Private prosecution of David Cameron MP and Michael Fallon MP for offences contrary to Section 56 Terrorism Act 2000

On 25th September 2014, the day before the House of Commons Debate on UK air strikes in Iraq, I wrote to the Attorney General and Solicitor General raising my concerns that the proposed air strikes in Iraq were "terrorism" in UK Law.

See Unlawful UK air strikes in Iraq - Letter of 25th September 2014 to UK Attorney General and Solicitor General

In the House of Commons Debate on 26th September no information about the proposed air strikes being terrorism was given to Members of Parliament.

In my view the House of Commons authorised the air strikes in Iraq on the basis of a deliberate deception by the Prime Minister, David Cameron MP, and the Attorney General and Solicitor General.

On 1st October 2014 I reported suspected offences contrary to Section 56 of the Terrorism Act 2000 by David Cameron MP and Michael Fallon MP to Chief Constable Chris Sims of West Midlands Police and Assistant Chief Constable Marcus Beale.

See RAF Terrorism in Iraq - Section 56 offences by David Cameron MP and Michael Fallon MP reported to West Midlands Police

I was unsurprised at the lack of response or action by Chief Constable Sims and Assistant Chief Constable Beale.

British Police forces have, in my view, been unlawfully concealing British Military Terrorism for several years.

See, for example, my letter of 2nd February 2010 to Sir Paul Stephenson, then Commissioner of the Metropolitan Police and the then Assistant Commissioner John Yates:
Terrorism Act 2000 Section 56 offences etc - Letter of 2nd February 2010 to Sir Paul Stephenson and John Yates

On 3rd November 2014 I wrote to Malcom McHaffie of the Crown Prosecution Service seeking the Consent of the Director of Public Prosecutions to a private prosecution of David Cameron MP and Michael Fallon MP for alleged offences contrary to Section 56 of the Terrorism Act 2000.

Consent of the Director of Public Prosecutions is required by virtue of the provisions of Section 117 of the Terrorism Act 2000:
Consent to prosecution

The letter has been acknowledged by Mr. McHaffie and I have been informed by Mr. McHaffie that I should expect a response by tomorrow, 18th November 2014.

To the best of my knowledge there has been no previous attempt to bring a private prosecution for terrorist offences against a serving UK Prime Minister and a Secretary of State.

It seems to me that the issues raised have never been argued before a Court and that the proper decision by the Director of Public Prosecutions would be to give Consent to allow these immensely important points of Law fully to be argued before a Court.

Below is the text of my letter of 3rd November 2014 seeking the Consent of the Director of Public Prosecution to a private prosecution of David Cameron MP and Michael Fallon MP for offences contrary to Section 56 of the Terrorism Act 2000.

3^rd November 2014

To:

Malcolm McHaffie, Crown Prosecution Service

Dear Mr McHaffie,

Request for consent to private prosecution

Offences contrary to Section 56 Terrorism Act 2000

1. David Cameron MP
2. Michael Fallon MP

I write further to my letter to you of 8^th October 2014 and your reply of 16^th October 2014.

I note that your letter of 16^th October 2014 does not supply a reference number for my request. I ask you to provide a reference number now.

Deadline of 3^rd November 2014

In your letter of 16^th October 2014 you imposed a deadline of today without further explanation.

I am submitting the material that I can as at this date.

Much further evidence is obtainable by further inquiry including the process of disclosure.

A unique situation

To the best of my knowledge no attempt has previously been made to bring a private prosecution with respect to alleged terrorist offences by a UK Prime Minister and Secretary of State for Defence.

This letter therefore addresses a situation which is, to the best of my belief, unprecedented.

Code for Crown Prosecutors

In your letter of 16^th October 2014 you refer me to the Code for Crown Prosecutors. I have read the document with interest.

It seems to me that there are two broad issues which you wish me to address:

Is there a realistic prospect of conviction?

Is a prosecution in the public interest?

Section 56 Terrorism Act 2000

The alleged offences by Mr. Cameron and Mr. Fallon relate to Section 56 of the Terrorism Act 2000.

