Opinion: Is Tutu right on Tony Blair?

Like so many of us for whom the anti-apartheid struggle was a political awakening in the 1980s, I revere Bishop Desmond Tutu. A voice of humanity, moderation and forgiveness when there was every chance that South Africa’s transition could have gone very differently, Tutu combines unsurpassed moral leadership with no political ambition.

It was therefore with great interest I awoke on Sunday to Tutu’s call for Tony Blair to face the International Criminal Court on charges for aggression resulting from the 2003 Iraq invasion. Tutu goes on to question why Zimbabwe’s Robert Mugabe should go to the ICC whilst Blair cashes in on the international lecture circuit.

Fair questions.

The first answer is that though the Rome Statute which created the Court gave it power to try aggression, the ICC only gained jurisdiction when the states which are parties to the Court defined aggression – which occurred in 2010. This does not have retroactive effect, so as a matter of law, the ICC cannot try Blair for aggression against Iraq in 2003.

However, aggression is an international crime that is part of “customary international law” – international law that is born of the manner in which states have interacted over hundreds of years, applying to all states as members of the international system. Custom was the basis of Nazi prosecutions at Nuremburg, where aggression was quaintly described as “crimes against peace” – indeed, Nuremburg described aggression as “the supreme international crime”, more serious even than Genocide. As customary international law, aggression can be tried before British courts.

The second answer is that Blair enjoys personal immunity from prosecution for as long as he has an international job that requires him to have immunity to conduct his role. Currently, his immunity comes from his role as the Quartet’s Middle East Peace envoy – a job he has held since the day of his resignation as Prime Minister in 2007.

I am not accusing Blair of taking this role to avoid the possibility of prosecution – although he seems entirely unsuited to it, given the perception of pro-Israeli bias and his record in Iraq. It is however awfully convenient that this is the legal implication. It is also noteworthy that Blair seems to spend a great deal more time making paid speeches than he does bringing Israeli and Palestinians together to talk peace.

Tutu’s broader criticism of the ICC focussing on African leaders is, however, misplaced. The ICC has complementary jurisdiction – in other words, the only cases it will try are those in which the state where the cases originated are “unwilling or unable” to try these cases at home. The judgement of whether a State is “unwilling or unable” lies with the ICC, meaning that states can’t use the ICC to shield suspects at home through sham trials.

Nonetheless, the result is those states with modern, independent judiciaries are unlikely to send cases to The Hague, whereas transitional states are unlikely to be able conduct these long and complex investigations and, where appropriate, trials. Ignoring where atrocities are currently taking place – largely in the third world – the ICC’s design makes it disproportionately likely that its caseload will come from third world states.

So what of Tutu’s challenge? Rule of law and equality before the law are two cornerstones of our society: as a former PM Blair is not exempt, and he should be accountable for his actions in office.

Blair can and should be stripped of his moribund role in the Middle East, and with it, his personal immunity from prosecution. He can – and should – then be tried for aggression before a British court. As Blair keeps insisting that the 2003 Iraq invasion was legal, presumably he would welcome prosecution in order to clear his name. His failure to resign from the Quartet or waive his immunity tells a different story.

* Toby Fenwick is a Research Associate of the British American Security Information Council (BASIC), has written extensively on the UK Trident programme, and served on the party’s last Trident Working Group. This article is written in a personal capacity.

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  • Richard Dean 3rd Sep '12 - 3:26pm

    Tutu is complicated, Blair is not relevant. The view from the continent is different. Perhaps Tutu is fighting the colonialistic attitude that results in a European court judging an African’s activities in Africa. Perhaps it is his way of saying that Africa needs to take responsibility for its own affairs at a continental level?

