Jones, R v

Factual and Procedural Background

In February and March 2003, groups of Appellants entered two military facilities—“The Military Port” in The City and “The Air Force Base” in The County—to disrupt operations connected with the impending invasion of Iraq. Their conduct ranged from trespass and chaining themselves to equipment, to damaging vehicles and attempting arson. The Appellants were charged variously with conspiracy to cause criminal damage, criminal damage, attempted arson, having articles with intent to destroy or damage property, and aggravated trespass.

Magistrates’ Courts convicted the summary-only defendants; the indictable-only defendants awaited trial in the Crown Court. Before any trials were completed, preliminary rulings were sought:

• At first instance, District Judges and Judge Grigson ruled that “aggression” was not a crime/offence capable of founding statutory defences.
• The Court of Appeal (Criminal Division) upheld those rulings in R v Jones (reported as [2005] QB 259).
• The Divisional Court dismissed related case-stated appeals in Ayliffe v Director of Public Prosecutions ([2006] QB 227).

Both courts certified questions of general public importance; the present appeal to the Appellate Committee addresses those questions.

Legal Issues Presented

1. Does the customary international law “crime of aggression” form part of the domestic criminal law of England and Wales?
2. If not, can the crime nevertheless be relied upon as a “crime” under section 3 of the Criminal Law Act 1967 (use of reasonable force)?
3. Likewise, does “offence” in section 68(2) of the Criminal Justice and Public Order Act 1994 (aggravated trespass) encompass the crime of aggression?

Arguments of the Parties

Appellants’ Arguments

• Customary international law is automatically incorporated into domestic law; aggression therefore exists as a domestic crime.
• Consequently, “crime” in section 3 1967 and “offence” in section 68 1994 include aggression, allowing statutory defences of reasonable force, lawful excuse and necessity.
• Alternatively, even if incorporation is not automatic, domestic courts should now recognise aggression as a common-law crime in order to uphold international obligations.

Respondent’s Arguments

• Only Parliament can create new domestic crimes; there is no automatic incorporation of international crimes absent legislation.
• Statutory language in sections 3 1967 and 68 1994 was intended to cover offences known to domestic law, not international law.
• Recognition of aggression as a domestic crime would draw courts into non-justiciable questions concerning foreign affairs and the deployment of the armed forces.

Table of Precedents Cited

Court's Reasoning and Analysis

The Appellate Committee, per Judges Bingham, Hoffmann, Rodger, and Carswell, adopted a unified analysis:

1. While customary international law can influence domestic law, automatic incorporation—especially in criminal matters—conflicts with the constitutional principle that only Parliament creates new offences.
2. Historic examples (piracy, diplomats, safe-conduct) were either codified by statute or accepted long before modern democratic norms; they do not justify judicial creation of the crime of aggression.
3. Sections 3 1967 and 68 1994 are wholly domestic in focus; their language (“crime”, “offence”) refers to offences known to the law of England and Wales. Nothing indicates inclusion of purely international crimes.
4. Parliament’s deliberate omission of “aggression” from the International Criminal Court Act 2001 underscores legislative intent not to create such a domestic offence.
5. Recognising aggression as a domestic crime would oblige courts to adjudicate on the lawfulness of state decisions to wage war—areas traditionally non-justiciable and governed by prerogative powers.
6. The potential for conflict with treason law, disclosure of sensitive material, and undermining of democratic accountability further militated against judicial recognition.
7. Even assuming (contrary to the above) that aggression were a domestic crime, use of force by private citizens to prevent it would be objectively unreasonable under section 3 1967; the proper avenue for redress is political or judicial, not vigilantism.

Holding and Implications

Appeals DISMISSED.

The crime of aggression is not part of the domestic criminal law of England and Wales; therefore it cannot constitute a “crime” under section 3 of the Criminal Law Act 1967 nor an “offence” under section 68(2) of the Criminal Justice and Public Order Act 1994. Consequently, the Appellants cannot rely on statutory or common-law defences predicated on preventing that crime. The ruling leaves creation of any domestic offence of aggression to Parliament and re-affirms judicial reluctance to adjudicate on the legality of state decisions to use armed force.