Prosecuting Tony Blair and others

Considerations Material to the Issue of a Summons.

What is the law on the material considerations which a Justice(s) should have regard to when deciding whether or not to issue summons upon the laying of an information?

What is an “information” ?

The word ‘information’ is not defined in statute, but it was conveniently described by Huddleston B. in R. v Hughes (1897) thus :

“..nothing more than what the word implies, namely the statement by which the magistrate is informed of the offence for which a summonos or warrant is required.“

R. v Hughes [1897] 4 QBD 614 @ 633.

What then of a summons?

As Lord Goddard CJ put it in R. v Wilson, ex p. Battersea B.C. (1948):

“A summons is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons.”

R. v Wilson, ex p. Battersea B.C. [1948] 1 KB 43 @ pp. 46-7

Relevant Matters

The matters which a magistrate could and indeed should have regard to when exercising this judicial discretion were fully explored by Lord Widgery CJ in R. v West London Justices, ex p. Klahn (1979)

“ It would appear that he should at the very least ascertain : (1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not ‘out of time’; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute. ... Plainly he should consider the whole of the relevant circumstances.”

R. v West London Justices, ex p. Klahn [1979] 2 AllER 221@ 223A et seq

The Magistrate should naturally satisfy them self also that at this inchoate point there is at least evidence “by which the offence could be proved” (see for instance Ridley J. in R. v Mead, ex p. National Insurance Cmmssrs. (1916) 80 JP 332 @ 334), if the charges set out in the information were to be brought to trial.

Never the less, it must be right that they cannot go further and even so much as begin to weigh in the balance the relative strengths of that evidence. Were they to do so then they should surely be usurping the proper role and function of both the committal phase and indeed thereafter the court of trial, which is not a function of the magistrate at this most preliminary phase. As Lord Goddard CJ once again put it in Ex p Klahn as above:

"The magistrate must be able to satisfy himself that it is a proper case in which to issue a summons. There can be no question, however, of conducting a preliminary hearing. Until a summons has been issued there is no allegation to meet; no charge has been made. A proposed defendant has no locus standi and no right at this stage to be heard. Whilst it is conceivable that a magistrate might seek information from him in exceptional circumstances it must be entirely within the discretion of the magistrate whether to do so”.

ibid. @ p.236C

Bona Fides

Finally, there is undoubtedly a further requirement, as with all proceedings before a criminal court, that the issuing magistrate needs to be clear that the Informant/Prosecutor is not acting purely, or perhaps even mainly, for malicious, frivolous or vexatious reasons or to put it another way that there are no grounds for regarding the Informant’s motives as being mala fide.

The application of this so-called “inherent jurisdiction” in a criminal court, to prevent an “abuse of the process” based on the vexatious motives of the informant, to the question of the issue of originating process by way of summons, was authoritatively set out in R.-v- Bros (1901) 85 LT 581; 66 JP 54. The High Court refused to issue a prerogative writ for manadamus commanding the justice concerned to issue a summons to the applicant, even though the information which had been preferred prima facie disclosed an offence within the jurisdiction.

The Court held that if the magistrate was of the reasonable opinion that if the summons were issued and the offence subsequently proved, he would nevertheless dismiss the information at the hearing on the grounds that the case was entirely motivated by the vexatious attitude of the informant toward the accused party and would serve no other practical result but to give vent to the informant’s vexatious motives, then the magistrate was perfectly entitled to use his discretion to refuse the summons in the first instance.

The three recognised heads under which a the bona fides of a Party to proceedings are customarily questioned are “malicious”, “frivolous” and/or “vexatious”. Jowitts Dictionary of English Law (1959) describes each respectively as follows :

“Malicious : malice in common parlance means ill-will toward a person, but in its legal sense it means a wrongful act done intentionally (whether malice be implied or express) without just cause or excuse. So long as a person believes genuinely in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair.

