Trial could test legality of war

By Jon Silverman Legal affairs analyst

B52 bombers at RAF Fairford took part in raids on Iraq during the war

Legal affairs analyst Jon Silverman examines whether a case against five peace activists charged with criminal damage could lead to the attorney general's advice to the government before the war in Iraq being revealed.

It is an intriguing possibility that the government might be unable to sustain its refusal to publish the legal advice given by the attorney general, if a judge rules it must be disclosed in a forthcoming criminal trial.

And even more intriguing that a jury might be asked to answer the most pressing political question of the moment: was the war against Iraq legal?

But how likely is this scenario?

The case in question concerns five peace activists charged with criminal damage at RAF Fairford in Gloucestershire in March 2003.

Two of the five were arrested inside the airbase, from where B52 bombers took part in raids on Iraq's water and power systems.

Aldermaston

In April, a High Court judge will hear pre-trial arguments that they should be allowed to plead the defences of necessity and prevention of crime to justify their actions.

The legal issue is likely to centre on the immediacy of the threat the defendants claim they were seeking to counter.

It is still a leap to suppose that the legality of the war itself must inevitably form part of the trial

In a case in 2000 involving damage to the perimeter fence of the atomic weapons establishment at Aldermaston, a magistrate ruled out a defence of necessity on the grounds that the threat was not imminent.

But in the Fairford case, given that military action against Iraq was to begin within days, defence lawyers think they are on strong ground.

But even if the judge rules the defendants are entitled to argue their actions were justified, it is still a leap to suppose that the legality of the war itself must inevitably form part of the trial and therefore that the attorney general's advice should be disclosed.

Lawyer Charles Lister has written that it would be a mistake to treat the legality of the war "like a dispute in a magistrates' court, to which plain and familiar rules are applicable".

And should the Fairford case go to trial and the defendants be acquitted, Owen Davies QC points out that, although "this would cause a great deal of embarrassment for the government", it would not determine whether the war was lawful.

Those relishing the prospect of the attorney general's war advice being dissected in a trial should also recall that one of the country's most senior judges, Lord Justice Simon Brown, said in 2002, in a case brought against ministers by CND, that the English courts had no jurisdiction to interpret an international instrument, such as a UN resolution.

And it is not at all clear that the failure to convict Katharine Gun has weakened that proposition.