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Chandler and Others Vs. Director of Public Prosecutions - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case NumberNo.
Judge
AppellantChandler and Others
RespondentDirector of Public Prosecutions
Excerpt:
my lords, this is an appeal by six persons who were convicted on 20th february, 1962, and sentenced to terms of imprisonment. they were charged with conspiracy to commit and to incite others to commit a breach of section 1 of the official secrets act 1911 namely for a purpose prejudicial to the safety or interests of the state to enter a royal air force station belonging to her majesty at wethersfield in the county of essex. in dismissing their appeals the court of criminal appeal certified that a point of law of general public importance was involved and granted leave to appeal to this house. the point of law relates to the proper construction of the words purpose prejudicial to the safety or interests of the state. before dealing with it, it is necessary to state such of the facts as.....
Judgment:

My lords,

This is an appeal by six persons who were convicted on 20th February, 1962, and sentenced to terms of imprisonment. They were charged with conspiracy to commit and to incite others to commit a breach of section 1 of the Official Secrets Act 1911 namely for a purpose prejudicial to the safety or interests of the State to enter a Royal Air Force station belonging to Her Majesty at Wethersfield in the County of Essex. In dismissing their appeals the Court of Criminal Appeal certified that a point of law of general public importance was involved and granted leave to appeal to this House. The point of law relates to the proper construction of the words purpose prejudicial to the safety or interests of the State. Before dealing with it, it is necessary to state such of the facts as are relied on by the Appellants and to notice the course taken at the trial.

The Appellants are members or supporters of an organisation known as the Committee of 100. Earl Russell, the founder of this organisation, explained in evidence that their ultimate purpose was to prevent a nuclear war and that their more immediate purpose was to get the facts about nuclear warfare known to the public by any means they could and in particular by pursuing a campaign of non-violent civil disobedience. I should say at once that no one has questioned the sincerity of any of the accused in their belief in these objectives. In pursuit of these objectives the organization decided to have a demonstration at Wethersfield Base on 9th December, 1961. and elaborate arrangements were made for it. There is no dispute about what the accused did or attempted to do. I can conveniently quote from a letter written by one of them on 7th November: The working group at this end has finally decided in favour of a demonstration that will involve an attempt to occupy the base at Wethersfield. However the plan is for only a number of trained people to do this. The bulk of the demonstrators will squat by the entrances on the roadway. Our leaflet about the demonstration will simply state that we intend to immobilise the base and this is the information that will be released to the Press. It is quite clear from the evidence, including documents, that all the accused intended and desired that a number of persons should enter the base and by obstruction prevent any aircraft from taking off for some six hours. Moreover they knew that this was unlawful and had been told that the Official Secrets Act might be used against them. In fact the demonstrators were prevented from entering the base, but that is immaterial. The question is: What did the accused conspire to do?

It is now argued for the accused that evidence on their behalf was improperly rejected at the trial. This matter first arose during the cross-examination of Air Commodore Magill, who had said that this base was occupied by squadrons of the United States Air Force assigned to the Supreme Commander Allied Forces, Europe, and that these squadrons were combat-ready and on constant alert: he then said that in the event of an emergency any interference with the ability of these aircraft to take off would gravely prejudice their operational effectiveness. In cross-examination objection was taken to his being asked as to the armament of these squadrons. Counsel for the accused said that they sought to adduce evidence that their purpose was not prejudicial to the interests of the State, and that the basis of the defence was that these aircraft used nuclear bombs and that it was not in fact in the interests of the State to have aircraft so armed at that time there. So, he said, it would be beneficial to the State to immobilise these aircraft. Then Counsel further submitted that he was entitled to adduce evidence to shew that the accused believed, and reasonably believed, that it was not prejudicial bat beneficial to the interests of the State to immobilize these aircraft: the jury were entitled to hold that no offence had been committed because the accused did not have a purpose prejudicial to the State, and it was for the jury to determine their purpose. He said he was going to call expert evidence and evidence of fact on which he would ask the jury to say that the accused had a reasonable belief that what they did was not prejudicial. In the course of a long argument about these matters Counsel said that his evidence would deal with the effect of exploding a nuclear bomb, and at other times reference was made to the possibility of accident or mistake, and other reasons against having nuclear bombs. He said that he wished to cross-examine as to the basic wrongness of the conception of a deterrent force and the likelihood of it attracting hostile attack. In reply the Attorney-General submitted that an objective test must determine whether the purpose of grounding aircraft was a prejudicial purpose, that the accused's beliefs were irrelevant and so was the reasonableness of their beliefs. Havers, J. then ruled that the defence were not entitled to call evidence to establish that it would be beneficial for this country to give up nuclear armament or that the accused honestly believed that it would be. Accordingly numerous questions put to Air Commodore Magill were disallowed.

The trial proceeded in accordance with this ruling of the learned judge, although a considerable number of bits of evidence crept in which might on this basis have been excluded.

At the end Havers. J. directed the jury that it was for them to say whether they were satisfied that what the accused had conspired to do was prejudicial to the safety or interests of the State. But. although he did not say so in so many words, the general effect of his summing-up was that if they accepted the evidence of Air Commodore Magill they could not do otherwise than find prejudice to the safety or interests of the State The point never emerged in a clear cut way, but I think the only safe inference is that the accused were prevented from putting the case that, judged by an objective test, it was not prejudicial to the safety or interests of the State to interfere with the operation of these aircraft because it is beneficial to the safety and interests of the State to obstruct or prevent the use of nuclear bombs.

I must now turn to the Official Secrets Act Section 1 provides :

"(1) If any person for any purpose prejudicial to the safety or interests of the State (a) approaches or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act he shall be guilty of felony ..."

The section has a side note Penalties for spying and it was argued that this limits its scope. In my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of it being supposed in recent times that an amendment to alter a side note could be proposed in either House of Parliament. Side notes in the original Bill are inserted by the draftsman. During the passage of the Bill through its various stages amendments to it or other reasons may make it desirable to alter a side note. In that event I have reason to believe that alteration is made by the appropriate officer of the House—no doubt in consultation with the draftsman. So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act. Moreover, it is impossible to suppose that the section does not apply to sabotage, and what was intended to be done in this case was a kind of temporary sabotage.