For convenience, I reproduce the text of Section 56 here:

56 Directing terrorist organisation.

(1)A person commits an offence if he directs, at any level, the activities of an organisation which is concerned in the commission of acts of terrorism.

(2)A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life.

Elements of the offence

I will consider the elements of the offence under the following headings:

1. Is H.M. Government an organisation?
2. Are David Cameron MP and Michael Fallon MP “directing the activities” of H.M. Government at any level?
3. Has H.M. Government been “concerned in” RAF air strikes in Iraq?
4. Are RAF air strikes in Iraq “terrorism” in the meaning of Section 1 of the Terrorism Act 2000?

Element 1 – Is H.M Government an organisation?

I do not present evidence on this matter here but it is, I suggest, public knowledge that H.M. Government is an organisation.

Such is, for example, within the personal knowledge of the Attorney General.

It is certainly capable of further investigation.

Element 2 – Do the accused direct the activities of H.M. Government?

Again I do not present evidence here since an answer in the affirmative is self-evident.

However, this too is a matter capable of further investigation.

If it were to be disputed that, for example, David Cameron directed the activities of H.M. Government witnesses could be called including the Queen who appointed Mr. Cameron.

It is also the case that Mr. Fallon directs activities of parts of H.M. Government, specifically the Ministry of Defence.

Element 3 – Has H.M. Government been “concerned in” air strikes in Iraq?

There is a considerable body of evidence that the UK Government is “concerned in” air strikes in Iraq.

The Hansard record for the debate of 26^th September 2014 is one example.

Further investigation could produce, I believe, Ministry of Defence documents proving that H.M Government has been (and still is) “concerned in” air strikes in Iraq.

Element 4 – Are RAF air strikes in Iraq “acts of terrorism”?

Strictly speaking, it is not necessary to demonstrate that the current wave of air strikes are terrorism since there are multiple past acts of terrorism by H.M. Government since 2001 in Afghanistan, Iraq, Libya and, likely, Syria.

Should you consider it necessary to develop the evidence for past acts of terrorism by H.M. Government in Afghanistan, Iraq, Libya and, likely, Syria I can do so given a suitable time period to do so. However, as indicated, I believe it is not necessary in this document to do so.

However, it is expedient to consider the current wave of RAF air strikes as to whether or not they meet the criteria expressed in Section 1 of the Terrorism Act 2000.

For convenience, I reproduce here the text of Section 1:

1 Terrorism: interpretation.

(1)In this Act “terrorism” means the use or threat of action where—

(a)the action falls within subsection (2),

(b)the use or threat is designed to influence the government [F1or an international governmental organisation]F1 or to intimidate the public or a section of the public, and

(c)the use or threat is made for the purpose of advancing a political, religious [F2, racial]F2 or ideological cause.

(2)Action falls within this subsection if it—

(a)involves serious violence against a person,

(b)involves serious damage to property,

(c)endangers a person’s life, other than that of the person committing the action,

(d)creates a serious risk to the health or safety of the public or a section of the public, or

(e)is designed seriously to interfere with or seriously to disrupt an electronic system.

(3)The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4)In this section—

(a)“action” includes action outside the United Kingdom,

(b)a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c)a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d)“the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5)In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

My analysis for the purposes of this document begins with Subsection 1(3).

It is self-evident but also capable of further investigation that air strikes involve the use of explosives.

That being the case it is necessary only to show that the criteria expressed in Subsection 1(1)(a) and 1(1)(c) are satisfied.

The criterion in Subsection 1(1)(a) is satisfied. An RAF video distributed to the media shows the destruction of a vehicle. This meets the criterion of “serious damage to property” expressed in Subsection 1(2)(b). It is, of course, likely that the criterion expressed in Subsection 1(2)(a) is also satisfied.

The Ministry of Defence holds further video information on the results of other air strikes therefore the matter is capable of further investigation.

The final criterion relates to whether Subsection 1(1)(c) is satisfied. The Hansard record of the debate of 26^th September 2014 demonstrates that the air strikes were carried out for a political purpose viz the degrading and/or destruction of so-called “Islamic State”.