  • Ed Shepherd 3rd Sep '12 - 5:59pm

    I did not support the Iraq War. I thought US/GB intervention would do far more harm than good. I felt the same about the ongoing Afghan War and about the recent Libyan War. So whilst I think that Tony Blair was wrong to allow British forces to enter the war, I do not see how he can be tried for the war crime of engaging in aggressive war. Blair was not an unelected despot. He was a minister (“first among equals”) in a government that decided to go to war. He did not decide to go to war and then issue orders to his armed forces. He was part of a government that voted to go to war with voting support from the Conservative Party. In fact many politicians of his own party voted against the war. They lost a democratic vote to decide whether to go to war. Any prosecution would have to show why Tony Blair is being singled out for trial. Why not the other politicians who voted for the war but could have voted against it? That might beg the question as to why current politicians, including current ministers, are not being tried for their decision to launch that aggressive war. They had as much access to the facts about the war as I did. Let’s face it, they probably had more information than I did. I decided it was a bad idea and would have voted against it. They decided it was a good idea and they voted for it. This is a fundamental problem of launching international prosecutions against democratic states: who should go on trial? I can see how these trials might be possible against leaders in oligarchies and dictatorships but I think such prosecutions cannot succeed when used against individual members of democratic governments.

  • Charles Beaumont 3rd Sep '12 - 11:02pm

    Between Tutu’s emotive language and Blair’s apologists there is a key question: was the war one of choice and was it an act of aggression? It seems hard to argue that it was aggression: even if you accepted that Saddam had WMD you had to believe he was directly threatening us for it to be justified. It’s impossible to interpret the events of 2003 and since in a way that doesn’t render it an act of aggression. So, on the basis that condemned the Nazis at Nuremberg, Blair and Bush seem culpable. It’s no accident that senior legal officers and military questioned the legality prior to the conflict.

    Of course, it doesn’t in any way mean that this crime was on the scale of the Nazis: only a simpleton could try to make this case. Nor does it make Bush or Blair as evil as Hitler: I happen to believe both are men of principle who believed they’d done the right thing. But that doesn’t exonerate.

  • Tony Dawson 3rd Sep '12 - 11:19pm

    Tony Blair would not recognise a principal if it hit him the face. He possesses that fanatical zealotism of people who are basically shallow and need to present themselves as something they are not. Such people charm and con millions. That does not endow them with sincerity.

    Tutu’s arguments are rather garbled and over the top. But the bottom line is that the Labour government did not agree to commence a war in Iraq onthe basis of honest sober consideration of genuine evidence and the fault in that matter lies entirely with Tony Blair.

  • Toby Fenwick 4th Sep '12 - 7:41am

    Many thanks to all for your interest and comments.

    @Richard: My point is that Tutu is wrong to blame the ICC for the fact that the cases that they are trying are African – it’s not the ICC’s fault, but more to do with the design of the system based on complementarity, and on where the atrocities are taking place.

    @Stephen W: I didn’t want to get into all of this, which is why I limited myself to the legal elements of Tutu’s piece.

    @Ed Shepherd: Aggression is a crime based on the action of the state leadership, not on the form of Government. No, Blair was not a despot, but the initiation of hostilities in March 2003 was not legal because there was no immediate threat to the UK or our allies that would have warranted self-defence (The Caroline test – http://avalon.law.yale.edu/19th_century/br-1842d.asp), and the use of force was not authorised by the UN Security Council – therefore it was illegal.

    Working out who to try is easy – it’s the top of the decision-making tree: here, Blair, Straw, Brown, Falconer and Hoon would be a starter for ten.

    @Rebecca: Yes, but I rather doubt that Tutu’s piece or this article will lead to Blair changing his mind! The broader issue is that a trial will underscore that the UK is governed by the rule of law, and that accountability is across the board. This would be good for the UK’s international standing (and good for international law), as well as being the right thing to do.

    @Geoffrey: Thank-you, I’m glad you enjoyed it. It was an honour to share a platform with Sir Geoffrey Bindham QC, but it was disappointing to hear John Rentoul simply refuse to accept that the war was illegal. Equally, I get very exercised when others start bandying about the “Genocide” word – Genocide is a very specific crime – the attempt to destroy in whole or in part a people because of their membership of that group. (Ironically, the focus on attempt means that it is theoretically possible to be convicted of Genocide without killing anyone if you were a particularly inept would-be genocidaire and tried but failed to kill anyone.)