The first word in the section that requires consideration is purpose. One can imagine cases where this word could cause difficulty, but I can see no difficulty here. The accused both intended and desired that the base should be immobilised for a time, and I cannot construe purpose in any sense that does not include that state of mind. A person can have two different purposes in doing a particular thing, and even if their reason or motive for doing what they did is called the purpose of influencing public opinion that cannot alter the fact that they had a purpose to immobilize the base. And the statute says for any purpose. There is no question here of the interference with the aircraft being an unintended or undesired consequence of carrying out a legitimate purpose.

Next comes the question of what is meant by the safety or interests of the State. State is not an easy word. It does not mean the Government or the Executive. L'Etat c'est moi was a shrewd remark, but can hardly have been intended as a definition even in the France of the time. And I do not think that it means, as Counsel argued, the individuals who inhabit these islands. The statute cannot be referring to the interests of all those individuals because they may differ and the interests of the majority are not necessarily the same as the interests of the State. Again we have seen only too clearly in some other countries what can happen if you personify and almost deify the State. Perhaps the country or the realm are as good synonyms as one can find, and I would be prepared to accept the organised community as coming as near to a definition as one can get.

Who, then, is to determine what is and what is not prejudicial to the safety and interests of the State? The question more frequently arises as to what is or is not in the public interest. I do not subscribe to the view that the Government or a Minister must always or even as a general rule have the last word about that.

But here we are dealing with a very special matter—interfering with a prohibited place, which Wethersfield was. The definition in section 3 shows that it must either be closely connected with the armed forces or be a place such that information regarding it or damage to it or interference with it would be useful to an enemy. It is, in my opinion, clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Company, Limited v. Attorney-General [1932] 2 K.B. 197. Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed ; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in court.

Even in recent times there have been occasions when quite large numbers of people have been bitterly opposed to the use made of the armed forces in peace or in war. The 1911 Act was passed at a time of grave mis-giving about the German menace, and it would be surprising and hardly credible that the Parliament of that date intended that a person who deliberately interfered with vital dispositions of the armed forces should be entitled to submit to a jury that Government policy was wrong and that what he did was really in the best interests of the country, and then perhaps to escape conviction because a unanimous verdict on that question could not be obtained. Of course, we are bound by the words which Parliament has used in the Act. If those words necessarily lead to that conclusion then it is no answer that it is inconceivable that Parliament can have so intended. The remedy is to amend the Act. But we must be clear that the words of the Act are not reasonably capable of any other interpretation.

I am prepared to start from the position that, when an Act requires certain things to be established against an accused person to constitute an offence, all of those things must be proved by evidence which the jury accepts, unless Parliament has otherwise provided But normally such things are facts, and where questions of opinion arise they are on limited technical matters on which expert evidence can be called Here the question whether it is beneficial to use the armed forces in a particular way or prejudicial to interfere with that use would be a political question—a question of opinion on which anyone actively interested in politics, including jurymen, might consider his own opinion as good as that of anyone else Our criminal system is not devised to deal with issues of that kind The question, therefore, is whether this Act can reasonably be read in such a way as to avoid the raising of such issues.

The Act must be read as a whole, and paragraphs (c) and (d) of section 3 appear to me to require such a construction. Places to which they refer become prohibited places if a Secretary of State declares that damage, obstruction or interference there would be useful to an enemy. Plainly it is not open to an accused who has interfered with or damaged such a place to a material extent to dispute the declaration of the Secretary of State, and it would be absurd if he were entitled to say or lead evidence to show that, although he had deliberately done something which would be useful to an enemy, yet his purpose was not prejudicial to the safety or interests of the State. So here at least the trial judge must be entitled to prevent the leading of evidence and to direct the jury that if they find that his purpose was to interfere to a material extent they must hold that his purpose was prejudicial. If that be so, then, in view of the matters which I have already dealt with, it appears to me that the same must necessarily apply to the present case.

I am, therefore, of opinion that the ruling of Havers, J. excluding evidence was right and that his direction to the jury was substantially correct, although I would not accept all his reasoning. I think it was proper to give to the jury a direction to the effect that if they were satisfied that the intention and desire of the accused was to procure the immobilisation of these aircraft in a way which they knew would or might substantially impair their operational effectiveness, then the offence was proved and they should convict. I think that the judgment of the Court of Criminal Appeal might be read as enunciating rules wider than necessary for the decision of this case. It is unnecessary to examine that judgment in detail, and I will only say that I am not to be taken as agreeing with all that it contains.

In my judgment these appeals must be dismissed.

Lord Radcliffe

MY LORDS,

The evidence in this case left no room for doubt as to what the Appellants had intended to do, what they had done and why they had done it. They had formed the plan of entering and leading other persons to enter the Royal Air Force Station at Wethersfield in Essex for the purpose of immobilising, at any rate temporarily, any aircraft operating from the station. Their reason for forming this plan and seeking to carry it out was that they believed that nuclear warfare would be a disaster for humanity and that accordingly the manufacture and possession of nuclear weapons should be forbidden everywhere ; and they hoped that by their demonstration at the airfield, which was thought to house certain aircraft equipped with nuclear missiles, they would attract public attention to the facts or arguments—the distinction is not easy to draw in connection with this subject—that they believed to tell in favour of the policy they wish to see adopted.

They have been convicted on two counts of conspiracy, to incite other persons to commit a breach of section 1 of the Official Secrets Act 1911 and to commit a breach themselves. As nothing turns upon the element of conspiracy in this case, I shall follow the course taken in argument before us and speak of the offence as if it had consisted in the act of commission and not in the conspiracy to incite or commit. It makes no difference and renders the exposition of one's opinion rather simpler.

The Act itself might suggest by its title and one or two side headings that the offences it creates are only those of spying, in the sense of obtaining by surreptitious means information in the possession of one State for the benefit of another. I am satisfied that no one who reads through the first three sections as a whole could suppose that the Act was ever intended to be so limited. It creates, in fact, several different categories of offence the elements of which have little or nothing in common. The wrongful communication of official information, for instance, is itself an offence under section 2 (a), whatever the purpose of the communicator and however innocent the recipient of what he communicates. So, too, although offences cannot arise under section 1 unless the act complained of has been done for a purpose prejudicial to the safety or interests of the State, it is not to be assumed that, when approach to or entry upon a prohibited place is in question, the purpose can be ascertained in the same way as when it has to be related to the making of sketches or notes which are likely or intended to be useful to an enemy.