Given the wording of Subsection 1(3) and the evidence that the criteria expressed in Subsection 1(1)(a) and 1(1)(c) are satisfied I conclude that the air strikes are “terrorism” as defined in Section 1.

Possible Defences

Given the serious nature of the alleged offences and the essentially infinite legal resources available to H.M. Government the possible defences which might be put forward are legion. However, I think it is reasonable to consider a number of possible defences here.

1. Terrorism is committed only by proscribed organisations
2. Terrorism cannot be committed by a Government
3. Royal Prerogative/Parliamentary Authorisation
4. Crown Immunity

Each of the defences considered is expressed in lay terms. If consent and permission for private prosecution is granted I anticipate that legal advisers would in Court proceedings express the thoughts underlying my words in different ways to those I use below.

However, I feel sure that the substance of my thinking will be clear to both the Director and the Attorney.

Defence 1 – Terrorism Is committed only by proscribed organisations

Nothing in Section 1 of the Terrorism Act shows this to be the case.

Actions on behalf of a proscribed organisation are terrorism (as indicated in Subsection 1(5)) but the converse is not the case i.e. it is not necessary for an organisation to be proscribed for terrorism to have been committed.

Defence 2- Terrorism cannot be committed by a Government

Unlike US Law there is no explicit provision in the Terrorism Act 2000 that states that action by a Government is not terrorism.

Therefore I conclude that such a defence would fail.

Defence 3 – Royal Prerogative/Parliamentary Authorisation

At the risk of gross oversimplification there is a customary assertion that the Crown may declare war (or act similarly) on its own authority. Increasingly this is subject to authorisation by Parliament.

On 26^th September 2014 consent was obtained from the House of Commons without disclosure that the proposed air strikes in Iraq were terrorism in the meaning of Section 1 of the Terrorism Act 2000.

This I conclude that the consent / authorisation from the House of Commons is at least arguably void, since it was obtained by deception.

Further, no consent was sought or obtained from the House of Lords, raising a further question as to whether Parliamentary authorisation was appropirately obtained.

Defence 4 – Crown Immunity

I am aware that some take the view that what I view as Britsh Military Terrorism is exempt from criminal liability due to Crown Immunity.

The notion of Crown Immunity has undergone change from what I understand once to have been essentially an absolute immunity. One aspect of the progressive erosion of an ancient assumption is expressed in the Crown Proceedings Act 1947.

Further, even if the principle of Crown Immunity were valid there is a competing principle of equality before the Law which would require to be considered.

Which of those princiiples was to prevail would, I suggest, be for a jury to decide based on the facts presented to that jury and in the context of such direction as a judge provided.

However, I would argue that Crown Immunity is, in essence, a corrupt concept. Or, expressed otherwise, it is my view that Crown Immunity is an expression of judicial corruption.

What I mean is that the authorities on which the assumption is based were, at least in part, acting in place of the Crown. In that case the judge is, in effect, acting in his own cause.

Further it seems to me that the judicial oath in which loyalty is sworn to the Crown as well as to the Law raises difficulties with respect to the concept of Crown Immunity in the authorities. Given that the judicial oath swore allegiance to the Crown any judge granting Crown Immunity in the authorities is acting, in a sense, in his own cause.

There is a further reason to question whether Crown Immunity, even if it were not a corrupt concept, applies.

In the Coronation Oath, I understand H.M. Queen to have solemnly sworn to govern in accordance with Law. I take such an oath to refer both to Laws which existed in 1953 and those Laws enacted subsequently.

In swearing the Coronation Oath it seems to me that the Queen voluntarily limited or removed any assumption of Crown Immunity as it might apply to criminal offences which she could, in principle, commit, such as offences contrary to Section 56 of the Terrorism Act 2000.

Given that the Queen has voluntarily limited herself to abide by the Law, those who draw authority from her cannot claim to be exempt from the provisions of the criminal Law.

The notion of Crown Immunity applying to the alleged offences by Mr. Cameron and Mr. Fallon seems to me to unsubstantiated on one or more of the foregoing grounds.

In conclusion: Is there a realistic prospect of conviction?

I conclude that there is a realistic prospect of conviction.

