Ayliffe and others v Director of Public Prosecutions: Admn 21 Apr 2005

The case concerned actions taken at military bases by way of protest against the Iraq war. Each raised questions arising from the prosecution of the appellants for offences of aggravated trespass. The defendants asserted, among other things, that there was ‘was a strong possibility’ that the activities being carried on at the bases were unlawful, as constituting war crimes and/or aiding and abetting war crimes under sections 51 and 52 of the 2001 Act saying that the activities there amounted to preparations for the prosecution of the war in Iraq, against which the appellants mounted an energetic protest. They sought disclosure of documents relating to the activities, which the District Judge dealing with the cases at first instance refused. They were convicted of the offences with which they were charged.
Held: The appeals failed. A bare assertion by trespassers at military bases that the Government may have aided and abetted a war crime did not raise the issue of that suggested criminality as a defence.
Waller LJ said: ‘It is plain that a prosecutor does not have to rebut every possible illegality. It is enough that he shows that the activity is apparently lawful. It is then for the defendant to raise any issue to the contrary. It was accepted by Mr Mendleson on behalf of the defendants that in order to obtain disclosure in the context of the legality of activities and section 68, the defendants had to raise an issue as to whether or not an offence was being committed. That must mean a specific offence or specific offences by the persons who are engaged in the activities on the land in question. There was nothing put forward by the defendants to raise such an issue.’
and ‘the District Judge was right to rule that the activity of port operations was lawful. He was not required to consider the legality of the operations because –
(a) insofar as the defendants sought to raise crimes of peace or crimes of aggression, they were not justiciable (R v Jones [2005] QB 259).
(b) insofar as the defendants sought to raise war crimes contrary to section 51 of the 2001 Act, the general allegations made by them did not raise any issue requiring disclosure by the prosecution or consideration by the District Judge in connection with the lawfulness of the activity at the port.’


Waller LJ and Jack J


[2005] EWHC 684 (Admin), [2006] QB 227, [2005] 3 All ER 330, [2005] Crim LR 959, [2005] 3 WLR 628




Criminal Damage Act 1971 1, International Criminal Court Act 2001 51 52, Criminal Justice and Public Order Act 1994 68


AppliedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .

Cited by:

Appeal fromRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedNero and Another v Director of Public Prosecutions Admn 29-Mar-2012
Parties appealed against convictions for aggravated trespass under the 1994 Act arising from trespassing demonstrations. They argued that the lawfulness of the activity being carried out on the land subject to the trespass is an ingredient in the . .
At Admin CourtAyliffe And Others v United Kingdom ECHR 6-May-2008
The applicants are employees of or volunteers for Greenpeace. They boarded a cargo ship, preventing it continuing its voyage to harbour. They did so because they believed the cargo contained unlicensed animal feed and thus the importation was in . .
At Admin CourtAyliffe And Others v United Kingdom ECHR 10-Feb-2009
The applicants were all either employees of or volunteers for Greenpeace. They were charged with a number of offences relating to the boarding of a cargo ship. They were acquitted but the trial judge refused to award the applicants their costs in . .
CitedRichardson and Another v Director of Public Prosecutions SC 5-Feb-2014
The defendants had protested against the activities of a shop, by trespassing. They were said to have committed the offence of aggravated trespass under section 68 of the 1994 Act. They objected in part that this infringed their article 10 right of . .
Lists of cited by and citing cases may be incomplete.


Updated: 29 June 2022; Ref: scu.224385