It is evident that the Act accords to a prohibited place a status of its own in relation to official secrets. It is accorded an elaborate set of definitions in section 3 and, apart from the obvious instances of works of defence belonging to Her Majesty, such as arsenals and naval or air force establishments or stations, camps, ships or aircraft, it extends to such places and works as may for the time being be declared to be prohibited places by a Secretary of State on the ground that information with respect thereto or damage thereto or the destruction or obstruction thereof or interference therewith would be useful to an enemy.

This brings us very close, I think, to the matter in hand, because it shows that for the purposes of the Act a prohibited place is not merely something information about which is to be protected from an enemy, but something also which may need to be guarded from destruction, obstruction or interference that would in the result be useful to an enemy. The saboteur just as much as the spy in the ordinary sense is contemplated as an offender under the Act. But, if so, the Appellants were saboteurs in this case for, subject to the question of probative evidence which I will come to later, it was their avowed purpose to interfere with and obstruct the operation of this airfield, itself a prohibited place within the meaning of the Act. The question upon which this appeal turns is whether they were any the less saboteurs within the range of the Act because they wished to use their obstruction and interference as a demonstration in the hope that through some long process of agitation and persuasion the policies they canvassed would be adopted.

The trial Judge did not think that their wishes or hopes or beliefs made any difference in this regard. In detail he directed the jury that they should not be influenced by what, he said, was the undisputed fact that the views as to the wrongness and, indeed, unwisdom of nuclear weapons held by the Appellants were deeply and passionately held and that they were honest and sincere views. In effect, he put it to the jury that they should look upon the Appellants as having made their entry for two separate purposes, an immediate purpose of obstructing the airfield, and a further or long-term purpose of inducing or compelling the Government to abandon nuclear weapons in the true interests of the State. His ruling was that, if they found the immediate purpose proved, that of obstruction, they ought to find the Appellants guilty of offences under section 1 of the Act, regardless of whether they might think the long-term purpose in itself beneficial or, at any rate, non-prejudicial to the interests and safety of the State.

In my opinion there was nothing defective in law in this ruling. In particular I think that the learned Judge was right in indicating to the jury that, if they were satisfied that the Appellants' immediate purpose was to obstruct the operation of the airfield, they had to concentrate on considering whether that purpose itself was prejudicial to the safety and interests of the State and had not to consider whether the proposed long-term purpose was or was not prejudicial.

All controversies about motives or intentions or purposes are apt to become involved through confusion of the meaning of the different terms, and it is perhaps not difficult to show by analysis that the ideas conveyed by these respective words merge into each other without a clear line of differentiation. Nevertheless a distinction between motive and purpose, for instance, is familiar enough in ordinary discussion, and there are branches of law in which the drawing of such a distinction is unavoidable. The Act of Parliament in this case has introduced the idea of purpose as a determining element in the identification of the offence charged, and lawyers, therefore, whose function it is to attribute meanings to words and to observe relevant distinctions between different words, cannot escape from this duty merely by saying that purpose is a word which has no sharply defined content. They must do the best they can to find what its content is in the context of this Act.

For my part I cannot say that I see any very great difficulty in doing so here. I do not think that the ultimate aims of the Appellants in bringing about this demonstration of obstruction constituted a purpose at all within the meaning of the Act. I think that those aims constituted their motive, the reason why they wanted the demonstration, but they did not qualify the purpose for which they approached or sought to enter the airfield. Taking this view, I do not think that the distinction between immediate purposes and long-term purposes is the most satisfactory one that can be made. If the word purpose is retained at all to describe both object and motive, I think that direct and indirect purposes best describe the distinction which should be placed before a jury, since those adjectives are less likely to confuse the issue. In the result, I am of opinion that if a person's direct purpose in approaching or entering is to cause obstruction or interference, and such obstruction or interference is found to be of prejudice to the defence dispositions of the State, an offence is thereby committed, and his indirect purposes or his motives in bringing about the obstruction or interference do not alter the nature or content of his offence.

It is important to note that the case we are dealing with is one in which the Appellants intended to bring about obstruction of the airfield for the sake of having an obstruction. Nothing short of an obstruction would have suited their purpose. That was the kind of demonstration that they desired and it was their intention to use the obstruction as an instrument for furthering their general campaign in favour of nuclear disarmament. I do not regard such a case, in which obstruction is directly intended, as comparable with hypothetical cases put to us in argument in which obstruction, though intended, is only an indirect purpose of entry upon a prohibited place. Is a man guilty of an offence, it was asked, if he rushes on to an airfield intending to stop an airplane taking off because he knows that a time bomb has been concealed on board? I should say that he is not, and for the reason that his direct purpose is not to bring about an obstruction but to prevent a disaster, the obstruction that he causes being merely a means of securing that end.

The other question involved in this appeal is as to the evidence admitted or rejected by the trial Judge. This question is related to that which I have just discussed, for it is only when one has formed a view as to what can be covered by the purpose of an entry that one can decide what evidence is admissible to determine whether such a purpose is prejudicial to the safety or interests of the State. The question seems to me to come down to this: When a man has avowed that his purpose in approaching an airfield forming part of the country's defence system was to obstruct its operational activity, what, if any, evidence is admissible on the issue as to the prejudicial nature of his purpose? In my opinion the correct answer is, virtually none. This answer is not surprising if certain considerations that lie behind the protection of official secrets are borne in mind. The defence of the State from external enemies is a matter of real concern, in time of peace as in days of war. The disposition, armament and direction of the defence forces of the State are matters decided upon by the Crown and are within its jurisdiction as the executive power of the State. So are treaties and alliances with other States for mutual defence. An airfield maintained for the service of the Royal Air Force or of the air force of one of Her Majesty's allies is an instrument of defence, as are the airplanes operating from the airfield and their armament It follows, I think, that if a man is shown to the satisfaction of the jury to have approached an airfield with the direct purpose of obstructing its operational use, a verdict of guilty must result, provided that they are also satisfied that the airfield belongs to Her Majesty and was at the relevant date part of the defence system maintained by the Crown for the protection of the realm. This latter aspect was covered by the evidence of the prosecution witness. Air Commodore Magill: indeed it was more than covered, for he said. I think unnecessarily, that the U.S.A. Air Force Squadrons based on Wethersfield had a part to play that was vital to the defence of this country and of other countries in the N.A.T.O. alliance. I do not think that he need have provided that amount of descriptive or qualifying detail. The trial Judge's charge to the jury was in substance to the effect that I have just indicated. If anything, it inclined to be too favourable to the Appellants. In the closing passages of the summing-up he meant to direct the jury, I think, that if they accepted the evidence of Air Commodore Magill as to the airfield and the operations from it being part of our defence system, they ought to convict the Appellants ; but his words amounted to leaving it as an open issue to the jury whether the purpose proved before them was or was not prejudicial to the safety and interests of the State. Having regard to his earlier rulings as to what evidence was admissible on this issue and his rejection of certain lines of evidence, to which I will now turn, I do not think that the issue was open in any general sense. The only consequence was that the Appellants gained a possible chance of acquittal that, strictly, may not have been open to them.

