order to influence or persuade them. They are
different from war-fighting, which involves the actual use of physical force to
degrade or destroy the capabilities of an adversary to the point where they are
unable or unwilling to continue resistance. If force is used in support of coercion or
deterrence, it is used in a limited way in order to demonstrate resolve and to
establish the credibility of determination and ability to resort to more extreme
measures if necessary. Of course, either the threat or the use of force can only be
employed in circumstances where there is a sound legal basis.”
(emphasis added )
Then again at §8, pp.1-2 it says:
“The UK views its nuclear weapons as political not military or war fighting
weapons. Nuclear weapons are therefore just one element of the total capability to
maintain/achieve the deterrent effect the UK seeks.”
Perhaps the position is most succinctly stated in an editorial context by Prof Tim Hare,
Director of the Royal United Services Institute (USI) in their Journal, as follows:
6
House of Commons Defence Committee - “Deterrence in the twenty-first century” Eleventh Report of Session 2013–14 (Published on 27 March 2014)
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“the UK does not possess nuclear weapons as part of the military inventory, they
have no function as war-fighting weapons, or to achieve military objectives” 7
14) "Deterrence" whilst being a political standpoint or position , refers to a situation in which the
weapon system concerned is not actually used – in the sense of being used in the course of an
armed conflict – to put it plainly it is not fired off ! Whereas, the kind of "political use" to
which I here make reference, is in relation to an actual hostile use of the weapons concerned
– to put it plainly the kind of use in which thousands and maybe millions of non-combatant
civilian citizens would die . What is being said, both by me but also quoting the
Government’s own sources above, is that even such a use as that is not regarded as a
"military" or "war fighting" use, especially in any strict or legal sense of those terms . Rather,
even though used “in anger” against political and even military command and control centres,
but resulting in the death of millions of people, the Government states that it still views such
a use as that as "strategic" or "political", designed to coerce or bring about a political or
strategic response from the opponent – typically a ceasefire and/or preventing a specific
launching of a nuclear attack or further nuclear attack against the United Kingdom,
threatening our survival. In short, the Government acknowledges that Trident is principally, if
not entirely, a "political or strategic" weapon, even when it is used. It acknowledges that it is
not a part of the UK military or war fighting arsenal. The result of this means that if such a
"political" weapon were to be used, not in the sense of a simple deterrent non-use – but rather
in the sense of an actual hostile use – the user is incapable of then subsequently arguing any
justification based upon the "military advantage anticipated" – for the simple reason that he is
on record as having stated in advance that it is not a military weapon from whose use he
would seek any military advantage, but rather a political one from which instead he seeks a
coercive or strategic advantage.
15) Consequently, though it is perhaps now merely to state the obvious, it is my primary
prosecutorial posture that, given it is the stated position of the accused party itself that any
7
Tim Hare, “What next for Trident?”, RUSI Journal, April 2005
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future anticipated use of the weapon system here in issue would not contemplate any
actual “war-fighting” role, there simply is then no “military advantage” (stricto sensu) to be
considered. It must, therefore, follow logically that any and all loss of civilian life, damage to
civilian objects and all long-term harm to the natural environment, caused by any such use,
must then inevitably “clearly exceed” any such use as could instead have been arguably
justified by reference to any theoretical “military advantage”, where it is simply accepted
that there is in the circumstances none whatever to be had.
Conspiracy and Conditional conspiracy are criminalised.

Criminality of a conspiracy to commit a disproportionate attack - as an offence under
UK domestic law , even though not an offence under international law per se as well.

The criminality, as established by UK case law, of a so-called “conditional conspiracy” whereby the fulfilment of an agreed plan is dependent upon the realisation of the future
existence of agreed external circumstances.
Conspiracy is separately criminalised under the Act
16) The statutory references appearing in the particulars of the “Information” as to be laid
before magistrates, are references to the following parts of the International Criminal Court
Act (ICC Act) 2001, as follows:
“52 Conduct ancillary to genocide, etc. committed outside jurisdiction
(1) It is an offence against the law of England and Wales for a person to engage
in conduct ancillary to an act to which this section applies.
(2) This section applies to an act that if committed in England or Wales would
constitute–
(a) an offence under section 51 (genocide, crime against humanity or
war crime),
....
but which, being committed (or intended to be committed) outside England and
Wales, does not constitute such an offence.
(4) This section applies where the conduct in question consists of or includes an
act committed–
(a) in England or Wales, or
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(b) outside the United Kingdom by a United Kingdom national, a United
Kingdom resident or a person subject to UK service jurisdiction.
....
55 Meaning of “ancillary offence”
(1) References in this Part to an ancillary offence under the law of England and
Wales are to–
....
(c) . . . . conspiring to commit an offence,
(4) In subsection (1)(c)–
....
(b) the reference to conspiracy is to conduct amounting to an offence of
conspiracy under section 1 of the Criminal Law Act 1977 (c. 45).”
17) In the result, what this rather involved statutory framework amounts to providing for, is that
a criminal “conspiracy” to commit an ICC crime, in this case specifically a “war crime” (per
Article 8 of the Rome Statute), shall be a crime under this Act, albeit defined by reference to
the definition of a statutory conspiracy as set out in s.1 of the Criminal Law Act 1977
(Definition of statutory criminal conspiracy) instead. Furthermore, that this will be so
irrespective as to any question arising, as to whether there would ordinarily be
extraterritorial jurisdiction over the crime of conspiracy when committed abroad, in whole
or in part, as defined under s.1A of the 1977 Act, so long as the accused conspirators are
either UK nationals, UK residents or persons subject to you UK service jurisdiction.
18) Under the said s.1 of the Criminal Law Act 1977, criminal conspiracy is generally defined in
subs. (1) thereof, as follows:
“1. The offence of conspiracy
(1) . . . . If a person agrees with any other person or persons that a course of
conduct shall be pursued which, if the agreement is carried out in accordance with
their intentions, …. –
(a) will necessarily amount to or involve the commission of any offence or
offences by one or more parties to the agreement,
....
he is guilty of conspiracy to commit the offence or offences in question.”
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Which again somewhat involved statutory language means, in short, that where two or
more people enter into an agreement to pursue a course of conduct, which were it to be
pursued in accordance with their intentions, would amount to or involve the commission of
a crime, then they themselves are guilty of conspiracy to commit that crime, whether or not
their agreement is in the event so carried out.