    We should also be clear that there are a number of crimes that have probably taken place in Iraq – aggression and then potentially crimes during the war fighting phase, and then crimes against Iraqi civilians under the occupation. I should stress that I believe the vast majority of UK service personnel in Iraq and Afghanistan have served entirely honourably and have carried out their difficult jobs professionally under enormously trying circumstances; there are bad apples that have stained the reputation of all.

    @Charles: Sorry, I’m a little confused – do you think the Iraq invasion was illegal aggression or not?

  • Toby Fenwick 4th Sep '12 - 7:43am

    And the debate is here at 27m 25s: http://www.bbc.co.uk/i/p00xbp0f/

  • Trevor Stables 4th Sep '12 - 8:30am

    Apart from the charge of war crimes which is well argued here and should be put to the courts, for me the main charge is that of complete incompetence on the part of Blair and Bush.

    Intervening in Iraq was always going to destablise the Middle East and increase the power of Iran given that the majority population of Iraq is sunni as it is in Iran.

    The deaths of hundreds of thousands of innocent Iraqis bears testament to the complete impotency of our Parliament when it voted for the war in Iraq. Moreover, this underlines our struggle for supremacy of our Parliament over the Executive and the need for reform of both Commons AND Lords!

  • Trevor Stables 4th Sep '12 - 8:33am

    Oops!Sorry! My comment should have been the majority of Iraqis are SHIA as it is in Iran

  • Blair trained as a lawyer, so he was well placed to understand the difference between what was legal and what was not. Let’s test this at the Hague.

  • Toby Fenwick 4th Sep '12 - 10:22am

    @Jedi: It hasn’t been tested in the Courts, though it is wrong in law. I expect the Chilcott Inquiry to make clear that the Iraq invasion was illegal – am happy to set out why this is the case if you’re interested.

  • Ken Mackenzie 4th Sep '12 - 11:13am

    Wouldn’t it be more difficult to prosecute him in England becsuse the Parliament authorised it? Parliamentary supremacy and all that?

  • Toby Fenwick 4th Sep '12 - 11:23am

    @Jedi: Certainly, will try and do it over the next couple of evenings.

  • Matthew Huntbach 4th Sep '12 - 11:31am

    Anyone who asks “Why is there no western intervention to stop the bloodshed in Syria?” should look at Tutu’s article, and at the general response in the Islamic world to the intervention in Iraq. Tutu is saying that any deaths after the intervention, no matter who was actually doing the killing, would be blamed on the west. The general response from Muslims to what happened in Iraq suggests a belief that any intervention would be turned round and branded “an attack on Islam”.

    Of course the Blair/Bush intervention was very foolish. I suspect however that Blair genuinely thought once Saddam was overthrown a reasonable government would spring up, and everyone would regard him as a hero for having taken action that led to it – the “weapons of mass destruction” line was just an excuse to justify intervening to overthrow the dictator, and would be forgotten after the success of that.

    Blair made an extremely poor judgment here, but it surely is ridiculous to make out he was consciously plotting all the violence that came afterwards. The fact that armed factions would take advantage of the loss of dictatorial control to try and seize what they could was fairly predictable, but Blair can hardly be accused of personally directing those factions. One of the major things that happened post-invasion was the expulsion of most of what was once a very large Christian minority (a survival from pre-Islamic times, mostly of various forms of Eastern Orthodoxy) – would Blair really want to do that?

    Tutu’s article is both racist and against the Christian ethic. It is racist because its underlying assumption is that the people of Iraq are simple childish sorts who cannot be held to the same ethical standards as Europeans, so Europeans must take the blame for all the violence. It is against the Christian ethic because at the core of the Christian ethic is the idea of personal responsibility for one’s actions.