The Judge refused to allow evidence tendered on behalf of the Appellants on several points. There was considerable argument before him as to whether evidence was admissible that tended to show that they honestly believed that it would be in the interests of the State to give up nuclear weapons. He held that such evidence could not be relevant to the matter charged, and in this he was, I think, clearly right. The point seems to me anyway an unreal one, since the Appellants' beliefs in that regard must have been patent to everyone attending their trial and from start to finish it was never suggested that those beliefs were held with anything but complete sincerity.

The rest of the evidence tendered but rejected was evidently designed to bear on a general issue whether it would be beneficial for this country to give up nuclear armament", the idea being that, if the jury held that it would, it could then be argued that a purpose of causing a demonstration of obstruction as part of a campaign to bring about such disarmament could not be prejudicial to the safety and interests of the State. I have already given my reasons for thinking that that argument could not prevail within the context of the Official Secrets Act, since it depends on a palpable confusion between purposes and motives; but I am also of opinion that the issue in the form proposed by the Appellants is not justiciable in a court of law.

The Appellants' Counsel said that he wanted to call evidence on such matters as the devastating effects and consequences of nuclear discharge, the dangers of accidental explosions, the technical difficulty of distinguishing approaching nuclear missiles from other harmless objects in the sky, the possibility and likelihood of retaliation to this country if we set ourselves up with nuclear armament. Now, some of these arguments or considerations do, no doubt, rest on a basis of fact or expert knowledge and properly qualified persons could give evidence before a jury as to their views or opinions based on such facts or knowledge: some, on the other hand, are intrinsically no more than matters of political decision or judgment. But, even if all these matters were to be investigated in Court, they would still constitute only various points of consideration on the ultimate general issue, is it prejudicial to the interests of the State to include nuclear armament in its apparatus of defence? I do not think that a court of law can try that issue or, accordingly, can admit evidence upon it. It is not debarred from doing so merely because the issue is what is ordinarily known as political. Such issues may present themselves in courts of law if they take a triable form. Nor, certainly, is it because Ministers of the State have any inherent general authority to prescribe to the courts what is or is not prejudicial to the interests of the State. But here we are dealing with a matter of the defence of the realm and with an Act designed to protect State secrets and the instruments of the State's defence. If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's Ministers for the time being, as we know that they are. it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should be different. The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form. It would be ingenuous to suppose that the kind of evidence that the Appellants wanted to call could make more than a small contribution to its final solution. The facts which they wished to establish might well be admitted: even so, throughout history men have had to run great risk for themselves and others in the hope of attaining objectives which they prize for all The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends upon an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury.

For the reasons that I have given I would dismiss the appeals.

Lord Hodson

My lords,

It is. I think, clear, upon the construction of the Official Secrets Act, 1911, that the Act is not limited to offences against the State which come under the head of spying. Reference to damages. destruction and obstruction make this clear.

There was never any doubt about the immediate purpose of the accused not only admitted but proclaimed by them, that is to say, to ground the aircraft at Wethersfield, an airfield belonging to Her Majesty and a prohibited place, whether carrying nuclear weapons or not. to immobilise the airfield and to reclaim the base for civilian purposes.

They sought to use the trial as a platform for expounding their beliefs in nuclear disarmament and to explain their actions as a demonstration necessary to bring home to the people of this country that millions of people would be killed if nuclear weapons were used. This can fairly be described as their long-term purpose.

There was much discussion about their beliefs, the sincerity of which none doubted, but it was not contended before your Lordships that in this case beliefs were relevant except in mitigation of punishment. It would be other-wise if the defence were that the entry on the airfield was planned for a benevolent purpose, as, for example, the removal of a time bomb, for then the belief in the existence of the bomb, even if not well founded, would be relevant.

The defence based their arguments in the end on the language of the Act itself and the basic right of accused persons to defend themselves from criminal accusations.

It was said that the words used in this particular statute—any purpose prejudicial to the safety or interests of the State—made it plain that it is for the jury to decide in every case what is prejudicial to that safety and to those interests.

This is one of those cases which it is said raise a grave constitutional issue, for the individual's freedom has to be weighed against the community's right to take steps through the recognised organ of government to defend itself.

The Crown has, and this is not disputed, the right as head of the State to decide in peace and war the disposition of its armed forces and has purported to exercise this right for the safety and interests of the State.

Reference need only be made to the Statute 13 Charles II c. 6 which contains the following recital unrepealed:—

Forasmuch as within all His Majesty's realms and dominions, the sole supreme government, command and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength is, and by the laws of England ever was, the undoubted right of His Majesty, and his Royal predecessors, Kings and Queens of England, and that both, or either of the Houses of Parliament cannot nor ought to pretend to the same . . ."

In China Navigation Company, Limited v. Attorney-General [1932] 2 K.B. 197, a civil action in which the Plaintiffs claimed against the Crown a declaration that they were entitled to armed guards as a protection against piracy, this passage was cited together with a wealth of authority on the exercise of the Royal Prerogative.