Conspiracies are criminal even though contemplating only conditional circumstances
19) Naturally, however, but what we are here concerned with is the specific type of agreement,
comprising the core of the criminal conspiracy, which is termed a “conditional agreement”
and therefore giving rise to a “conditional conspiracy”. The “conditional” element
comprising in an agreement which is in two parts, as follows:
(a ) a first part, that contemplates certain circumstances – in this case the continued
successful application of a national defence policy of so-called “strategic nuclear
deterrence”, and whereby the nuclear missile system in issue remains safely aboard
its submarine silos, and so is in fact never used “in anger” as it were; and,
(b) a second part, that contemplates instead certain other circumstances – in this case
namely the breakdown of nuclear deterrence and the conditions necessary to exceed a
so-called “nuclear weapons release threshold” – whereby the said nuclear missile
system is, at least in part, used “in anger”, as in used as a weapon for the launching of
an attack in the course of an international armed conflict.
The point being that even though the “criminal” outcome contemplated in the offence
alleged is consonant with only the second part of the wider “agreement” (as above
described) and furthermore is made contingent upon the existence of future circumstances
which are only ever speculative ; nevertheless, that is sufficient to make the agreement a
criminal conspiracy even though, as it were, only criminal in part.
20) The leading modern case law authority for such proposition derives from the speech of Lord
Nicholls of Birkenhead in the House in the matter of Regina v Saik [2006] 2 W.L.R. 993,
where in at §5 he says as follows:
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“5. An intention to do a prohibited act is within the scope of section 1(1) even if the
intention is expressed to be conditional on the happening, or non-happening, of some
particular event. The question always is whether the agreed course of conduct, if carried
out in accordance with the parties' intentions, would necessarily involve an offence. A
conspiracy to rob a bank tomorrow if the coast is clear when the conspirators reach the
bank is not, by reason of this qualification, any less a conspiracy to rob. In the nature of
things, every agreement to do something in the future is hedged about with conditions,
implicit if not explicit. In theory if not in practice, the condition could be so far-fetched
that it would cast doubt on the genuiness of a conspirator's expressed intention to do an
unlawful act. If I agree to commit an offence should I succeed in climbing Mount
Everest without the use of oxygen, plainly I have no intention to commit the offence at
all. Fanciful cases apart, the conditional nature of the agreement is insufficient to take
the conspiracy outside section 1(1) “
Again, this time right at the very end of the Opinions, in the speech of Lord Brown of Eatonunder-Haywood, at §120, he makes reference to 3 previous case law authorities upon which
the proposition that a conditional conspiracy is yet still criminal is founded, as follows:
“120 …. Your Lordships were shown an abundance of academic writing down the
years which treats of the concept of conditional intention in the context of conspiracy
law. Many examples have been discussed. If two men agree to burgle a house but only
if it is unoccupied or not alarmed they are *1026 clearly guilty of conspiracy to burgle
notwithstanding that their intention may be thwarted. And if they take a weapon albeit
to be used only if strictly necessary they are, the better view suggests, guilty also of
conspiracy to wound. Consistently with this approach convictions were upheld (a) of
conspiracy to aid and abet suicide where it was agreed that the accused would visit
individuals contemplating suicide and either seek to discourage them or actively help
them commit suicide depending on his assessment of the appropriate course of action
(R v Reed [1982] Crim LR 819 ); (b) of conspiracy to pervert the course of public
justice where three men agreed that a fourth man, under trial for burglary, should be
shot in the leg so as to provide him with mitigation in the event he were convicted ( R v
Jackson [1985] Crim LR 442 ) and (c) of conspiracy to cause explosions where
members of the IRA during the IRA cease-fire agreed to make bombs for use only if the
cease-fire came to an end: R v O'Hadhmaill [1996] Crim LR 509.”
21) For reasons that I hope are, or at least will, shortly become self-evident, I consider the facts
in this last case mentioned by Lord Brown, that of R v O'Hadhmaill [1996] Crim LR 509,
sufficiently close to being “on point” with the type of scenario with which we are here
concerned, so that it is worthwhile analysing the judgement a little closer. The defendant
was an Irish nationalist activist living in Lancashire and all relevant times under close
surveillance by the MI5. In short, he was caught ‘red-handed’ taking possession of a large
quantity of Semtex explosive and other bomb-making equipment hidden in a motorcar sent
to the mainland from the Republic. One of the points raised on his appeal against conviction
Page | 14
by Geoffrey Robertson QC, before the Court of Appeal (Criminal Division), was a criticism of
the trial judge’s summary direction to the jury. He argued that, given and in so far as it was
accepted that any bombs made from the explosive materials would likely not have been
used during the relevant period of the peace process negotiations and whilst the IRA ‘ceasefire’ remained in force, that accordingly there was no firmly established and settled
“intention” to cause such explosions, as required in order to make out the charge of
conspiracy. The relevant passage from the direction is quoted in the appeal court
judgement, as follows:
“ You have three possible situations:
(1) This has nothing to do with the so-called peace process; the
initiatives … it is just another IRA bombing campaign on the way. That
is the prosecution's No.1 position.
(2) As an alternative, this is the IRA catering for the future. If the results
of the peace process satisfy them, well and good; if not, it was their
intention to resume their bombing campaign. That is the prosecution's
what I might call ‘ fall-back’ , position.
(3) This is the IRA catering for the future but not yet having made up
their minds whether to use the semtex detonators to make bombs and set
them off or not.
Now, it is only No.3 that would afford the defence.”
Mr Robertson complains that situation (2) as the judge stated it should result
in a verdict of not guilty”
22) Perhaps not too surprisingly, given the circumstances, this line of argument was given short
shrift by Lord Taylor LCJ, speaking for the Court, as follows:
“It may be that the wording of situation (2) could have been improved but the
distinction between situation (2) and situation (3) was clearly stated. The former
required an intention; the latter involved the parties “ not yet having made up their
minds” . The only sensible point in having the two situations differentiated derived
from that distinction. Situation (2) involved an agreement and intention to cause
explosions which might be cancelled or reversed only if the political aims of the
conspirators happened to be achieved by other means. Thus, on this footing, the
prosecution would have proved a settled agreement and intention to cause
explosions. The fact that some supervening event in the future might cause a change
of mind would be no answer to the charge.”
Page | 15
Accordingly, as I would summarise it, the essential point to be made being that, whilst the
alleged conspirators possess a firm and settled intention to use their bombs in any given
future circumstances, i.e. they have a clear agreement to use them in a given set of
circumstances, then the fact that those circumstances were conditional upon future events,
which may or may not transpire, did not extenuate the character of the agreed plan so as to
remove its inherent criminality.
