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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
- Does the customary international law “crime of aggression” form part of the domestic criminal law of England and Wales?
- 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)?
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Triquet v Bath (1764) | International law can be part of domestic law | Cited as historical support but distinguished as not involving creation of new offences |
| Duke of Brunswick v King of Hanover (1844) | Recognition of international norms in domestic courts | Used to illustrate historic openness of common law to international law |
| Emperor of Austria v Day (1861) | Similar principle as above | Same contextual use |
| Chung Chi Cheung v The King [1939] AC 160 | International law as part of English law unless contrary to statute | Quoted but not taken as authority for automatic criminal incorporation |
| Trendtex v Central Bank of Nigeria [1977] QB 529 | Two theories of incorporation vs transformation | Referenced in discussion of incorporation, without adopting automatic approach |
| J H Rayner v DTI [1989] Ch 72 | Limits on domestic enforcement of international law | Relied on to deny automatic incorporation of crimes |
| R v Keyn (1876) 2 Ex D 63 | Courts cannot create new criminal offences | Core authority resisting judicial creation of the crime of aggression |
| Ex p Pinochet (No 3) [2000] 1 AC 147 | Jurisdiction over international crimes depends on statute | Supports need for legislative adoption (e.g., Torture Convention) |
| Hutchinson v Newbury Magistrates’ Court (2000) 122 ILR 499 | Section 3 1967 confined to domestic crimes | Followed |
| Swales v Cox [1981] QB 849 | Damage to property may constitute force | Accepted for argument without deciding |
| R v Renouf [1986] 1 WLR 522 | Same as above | As above |
| R (Rottman) v Commissioner of Police [2002] UKHL 20 | Ordinary meaning of “offence” in statutes is domestic | Applied analogically to “crime” in s 3 1967 |
| Knuller v DPP [1973] AC 435 | Courts lack power to create new crimes | Relied on heavily |
| Chandler v DPP [1964] AC 763 | Reluctance to review defence and foreign affairs | Supports non-justiciability point |
| CCSU v Minister for the Civil Service [1985] AC 374 | Judicial review of prerogative powers limited | Cited to similar effect |
| Lord Advocate’s Reference No 1 of 2000 2001 JC 143 | Limits of judicial competence in defence matters | Cited in non-justiciability reasoning |
| Buttes Gas v Hammer [1982] AC 888 | Act-of-state / non-justiciability doctrine | Applied |
| Westland Helicopters v Arab Organisation [1995] QB 282 | Same doctrine | Reinforced reluctance to rule on state-to-state matters |
| Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 | Courts avoid adjudicating on legality of war | Referenced |
| Underhill v Hernandez 168 US 250 (1897) | Foreign affairs as political questions | Cited with approval |
| Oppenheimer v Cattermole [1976] AC 249 | Rare exceptions to act-of-state | Cited but distinguished |
| Kuwait Airways v Iraqi Airways [2002] 2 AC 883 | Exception when UN condemns aggression | Shown as exceptional; does not aid Appellants |
| R v H [2004] UKHL 3 | Disclosure and national security | Used to illustrate procedural risks of recognising aggression |
| Shaw v DPP [1962] AC 220 | Historical willingness to create crimes | Contrasted with modern restraint |
| Burmah Oil v Lord Advocate [1965] AC 75 | Necessity in warfare | Quoted in dicta on self-help |
| Southwark LBC v Williams [1971] Ch 734 | Limits on self-help | Applied in force-reasonableness analysis |
| R v Chief Constable of Sussex, Ex p International Trader’s Ferry [1999] 2 AC 418 | Police resource discretion | Used by analogy on self-help |
| R v Chief Constable of Devon and Cornwall, Ex p CEGB [1982] QB 458 | When private force may be used if police unavailable | Cited in self-help discussion |
| R v Commissioner of Police, Ex p Blackburn [1968] 2 QB 118 | Court’s limited power to compel policing | Referenced |
| Monsanto v Tilly [2000] Env LR 313 | Civil disobedience and injunctions | Analogous to present protests |
| R v Baker and Wilkins [1997] Crim LR 497 | Honest belief assumed true for s 3 1967 | Accepted but distinguished |
| Attorney-General for Northern Ireland v Gallagher [1963] AC 349 | House may deal with matters beyond certified questions | Cited for jurisdiction to address wider issues |
| Matthews v Ministry of Defence [2003] 1 AC 1163 | Article 6 does not mandate availability of specific defences | Invoked to rebut Appellants’ Article 6 argument |
| (Series of unreported or Crim LR protest cases: Hill, Blake, Morrow et al., Hibberd, Nelder, DPP v Tilly) | Illustrate rise of protest-driven litigation | Used in policy discussion on limits of statutory defences |
Court's Reasoning and Analysis
The Appellate Committee, per Judges Bingham, Hoffmann, Rodger, and Carswell, adopted a unified analysis:
- 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.
- 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.
- 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.
- Parliament’s deliberate omission of “aggression” from the International Criminal Court Act 2001 underscores legislative intent not to create such a domestic offence.
- 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.
- The potential for conflict with treason law, disclosure of sensitive material, and undermining of democratic accountability further militated against judicial recognition.
- 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.
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