One may compare also The Zamora [1916J 2 A.C.77, a Prize case where Lord Parker, delivering the judgment of the Privy Council concerning the right to requisition property under International Law, at page 107 said: Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

It is said that all this may well be correct but that in a criminal proceeding where the Crown is proceeding against the subject different considerations apply and that the wording of the statute opens the way to the defence to show that the Crown was not necessarily right in its decision and that its dispositions might not be in the interests or the safety of the State. It might be better, for example, to have the airfield elsewhere, or if the country were useless as a nuclear base not to have any nuclear aerodromes.

I confess that this seems to me an impossible proposition involving the court and jury in the consideration of questions of policy which have no direct bearing on the offence alleged, which is confined to the purpose in relation to the prohibited place, that is to say, the airfield at Wethersfield. I wholly agree with the Lord Chief Justice that evidence upon the policy of the Government in connection with the safety of the State was rightly excluded, and further that there was nothing to prevent the defence (if that had been their case) from showing if they could that the acts proposed would not prejudice the operational effectiveness of the airfield. This they did not seek to do, and the evidence which they gave through the mouth of Randle, one of their number, was, as the Lord Chief Justice pointed out, an admission of the offence charged. I am unable to accept that for this purpose any distinction is to be drawn between a civil and criminal matter or that the wording of the section allows the defence a free hand to argue on the broad basis that the Crown is wrong in its disposition of the armed forces.

Any evidence to show the relative importance of unimportance or the futility of nuclear or other aerodromes was equally inadmissible in my opinion, and indeed some of the evidence of Air Commodore Magill who gave evidence for the prosecution that this particular airfield was vital to the defence of the country is open to the same objection.

What the defence over many days were saying was that there was grave risk of accident, danger through " fall-out" and the risk of hostile attack, difficulty of distinguishing missiles on radar and an inevitable period of time which must elapse before missiles would be distinguished.

These propositions may be self-evident, but the defence was prevented from emphasising them by calling what no doubt would have been scientific and technical evidence to reinforce their contentions. This evidence having been rightly excluded, there was, as far as I can see, no evidence tendered by the defence fit for consideration by the jury to show that their activities were not prejudicial to the interests and safety of the State, taking the State to be the organised community comprising those persons who dwell therein and whose safety is to be considered.

I would dismiss the appeal.

Lord Devlin

MY LORDS,

The Appellants were charged with conspiracy to commit a breach of section 1 of the Official Secrets Act, 1911, namely, for a purpose prejudicial to the safety or interests of the State to enter a Royal Air Force station at Wethersfield in Essex belonging to Her Majesty. Section I of the Act of 1911 makes it an offence to approach, enter or be in the neighbourhood of any place that is " a prohibited place " within the meaning of section 3 for any purpose that is prejudicial to the safety or interests of the State. The airfield at Wethersfield is a prohibited place. The Appellants, it is not disputed, planned to enter it with others who were joining in a demonstration as part of their campaign for nuclear disarmament. The details of the plan were set out in a document which was circulated by the Appellants. The demonstrators were to sit in front of the aircraft and the fuel and H-bomb storage sites . . . The intention is to ground all aircraft and demand the reclaiming of the base for civilian purposes. The Appellants were convicted.

It is not disputed that their immediate purpose was to immobilise the airfield or that that purpose, if nothing more is looked at, was prejudicial to the safety and interests of the State. But they say that their true purpose was to ban the use by this country of nuclear weapons and that such a ban would in the long term be beneficial, and not prejudicial, to the State. The chief ground of this appeal is against the ruling of Havers. J. at the trial, refusing to allow the Appellants to adduce evidence and argument in support of this wider purpose.

They came prepared with argument about the futility of nuclear warfare and with evidence about the nature of a nuclear explosion, its devastating effect, and of the certainty of effective retaliation if nuclear weapons were used by this country. They were ready with evidence also about the possibilities of accidental explosion and of a mistake on radar which might precipitate an unintended conflict. In short, they had got together the sort of material that any intelligent voter would want to consider if he were taking part in a plebiscite on unilateral disarmament. The judge's ruling forbade all such evidence. It is no justification of the ruling to say that in the end the validity of the argument for unilateral disarmament is a matter of opinion. Opinion must be based on fact, and opinion on such matters as the likelihood of accidental explosions and mistakes on radar is expert opinion, which the law treats as a species of fact. Hard facts where they can be ascertained and expert opinion where they cannot would be the proper bases for the verdict of a jury on such an issue. But, anyway, the judge's ruling did not stop with the exclusion of the evidence. He directed the jury that itwas no defence for the Appellants to say that they intended to do something which would be beneficial to the State in the long run, namely, to induce or compel the Government to abandon nuclear weapons. He told the jury that the evidence which he rejected was disallowed because it was irrelevant to the issue which they had to decide.

My Lords, the Appellants have strongly submitted that this direction was erroneous in that it withdrew from the jury a matter properly within their province. The offence with which they were charged is drawn in the widest terms. Acts, quite harmless in themselves, are made criminal if done for any purpose prejudicial to the safety and interests of the State. It has not been suggested that what is prejudicial to the State is a question of law and it is the jury and not the judge who under our Constitution make the final pronouncement on all questions of fact, be they wide or narrow.

It is said that the jury could return only one answer to the question in this case. I must confess that I find it difficult to see how a sensible jury could have acquitted. In saying that I do not mean to offer any opinion on the wisdom or otherwise of nuclear disarmament. That is a matter of policy on which differing views are held, and those held by the Appellants and their associates are held also by a number of admittedly sincere and intelligent men who have every right to use all lawful means at their disposal to make them known. But so long as the contrary view is held by the majority and the policy of the country thus determined, I cannot see how it can be otherwise than prejudicial to the State to obstruct the execution of that policy. To have a nuclear weapon and also to have divided counsels about its use, which are pressed to the point of sabotage, seems to add one class of peril to another already sufficiently great.