23) So be it. Here the fact of the matter is that HMG could not have been clearer in its published
policy position statements made, and indeed increasingly so in recent years, with respect to
both its ‘preparedness’ and ‘resolve’ to use the Trident Nuclear Weapons at its disposal as, if
and whenever circumstances arise when it deems it necessary and politic to do so. Take for
instance the following illustrative statements as appear again in the 2013 document8
produced by the then ‘coalition’ government, in response to the desire of the LiberalDemocrat element to explore and examine alternatives to the prospect of a renewal of the
“continuous at sea deployment” ‘posture’ of the Trident Deterrent weapon system.
“ Credibility criteria
3.5 A credible and effective nuclear deterrent is underpinned by five criteria:
readiness, reach, resolve, survivability/invulnerability and destructive power. The
operating posture has an effect on all but the destructive power criterion.
3.6 Readiness: To act as a deterrent, a potential adversary must believe that the
UK‟s nuclear weapons are available and ready for use. The longer the perceived time
it would take the UK to prepare its weapons (warhead, missile, delivery vehicle,
platform and associated suitably-trained military personnel) and then to locate them
in a suitable launch position, the greater the risk that an aggressor will judge that they
have an opportunity to attack with sufficient force to achieve their objectives and
prevent or evade a nuclear response from the UK. The readiness of UK nuclear
forces becomes more critical as hostilities rise. Changing the readiness of forces
during a crisis can be challenging. Whether intended or otherwise, an adversary could
perceive changes in posture or readiness as a sign of firm hostile intent. As a result,
changes in posture in a crisis could contribute to miscalculation. Because of the fear
of how changes might be perceived by an adversary, a government could find itself
inhibited.
....
8
Ibid FtNt.5
Page | 16
3.9 Resolve: Finally, nuclear weapons only deter if potential adversaries think the
UK‟s political and military leadership would actually be prepared to use them.
Deterrent messaging is therefore important at all times but especially so as tensions
increase towards hostility. To avoid sending mixed messages, this needs to be
matched with an appropriate posture. On the one hand, a non-continuous posture
could be misinterpreted by a potential adversary as meaning that the UK did not have
the resolve, (or was not sufficiently ready) to use its nuclear weapons. On the other
hand, a posture that evolved to match the wider security environment gives the UK
the option of making overt posture changes if it was judged that it could help
underline our resolve and thereby de-escalate hostilities, but there is an
unquantifiable risk that a potential adversary will react to this by increasing their own
military preparedness, leading to an inadvertent escalation. With a continuous
posture, potential adversaries know that the Prime Minister has directed that our
deterrent is always available (and potentially in a position that could target them),
which they could perceive as a sign of our resolve.”
(emphasis added)
The Mental Element of the Crime requires “knowledge” as well as “intent”.
How high is the order of “knowledge” which has to be proved ?
24) In order to do proper justice to the analysis required in this segment, it is probably best to
begin with a reiteration of the exact text of the crime with which we are here concerned,
namely the war crime of “launching a disproportionate attack” as set out at Art.8(2)(b)(iv) of
the Rome Statute 1998, as follows:
“Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would be
clearly excessive in relation to the concrete and direct overall military advantage
anticipated”.
Also we must bear in mind that in the judgement of the House in Saik as above, it was
confirmed that, notwithstanding the language of s.1 (2) of the Criminal Law Act 1977, a
subsection I have not specifically dealt with above, where a person is charged with a
statutory conspiracy (unders.1 of that Act) to commit an offence, then it must be shown in
order to make good such a charge that that person has “knowledge” of all the essential
factual elements or ingredients necessary to prove the substantive crime. Mere proof of
“suspicion”, for example, being insufficient.
Page | 17
25) Fortunately, this approach is fully in accord with the applicable part of the “Elements of
Crime” provisions in which, pursuant to the provisions of Article 9 of the Rome Statute
1988 9, there are set out in relation to each element of the Article 5 crimes, further
exposition and detail to assist the Court in its interpretation and application of the Statute,
and which in relation to this crime it states as follows:
“3. The perpetrator knew that the attack would cause incidental death or injury to
civilians or damage to civilian objects or widespread, long-term and severe damage
to the natural environment and that such death, injury or damage would be of such an
extent as to be clearly excessive in relation to the concrete and direct overall military
advantage anticipated.”
26) So clearly there is no doubt here whatever, but that proof of “knowledge” of the factual
elements of the offence on the part of the accused, is itself an indispensable mental
element of the crime. Here the factual elements breakdown into two distinguishable
principal components, as follows:
a) the “harmful civilian and environmental effects”, to wit (i) incidental loss of
civilian life or injury, (ii) damage to civilian objects, and/or (iii) widespread, longterm and severe damage to the natural environment; and
b) the “excessive nature of those effects”, to wit that each or any of the above effects
would occur on such a scale, or to such an extent, as to be “clearly excessive in
relation to the concrete and direct overall military advantage anticipated”
27) Consequently, the next vital step is to consider what in law is meant by having “knowledge”
of an element of the crime. Fortunately, here the matter is fully catered to by the provisions
of Art.30(3) of the Rome Statute, which are repeated to all intent and purposes verbatim in
s.66 (3)(b) of the ICC Act 2001, as follows:
“ … “knowledge” means awareness that a circumstance exists or a consequence will
occur in the ordinary course of events.”
9
These provisions are reiterated verbatim for the purposes of the incorporated UK Act 2001 by
virtue of s.50(2)(a) thereof, and in the International Criminal Court Act 2001 (Elements of Crimes)
Regulations 2001 – SI 2001/2505
Page | 18
28) Applying then these provisions in combination, what can we say in relation to the factual
circumstances and consequences of which an accused person must be “aware” in order that
they can be liable for this offence? I believe we can say as follows:
firstly, that they must be “aware” of the “harmful civilian and environmental effects”
specified in a) above; and further
secondly, of the scale on, or extent to, which they will occur “in the ordinary course
of events”;
and thirdly, of the concrete and direct overall military advantage anticipated, as a
result of successfully launching the attack”.
Finally, that in relation to all of these circumstances and consequences they will only be
relevant in so far as they are derived from the relevant information known to the accused at
the time.