  • Toby Fenwick 4th Sep '12 - 1:04pm

    @ Ken – Sorry, missed this. Per the Guardian, he can be tried because it is an international crime, and therefore the fact that Parliament approved it is of no legal relevance.UNSCR 1441 cannot provide a legal basis for the 2003 invasion. Look at the text and the EOVs.

  • Charles Beaumont 4th Sep '12 - 1:10pm

    @Toby: sorry for any confusion. Iraq invasion obviously illegal. But not comparable with Nazi crimes.

    Ultimately it’s a sterile debate as no-one has mentioned the key point of victors’ justice. Nuremberg could happen because the Nazis had unconditionally surrendered. Not so Bush and Blair.

  • Charles Beaumont 4th Sep '12 - 1:31pm

    @Matthew – Your point about consciously plotting is irrelevant. If a person commits a crime, which then results in circumstances which allow other crimes to be committed, no-one would assume that the perpetrator of the first crime was “consciously plotting”, but nor does that excuse them of any responsibility. Suppose: if someone broke into a house and stole a TV, leaving the front door open on departure; later the same night someone else wanders in and murders the family sleeping upstairs. Surely the first crime bears some of the responsibility for the final outcome? The thief didn’t consciously plot the family’s murder, but his actions made that murder more likely to happen.

    Blair didn’t consciously plot the sectarian collapse in Iraq but he created circumstances in which it could flourish, with tragic results.

  • Toby Fenwick 4th Sep '12 - 2:23pm

    @ Charles: Yes, obviously Blair isn’t Hitler, and I made this point last night on the World Service discussion (http://www.bbc.co.uk/iplayer/episode/p00xbp0f/World_Have_Your_Say_Pakistan_Blasphemy_and_Archbishop_Tutus_Comments/ from 27′ 25″) .

    However, this doesn’t mean that the Blair – and indeed Bush – shouldn’t face justice. This is the ultimate test of the rule of law – replacing victors’ justice with justice.

  • Charles Beaumont 4th Sep '12 - 2:36pm

    @Toby – I think the point here is that the answer to the question “is Tutu right on Tony Blair?” is “no”. Because Tutu massively exaggerrates the negative impact of the Iraq war: “destabilised and polarised the world to a greater extent than any other conflict in history”. However, should Blair and Bush face justice – of course they should. But they won’t. And I would be very surprised if, as you predict, Chilcott concludes the war was illegal, as that would open the floodgates for years of legal action. Hard to see a former senior mandarin thaking that bold decision.

  • Toby Fenwick 4th Sep '12 - 3:54pm

    @ Charles : Well, let’s see what Chilcott comes up with. If you watch the testimony, then the threadbare nature of the legal case was painfully exposed; I’m hopeful.

  • Trevor Stables 4th Sep '12 - 6:54pm

    You mention the Chilcott enquiry,,,which won’t reort until the middle of next year at least…. what a terribly slow, costly and beauracratic process, if I ever hear people calling for such Inquiries I could scream!

  • Will Blair be found guilty in a court of law, I doubt it. Whatever the views on the war are it will be the fact that he only needs to get to reasonable doubt to be acquitted. Whatever the various talking heads view of the quality of the legal advice, he did have advice that action was ‘probably’ legal. I think therefore that a criminal trial will be very unlikely.

    Will Blair be exonerated, no. His reputation is forever tarnished by Iraq.

  • @Tony – would a reasonable belief that a course of action was legal in international law be a defence in the ICC? It wouldn’t usually in conventional & comparable domestic criminal trials.

  • Tony = Toby!

  • Matthew Huntbach 4th Sep '12 - 8:00pm

    Charles Beaumont

    Suppose: if someone broke into a house and stole a TV, leaving the front door open on departure; later the same night someone else wanders in and murders the family sleeping upstairs. Surely the first crime bears some of the responsibility for the final outcome?