But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse. The Attorney- General submitted that, while it is a question of fact for the jury whether the entry was for a purpose prejudicial, once it was proved that the purpose was to interfere with a prohibited place and to prevent its operating, then a judge should be entitled to direct a jury to return a verdict of guilty. With great respect, I think that to be an unconstitutional doctrine. It is the conscience of the jury and not the power of the judge that provides Che constitutional safeguard against perverse acquittal. In R. v. Shipley [1784] 4 Doug. 171 at page 176 Mansfield, C.J. said:— It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences": see also per Willes, J. at 178. In Woolmington v. The Director of Public Prosecutions [1935] A.O. 462 Sankey, L.C. said at page 480 that to make the judge decide the case and not the jury was not the common law. R. v. Hendrick [1921] 15 Crim. Ap. Rpts. 149 is an example of a case where the Court of Criminal Appeal quashed the conviction because the judge, believing the law to be settled and the facts to be beyond dispute, had "dictated" the verdict.

A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer. In my opinion the facts in this case, as in every other case, were for the jury to decide and the whole issue in this appeal turns on what were the facts which the prosecution had to establish in order to secure a conviction under this statute. In other words, the issue turns on the construction of the statute. What is the question of fact which under the statute it is for the jury to decide? This is not easy to define. For not only are the relevant words of the statute far wider and vaguer than those usually employed in the definition of criminal offences, but terms such as purpose, interests and " State are un- familiar in the criminal law and have no settled meaning in connection with it.

I shall begin by considering the word purpose for both sides have relied on this word in different senses. Broadly, the Appellants contend that it is to be given a subjective meaning and the Crown an objective one.

I have no doubt that it is subjective. A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not. I am satisfied that in the criminal law in general, and in this statute in particular, its ordinary sense is the latter one. In the former sense it cannot in practice be distinguished from motive, which is normally irrelevant in criminal law. Its use in that sense would make this statute quite inept. As my noble and learned friend, Lord Reid, pointed out during the argument, a spy could secure an acquittal by satisfying the jury that his purpose was to make money for himself, a purpose not in itself prejudicial to the State, and that he was indifferent to all the other consequences of his acts.

Accordingly, all the results which a man appreciates will probably flow from his act are classifiable as purposes within the meaning of section 1: and since the statute refers to any purpose, the prosecution is entitled to rely on any of them. The next question, then, is whether the selected purpose is prejudicial or not, and that question is, in my opinion, to be answered objectively.

This construction destroys the Appellants' first submission. They argued that the immobilisation of the airfield was only incidental and that their main purpose, and the only one which they desired to achieve, was to further the campaign for nuclear disarmament. So, they said, obstruction was not their purpose within the meaning of the Act. I cannot accept this.

Neither can I accept their argument (which was put in the forefront of their case at the trial, though not before this House) that their opinions and beliefs were relevant on the question whether their purpose, whatever it was, was prejudicial or not. That, as I have said, must be determined objectively, and none of the Appellants was qualified to give expert evidence of fact or opinion.

On the other hand. I cannot accept the argument of the Crown that the word purpose". when properly construed, destroys the whole of the Appellants' case. The Crown contends in effect that once the immediate purpose has been selected for proof, the only consequences that can be examined in order to see whether it is prejudicial or not are the immediate consequences. A variant of this argument is that the purpose must be confined to acts intended to be done on the prohibited place itself.

My Lords, this, in my opinion, gives the statute too narrow a meaning and would render criminal acts which could not have been intended to be brought within its scope. The example that the Appellants used to demonstrate this was that of a man who in an emergency (and presumably without authority, though I do not know that that matters, for the defence of lawful authority is not made available by this part of the Act) holds up an aeroplane because he believes that a time bomb has been planted in it. It can be said that the removal of the time bomb is a purpose to be fulfilled on the airfield itself. But it is easy to think of other examples (such as police obstructing the air traffic by crossing the runways as a short cut when in pursuit of a criminal) in which that feature is absent. Against this it is said by the Crown that in such cases the purpose is not to interfere with the operation of the airfield but to remove the time bomb or capture the criminal, as the case may be. This, I think, is to employ the argument which when it came from the Appellants the Crown rightly condemned as erroneous. It is to assimilate purpose and motive. If it is permissible for a man who has interfered with the running of the airfield to say that all he was doing was trying to capture a criminal, it must also be permissible for him to say that all he was doing was trying to save the State from impending harm.

In my judgment the correct method of ascertaining whether a purpose is prejudicial or not is to consider the purposed act as if it had been done Would that act, the obstruction of the aircraft, be prejudicial to the State? To answer that enquiry all the consequences of the act that are reasonably to be apprehended must be assessed and the whole assessment is for the jury. The question should be tackled in the same way as a question of causation, excluding the fanciful and the remote but looking beyond the immediate There may be all sorts of consequences, some immediate, some distant, some harmful, some beneficial and some colourless. There is no justification for restricting the relevant consequences either to those which occur in the mind of the actor or in the prohibited place itself; or for isolating any particular set of them on the ground that they are immediate. Can the immobilisation of this airfield be regarded as the first step in a general immobilization of all the country's nuclear weapons and, if so, would that be a good thing for the country? That, if it be the issue to which this statute gives rise, would be a question of fact for the jury. If the argument stopped at this point, I should consider that there was a misdirection.

But there is yet more phraseology to be construed before the issue raised by the statute can be defined,—the safety or interests of the State. What is meant by the State? Is it the same thing as what I have just called the country? Mr. Foster for the Appellants submits that it means the inhabitants of a particular geographical area. I doubt if it ever has as wide a meaning as that. I agree that in an appropriate context the safety and interests of the State might mean simply the public or national safety and interests. But the more precise use of the word State, the use to be expected in a legal context, and the one which I am quite satisfied for reasons which I shall give later was intended in this statute, is to denote the organs of government of a national community. In the United Kingdom, in relation at any rate to the armed forces and to the defence of the realm, that organ is the Crown. So long as the Crown maintains armed forces or the defence  of the realm, it cannot be in its interest that any part of them should be immobilised. It is, of course, arguable that the Crown should not be maintaining the armed forces at all and that the nation would be much safer if the Crown disbanded them. If the Crown was given different advice by the same or different Ministers, the result might be that its interests might become different from what they now are. But the statute is not concerned with what the interests of the State might be or ought to be but with what they actually are at the time of the alleged offence.