29) From these considerations, the reader will hopefully be aware that, in turn, the “accused”
person, or as described in the ICC Elements of Crime materials, the “perpetrator”, will need
to be in possession of all of the facts necessary to perform their own “value judgement” as
to whether or not the attack, which they intend to launch, will or will not result in “harmful
civilian and environmental effects” which are, in the circumstances known to them at the
time, “clearly excessive” in relation to the “concrete and direct overall military advantage “
which they themselves anticipate as a result. Indeed, there is a footnote in the ICC
“Elements of Crime” provisions in relation to the paragraph reiterated above at my §18, and
which reads as follows:
“37 As opposed to the general rule set forth in paragraph 4 of the General
Introduction, this knowledge element requires that the perpetrator make the value
judgement as described therein .An evaluation of that value judgement must be based
on the requisite information available to the perpetrator at the time.”
30) Candidly, I have had and continue to have very considerable difficulties with the natural and
ordinary implications of this footnote. On its face, it suggests to me that an accused person
or perpetrator, who simply deliberately chooses, or indeed fails for whatever reason, to
perform such a said “value judgement”, notwithstanding that they have all the necessary
Page | 19
materials, as in relevant facts, available to them to do so, then has an absolute defence to
the charge, by reason of their careless and contumacious disregard of a clear duty upon
them to make such a value judgement. Clearly, I accept that within the language of Article
30(3) of the Rome Statute they must have full “knowledge”, meaning thereby “awareness”
of all the relevant factual circumstances and consequences necessary to perform such a
judgement. However, to go further and to say that they must perform such a “value
judgement”, which is neither a matter of “circumstance” nor “consequence”, but rather of
personal intellectual and cognitive reasoning, I hold goes further than the language of the
Statute requires, and consequently is no longer “consistent” with it – with the result that
this particular small part of this element is, in my view, no longer within, as in intra vires,
the enabling provisions of Article 9§3 of the Statute, and which demands such consistency.
31) Admittedly, the prospect of an accused party or perpetrator claiming to have merely failed
to perform any such “value judgement” at all, seems a little unlikely, although In reality, I
suggest a person not in the least interested in the outcome of that judgement, but rather
who is intent on proceeding with their attack irrespective, in practice may well be someone
most unlikely to so much as bother with performing the “value judgement” concerned.
32) However, perhaps a little more to the point, I further repudiate absolutely the assertion that
the language of this footnote infers, and I note well that it does not actually say so explicitly,
that an accused is only ever guilty of the offence, when they have a) performed the “value
judgement” concerned, and b) reached the conclusion that the “civilian and environmental
harm” caused would be “clearly excessive” in relation to the “military advantage
anticipated”, but nonetheless they then go on to launch the attack anyway. Namely, that it
is an absolute defence for them to have reached an inadequate or perhaps deliberately
wholly false value judgement, entirely irrespective as to the objective credibility or
competence of such a judgement.
Page | 20
33) Such a thing would, in my submission, mean in practice that where any accused person or
would-be perpetrator could show simply that they had kept a record of their wholly
subjective “value judgements” at the time, to the effect that their attack was, in their view,
“not excessive” in relation to the “military advantage” which they themselves anticipated,
then they would thereby always escape capture by the provision, no matter how absurdly
and objectively disingenuous and/or irrational in the circumstances that judgement was. In
my submission, that is an impossible construction, contrary to the very statutory purpose,
and therefore clearly, as per Article 9§3 thereof, inconsistent and thus ultra vires.
Evidence of preparatory measures & targeting plans

the evidentiary relevance of preparation, planning, design and simulation to the legal
actus reus of a criminal conspiracy charge – as defined by the expression “agree to
pursue a course of conduct”.

the need for specific technical and scientific evidence, as well as evidence of civil
service practice and government policy on nuclear deterrence preparedness, to the
presentation of a triable case.
the importance of evidence relating to contingency target planning
34) Hopefully by this stage that reader will now be able to appreciate just how important it is to
narrow the scope of any potential prospective prosecution, so as to identify specifically
those aspects of government defence planning, in which contingent scenarios and strategies
have been devised, tested and even “game-played”, for the possible future use of the
weapon system here in issue.
35) Obviously, as with any criminal prosecution, its chances of success improve astronomically
according as to both the quantity, but more especially the quality, of the evidence which the
prosecutor is able to adduce in support of their case. Here, of course, as dealt with
elsewhere one predicts legal impediments, in the shape of a refusal to give consent to
prosecution by the Attorney-General, as a principal preliminary issue which will likely
Page | 21
forestall and render redundant any serious effort or opportunity to come to grasp with the
detail and nuance of the evidentiary case. However, bear in mind that one of the two tests
to be applied by the A-G, if they follow their publicly stated position10, is the application of
the so-called “evidentiary test”, whereby one of the grounds upon which the A-G might
“legitimately” claim to refuse consent to a prosecution, would be a finding on their part that
the putative prosecution lacked an adequate evidentiary basis, so as to fail to be more likely
than not to secure a conviction. For this reason, therefore, it is especially important, even at
the preliminary stages, to have prepared one’s case by way of evidentiary materials, as well
as it is possible in the circumstances.
36) In this instance, evidence will essentially need to go to two separate, but complementary
factual issues, as follows:
Medical, Structural and Environmental Effects Evidence.
37) The scientific and medical evidence regarding the human and environmental consequences
and effects of exploding a Trident II SLBM weapon. In particular, of course those
consequences and effects going to the specific factual elements of the crime, namely “loss
of life, injury to civilians, harm to civilian objects and finally, long-term and severe harm to
the natural environment”. This evidence is quite largely already available in the “public
domain”, and has often been already usefully collated in online sources etc.11 It should be
recalled however that, separate and specific account should be taken of a) the explosive
blast , b) the firestorm or incendiary, and finally c) the radioactive fallout effects of such a
detonation, or indeed more typically the combined effects of a series of such destinations.
10
see elsewhere under title "JR draft Skeleton Argument".
11
http://www.banthebomb.org/index.php/news/63-trident/1421-if-britain-fired-trident
Page | 22
38) The impact and effectiveness of this evidence, is naturally greatly increased, by the creation
and submission of specific “expert witness” statements or reports, tailored by their authors
to dealing with the specific targeting options or scenarios, for which in turn there is good
practical evidence as forming part and parcel of the British Nuclear Trident targeting plans.