The elements of the offence are, as indicated, earlier satisfied.

I can identify no compelling defence with respect to the alleged offences. Any points of Law should, in my estimation, be for a Court to decide.

Is a prosecution in the public interest?

The second criterion I understand I am required to address is whether or not it is in the public interest for a prosecution to take place.

I will briefly  list some criteria that lead me to the conclusion that a prosecution is, indeed, in the public interest:

1. Are the alleged offences serious? On multiple criteria the alleged Section 56 offences are of the utmost seriousness. For example, Section 56 indicates that the penalty on conviction is imprisonment for life.
2. Do the alleged offences put lives at risk? It is evident that air strikes are likely to kill or seriously injure those at the site where missiles impact. Given that lives are put at risk these seem to me to be serious offences.
3. Are the offences part of a pattern of offending? That is, indeed, the case. Mr. Cameron, for example, committed comparable Section 56 offences in Libya and in Afghanistan.
4. Are others being caused to commit crime? The RAF pilots are themselves being caused to commit Terrorism offences. Many, assuming they are officers, will similarly be committing Section 56 offences in addition to Section 54 offences, given that they have had weapons training in order to carry out air strikes.
5. Is the public being deceived. Mr. Cameron has deceived the British Public and the House of Commons by concealing that he had committed acts of terrorism in Libya and Afghanistan and when seeking the authority fo the House of Commons for air strikes in Iraq he concealed that the air strikes were terrorism.
6. Are members of the public being disadvantaged? Yes, since unwittingly UK tax payers are being obliged without their informed consent to fund acts of terrorism, such as the air strikes in Iraq.

On these criteria I conclude that prosecution is in the public interest.

Conflicts of Interest

Earlier in this document I indicated that a private prosecution of the Prime Minister and the Secretary of State for Defence is, so far as I am aware, unprecedented.

In different senses both the Director of Public Prosecutions and the Attorney General are part  the organisation that is H.M.Govenment in its broader conceptual incarnation.

It thus seems to me that both the Director and the Attorney are part of the organisation alleged to have committed criminal offences. In principle, since each directs the activity of an organisation committing terrorism the Director and the Attorney could themselves be prosecuted for Section 56 offences.

One corollary of that is that both the Director of Prosecutions and the Attorney General have conflicts of interest, the former with respect to consent and the latter with respect to permission.

Another perspective is that the Director and the Attorney are being asked, indirectly, to decide whether they have comitted Section 56 offences, since each “directs” some elements of the activities of an organisation (H.M. Government) that is “concerned in” acts of terrorism.

The question therefore arises as to how to process this request for consent and permission without impropriety or the appearance of impropriety.

I suggest that there is, as a result of the conflicts of interest, a visible need for transparency far beyond that which might be customary.

I suggest that the Director of Public Prosecutions and the Attorney General each seek external advice from Counsel.

Further I ask that such advice is provided to me in full together with the decision of the Director and, if appropriate, the Attorney.

Without total transparency the suspicion of an improper consideration of these important matters must remain a possibility.

In conclusion

The above represeents a summary of reasons why I believe that there is a realistic prospect of conviction of David Cameron MP and Michael Fallon MP should they be prosecuted for alleged offences contrary to Section 56 of the Terrorism Act 2000.

Further, for reasons including those stated in the foregoing I conclude that prosecution of Mr. Cameron and Mr. Fallon is in the public interest.

Distribution

This letter is, in my view, a public document.

I am copying it to Kevin McGinty of the Attorney General’s Office and to the Attorney General’s Private Office with a view to expediting consideration as to whether the Attorney General will give Permission with respect to the requested Consent from the Director of Public Prosecutions.

I also anticiipate sending a copy of the document to one or more Select Committees of the House of Commons, given my view that the House of Commons was deceived in the debate held on 26^th September 2014.

I would be grateful for early acknowledgement of receipt of this letter.

Further, I ask that the Director of Public Prosecutions and the Attorney General give this matter their urgent attention since the alleged Section 56 offences are ongoing and, in my view, should be stopped without further delay.

Yours sincerely

(Dr) Andrew Watt