It is by virtue of the Prerogative that the Crown is the head of the armed forces and responsible for their operation. Otherwise the nature of the Prerogative and the position of the Crown are, in my opinion, irrelevant to the decision in this case. Suppose that the statute made it an offence to be in a factory for a purpose prejudicial to the interests of the owner. I should not allow the accused to cross-examine the owner to suggest that the factory was unprofitable and that the sooner it closed down the better for the owner, nor to call expert evidence to show that his views were economically sound. A man is entitled to decide for himself how he should govern his life, his business and his other activities; and when the decision is taken, it dictates what his interests are. It is not to the point to say that if the decision had been a better one. his interests would have been different.

In my opinion the crucial term in this statute, as applied to this case, is not purpose but safety or interests of the State. No doubt the interests of the State ought to be the same as the interests of the community. It would be the claim of those who advise the Crown, that is, the Government of the day, that they are. It is permissible to argue that they are not. Argument of that sort is in comparatively minor matters the stuff of party politics, and even in great matters on which substantially the whole country appears to be united, argument is permissible. In such argument the State is used loosely to mean the community; and interests to mean the objects which ought to be secured for the community. Both words have in this statute a more precise meaning. Interest in legal phraseology generally means something concrete, something akin to property,--property rights and interests, beneficial interest, insurable interest, controlling interest and so on. In this statute it may well have a wider meaning than that, but it has not the widest possible meaning. If you say that an object is not in a man's best interests, you have in mind what his interests ought to be. If you say that you will protect his interests, you have in mind his interests as they are ; you do not make good your word by defeating his objects because you disagree with them. This statute is concerned with the safety and interests of the State and therefore with the objects of State policy, even though judged sub specie aeternatis that policy may be wrong.

If in this statute these words were given a wider meaning, absurd results would follow. Rebels and high-minded spies could be heard to argue that defeat in battle would serve the best interests of the nation because it would be better off under a different regime. The licence allowed to them would also have to be allowed to traitors. This point was dismissed by Mr. Foster as theoretical. It was said that no jury would in such circumstances acquit. But even if it be looked at purely on the practical plane, the judge has to decide whether he will allow hours or days to be spent at the trial in giving an accused the opportunity of expounding his political views. The court is not the forum for such a debate and the jury is not the body todetermine what the interests of the State should be.

In the Court of Criminal Appeal the cross-examination attempted and the evidence tendered by the Appellants were held to have been rightly excluded on the ground that the Appellants were thereby challenging the decision of the Crown on matters of policy into which the courts could not enquire. It is certainly true to say as a general rule that the courts will not review decisions of policy, whether made by the executive or by any other policy-making body. But I do not think, with respect, that the application of that principle is relevant to the question whether an offence has been committed under this statute. This touches a matter of some constitutional importance. It was no doubt the chief reason that led the Court of Criminal Appeal to give leave for a further appeal in this case, and I think that it ought to be examined.

The effect of the authorities considered by the Court of Criminal Appeal and again in this House was summarised by the Lord Chief Justice as follows: —

A number of matters relating to the safety of the realm and the command of the Royal Forces are now regulated by statute. So far however as this is not the case the powers in that regard are at common law in the prerogative of the Crown acting on the advice of its servants. The powers so left to the unfettered control of the Crown include both in time of peace and war all matters related to the disposition and armament of the military, naval and air forces ... In our opinion the manner of the exercise of such prerogative powers cannot be inquired into by the Courts, whether in a civil or a criminal case . . .A similar principle underlies the powers of the executive, though pursuant to statute and not the prerogative, to requisition or to do other acts where in its discretion that is considered necessary to the national interest.

My Lords, I do not question these passages as a general statement of the law, but there are three comments I wish to make by way of further clarification.

The first is to emphasise that the principle is not peculiar to the exercise of the Prerogative power. It applies wherever discretionary powers of management and control are given by statute, whether to the Crown itself or to one of its Ministers or to any public body. In Short v Poole Corporation [1926] Ch. 66 Warrington, L.J. made the point just as forcibly in relation to an educational authority as In re a Petition of Right [1915] 3 K.B. 649 he did in relation to the Crown. At page 91 of the former case he said: — With the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the powers of the Authority. When Lord Parker of Waddington in The Zamora [1916] 2 A.C. 77 at page 107 said that those who are responsible for the national security must be the sole judges of what the national security requires, he was not, I think, laying down any special constitutional doctrine about the powers of the Crown in relation to national security. He was simply stating the reason why the Court should declare those powers to be discretionary. The cases cited by the Attorney- General are, I think, essentially decisions on the extent of the Prerogative powers at common law in relation to the armed forces and the defence of the realm and show that, as is to be expected, those powers carry with them the same wide discretion as is now commonly conferred by statute.

The second comment is that inquiry is not altogether excluded. The Courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse. This is a familiar doctrine in connection with statutory powers. In relation to the Prerogative, it was expressed by Warrington. L.J. in In re a Petition of Right in the proviso which he made to his general statement of principle at page 666. Lord Parker of Waddington in the dictum to which I have referred accepted Warrington, L.J's. statement of principle and added his own qualification in the words as a rule. There is here no question of abuse of power, so that I need not pursue this point further.

The third and most significant comment is as to the nature and effect of the principle. Where it operates, it limits the issue which the Court has to determine ; it does not exclude any evidence or argument relevant to the issue. Take the ordinary case, as exemplified in both In re a Petition of Right and The Zamora, where the Crown or a Minister has power to requisition goods or land as necessary for the defence of the realm. Once it is decided that that is a discretionary power, the question for the Court is not whether the goods are in fact necessary but whether the Minister thinks them to be. That is the only fact about which the Court has to be satisfied. It is said that in such cases the Minister's statement is conclusive. Certainly: but conclusive of what? Conclusive, in the absence of any allegation of bad faith or abuse, that he does think what he says he thinks. The Court refrains from any enquiry into the question whether the goods are in fact necessary, not because it is bound to accept the statement of the Crown that they are and to find accordingly, but because that is not the question which it has to decide.