Accordingly, insofar as it proves practicable, efforts should be made to firstly and fully
apprise and inform experts in the relevant field of human, building and environmental
vulnerability to nuclear weapons effects, in the actual contingency targeting options and
scenarios which will be advanced in evidence. While it is probably fair to observe that, with
such massively unpredictable variables as prevailing weather conditions and wind
directions, fluctuations in daytime and night-time populations, consequences of prior
warning of attack and quality of civil defence preparedness etc., variations in possible
harmful outcomes will often be of a very large scale of possible differences ; nonetheless, so
large-scale and long-lasting should such effects be shown to be, as to satisfy the relevant
test on probative value with respect to each factual element of the crime, at any point in the
range of consequences anticipated – specifically even at its lower end in each instance.
Consequently, a so-called “even in a best case scenario” test might be adopted by experts in
order to promote the quality of the evidence adduced.
Contingency Targeting : Options & Scenarios.
39) This obviously contemplates such evidence of the detail and extent of policies and especially
plans for the targeting scenarios and options for the use of the Trident weapon system, that
have over the relevant time period, been created under orders and direction of the
Secretary State for Defence, as the accused party, for the hostile use of the British Nuclear
Deterrent.
40) It is well-known, and has been the stated policy of successive British Administrations, since
in effect obtaining a so-called “independent British Nuclear Deterrent”, that the precise
circumstances anticipated for the triggering of a so-called British “nuclear launch threshold”,
have remained a highly guarded state secret ; for the precise purpose and intention of
Page | 23
increasing a potential enemy’s ambiguity and uncertainty as to how far he can go before
activating such a trigger – thereby in HMG’s political view, enhancing and strengthening the
effectiveness of our national Nuclear Deterrent. This stretches even to remaining coy, or
even more candidly downright evasive, about our preparedness to use our “Nuclear
Deterrent” as a “first-strike weapon”. Take for instance the following explanation offered in
the Ministry of Defence’s own written evidence to the House of Commons Defence Select
Committee12, in relation to its very recent enquiry titled “Deterrence in the 21 st Century”
“While the UK does not rule in or out the first use of nuclear weapons, in order not
to simplify the calculations of a potential aggressor by defining more precisely the
circumstances in which the UK might consider the use of nuclear capabilities, UK
nuclear doctrine is exclusively one of deterrence. Maintaining ambiguity over when,
how and at what scale nuclear weapons might be used enhances the deterrent effect.”
Accordingly, obtaining evidence as to the detail of such a “threshold” will probably prove
extraordinarily difficult if not impossible.
41) Fortunately, however, for the purposes of the contemplated prosecution, that should prove
no serious impediment, as in addition to its being deliberately vague and ambiguous about
the detail of any such “threshold”; Her Majesty’s Government has been equally and
helpfully adamant and open that such a threshold does nonetheless exist, and furthermore
explicit that the British Nuclear Deterrent is no mere feint or ruse, but rather that it will be
used, as a hostile weapon system, as, if and when those “threshold conditions”, whatever
they may be, are satisfied or exceeded. As evidence in support of this policy position, in
addition to the material quoted above at §19, I would further cite the following statement
which appears again in the Ministry of Defence’s own Written Evidence to the Defence
Select Committee’s recent enquiry13, as follows:
“Effective Deterrence
12. Deterrence is only likely to succeed if the envisaged use of force (and, in the case
of wider dissuasion, incentives) is credible and deliverable, and its potential is
communicated unequivocally to those whose decision-making it seeks to affect. Each
of those component elements are expanded on briefly below:
....
12
13
Ibid. ftnt.#6 @ para.18
Ibid. ftnt.#6
Page | 24
(b) Credibility. Credible deterrence is based not just on a level of
capability, but also upon the demonstrable will to use that capability. If
there were no circumstances in which Britain would be prepared to use
its nuclear or conventional forces, then neither would have any deterrent
value. Credibility depends as much on political will as it does upon
military capability.
...
24. Both deterrence and coercion will depend upon the perceived credibility of the
threat. An essential part of our credibility rests on the possession of sufficient
military capability—both conventional and nuclear—and consistent messaging that,
when circumstances warrant it, we can and are prepared to use it..”
It is this stated policy position which is all that really counts for proving the “contingent
intention” aspect of the “conditional conspiracy” element of the crime as charged.
42) When it comes to the actual targeting options and scenarios, I suggest that for reasons of
simplicity and comprehension, it might prove best to limit the prosecution case, at least in
the first instance, to only such options and scenarios as contemplate a fully independent
British Government weapons launch – in particular independent of and separate to any such
attack as may be simultaneously contemplated by the United States, whether or not as part
and parcel of a NATO nuclear launch commitment. It has long been recognised, that the
British Trident Nuclear weapons system is not in the least part truly independent of US
systems integration and even possible control. Equally, HMG has long stated that our British
Nuclear forces are fully committed to and integrated with our NATO command and control
responsibilities and commitments. However, the Government has also long professed that it
has retained the ability and capacity to launch an independent British nuclear attack, in the
event of its determining circumstances to exist justifying such an independent operational
use. Accordingly, for the present prosecutorial purposes, I would recommend, as I say at
least initially, dealing with this topic on that as it were “common” premise.
43) Perhaps somewhat surprisingly, there are in fact very few credible targeting scenarios
which involve just the ‘independent’ use of the UK Trident SLBM nuclear weapons system.
Whilst, there are undoubtedly good circumstantial basis for contending certain other
scenarios, the one scenario which stands out as being most well established or longPage | 25
standing and for which there is a good deal of expository evidence available in the public
domain, is the so-called “Moscow Criterion” and it is with this targeting scenario alone,
which I now propose to concentrate, at least as an initial institutional prosecutorial
commencement strategy. I propose to deal in further detail and greater depth with actual
target list, in a separate paper titled “targeting options” which I shall attach separately to
this Advice (see Appendix 02). However, it will I think prove most helpful if at this juncture I
now set out and deal with the evidence in support of the so-called “Moscow Criterion” as
follows.
The “Moscow Criterion”.
44) Although not perhaps the first, certainly an early mention for this scenario appears under
the title “A brief history of the Trident decision” in the book titled “on Nuclear Deterrence
the correspondence of Sir Michael Quinlan”14 (at p.221) as follows:
“At the time Quinlan was appointed to the post of Deputy Under-secretary
for policy (DUS (P)) at the MoD , a secret decision to indigenously develop
a successor to Polaris, taken under the Edward Heath government in 1973,
was under pressure due to defence cuts and spiralling costs. Prime Minister
James Callaghan and a handful of ministers decided to continue with the
upgrade programme, known as Chevaline, despite these pressures. The
decision was underpinned by the strategic necessity, according to
established wisdom among defence ministry officials, for Britain’s
independent nuclear arsenal to be able to destroy the Soviet capital,
Moscow. This was considered the key factor determining the credibility of
the British unilateral nuclear deterrent and became known as the “Moscow
Criterion”. Official documents obtained by the nuclear historian Brian
Burrell revealed that Quinlan played a role in these discussions (although
unfortunately, Quinlan’s correspondence files contain very little material
from the period before 1979).