    Yes, but that misses my point. What Tutu and many others who attack Blair for the Iraq invasion are saying is the equivalent of saying in this case that the person who took the TV and left the door open did so with the conscious intention that the murders would then happen, and so should therefore be held up as the main culprit for the murders and be punished for that. Sorry, I don’t think that anyone who has any moral sense should take that line. The problem now is since that line has been pushed so heavily – it’s been a nice easy sloppy way for people who don’t like Tony Blair to let off steam – it could be argued Blair would not get a fair trial. It would be like the burglar in your case being taken to court after there had been a huge national campaign across the media accusing him of being a murderer.

    Hidden underneath this is the fact that it turns attention away – in your analogy – from the people who used the open door actually to commit murder. It would be extraordinary if the burglar were criticised again and again for being a “murderer”, and the agony of those murdered held up to promote this view – without even a mention of those who actually did the killing. Same is happening over Iraq – putting all the attention on “Blair the murderer” is a nice way of turning attention away from a lot of nastiness amongst various people in Iraq.

  • Ken Mackenzie 5th Sep '12 - 12:34am

    In Chung Chi Cheung v The King [1939] AC 160 at 167–168 Lord Atkin said:
    ―[I]nternational law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, SO FAR AS IT IS NOT INCONSISTENT WITH RULES ENACTED BY STATUTES or finally declared by their tribunals.
    “As a matter of basic legal principle, once a legislature, acting within its powers, has spoken in a relevant way, its voice replaces any earlier opinions of judges.” – Kirby M., The Common Law and International Law – A Dynamic Contemporary Dialogue City University, London The City Law School, London, United Kingdom23 April 2009

  • Toby Fenwick 5th Sep '12 - 11:51am

    @ Ken Mackenzie: Thanks for this, Ken*. Domestically in common law jurisdictions without an entrenched constitution – and for non-constitutional matters in those countries that do have an entrenched constitution – this must be true under implied repeal.

    But taken at face value, this would allow any common law legislature to decide that the were not bound by any supra-national legislation – either international or, in the UK’s case at the EU / CoE level.

    This is only partially correct, and only then largely theoretically.

    Parliamentary Sovereignty in its purest (a la Dicey) form, would, for example, allow the UK to leave the EU by the simple expedient of repealing the European Communities Act 1972 as amended. This would remove the oversight of the ECJ and the power of the European Commission and the European Parliament to legislate on behalf of the UK. But the actual unbundling of the relationship would be messy and take a long time, and at least in that period, presumably EU law that had been transposed into UK law would remain in effect until repealed: we wouldn’t immediately return to the status quo ante – so yes, it could be done by repeal alone, but the initial effect would be largely theoretical.

    However, none of this helps with those elements of customary international law that are either a peremptory norm (jus cogens) or part of a State’s obligations erga omnes. As the ICJ’s 1970 Barcelona Traction decision makes clear (though it unhelpfully elides the jus cogens with obligations erga omnes) at paras 33- 34, aggression is an non-derogable norm:

    “Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law”

    As a state you can no more withdraw from the jus cogens than you can turn off gravity. So in passing legislation allowing genocide, and then go off and committing one claiming that it was legal is obviously a legal nonsense. This reach-through of the jus cogens and erga omnes means that Lord Atkin’s maxim is now wrong as a matter of law (at least in this area) and Kirby is, too.

    *NB to other readers, Ken is a lawyerin Brisbane, where we went to high school together.

  • Ken Mackenzie 6th Sep '12 - 1:17am

    I agree that in international law a State cannot exempt itself from the crime of aggression. So I can see how a court vested with international jurisdiction, such as a supranational tribunal, could try the case; similarly, a court in a country that recognises the universal jurisdiction. In neither of those cases would the authorisation of the Parliament at Westminster provide a complete defence.
    On the other hand, an English court is obliged to apply the law of England, and the supreme source of that law is the Parliament at Westminster. Much like a hangman carrying out a court’s order for execution, the accused Blair in answer to a charge of the crime of aggression, could point to the specific lawful authority for the invasion.
    Nothing in your post above persuades me otherwise. Customary international law, in the domestic law of England, is subject to the will of the Parliament at Westminster.
    I wondered whether the complexities of EU law might affect the position. In your post you accepted that they are irrelevant. After all, EU law applies in England by virtue of the consent of the Parliament at Westminster. Whatever general rules of international law are incorporated – it is open to Parliament to make express, specific , later, exceptions. This is not an instance of implied repeal.
    I would be interested in any authority you can point to that says an international law can, in domestic law, trump the express will of the Parliament expressed in statute.

