Tuesday, October 10, 2006


Tuesday Morning, including the summing up of the Judge's summing up.

I think the last thing we said was that the jury were deliberating. They still are. First thing this morning they asked the judge "Does the definition of poperty include infrastructure used jointly by civilians and the military?" He answered, "Yes" and then sent them off to think/discuss/argue some more. Your guess is as good as mine about what this means, other than that they're giving the whole thing some serious thought. So in the absence of anything more urgent, here's the gen on the judge's summing up yesterday morning.

Having reassured the jury that they’re not considering the huge question of the legality of the war as a whole, nor is their verdict going to set any legal precedents, the judge reminded them that what they have to decide is: has it been proved that each of the accused conspired to cause criminal damage? Also that because the charge is one of conspiracy, or agreement, they must logically either convict both T and P, or neither of them.

Referring to the Steps to Verdict, a set of guidelines agreed between the defence and prosecution to help the jury reach their decision, the judge outlined the points they need to address.

Are they sure that the defendants agreed at some stage that they should commit damage at RAF Fairford. If the answer is yes (which the defence concedes it is) then the jury must consider if the prosecution have proved that the action agreed upon was not justified in law. Since the burden of proof rests on the prosecution, (ie. P and T are innocent unless the pros. proves them guilty) once the defences are proposed it’s up to the prosecution to prove that they don’t apply. And the defences offered are: 1) that T and P were acting to protect property, and 2) that the use of force is allowed in law to prevent a crime.

The first of those defences is derived from Section 5 of the Criminal Damage Act 1971, which states that:

"A person charged... shall be treated for those purposes as having a lawful excuse if he damaged or threatened to damage the property in question in order to protect property belonging to himself or another... and at the time of the act or acts alleged to constitute the offence he believed (i) that the property... was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held. "

So, may P and T have had a lawful excuse to protect property in Iraq?

If the jury are sure (i.e. The prosecution have proved) that there is no such lawful excuse they move on to consider defence 2) which is found in Section 3 of the Criminal Law Act 1967 :

“A person may use such force as is reasonable in the prevention of a crime”.

So, may the actions T and P agreed upon have been agreed upon to prevent a war crime, and in those circumstances was it reasonable? Further to this the judge remarked that over time the international community had established rules of war, and that one of the primary aims of these rules is to protect the lives and property of civilians. In the light of that, for the purposes of this trial, the jury should regard as a war crime ‘the use, to achieve a military purpose, of weapons with an adverse effect on civilian populations which is disproportionate to the need to achieve the military objective.’ But the jury doesn’t need to decide whether war crimes were, in fact, committed. What they have to consider is whether the T and P believed that war crimes would be committed, which the prosecution has accepted they did.

In the jury’s Steps to Verdict guidelines about the first defence, that of acting to protect property, there are three questions. If the jurors decide that the answer to each of these questions is yes, then T and P had a lawful excuse for their actions and must be found not guilty. The questions are:
i) did T and P agree that they would act to protect another’s property from damage?
ii) Did they believe that at the time they were to act, property would be in immediate need of protection, i.e. on the 18th March 2003 did they believe they had to act right then if protection was required?
iii) Did they believe that the means of protection they agreed on would be reasonable having regard to all the circumstances as they understood them.
If the answer to any of these three questions is no then the defence of lawful excuse of acting in protection of property doesn’t apply, and the jury have to go on to consider the second defence, that of acting to prevent a crime.

In order for this defence to apply the answer to the following two points must be yes:
i) that what P and T agreed to do was to do only such damage as was necessary to prevent the crime they believed was about to be committed.
ii) that such damage as they agreed to commit was reasonable.
Here the issue of reasonableness becomes a little complicated. The damage must be objectively reasonable, in the light of the circumstances as T and P believed them to be. So the point isn’t whether T and P then believed the damage would be reasonable, but whether the jury now think the damage would have been reasonable, in the light of the circs as P and T believed them to be then. (If that hasn’t clarified the point, Sorry!)

So that’s the legal framework the jury is working to, using the evidence presented to them in court to decide the facts. After setting that out the judge reviewed all the evidence, but I’m not going to go into that now. We may post a summary of his summary later, but if you want our version of the ev. you’ll find it in the postings from last week. In the meantime what you probably want to know is that the jurors are still doing the deliberation thing. As soon as anything more happens we’ll try to get it up here, so do come back and check later on today.

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