However, more direct evidence of Sir Michael’s thinking was revealed when in May 1979,
when still DUS(P) at the MoD, he wrote a briefing for the incoming Thatcher Government
which said:
14
St Michael was a former Permanent Under-Secretary to the Ministry of Defence in the period of the late
Labour administration of Prime Minister Callaghan through the early and middle years of the subsequent
Conservative Administration of Prime Minister Thatcher, and therefore in an unique and nearly exclusive
position to speak on such matters, the book discusses his letters and memoirs released by his family after his
death.
Page | 26
“Plans for the UK strategic deterrent in its national (as distinct from NATO)
role are based on the assessment that the threat to inflict unacceptable
damage on the Moscow area is required”. 15
The following passage is taken from the online presentation of a paper titled “If Britain fired
Trident” (by John Ainslie Convener of Scottish CND)16 as follows:
“British intelligence calculated that (in the greater Moscow area) there were
27 ex-urban national command bunkers, concentrated at 8 sites 17. The DuffMason report was adopted and amended by the Thatcher government who
decided, in December 1979, to acquire the Trident C4 missile system. In a
presentation to the MISC7 committee, Defence Minister Francis Pym argued
that the primary focus should be on Moscow, but he added that the force
should also have some capability to attack some of the command bunkers.18
In January 1982 the MISC 7 committee decided that Britain should acquire
Trident D5 rather than Trident C4. While this change was largely to retain
compatibility with the US Navy, a secondary advantage was that D5 would
be more effective against command bunkers.19”
45) As evidence that this posture was continued, and indeed developed, throughout the years
of the following Thatcher Administration – and in particular even as late as at the time of
the initial operational deployment of our first Trident Nuclear Ballistic Missile Submarine
(SSBN Vanguard - December 1993) – the following is taken from Prof. Michael Clarke’s
“Britain’s Strategic Vision of its Security Environment: de-alerting and the nuclear
deterrent” 20
“ The ABM defences around Moscow remain the logical yardstick against
which British strategic nuclear weapons are judged, since this represents
the only defensive screen they might be required to penetrate in the
foreseeable future.”
15
Briefing New Ministers, Strategic and Theatre Nuclear Forces, ME Quinlan, 2 May 1979,
DEFE 25-335 E58 (i)
16
In Mr Ainslie’s online report he produces extremely well researched and thoroughly detailed analysis as to
just what the civilian casualty and socio-structural consequences of a Trident attack on Moscow, and its
surrounding environs would produce. It is highly recommended that this might form the basis for a very useful
and detailed ‘expert witness statement’ in support.
http://www.icanw.org/wp-content/uploads/2013/02/ifbritainfiredtrident.pdf
17
Duff-Mason Report, Part II Annex A: Unacceptable Damage, 30 November 1978, TNA DEFE 25
18
Speaking note for Secretary of State for MISC 7 meeting on 5 November 1979, TNA DEFE 13
19
The MOD calculated that one warhead from a D5 missile would have a similar effect on a bunker as four
warheads from a C4 missile, because D5 was more accurate.
20
Centre for Defence Studies Bulletin, King‟s College London, October 1998, p.8.
Page | 27
46) Bringing things a little closer to the current date, and in order to show that this “criterion”
has remained at the core of British Nuclear Trident Target thinking, up until the present
time, the following is the opening paragraph of an article titled “Time to abandon the
'Moscow criterion” written in the Financial Times, 17th May 2012 by Sir Menzies Campbell
MP (Lib Dem):
“ Like many a military euphemism the expression “Moscow Criterion” conceals
lethal intention. It has been the United Kingdom’s policy that the independent
British nuclear deterrent should be able to defeat ballistic missile defences
around Moscow. If the United Kingdom decided alone to take the apocalyptic
decision to use its nuclear weapons it wants to be able to target large centres of
population like Moscow. Hiroshima and Nagasaki would be dwarfed by such
events. The rationale for this policy is that our independent deterrent has to be
so capable as to cover the possibility that if the United States decided for any
reason not to use its nuclear capability to defend Europe the continent and the
United Kingdom in particular could defend itself.“
47) Finally, and bring matters fully up-to-date, and once again to quote the words of a ‘senior’
Liberal-Democrat MP, but this time one who was actually sitting at the time on all the
relevant Committees (including the new National Security Council), speaking on 29 October
2012 at a conference, the then Deputy Prime Minister Mr Nick Clegg (Lib-Dem), and
following a recent announcement by the then Secretary State for Defence (Philip Hammond
– Con) that the ‘coalition’ Government were committing an initial sum of £350 million to
design and research on a “like- for-like” Trident replacement system, said as follows:
"The idea of a like-for-like entirely unchanged replacement of Trident is
basically saying we will spend billions and billions and billions of pounds
on a nuclear missile system designed with the sole strategic purpose of
flattening Moscow at the press of a button."
Accordingly, therefore, given that we are now in a post 2015 – electoral era, in which we
know that the politically opposed Lib-Dem component of the former coalition government
has gone, to be replaced by a Conservative only Administration fully committed to the socalled “like-for-like” Trident replacement, I submit the unavoidable inference is that the socalled “Moscow Criterion” remains now an integral, if not vital, part of the contingent use of
this weapon system, which no longer suffers from its political detractors in Government.
Page | 28
48) Finally, and on the topic of prosecutorial posture, I should like to say something about why
my current advice would be not to pursue a further, and perhaps even more obvious line of
argument, namely that as an issue of fact to be left to a jury, the enormous and immense
lethality, material destructiveness and environmental harm caused by use of said nuclear
weapons system, would inevitably always prove to be massively excessive in relation to any
possible “military advantage” conceivable. Firstly, whilst instinctively, one might well be
sympathetic to the understanding by many that this consideration would be the obvious
underpinning logic to the theory of the crime by the prosecution, nonetheless, strictly as a
matter of legal proof in a criminal prosecution, in my view establishing this position to the
standard of proof required, namely “beyond a reasonable doubt”, could in point of fact
prove to require a foray into the detail of available and contemplated targeting scenarios,
for which candidly there is currently not yet available the required evidence in the public
domain.