What, then, in the present case is the question which the jury had to decide? They were not inquiring into whether powers of requisition, management or control had been validly exercised. They were inquiring whether a fact, constituted by statute as an ingredient of a criminal offence, had been proved. The fact to be proved is the existence of a purpose prejudicial to the State,—not a purpose which appears to the Crown to be prejudicial to the State. Words of that sort could have been written into the statute. In emergency legislation they frequently are. In exceptional cases they can be implied: Liversidge v. Sir John Anderson and Another [1942] A.C. 206. But there has been no suggestion that they are to be implied into this statute. Their place cannot be filled by the common law. There is no rule of common law that whenever questions of national security are being considered by any court for any purpose, it is what the Crown thinks to be necessary or expedient that counts and not what is necessary or expedient in fact. If there were, the reasoning in Liversidge v. Andersonwould in effect be part of the common law instead of the exegesis of an emergency regulation.

Consequently, the Crown's opinion as to what is or is not prejudicial in this case is just as inadmissible as the Appellants'. The Crown's evidence about what its interests are is an entirely different matter. They can be proved by an officer of the Crown wherever it may be necessary to do so. In a case like the present, it may be presumed that it is contrary to the interests of the Crown to have one of its airfields immobilised just as it may be presumed that it is contrary to the interests of an industrialist to have his factory immobilised. The thing speaks for itself, as the Attorney-General submitted. But the presumption is not irrebuttable. Men can exaggerate the extent of their interests and so can the Crown. The servants of the Crown, like other men animated by the highest motives, are capable of formulating a policy ad hoc so as to prevent the citizen from doing some-thing that the Crown does not want him to do. It is the duty of the Courts to be as alert now as they have always been to prevent abuse of the Prerogative. But in the present case there is nothing at all to suggest that the Crown's interest in the proper operation of its airfields is not what it may naturally be presumed to be or that it was exaggerating the perils of interference with their effectiveness.

I make no apology to your Lordships for having dealt at some length with the arguments put forward in this appeal. They have embraced big constitutional questions concerning the right to trial by jury and not by judge and the extent to which the courts can question statements on political matters by the executive. All such questions which concern the liberty of the subject need great care in their consideration. It is to me a special inducement to the exercise of care that these Appellants have not traded their liberty for personal gain but for what they sincerely, and however mistakenly, believe to be the safety of the world. Furthermore (their own expressed determination to break the law notwithstanding), it is the duty of this House to see that men and women who have a creed they want to preach in no case pay any penalty for their faith unless they have taken themselves out of the protection of the law by doing that which the law forbids. This duty your Lordships have discharged, and I can see no other conclusion than that the Appellants have committed the offence of which they were accused, and so I would dismiss this appeal.

Lord Pearce

MY LORDS,

There is no real dispute on questions of fact. It is agreed that the defendants desired unilateral nuclear disarmament and that their intention was to advance or achieve it by civil disobedience. Their beliefs and intentions were admittedly honest. To attain their ultimate purpose they pursued the short-term objective of temporarily immobilising the aerodrome. Mr. Foster admitted that the immobilisation would be prejudicial to the interests of the State within the framework of existing Government policies and that the squadron stationed on the aerodrome had a vital part to play in the North Atlantic Treaty Organisation. He contends, however, that the defendants' purpose within the meaning of the Act could properly be held not prejudicial, but on the contrary beneficial, to the interests of the Slate, since the short-term objective was not the purpose but it was imbued with and subordinate to the beneficial long-term purpose.

If the reasonableness of the ultimate purpose could for the purposes of the Act absorb or justify the short-term objective, and if its reasonableness is a question for the jury, then the evidence dealing with the horrors of nuclear warfare, the possibility of nuclear accidents and the undesirability of possessing nuclear weapons was wrongly excluded.

But in my judgment the wisdom or otherwise of the policy of possessing nuclear armaments was not relevant and the evidence was properly excluded The words for any purpose prejudicial to the safety or interests of the State must be construed in the context of the Act. The Act protects certain prohibited places which are of importance to the defence of this country. Its title and the wording of section I show that its primary purpose is directed against spying. But the words are wide enough to include sabotage, and the references in section 3 (c) to damage, and in 3 (d) to destruction or obstruction indicate that acts of sabotage are part of the mis-chief at which it aims. There is nothing which could lend colour to any argument which seeks to exclude sabotage done with a well-meaning ideological ultimate end The word purpose although it has some subjective content is used in an objective sense. If the purpose was in fact prejudicial, the offence is committed, no matter how benevolent the motives of the spy or saboteur that led him to essay the purpose.

I cannot accept the argument that the words the interests of the State in this context mean the interests of the amorphous populace, without regard to the guiding policies of those in authority, and that proof of possible ultimate benefit to the populace may for the purposes of the Act justify an act of spying or sabotage. The protection covers certain specified places which are obviously vital to defence and other places to which the Secretary of State sees fit to extend the protection. Section 3 includes in prohibited places (c) any place belonging to His Majesty which is for the time being declared by a Secretary of State to be a prohibited place for the purposes of this section on the ground that information with respect thereto, or damage thereto, would be useful to an enemy. Parliament clearly intended to give stringent protection to such places. It is hard to believe that it intended to withhold that protection in all cases where a jury might think that the place in question was not necessary or desirable or where the authorities could not by evidence justify their policies to a jury's satisfaction. Questions of defence policy are vast, complicated, confidential, and wholly unsuited for ventilation before a jury. In such a context the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the-opinion of a jury, to be. Anything which prejudices those policies is within the meaning of the Act prejudicial to the interests of the State.

That is the natural meaning of the words in their context and, so read, the Act creates a sensible protection. It is argued that such a view constitutes an unreasonable infringement of the liberty of the subject. But subjects who enter prohibited places for prejudicial purposes know the danger to their liberties and accept the risk. In cases where by some accident they have unintentionally transgressed the letter of 'the Act, the necessity for the Attorney-General's fiat is a deliberate and effective protection.

There is a further difficulty which would be fatal to the Appellants' contention. The Crown is entitled to decide the disposition and order of the armed forces, and the propriety of its decision on such matters cannot be questioned in a court of law: (China Navigation Company Ltd. v. Attorney-General [1932] 2 K.B. 197).

Moreover, it is not possible to regard the short-term objective of immobilisation as so subordinate to the ultimate purpose that it is not a purpose at all but merely a means to an end. It was clearly a purpose, albeit an inter-mediate and not the ultimate purpose. Once any purpose prejudicial has been established it is irrelevant, except for purposes of mitigation, to consider whether there were other more remote purposes which were beneficial.

I agree that the appeal should be dismissed.


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