  • Ken Mackenzie 6th Sep '12 - 1:23am

    On a separate point – assuming you were right and a charge could be brought before an English court – why would the suspect’s diplomatic status afford him immunity in his home country?

  • Toby Fenwick 6th Sep '12 - 1:00pm

    @ Ken: Let me deal with the second point first. Blair’s current position as the Quartet’s representative suggests an international position that the Arrest Warrants decision suggests should be respected even by a potential defendants’ national state. The case law doesn’t provide a direct analogy, as Blair is somewhere between a domestic minister and a UN appointee – but I don’t claim expertise in this area.

    Sir Geoffrey Bindham QC suggested that Blair is not in fact immune, as Iraq 2003 predates his current role. I find this intrinsically unlikely, as this was the position in Arrest Warrants (Mr. Ndombasi was accussed of genocide by Belgium under their 1993 universal jurisdiction law), and the ICJ ruled that Belgium had to drop the warrant.

  • Toby Fenwick 6th Sep '12 - 2:14pm

    @ Ken: In R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant)), Etc. [2006] UKHL 16 (http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones-1.htm) Lord Bingham decided in paras 60-67 that he does not believe that aggression is a domestic crime (or at least that it wasn’t in 2006) in that there was domestic legislation explicitly transposing the international offence.

    This is odd, as at para 11 he notes that both the appellants and the Crown accepted that aggression was a crime under UK domestic law – a point noted in at least some versions of the 2003 legal advice to Blair. If I were counsel, I would invite the Supreme Court to set Bingham’s decision aside in a prosecution of Blair as misconceived, given the unambiguous acceptance of aggression as a jus cogens norm and therefore an offence at Common Law even if it were not detailed in domestic statute.

    The question then is what is the legal standing of the vote in the House of Commons on 18 March 2003? What was passed was a resolution of the House (http://www.publications.parliament.uk/pa/cm200203/cmhansrd/vo030318/debtext/30318-48.htm#30318-48_div118) supporting the Government’s position – with notably the LibDems on the side of international law by unanimously opposing it – but this wasn’t primary legislation, so I’m unclear on what the legal effect of it is?

    What it clearly can’t do is provide the legal effect of over-riding a jus cogens international legal obligation.

  • Toby Fenwick 6th Sep '12 - 7:57pm

    @ Hywel: My apologies for missing your comment.

    It’s not a defence. In fact, as the rules are so clear, it shows that Blair was either mendacious or very poorly briefed. Elizabeth Wilmshurt’s resignation as the Deputy FCO legal adviser and acknowledged international expert on this area of the law makes it impossible to argue that Blair and his closest aides didn’t know the true legal position. Wilmshurst’s very moving resignation letter was declassifies by Chilcott and is available here:http://www.iraqinquiry.org.uk/media/43719/document2010-01-27-100908.pdf

  • Ken Mackenzie 7th Sep '12 - 8:11am

    There you have it.
    In R v Jones paragraphs 60-67 are by Lord Hoffman, but Lord Bingham earlier reached the same conclusion, and so did all the others. It is a unanimous decision of the highest court in the land – dead against the proposition that the crime of aggression is a crime in the domestic law of the UK.
    You should re-read para 11 more carefully – Lord Bingham did not say anything close to your attempt to paraphrase him.
    Any lower court is bound to follow R v Jones. You could argue it was wrongly decided until you run out of breath but it would get you nowhere in a courtroom. Only the Supreme Court has the power to change it. I’m not sure of the factors the Supreme Court takes into account in re-visiting its own decisions, but most appellate courts are slow to overturn themselves.
    Having read that judgement, I reckon anyone wanting to try Mr Blair in Britain has Buckley’s chance.
    Your point about the legal effect of a Parliamentary resolution compared to a statute is interesting. I don’t know the answer.