49) Secondly, and perhaps more importantly, as a matter of principle whilst it is perfectly
legitimate as a litigation tactic for a prosecutor to present two distinct postures in relation
to a particular factual scenario, even to the point where they may be arguably mutually
inconsistent, nonetheless in the circumstances of the present case I think it would lack an
entirely necessary element of intellectual integrity. Namely, a prosecutor who argued
simultaneously that a) the use of this nuclear deterrent force was an act of political purpose
entirely lacking any true “military advantage”, whilst at the same time arguing that b) if
there was some admitted “military advantage” but that it was insufficient to justify the scale
of lethality and destructiveness caused – could be seen by many as trying to, as it were,
have his cake and eat it at the same time. Consequently, on balance, I think I would come
down in favour of not pursuing this alternate prosecutorial posture – although I remain
entirely open to consideration of the merits and not in the least dogmatic on the matter.
Page | 29
‘Load-out’ per SSBN Boat
50) It is the declared policy position of the Government that it will maintain at sea and in a state
of missile equipping capable of full readiness, at least one of our current x4 (Vanguard
Class) Nuclear Ballistic Missile Submarines (SSBN), armed with the Trident II D5 missile
system – the so-called “continuous at sea deterrent” (CASD). Furthermore, that it has
declared that that said boat, whilst potentially capable of carrying up to x16 such missiles,
will currently carry in fact only half that number (x8 missiles) and what is more that each
such vessel will carry only up to x40 warheads in total21 (5 warheads per missile) rather
than the 192 (16x12) theoretic maximum.
51) Basing myself again only on published and publically available materials, it can been shown
that the so-called Trident SSBN standard “load-out” per boat, therefore comprises in x8
missiles (of the UGM-133A variety), as manufactured by the Lockheed-Martin Corp. at their
Space Systems Division22, based in Sunnyvale, California23. Further, that each of these
individual missiles has since been fitted with a “re-entry bus”, carrying x5 Mk4A type,
independently targetable re-entry vehicles (MIRV)24. Finally, that in turn each of these
MIRVs is now armed with a thermo-nuclear warhead, manufactured and maintained at the
Government Atomic Weapons Establishment at Aldermaston (Berks.) and finally assembled
at the near-by Royal Ordnance Factory at Burghfield25, but based on the current US W76-1
warhead design26 and which, unless specifically otherwise modified, has a design explosive
nuclear yield equivalent to 100kt of TNT or high explosive27.
21
Securing Britain in an Age of Uncertainty - The Strategic Defence and Security Review (2010)
see esp. @ para. 3.11 https://www.gov.uk/government/news/strategic-defence-and-security-review--3
22
http://en.wikipedia.org/wiki/Lockheed_Martin_Space_Systems
23
http://www.lockheedmartin.com/us/products/trident-ii-d5-fleet-ballistic-missile--fbm-.html
24
http://www.globalsecurity.org/wmd/systems/d-5-features.htm
25
http://www.awe.co.uk/aboutus/what_we_do_27815.html
26
http://fas.org/blogs/security/2011/04/britishw76-1/
27
http://www.designation-systems.net/dusrm/m-133.html
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52) Accordingly, this produces a “maximum load-out” targeting option, per boat, of x40
potential targets. Additionally, it is understood that whilst naturally the “on station” boat
will be fully loaded and available for operational use, furthermore at least one additional
further Vanguard Class SSBN will remain at least capable of being fully “loaded out” and of
simultaneously launching its missiles, in the event of a planned or elective attack, such as we
are here concerned with in respect to at least the targeting scenarios (i) and (ii) as above,
while alongside the Royal Naval Armaments Depot Coulport on Loch Long. Launching an
attack, specifically against the Russian Federation, from two separate boats, located at
vastly distant global positions has very considerable strategic benefits, from the point of
view of confusing and swamping the Russian Ballistic Missile Early Warning Detection
systems, making it harder to determine ‘place of origin’ with absolute confidence and also
harder to deploy ABM defensive measures, where incoming warheads, although aimed at
the same target, may have vastly different angular trajectories.
53) Consequently, this gives us a maximum of x80 (2x40) warheads available for targeting in a
particular scenario or set of options. A standard military safeguard or failsafe is never to
launch the maximum or all available weapons at one time, but to keep a reserve of typically
up to ¼ of one’s available artillery arsenal, in order to re-target those locations, which post
launch intelligence suggests were not successfully attacked during the initial launch. This
then translates to figure of x60 targets. Finally the desire or need to direct multiple or at
least two duplicate warheads as against certain targets, where there exists a strategic need
to be “doubly assured” of a likely successful and early destruction, reduces this further to
around a figure of x50 targets, where x10 of those are subject to such double-strikes, as in
the case of scenario above, and it is these figures which have then been applied for the
purposes of the separate sheet supplied on “targeting options”, specifically in relation to the
‘Moscow Criterion’ targeting scenario as above described.
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Non-application of the “Prerogative/Crown Immunity” or
“Prohibited Subject Area” doctrines.

The non-applicability of the well-known common law position of the British judiciary,
established on the case law, whereby it considers all matters pertaining to the defence of
the Realm, the disposition and armament of the Armed Forces, and indeed all matters
falling within the umbrella of ‘national security’ issues in general, to be a forbidden or
prohibited area, hidden from judicial examination – the so-called “prerogative
immunity”..
54) In the past, those who have attempted to resort to the Royal Courts, to seek for justice in
“the cause of peace”, have more often than not come completely unstuck, as it were, when
they have come across one or other of these notorious doctrines – the originally styled
“Prerogative Immunity”, which then was replaced by its contemporary cousin the
“Prohibited Subject Area” doctrine. The original “Prerogative Immunity” doctrine held
substantially that wherever the Crown acted in right of its ancient Prerogative Powers, as
recognised under the common law, rather than in any exercise of any statutory authority
given it by Parliament instead, then it was asserted that, as a matter of constitutional
convention, it followed that the manner of the exercise of the powers was beyond and
outside of the judicial review powers of the courts. In the case of matters such as “the
disposition and armament of the Crown Forces” and more broadly “the maintenance of
National Security interests”, these matters were unquestionably accepted as falling within
the ambit of the Crown’s prerogative powers.