Frivolous : A proceeding is said to be frivolous when it is based on facts which disclose no genuine or recognised cause of action. That is to say when the assertion that the conduct complained of as unlawful is so manifestly tenuous or artifical in its construction, that it cannot be taken seriously by anyone acting judicially. So that it may be reasonably inferred that the cause or action is not brought in order to seek genuine releief.

Vexatious : A proceeding is said to be vexatious when the party bringing it is not acting bona fide, and merely wishes to annoy, upset or embarras his opponent, or when it is not calculated to bring about any practical result. Such a proceeding is often described as ‘frivolous and vexatious’ and the court may stay it on that ground, both under its inherent jurisdiction and occassionally under prescibed rules depending on the court.”

I cannot conceive of how it could be in any perspective that, given the detailed and comprehensive nature of the exposition of legal argument I propose to and have herewith set out in support of this my application for summons, any reasonable person, themselves acting honestly and not tainted by improper motives, could consider this application in any way ‘malicious’ or ‘frivolous’. As to ‘vexatious’ I have this to say.

My Motives

Whilst it may be inevitable that in the case of the commencement of many types of prosecution, such as for example an allegation of vote rigging before the Electoral Court, may result in some or indeed very serious embarrassment for a sitting politician, even when such proceedings are entirely properly motivated; it is also true, and I fully accept, that were the magistrate(s) to be satisfied that this were the sole or even principal purpose in an Informants’ motive for laying the information, that may well enable them to genuinely question the bona fides of the Informant and term the proceeding “vexatious”.

I ask the Justice(s) reading this statement to accept that this Informant has waited as long as I practically could have done so, indeed many would say too long, to allow for the Accused Persons to explore all possible diplomatic, political and other non-violent measures to achieve their ambitions with regard to the State of Iraq, before resorting to the unlawful use of armed force by way of aggression in their international relations with the Republic of Iraq.

I could have chosen to have proceed earlier, purely under the "inchoate" aspects of a Crime Against Peace (see for instance Principle VI (a) (ii)), but such precocious conduct could arguably have been said to be prejudicial to or hamper or interfere with the delicacy of those diplomatic or political negotiations on the international plane, especially in the United Nations, while seeking a peaceful resolution. Indeed, such a criticism formed much of the basis upon which the Administrative Court, chose in December last, to decline to grant leave to "CND" to hear their claim that the infamous Security Council Resolution 1441 did not "authorise" war as a matter of international law

(see esp. judgment of Simon-Brown LJ [2002] EWHC 2777).

I have chosen not to do so, but have instead awaited until the initiation of the evil deed itself before choosing to act, in order specifically to avoid the allegation of interfering in or embarrassing the Government in the conduct of its delicate negotiations in the international arena. As I write this script, United Kingdom diplomacy, it should be noted, is currently being delivered to Baghdad via the business end of a submarine-launched cruise missile. Not I would submit a delicate business at all.

I invite the Justices reading this to examine me as to my motives, for as long and as deeply as they wish. I appear before the Court in order to inform it of what, I whole heartedly believe to be, the commission of the gravest, most heinous, most hideous crime imaginable, in the history of criminal conduct, both in international customary law and against our own common law; namely the commission of a Crime Against Peace, an act comprising in a Breach of the Peace of this Nation State every bit as much as of the World entire ( hostis totus mundus), and thereby against the peace and tranquillity of this Realm, erstwhile the envy of less peaceful lands.

I believe the conduct with which I have charged the accused persons to be not merely a flagrant and contumacious insult to the laws of all civilised nations, the respect for and observance of which the future peace of this Realm and indeed of this World depends, but moreover to be a defilement and violation of the long and proud history of this nation state in the formulation, development and application of those very same laws of civilised nations, most especially of course at Nuremberg.

Accordingly, I do so accuse, pro bono publico, pro bono justitia, pro bono pacem. I submit that this is not merely a faultless motive; but moreover the only and very proper motive for ever resorting to the protection of this honorable court.

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