  • Ken Mackenzie 7th Sep '12 - 8:14am

    @Hywel – a mistake about the law is rarely a good defence. A mistaken belief about facts which would, if true, justify your actions, is usually a good defence. I haven’t checked the ICC’s position but I would be surprised if it departed from the general principles. Perhaps Toby can enlighten us?

  • Toby Fenwick 7th Sep '12 - 9:25am

    @Ken: Under normal circumstances, Buckley’s would be pretty good odds. However, these are anything but, and with the rapid development of the law in this area, I would certainly run the case and get the the Supreme Court to either set aside this decision (possible, but admittedly rare, under the Practice Statement [1966] 3 All ER 77, it is possible.) Indeed, it is worth quoting the words of Lord Gardiner in full:

    “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

    Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.

    In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

    This announcement is not intended to affect the use of precedent elsewhere than in this House.”

    If Iraq 2003 isn’t a case of “too rigid adherence to precedent … lead[ing] to injustice” whilst “unduly restricting the proper development of the law”, I don’t know what is.

  • Ken Mackenzie 8th Sep '12 - 5:52am

    Yes the “especial need for certainty as to the criminal law”. Usually criminal offences are not created retrospectively. That, combined with all the public policy factors listed by the Lords in R v Jones and you would probably be wasting your breath, time and money.
    Assuming somebody launched such a prosecution it raises an interesting questions of criminal procedure. Could the case reach the Supreme Court without the defendant achieving the finality of an acquittal? The Magistrates Court at the first appearance might be bound, following Jones, to reject the charge as one not cognisable at law. Similarly, the Crown Court should quash the indictment. The application used to be called demurring to the indictment. However, both those results might trigger appeals that could end up in the Supreme Court. I am not sure.
    The defendant might be in a better position to start a trial before a jury and apply for a directed acquittal. If the judge ruled at a preparatory hearing then different, and complicated, appeal rights would apply. To avoid the final effect of an acquittal, the prosecution would have to rely on the limited right to apply for leave to appeal under s.58 Criminal Justice Act 2003. (There is no equivalent prosecution right of appeal in Qld) That involves an undertaking by the prosecution that the defendant should be acquitted if the Court of Appeal refuses leave to appeal. I do not know whether the s.58 procedure is available to a private prosecutor. The Court of Appeal would be likely to refuse leave, again following Jones, and the defendant would be acquitted. The prosecution can appeal further, with leave, to the Supreme Court (s.68 of CJA 2003) but not if the Court of Appeal simply refused leave to appeal to itself; R v Moulden [2005] EWCA Crim 374, R v Mealey and Sheridan [1975] Crim LR 154.
    So, if you were to prosecute Mr Blair, it is unlikely that you would ever reach the stage of argument in the Supreme Court before he had been acquitted. But it is possible.
    The better course might be an attempt to re-argue R v Jones before prosecuting Mr Blair. This could be achieved by prosecuting someone else, say Mr Hoon, obtaining the inevitable acquittal, and then convincing the Attorney-General to refer the point of law to the Court of Appeal (s.36 CJA 1972). The Attorney-General would lose in the Court of Appeal, and could then seek leave to appeal to the Supreme Court to settle the question. Mr Hoon would escape conviction in the UK but, if your argument succeeded in the Supreme Court, the way would be cleared to charge Mr Blair. Of course, convincing an Attorney-General to support such an attack on the executive prerogative would be nigh on impossible.
    Mr Hoon, I presume, has no immunity. If you are so confident of the correctness of your position that you say- “He can – and should – then be tried for aggression before a British court.” you could act upon it, and bring a private prosecution to settle the question. Go on Toby – become a player, not a commentator.

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    Nonconformistradical I would define ready as having our candidates in place in all constituencies. I don’t know how far down the road we are on this across t...