55) This doctrine substantially held sway right up to and including the notorious House of
Lords judgement in the matter of the Council of Civil Service Unions v the Minister for the
Civil Service [1983] UKHL 6, [1985] AC 374, [1984] 3 All ER 935 (also known as the GCHQ
case) ; wherein, all Opinions in Committee were of a mind, holding instead that there was
no logical distinction to be made concerning the jurisdiction in the courts for judicial
review of the exercise of powers by the Executive, as between on the one hand deriving
from the Royal Prerogative, at common law, and on the other, deriving from statutory
authority granted by Parliament.
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56) However, in all of the speeches it was also recognised that there are certain “politically
sensitive” areas in which the Executive government, or Crown, should be acknowledged as
being the sole arbiter and judge of the factual or policy merits involved in a decision,
determination or policy declaration, and in which it would be inappropriate for the courts to
investigate, let alone adjudicate or pronounce instead. These are now termed “prohibited
subject matter areas”, and give rise to the modern evolution of the former doctrine.
Examples, were given in the following part of the speech of Lord Roskill, at p. 956 (in the All
England Report), as follows:
“But I do not think that that right of challenge can be unqualified. It must, I think,
depend upon the subject matter of the prerogative power which is exercised. Many
examples were given during the argument of prerogative powers which as at present
advised I do not think could properly be made the subject of judicial review.
Prerogative powers such as those relating to the making of treaties, the defence of the
realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament
and the appointment of ministers as well as others are not, I think, susceptible to
judicial review because their nature and subject matter is such as not to be amenable
to the judicial process. The courts are not the place wherein to determine whether a
treaty should be concluded or the armed forces disposed in a particular manner or
Parliament dissolved on one date rather than another. “
And this is now accepted as the authoritative position with respect to all matters pertaining
to the exercise of Executive policy and powers in areas such as “the defence of the realm”
and the protection of “national security interests”.
57) Indeed, this basic proposition, as to the reluctance of the courts to engage with and
determine a question on its factual evidentiary merits, going to an Executive assertion as to
the needs of our “national security”, has long been a feature of the self-imposed limitation
upon their inherent jurisdiction for judicial review, both before and after this seminal
judgement. See among other instances, as follows:

In re. The Zamora [1916] 2 AC 77 (PC)
per Lord Parker of Waddington @ p.106

China Navigation Co. Ltd. v. Attorney-General [1932] 2 KB 197.
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
Chandler v Director of Public Prosecutions [1964] AC 763,
Per Lord Reid @ p.790
& per Lord Radcliffe @ p.798

Lord Advocate's Ref. No 1of 2000 (2001) JC 143,
per Lord Prosser @ §60

R (Marchiori) v The Environment Agency, [2002] EuLR 225,
per Laws LJ. @ §38
58) Accordingly, it would then follow that, also as with the proceedings here in contemplation,
were they on a par with an application to invoke the jurisdiction in the courts for judicial
review, or indeed for that matter arguably any aspect of their ancient and common law
jurisdictions, including even a criminal prosecution for a common law crime, then these
authorities could indeed comprise a formidable obstacle to be overcome, before the courts
of justice in this country would even so much as deign to examine the allegations on their
merits. However, of course, thankfully one is not faced with that problem in this instance,
where we are here contemplating instead the institution of a criminal prosecution under
statute. The issue then becomes distilled into a much simpler one – namely, as to whether
or not the Crown, its servants and agents , such as the office of the Secretary of State for
Defence, are bound by the statute concerned and thus liable to prosecution under it.
59) Now were it the case that the 2001 ICC Act were silent on that question, and it were left
instead to a prospective informant to show perhaps that, given the subject matter of that
legislation, there was only a “necessary implication” at best that the Armed forces of the
Crown were intended to be bound, then yet again there would still be a further final hurdle
to overcome in the shape of the further doctrine of so-called “Crown Immunity”, as that
applies to the binding of the Crown by statute. Take for instance the case concerning the
erection of the razor-wire security fence surrounding the Faslane Naval Base in Scotland,
and the failure on the part of the Secretary State for Defence, to seek planning permission
from the local planning authority (Dumbarton District Council) or road closure permission
from the local highway authority (Strathclyde Regional Council). The question as to whether
he was bound by the respective statutes went again to their Lordships’ House, and in the
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matter of The Lord Advocate v Dumbarton District & Strathclyde Regional Councils (Nov
1989) [1990] 2 A.C. 580 Lord Keith of Kinkel held @ p.604, as follows :
“ Accordingly it is preferable, in my view, to stick to the simple rule that the Crown
is not bound by any statutory provision unless there can somehow be gathered from
the terms of the relevant Act an intention to that effect. The Crown can be bound
only by express words or necessary implication. The modern authorities do not, in
my opinion, require that any gloss should be placed upon that formulation of the
principle. However, as the very nature of these appeals demonstrates, it is most
desirable that Acts of Parliament should always state explicitly whether or not the
Crown is intended to be bound by any, and if so which, of their provisions.”
60) Fortunately, and it is always good to finish on an optimistic note, there is indeed specific and
explicit provision made in the 2001 Act, at s.78, as follows:
“78 Crown application
This Act binds the Crown and applies to persons in the public service of the Crown,
and property held for the purposes of the public service of the Crown, as it applies to
other persons and property.”
and that as they say is the law, and in this instance as the clear and explicit provision of an
Act of Parliament, indeed the supreme law of the land, and which takes precedence and
priority over all doctrines and prerogatives, merely disclosed by the common law instead.
Conclusion.
61) It follows from all of the above that where one is able to establish by admissible and
probative evidence that, under the direction and control of the Corporation Sole made
target of the present allegations, and as set out in the criminal information provided,
individual civil servants, military staff personnel and others (such as computer programmers
and systems designers under contract) are, and have for decades been, engaged in the
process of designing, planning, simulating, and otherwise strategising preparations for the
targeting options and plans, and for the launching of future possible attacks using the
weapon system in question, in a manner, typically as involving population centres and
settlements, and which would cause incidental civilian and environmental loss and harm,
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on a scale and to an extent clearly excessive in relation to any strictly military advantage
alone which could be reasonably anticipated thereby ; then, in that event, I respectfully
submit one then has a case for the institution of a criminal prosecution, which passes both
the “evidentiary” and “public interest” tests, as set out in the DPP’s Code for Crown
Prosecutors, and which deserves fully to be put before both a Justice of the Peace and Her
Majesty’s Attorney-General, for their respective procedural consents to and permission for
the commencement of such said proceedings.
Robert L. Manson
for and on behalf of INLAP
(Institute for Law, Accountability and Peace).
Fiat iustitia ruat cœlum
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